C & C Plywood Corp.

National Labor Relations Board - Board Decisions

Apr 13, 1967

163 N.L.R.B. 1022 (N.L.R.B. 1967)

1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vote "Yes" a waiver of something that can be rates of pay, wages, hours of employment , and other
avoided simply by voting "No."
The illogic of Lobue does not become any more
logical when other consequences of a vote for
representation are considered. Thus, employees
know that if a majority vote for the union, it will be
their exclusive representative, and, provided a valid
union-security provision is negotiated, they will be
obliged to pay dues as a condition of employment.
Thus, viewed solely as a financial matter, a "no"
vote will help to avoid any subsequent obligations, a
"yes" may well help to incur such obligations. In
these circumstances, an employee who did not want
the union to represent him would hardly be likely to
vote for the union just because there would be no
initial cost involved in obtaining membership. Since
an election resulting in the union's defeat would
entail not only no initial cost, but also insure that no
dues would have to be paid as a condition of
employment, the financial inducement, if a factor at
all, would be in the direction of a vote against the
union, rather than for it. As noted above, many
employers are careful to point this out in
communications to their employees.
In short, there is no valid basis for concluding that
an employee who votes for the union in a secret-
ballot election must be doing so in any substantial
measure because of the previously extended or
promised waiver of initiation fees.9
We conclude, accordingly, that waivers, or
provisional waivers, of union initiation fees, whether
contingent upon the results of an election or not,
have no improper effect on the freedom of choice of
the electorate, and do not constitute a basis for
setting aside an election. We therefore adopt the
hearing officer's recommendation that the
objections be overruled. To the extent that they are
inconsistent with this decision, Lobue Bros., 109
NLRB 1182, and cases relying thereon, are hereby
overruled.
As we have overruled the Employer's objections,
and as it appears that the Petitioner has secured a
majority of the valid votes cast in the election, we
shall certify the Petitioner as the collective-
bargaining representative of the employees in the
appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW-AFL-CIO,
has been designated and selected by a majority of
the employees in the unit found appropriate as their
representative for the purposes of collective
bargaining, and that pursuant to Section 9(a) of the
Act, the said labor organization is the exclusive
bargaining agent for all such employees for the
purposes of collective bargaining with respect to
conditions of employment.
9 That the amount of initiation fees is not crucial to an
employee's decision to join a union is demonstrated by studies
which show that the most important factors influencing an
employee's choice are a desire for (1) higher wages, shorter
hours, and an end to wage inequities , (2) protection from
management favoritism , (3) retaining or gaining the fellowship
and respect of those who are already union members See,
Barbash, The Practice of Unionism, 9-14 (1956); Bakke, Why
Workers Join Unions, in Shister, Readings in Labor Economics
and Industrial Relations, 30 (1951); Seidman, London and Karsh,
Why Workers Join Unions, in Annals, March 1951, p 75
C & C Plywood Corporation and Veneers, Inc.
and Plywood , Lumber and Sawmill Workers
Local Union No. 2405 , AFL-CIO. Case
19-CA-2986.
April 13,1967
DECISION AND ORDER
On September 7, 1965, Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondents filed exceptions to the Trial
Examiner's Decision and a supporting brief.
The National Labor Relations 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 the brief, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner only to the extent they are consistent with
our decision herein.
We agree with the Trial Examiner that
Respondents' refusal to bargain was in violation of
Section 8(a)(5) of the National Labor Relations Act,
as amended, but for different reasons. On
August 28, 1962, the Union was certified as the
bargaining representative of Respondents'
production and maintenance employees. A
collective-bargaining agreement was executed on
May 1, 1963, effective t, October 31, 1963, and from
year to year thereafter unless either party notified
the other of a desire to change, modify, or terminate
the agreement 60 days before the October 31
anniversary date. On May 20, 1963, Respondent C &
C Plywood Corporation, relying on a clause in the
agreement' and without prior notice to, or
' The pertinent clause reads The employer reserves the right
to pay a premium rate over and above contractual classified
contract rate to reward any particular employee for some special
fitness, skill, aptitude , or the like
163 NLRB No. 136
C & C PLYWOOD CORP. 1023
bargaining with, the Union, posted a notice
announcing that, effective immediately and for the
next couple of months, all members of the glue
spreader crews would receive premium pay
provided that they met certain production standards.
The Union contended that this premium pay plan
was improper under the contract, and after a
meeting with Respondent C & C Plywood on two
occasions in an unsuccessful effort to get that
Company to rescind the plan, filed charges alleging
that Respondent C & C Plywood had unlawfully
refused to bargain by unilaterally establishing the
premium pay plan.2
On October 24, 1964, the Board found that by
unilaterally changing the wage rate for members of
the glue spreader crews, Respondent had violated
Section 8(a)(5) and (1) of the Act.3 The Ninth Circuit
denied enforcement of the Board's Order,' but, on
January 9, 1967, the Supreme Court reversed that
decision and upheld the Board's Order.5
Meanwhile, on August 27, 1963, Respondents
wrote to the Union giving 60 days' notice of a desire
to terminate the contract as of October 31, 1963, and
on that same day mailed a representation petition to
the Regional Director. That petition was dismissed
on September 26, 1963, because of the pendency of
the unfair labor practice charge in the above-
mentioned prior C & C Plywood case. Respondents
filed another representation petition in late January
1964, after the Trial Examiner had issued his
Decision in the prior case dimissing the complaint,
but this too was dismissed on the ground that the
unfair labor practice charges were pending. Charges
were filed in the instant case on November 5, 1964,
alleging that Respondents had refused to bargain
collectively with the Union. Respondents contend
that their refusal is based on a good-faith doubt of
the Union's majority status.
As proof of the Union's majority status, the
General Counsel relied on the presumption of
majority status which attaches to a union's
certification as the collective-bargaining
representative of an employer's employees. But
where, a's here, the certification is more than a year
old, an employer may withhold further bargaining
without violating the Act and may insist that the
union reestablish its statutory representative status
if the employer has a good-faith doubt of the union's
continuing majority." Two prerequisites for finding
that an employer was acting in good faith in
questioning a certified union's majority status, as set
forth in the Celanese case,7 are that there must be
"some reasonable grounds for believing that the
union had lost its majority status" and "the majority
issue must not have been raised by the employer in a
context of 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 some time in which to undermine the
union."
The Trial Examiner found that the unremedied
unfair labor practice in the antecedent C & C
Plywood case8 did not preclude Respondents from
raising the question of the Union's majority status in
good faith, thus satisfying the latter of the above-
mentioned two prerequisites, but that Respondents
did not have reasonable grounds for believing that
the Union had ceased to be the majority
representative. We find that the prior unfair labor
practice was of such character and effect as to
preclude Respondents from thereafter questioning
the Union's majority status in good faith.9
In our opinion, the Trial Examiner, in finding that
Respondents were not precluded from raising a
doubt of the Union's majority by reason of the unfair
labor practice in the prior case, misconceived the
nature of that unfair labor practice and of the injury
to the Union's representative status flowing
therefrom. The Trial Examiner stated that the
violation in the prior case "depended upon an
interpretation by the Employer of a contract clause
of disputed meaning." However, the violation of the
Act involved did not depend on a finding that
Respondents had, as a matter of contract law,
erroneously construed a disputed contract clause;
they depended instead on the fact that the clause in
question, whatever its ultimate interpretation as a
matter of contract law, could not be construed as a
waiver of the Union's statutory right to bargain over
changes in the wage rates provided in the contract.
As the Supreme Court noted, apropos of the Board's
finding:
The Board has not construed a labor agreement
to determine the extent of the contractual rights
which were given the union by the employer.
... The Board's interpretation [of the contract]
went only so far as was necessary to determine
that the union did not agree to give up these
statutory safeguards. to
In sum , the finding that Respondent C & C Plywood
violated Section 8(a)(5) in the antecedent case did
not rest on a finding that it had breached its
collective- bargaining agreement with the Union; it
t C & C Plywood was the sole Respondent in that proceeding
(Case 19-CA-2686)
9 C & C Plywood Corporation, 148 NLRB 414
4 N L R B v C& C Plywood Corp , 351 F.2d 224 (C.A 9)
5 N L R.B v. C& C Plywood Corp , 385 U S 421.
6 The Richard Kaase Company, 141 NLRB 245, Mitchell
Standard Corporation, 140 NLRB 496; The Randall Company,
133 NLRB 289; Celanese Corporation ofAmerica, 95 NLRB 664
' Celanese Corporation ofAmerica, supra.
8 The Trial Examiner 's Decision in the instant case was written
while the antecedent case was pending in the Ninth Circuit
' Since we find that the unfair labor practices in the prior case
precludes Respondents from questioning the Union 's majority
status in good faith , we find it unnecessary to pass on the Trial
Examiner 's reasons for finding that Respondents did not have
reasonable grounds for doubting the Union's continued majority
status
10 N.L.R B v. C & C Plywood Corp , 385 U S 421.
1024 DECISIONS OF NATIONAL
rested on the fact that C & C Plywood, in
unilaterally changing the compensation of its glue
spreader employees, had failed to accord the Union
its statutory role as the collective-bargaining
representative of its employees.
Viewed in this light, as we believe it must be, it
follows that the injury suffered by the Union in that
matter was not that flowing from a breach of
contract; "the real injury ... is to the union's status
as bargaining representative."" The failure to
accord the Union its rightful role in the
establishment of new wage rates for the glue
spreader crews necessarily tended to undermine the
Union's authority among the employees whose
interests it was obligated to represent in such
matters. The unilateral grant of wage increases,
having occurred only 3 weeks after execution of a
new collective-bargaining agreement, graphically
portrayed to employees that their Employer was in a
position to confer economic benefits that their Union
was unable to extract during recent contract
negotiations. Furthermore, the Union, by virtue of
the unlawful conduct, was compelled to take a
position which could hardly prove popular with
employees in the represented unit. Thus,
Respondent C & C Plywood's action forced the
Union to a choice between two evils: it could resist
the Company's action, thereby risking disaffection
from the group of employees whose wage increases
it would appear to oppose in resisting the Company's
unilateral actions, or it could acquiesce in the
Company's action, thereby demonstrating its
unwillingness, if not its inability, to protect and
maintain the carefully worked out wage differentials
established in the collective-bargaining agreement.
Either choice would necessarily expose the Union to
a charge of unsatisfactory representation of
employee interests and weaken its prestige and
authority as their representative, with erosion of
majority status the probable result.
On the basis of the foregoing considerations, we
are satisfied that Respondents were not entitled to
question the Union's continuing majority status on
the strength of ei-dence of employee disaffection
coming to their attention in the aftermath of
Respondent C & C Plywood's unremedied unfair
labor practices.12 Accordingly, we find that
Respondents violated Section 8(a)(5) and (1) of the
Act by their failure and refusal to bargain
collectively with the Union on and after August 26,
1964.13
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 Respondents, C & C Plywood
Corporation and Veneers, Inc., Kalispell, Montana,
LABOR RELATIONS BOARD
their officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
" Ibid
Midwestern Instruments , Inc., 133 NLRB 1132, relied upon
by the Trial Examiner for a contrary result, is clearly
distinguishable on its facts There, the unfair labor
practice-refusing to bargain over merit increases -followed a 9-
month period of good- faith bargaining on other issues during
which the union acquiesced in respondent 's practice of granting
merit increases without bargaining The unfair labor practice
occurred after the union withdrew its consent to such practice but
the respondent nevertheless continued unilaterally to grant merit
increases There was no showing that employees were aware of
the union 's withdrawal of consent and, hence , no basis for
inferring that the union's authority and prestige as their
collective - bargaining representative were undermined by such
merit increases as were thereafter granted Here , however, the
prior unfair labor practice was highly visible, involving , as it did, a
change in the schedules of compensation set forth in the
collective -bargaining agreement negotiated a short 3 weeks
earlier In these circumstances, we cannot ignore the distinct
probability that the employee disaffection with their bargaining
representative relied upon by Respondents as grounds for their
refusal to bargain with the Union was caused by the prior unfair
labor practice To do so, would preclude the Union from obtaining
that "vindication of [its] statutory rights" which it was the
purpose of decisions of the Board and the Supreme Court in the
antecedent case to provide
13 We accept the- reasons stated by the Trial Examiner for
dating the violation from this date. We also adopt his findings that
Respondents did not violate the Act by two unilateral wage
increases on April 6 and August 24, 1964.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: Under Section
10(b) of the National Labor Relations Act, as amended, 29
U.S.C. Section 151, et seq., herein called the Act, the
Union, on November 5, 1964, filed a charge against C & C
Plywood Corporation and Veneers, Inc., Respondents
herein, alleging violation of Section 8(a)(1) and (5) of the
Act. On this charge, a complaint was issued against C & C
Plywood Corporation alone on December 31, 1964.
Respondent filed an answer thereto on March 8, 1965.
Pursuant to notice, a hearing was opened in Spokane,
Washington, on April 6, 1965. At the opening of the
hearing, Respondent C & C Plywood Corporation
appeared and moved to dismiss for nonjoinder of parties.
The General Counsel was given a choice of amending his
complaint to allege that Respondents were a single-
integrated employer and thereafter of offering proof
thereof or of amending the complaint to add Veneers, Inc.,
as a Respondent, serving 10 days' notice on the latter.
Upon General Counsel's request, a continuance was
granted for amendment to the complaint and for service
thereof on Veneers, Inc.
An amended complaint, issued on April 14, 1965, was
duly served on both Respondents, and an answer was filed
to the amended complaint on April 26, 1965, admitting
the facts of commerce establishing the Board's
jurisdiction.
Pursuant to notice, a hearing was held at Kalispell,
Montana, on May 26, 1965. At this hearing the
representatives of the parties reached a stipulation on the
C & C PLYWOOD CORP. 1025
facts. At the close of the hearing the Respondents moved
to dismiss the complaint for insufficiency of evidence.
Ruling on this motion was reserved and is now denied for
the reasons stated herein. At the request of the parties, a
date was set for the filing of briefs and thereafter briefs
were received from each party.
1. THE BUSINESS OF THE RESPONDENTS
Respondent C & C is an Oregon corporation having its
office and principal place of business near Kalispell,
Montana, where it is engaged in the manufacture of
plywood panels. During its last fiscal year, it made
purchases of goods and services directly from points
outside the State of Montana in excess of $50,000.
Respondent Veneers, Inc., is a Montana corporation
operating a plant which physically adjoins Respondent C
& C's plant near Kalispell, Montana, where it is engaged in
the production of green veneer, approximately 95 percent
of which is sold to Respondent C & C.
Respondents have common officers, share common top
management, are subject to common control of their labor
relations policies, and share the use of office and shop
facilities. Respondents admit, for the purpose of this
hearing only, that they have at all times material herein,
constituted a single-integrated employer within the
meaning of Section 2(2) of the Act. Respondents concede,
and I find, that they are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and I find that it
will effectuate the policies of the Act to assert jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Plywood, Lumber and Sawmill Workers Local Union
No. 2405, AFL-CIO, herein called the Union, is a labor
organization admitting to membership employees of
Respondents.
III. THE ISSUES
1. Whether or not Respondents may lawfully refuse to
bargain with certified Union more than 1 year after
certification where they assert a good-faith doubt of
Union's majority status, one Respondent having been
found by Board in prior case to have failed to bargain (by
giving premium pay without prior consultation with union),
under a contract clause interpreted by Respondents as
permitting such pay.
2. Whether or not Respondents' good-faith doubt is
based on reasonable grounds.
IV. THE UNFAIR LABOR PRACTICES
The Refusal to Bargain
1. The appropriate unit
The Respondents concede for the purpose of this
hearing only, that the following unit , previously found
appropriate in Case 19-RC-3041, is now, and at all times
herein alleged has been, a unit of employees of
Respondents appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees of the
Employer' at its veneer and plywood plants near Kalispell,
Montana, excluding office clerical employees, guards,
professional employees , and supervisors as defined in the
Act.
2. The Union's majority
On August 28, 1962, following an election conducted in
Case 19-RC-3041, the Union was certified as the
representative of all the employees in the aforesaid
appropriate unit for the purposes of collective bargaining.
Thereafter, following negotiations, Respondents and the
Union, as of May 1, 1963, executed a collective-bargaining
agreement which was to continue until (but not including)
November 1, 1963, and from year to year thereafter unless
either party notified the other of a desire to change,
modify, or terminate the agreement 60 days before
November 1.
On May 20, 1963, Respondent C & C Plywood
Corporation, purporting to act under a clause in the
contract in which it had reserved the right to pay a
premium rate over and above the contractual classified
contract rate to reward any particular employee for some
special fitness, skill, or aptitude, announced an incentive
or premium pay plan entitled "Glue Spreader Crew
Premium Pay" providing for premium pay for a group of
employees based on production. The Union contended
that this premium pay plan was improper under the
contract and, after meeting with C & C Plywood on two
occasions in an effort to get that Company to withdraw the
plan, the Union filed an unfair labor practice charge
against the latter Company (Case 19-CA-2686) on July 31,
1963.
In the hearing which followed in that case on
October 16, 1963, C & C Plywood contended that it was
within its authority to give the aforesaid increase under the
contract and that its interpretation of the contract as
permitting such incentive pay was a reasonable one.
Meanwhile on August 27, 1963, Respondents wrote to the
Union giving 60-day notice of desire to terminate the
contract as of October 31, 1963, and on August 27, 1963,
Respondents also mailed to the Board's Regional Director
a petition for an election (Case 19-RM-484). The date of
filing is not in evidence but presumably was soon after
August 27. Because of the pendency of the unfair labor
practice charge in Case 19-CA-2686, this petition was
dismissed, on September 26, 1963, by the Regional
Director. This is the routine procedure in such a case,
without regard to the merits of the case. Upon review by
the Board, the dismissal of the RM petition was affirmed
on December 3, 1963.
On August 29, 1963, the Union served on Respondents a
60-day notice of desire to make changes in the existing
contract and suggested meetings for collective bargaining.
The evidence discloses no answer thereto, but in view of
the prior filing of the RM petition by the Respondents, it
may be assumed that Respondents did not give a favorable
reply to the Union. Thereafter, on January 3, 1964, the
Trial Examiner in Case 19-CA-2686 issued his decision,
finding that the dispute rested on the interpretation of the
collective-bargaining agreement between the Union and C
& C Plywood and, relying upon United Telephone
Company of the West, 112 NLRB 779, decided that it was
not the function of the Board to police collective-
bargaining contracts, and recommended dismissal of the
' The Respondents jointly were found in Case 19-RC-3041 to
constitute a single employer and I so find here
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint . Following the issuance of the Trial Examiner's
Decision in Case 19-CA-2686 , the Respondents , late in
January 1964 , filed another RM petition (Case
19-RM-500). The Regional Director , on February 18,1964,
dismissed this petition , likewise, on the ground that unfair
labor practice charges were pending.2 Respondents filed a
request for review of the Regional Director ' s dismissal
with the Board , and on April 2, 1964 , the Board notified
the Respondents that the petition in Case 19-RM-500 had
been untimely filed , because unfair labor practices were in
fact pending at that time.
The General Counsel and the Charging Party excepted
to the Trial Examiner 's Decision in Case 19-CA-2686, and
the Board , on August 24, 1964 , issued a Decision and
Order reversing the Trial Examiner ( 148 NLRB 414). In its
decision , the Board , first having interpreted the contract
against C & C Plywood, found that the Respondent C & C
Plywood had unilaterally changed the wage rates for
members of the Glue Spreader Crews and ordered
Respondent C & C Plywood to bargain with the Union
upon request.
C & C Plywood Corporation declined to comply with the
decision of the Board , and the Board filed a petition for
enforcement with the United States Circuit of Appeals for
the Ninth Circuit . This case is now pending before the
circuit court as Case 19769.
In the instant case, the General Counsel has offered no
proof of the Union 's majority status other than proof that
the Union was certified , following a Board - conducted
election , on August 28, 1962 . He relies upon the
presumption of majority status that follows certification
even after the expiration of 1 year from the date of
certification.
Certification of a union following a Board -conducted
election gives rise to a conclusive presumption of majority
(absent unusual circumstances ), for a reasonable time,
usually for a year , following the date of certification .3 After
the end of the certification year , the presumption of
majority continues, but it is then a rebuttable
presumption,4 and an employer may , if acting in good
faith, rebut the presumption.5
The good faith of the employer in questioning the
union 's majority status is to be tested on the basis of all the
circumstances of the case. As a minimum , however, the
Board has stated , two prerequisites are essential to a
finding of good faith in such a case: ( 1) There must be
some reasonable grounds for believing that the union had
lost its majority status since its certification; and (2) the
2 Presumably because exceptions were then filed to the Trial
Examiner's decision in Case 19-CA-2686
3 Ray Brooks v N L R B, 348 U S 96, Terteling & Sons, Inc,
d/b/a Western Equipment Co, 149 NLRB 248, Paris
Manufacturing Co, Inc, 149 NLRB 15, Ken's Building Supplies,
142 NLRB 235
4 Bethlehem Steel Company, 73 NLRB 277, Dorsey Trailers,
Inc, 80 NLRB 478, Toolcraft Corporation, 92 NLRB 655, Oneita
Knitting Mills, 150 NLRB 689, Rohlik, Inc, 145 NLRB 1236;
F.W. Woolworth Co Store No 2367, 146 NLRB 848
5 Perhaps the use of the word "rebuttable" in connection with
the word "presumption" may contribute to difficulties in cases
where a union's majority status is questioned after the end of the
first year following certification. The word "rebuttable" suggests
that an employer who questions a union 's majority at this time
must come forward with positive proof that the union is no longer
the representative designated by a majority of his employees This
is not true; for, if an employer has acted in good faith, he need
only present facts which show that he has a reasonable ground for
doubt of the majority status of the once certified union Dixie Gas,
majority issue must not have been raised by the employer
in a context of 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.6 Both of these prerequisites must be
satisfied; so regardless of the fact that an employer may
have reasonable grounds to believe that the union has lost
its majority, he will not be heard to advance such doubt
where, during the certification year, he has committed
unremedied unfair labor practices which have a tendency
to induce a loss of the union's majority status.7
In the instant case, at the time of the alleged refusal to
bargain in August 1964, there was, as the Board in the
antecedent case held, an unremedied unfair labor practice
committed during the certification year-a refusal to
bargain with the Union by unilaterally instituting a group-
incentive-pay plan during the term of an existing
collective-bargaining contract. As previously stated,
Respondent C & C Plywood refused to comply and the
Board has taken the case to the Ninth Circuit Court for
enforcement. As of the writing hereof, the court has not
rendered its decision. The mere existence of proceedings
in the circuit court of appeals does not act as a
supersedeas. Hence, even if the court ultimately should
deny enforcement of the Board's Order, I am bound by the
still outstanding Decision and Order of the Board.
If, then, the unfair labor practice found by the Board in
the antecedent case would fall into the class of cases
where the employer will not be heard to say that the union
has lost its majority status because his unfair labor
practice has contributed to that loss, this case must be
decided against the Respondent on that ground alone. An
examination of cases in this class discloses in most cases a
considerable difference from the unfair labor practice
involved here. In most of them, the union has been
thwarted in its efforts to reach a collective-bargaining
agreement by outright refusal to negotiate such a contract,
by bad-faith bargaining, by employer imposed delays, by
coercion of employees, or other conduct impugning the
employer's good faith and tending to undermine the
union's status as majority representative of the employees
in the collective-bargaining units
In some of the cases, however, unfair labor practices
committed during the certification year appeared to have
no causal connection with the loss by the Union of its
majority support. In such cases, the reason for foreclosing
the employer from questioning the union's majority status
Inc, 151 NLRB 1257, Frito-Lay, Inc, 151 NLRB 2b, . W
Woolworth Co Store No 2367, 146 NLRB 848, Midwestern
Instruments, Inc, 133 NLRB 1132, The Randall Company,
Division of Textron, Inc, 133 NLRB 289, McCulloch Corporation,
132 NLRB 201, Stoner Rubber Company, Inc, 123 NLRB 1440,
Celenese Corporation ofAmerica, 95 NLRB 664
Celenese Corporation ofAmerica, 95 NLRB 664.
'NLRB v Henry Heide, Inc, 219F2d46(C A 2),NLRB
v American Steel Buck Corporation, 227 F 2d 927 (C A 2),
NLRB v John S Swift Company, Inc, 302 F 2d 342 (C A 7),
KellyA Scott, 93 NLRB 654, Mar-Jac Poultry Company, Inc, 136
NLRB 785, Laystrom Manufacturing Co, 151 NLRB 1482
1 E g, Great Southern Trucking Co. v N L R B, 139 F 2d 984
(C A 4); N L R B v Burke Machine Tool Co , 133 F 2d 618
(C A 6), N.L R B v American Steel Buck Corporation, 227 F 2d
927 (C A 2), Mar-Jac Poultry Company, Inc, 136 NLRB 785, Kit
Manufacturing Company, 138 NLRB 1290, enfd 319 F 2d 857
(C A 9), Henry Heide, Inc., 107 NLRB 1160, enfd. 219 F 2d 46
(C A 2)
C & C PLYWOOD CORP.
after the certification anniversary, no longer applies.9 As
previously stated, the unfair labor practice found in the C
& C Plywood case, the antecedent of this case, consisted
of a unilateral announcement and institution of a group-
incentive-wage plan by Respondent C & C Plywood. The
announcement there stated that the premium rate would
be in effect for a "couple of months." C & C Plywood
instituted the plan under its interpretation of a certain
contract clause. At the Union's request, conferences were
held about the plan, but the Union took the position that,
although it would discuss rate increases or premium
hourly rates, the subject of production bonuses was a
closed subject not properly open for negotiation and that
the group incentive plan would have to be rescinded. The
Board's decision in that case (148 NLRB 414) gives no
indication of how long the plan was, in fact, in effect, but in
view of the language of the announcement, it could be
inferred that the change was one of short duration. In any
event, no finding of bad faith was made by the Board. The
violation of Section 8(a)(5) which was found was an unfair
labor practice which did not depend upon bona fides or
malafides.
In Mission Manufacturing Company, 128 NLRB 275,
during a strike within the certification year, the employer
excluded the union from participating in grievance
procedure, and this was found to be a violation of Section
8(a)(5), but the Board held that this did not preclude the
employer in good faith from questioning the Union's
majority status after the end of the certification year. In
Midwestern Instruments, Inc., 133 NLRB 1132, the
employer had refused, during negotiations, to bargain
about merit increases. This, also, was found to be a
violation of Section 8(a)(5) of the Act. Yet the Board there
held that the employer was not precluded, after the end of
a year from the date of the certification, from questioning
in good faith the union's majority status In my opinion, the
refusal to bargain found to have taken place during the
certification year in the Midwestern Instruments case was
more clearly an 8(a)(5) violation than the one in the
antecedent case involving C & C Plywood, for in the latter
case the violation depended upon an interpretation by the
employer of a contract clause of disputed meaning. I
conclude, therefore, that the unfair labor practice found by
the Board in the antecedent case (148 NLRB 414), should
not, per se, bar the Respondents from questioning the
Union's majority status after 1 year from the date of
certification provided that they did so in good faith and
with reasonable cause for doubting the Union's majority
status. 1'
Since I have found that the Respondents did not
question the Union's majority status "in a context of illegal
antiunion activities or other conduct ... 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," one of the two
prerequisites laid down in the Celenese case has been met.
9 Midwestern Instruments, Inc, 133 NLRB 1132, Mission
Manufacturing Company, 128 NLRB 275
10 The Respondents argue that because only one of the
Respondents involved in this case (C & C Plywood) was involved
in the antecedent case, the unfair labor practice of that one should
not, in any event, bar the Respondents jointly, thus barring an
employer (Veneers, Inc ), who was not found to have committed
any unfair labor practice, from questioning the Union's majority
Whatever merit this argument might have where a unit covers
employees of two or more independent employers, I find that it
has none as applied to two employers of separate corporate
1027
The other prerequisite to the finding of good-faith doubt
is the existence of "reasonable grounds for believing that
the union has lost its majority status since its
certification." The test of the reasonableness of the
employer's doubt is objective rather than subjective." His
doubt must not be based on facts which are consistent
with the presumption of a continuing majority12 and must
not be based on tenuous evidence."
What do the Respondents here show as reasonable
rounds for their belief that the Union had lost its majority
status? At the hearing herein, the parties stipulated that
Respondents would produce witnesses who would testify
that:
It became known to Respondents and to employees
around the operation of Respondent employers that
many employees no longer wished to be represented
by the Union; that many employees, including many
hired after the date of the certification of the Union,
were and are openly opposed to Local Union No. 2405
continuing as collective bargaining agent of the
employees of Respondent employers in the unit found
appropriate for collective bargaining by the Regional
Director of the Board in Case No. 19-RC-3041; that
such witnesses, members of the bargaining unit,
would testify that in their opinion a majority of the
employees in the unit found appropriate no longer
wished to be represented by the Union (Local 2405)
and so informed management officials of these
Respondent employers; that the factual
circumstances giving rise to Respondent employers'
claim of doubt arose in the period beginning on or
about July 15, 1963, and have continued at all times
pertinent to this matter thereafter until the time of
this hearing.
In addition to the foregoing evidence, Respondents, it was
stipulated, would produce testimony which would show
that there were 145 employees in the collective-bargaining
unit (134 of whom were eligible to vote at the time of the
election of July 26, 1962), that on September 3, 1963, there
were 201 employees in the collective-bargaining unit of
whom 78 were in the employ of the Respondents in July
1962, that on February 7, 1964, there were 184 employees
in the said unit of whom 68 were in Respondents' employ
in July 1962. The General Counsel objected to the
inclusion of such evidence in the record on the grounds of
lack of relevancy. The stipulation is in the form of an offer
of proof by Respondents. If such offer should show a
reasonable basis for doubt by Respondents of the Union's
majority status, it should be accepted. Otherwise the
evidence so offered would be immaterial. Although not
included in the stipulation, there is also evidence that, as
of March 12, 1964, a majority of the employees in the unit
had not paid dues for February 1964. The reasonableness
of each of these circumstances as a basis for doubt of the
Union's majority status will be considered.
identity who are, nevertheless (as Respondents are found to be),
one employer
Laystrom Mfg Co , supra
Leisure Lads, Inc., 124 NLRB 431, The National Plastic
Products Company, 78 NLRB 699, The Toledo Desk & Fix Co, 75
NLRB 744
13 Laystrom Mfg. Co., supra, United States Gypsum Company,
143 NLRB 1122, Small Tube Products, Inc, 134 NLRB 867,
Carter Machine and Tool Co , 133 NLRB 247, Leisure Lads, Inc,
124 NLRB 431; United States Gypsum Company, 90 NLRB 964;
Toolcraft Corporation, 92 NLRB 655
295-269 0-69-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Many employees no longer wished to be represented by
the Union
The offer to prove that witnesses would testify that "it
became known to officials of Respondent employers and to
employees ... that many employees no longer wished to
be represented by Local Union No. 2405," and that "many
employees, including many hired after the date of the
certification of the Union, were and are openly opposed to
Local Union No. 2405 continuing as the bargaining agent
of the employees.. ." must be rejected. The proposed
testimony is altogether too vague, and it offers no source of
information, although presumably it would, in all events,
be based on hearsay evidence Of 123 valid votes counted
at the time of the election, 86 voted for the Union and 37
voted against the Union. The Respondent's offer to prove
that "many employees" no longer wished the Union to
represent them or were openly opposed to the Union as a
bargaining agent could consist of proof that the same 37
employees who voted against the Union in the election still
felt the same way. The description "many" does not
necessarily have to embrace even the 37. Conceivably, 10
employees could be described as "many." In any event,
the offer of proof does not go so far as to raise a doubt that
a majority of the employees, as of any given date after the
certification year, were opposed to the Union as a
collective-bargaining representative One third of the
employees in the unit could have filed a petition for
decertification of the Union, but there is no evidence that
they took any steps to do so. I find that Respondents' offer
of proof, even if accepted, would furnish Respondents with
no reasonable basis for doubting the Union's majority at
any time material hereto. 14
b. Witnesses, members of the bargaining unit, would
testify that in their opinion a majority of the employees in
the unit no longer wished to be represented by the Union
and so informed management
This offer of proof is an offer of opinion evidence, and
the opinion would necessarily be grounded on heresay. In
addition, the opinion might well be affected by the bias of
the witness This offer is rejected as based on evidence
incompetent and of no probative value. 15
c. Turnover in employment
This, standing alone,"' has long been held to be of no
significance as a basis for a bona fide belief that a certified
union has lost its majority." On the contrary, in the
absence of good reasons to deduce a loss of majority status
by the certified union, the presumption is that, throughout
the changes in personnel in the unit, the certified union
will have maintained the same proportion of adherents,
with replacements of terminated employees supporting
the union in the same ratio.'' Even taken with the other
evidence offered, this evidence of turnover results in no
mathematical approximation of a loss of majority status
" See EA Laboratories, 80 NLRB 625, 683-684, Toolcraft
Corporation, 92 NLRB 655, Vanette Hosiery Mills, 114 NLRB
1107 In cases where figures such as were offered by Respondents
were considered as evidence, the doubt was raised by visual
evidence and arithmetical calculation Neuman Transit Co , 138
NLRB 659, and Mission Manufacturing Company, supra, both
involving replacements for strikers or employees who cross picket
line during strike Cf Small Tube Products, Inc , 134 NLRB 867.
15 See Stoner Rubber Company, Inc, 123 NLRB 1440, fn 4,
E.A Laboratories, Inc , supra, Small Tube Products, Inc , supra
which would justify a good-faith doubt. Accordingly, I
reject this offer of proof.
d. Nonpayment of dues
On March 11, 1964, Respondents wrote the Union a
letter proposing to recognize the Union for 12 months if the
Union produced proof that a majority of the employees in
the collective-bargaining unit had paid dues to the Union
for the month of February 1964. The Respondents'
proposal was that, if the Union failed in such proof, it
should withdraw its claim to represent such employees for
12 months and thereafter until the Union was able to
establish that it represented a majority of such employees.
This proposal further stated that it was contingent upon
the Union's refraining, between the time of the receipt of
the Respondents' letter and the appearance at
Respondents' office at 9:30 a.m. on the day following
receipt thereof, by the Union's representative to present
such proof. The Union replied by letter on March 12, 1964,
stating that, as of that date, a majority of the employees in
the collecti' bargaining unit had not paid dues to the
Union for February 1964, but rather that this bore no
relation to whether or not the Union represented a majority
of those employees. The Union further stated that no
proposition would be acceptable that was contingent upon
"absolutely no contact" with Respondents' employees, as
Respondents had stated in their letter to the Union.
Nonpayment of dues or even suspension from
membership is not reasonable ground for a good-faith
doubt of a certified union's majority.'" This is based on the
reasonable inference that membership does not depend
upon payment of dues. Although membership is evidence
of preference for union representation, bad standing or
even nonmembership is not necessarily evidence of
preference for no union representation . Employees other
than members of a union may prefer union representation
whether or not they join. The Union's contract in 1963
contained a maintenance-of-membership provision, but
this expired with the termination of the contract. That
employees join or pay dues during the existence of a
contract but not after the termination thereof does not
necessarily signify a change in desire for union
representation. Such employees may still desire union
representation but may wish to pay for it in the form of
dues only as long as they have a contract.
On the whole, it appears to me that the Respondents'
asserted reasons for their doubt of the Union's majority are
based more on wishful thinking than on fact. Under the
circumstances, I find that the presumption of the Union's
majority status resulting from its certification continued to
exist after the certification anniversary as the
Respondents' doubt is not based on reasonable grounds.
The refusal to bargain alleged in the complaint is a
refusal to bargain on April 6 and August 24 and 26,
1964, and thereafter, months after the expiration of
the contract and after the filing and dismissal of the
first RM petition. Properly speaking the Union's
16 I e , without other circumstantial evidence of defection, such
as return of strikers during a strike , a large number of strike
replacements, crossing of picket lines during strike, and the like,
suggesting a defection Mission Mfg. Co , supra
'7 Laystrom Mfg Co., supra, Small Tube Products, Inc, supra,
The National Plastic Products Company, 78 NLRB 699, enfd 175
F 2d 755 (C A 4)
" /bid
United States Gypsum Company, 90 NLRB 964, 143 NLRB
1122,1126
C & C PLYWOOD CORP.
majority status would be called into question (if at all)
at the time or times of the alleged refusal to bargain.
Of course, aside from the force of the rebuttable
presumption of continued majority status attributable
to the original certification, there is no evidence
concerning the Union's majority in April or August
1964. But since the General Counsel's case rests upon
the continuing presumption of majority following the
certification year, since such presumption can be
dispelled only by evidence that Respondents
questioned the Union's majority status in good faith,
and since the Respondents' reason for declining to
recognize or bargain with the Union in 1964 was based
on no different circumstances in April or August 1964
from those that existed in October 1963, I find that the
Union, at all times material hereto, has been, and now
is the exclusive representative of the employees in the
unit heretofore found appropriate for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
3. Refusal to bargain
Throughout the period of the foregoing proceedings and
continuing to date, Respondents have not bargained with
the Union. On April 6, 1964, Respondents unilaterally
granted a 10-cent-per-hour wage increase to their
employees.20 On August 24, 1964, Respondents
unilaterally granted an additional 5-cent-per-hour increase
to their employees.
The complaint alleges that these two unilateral
increases and Respondents' refusal on and after
August 26, 1964, to bargain collectively with the Union
constitute a violation of Section 8(a)(5) of the Act. The
complaint does not allege that the refusal to bargain
between the date of termination of its 1963 contract
(November 1, 1963), and the date of these wage increases
in 1964 was a violation of the Act, presumably because the
charge in this case was not filed until November 5, 1964,
and the statutory limitation of 6 months before that date
would preclude a proceeding concerning unfair labor
practices committed more than 6 months prior to the filing
of the charge. Of course, this same limitation would apply
to the April 6, 1964, increase (7 months before the date of
the filing of the charge), except to the extent that such
increase was continued in effect after May 6, 1964. There
is, in fact, no, newly evidenced refusal to bargain on
August 26, 1964, a date presumably selected because it
follows by 2 days the issuance on August 24, 1964, of the
Board's decision in Case 19-CA-2686, allowing 2 days for
receipt thereof, and the General Counsel, in part, was
relying on that decision as precluding the Respondents
from questioning the Union's majority status. In view of
my finding that the unfair labor practice found in that case
is not dispositive of the issue here, I find that the date of
August 26, 1964, is of no special importance. Of course,
the Respondents have clearly refused to bargain with the
Union at all times since November 1, 1963, but such fact
may not be found to be an unfair labor practice because of
the proscribed 10(b) limitation. However, the attitude of
the Respondents remained the same throughout (even
20 Respondents allege, and the Union disputes, that this
increase was made to conform to the wage pattern predominating
(as a result of collective bargaining ), in the State of Montana. In
the notice , Respondents blamed the Union 's prosecution of the
unfair labor practice case (Case 19-CA-2686) for the delay in
granting the increase.
1029
after May 6, 1964, 6 months before the filing of the charge),
as it was before May 6, 1964, and it remained the same at
all times thereafter. The Respondents were not in doubt
that the Union was, throughout, claiming a majority status
and requesting bargaining. That-,the Union did not more
often request bargaining after October 28, 1963, may be
attributed to the pendency of the unfair labor practice
charge in the antecedent case. Since the Respondents'
refusal to bargain was a continuing one, I find that on and
after August 26, 1964,21 Respondents failed and refused to
bargain with the Union in violation of Section 8(a)(5) of the
Act. I do not find a refusal to bargain based on the two
unilateral wage increases because the Union had, since
October 25, 1963, waived any objection to a general
increase, and on December 13, 1963, and April 2, 1964, it
had by letters encouraged the giving of a wage increase.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondents are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondents are one employer within the meaning of
Section 2(2) of the Act.
3. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
4. All production and maintenance employees of
Respondents at their veneer and plywood plants near
Kalispell, Montana, excluding office clerical employees
and supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
5. The Union, at all times material hereto, has been,
and now is, the exclusive representative of the employees
in the unit described in paragraph 4, above, within the
meaning of Section 9(a) of the Act.
6. By refusing on and after August 26, 1964, to bargain
collectively with the Union, upon request, Respondents
have engaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
THE REMEDY
I have found that Respondents have refused to bargain
with the Union in violation of Section 8(a)(5) of the Act and,
hence, I shall recommend an order that they cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I find it somewhat difficult to reconcile the fact that an
employer is deemed to be at liberty to file an RM petition
without disclosing his reasons for doubting the majority
status of a union which is requesting bargaining,22 but,
even when not acting in bad faith, must, in a complaint
case, show good grounds for doubting that majority status
if he puts the union to proof by merely refusing to bargain
until the union has proved its majority, as the Board held
in Laystrom Manufacturing Co., 151 NLRB 1482. In the
instant case the Respondents did not sit back and require
the Union to petition for an election, as did the employer in
the Laystrom case. They filed an RM petition, but
21 But for the form of the allegation of the complaint, it could be
found that Respondents had failed and refused to bargain since
May 5, 1964, 6 months prior to the filing of the charge. Aero
Corporation, 149 NLRB 1283, fn 3
22 See The Randall Company, Division of Textron, Inc., 133
NLRB 289, 293
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceedings thereon were blocked by the charge in the (c) Notify the said Regional Director , in writing , within
antecedent case. They filed another RM petition when the 20 days from the date hereof, what steps Respondents
Trial Examiner recommended dismissal of the complaint . have taken to comply herewith.24
Even though the Board found the unfair labor practice, I
have found that it was not of the kind designed to affect
the Union's majority. Under such circumstances, it might
be just to reinstate the RM petition. But this does not
appear to coincide with Board policy. In Mission
Manufacturing Company, 128 NLRB 275, it is true, the
Board held that, although the employer had violated
Section 8(a)(1) and (5) of the Act, the remedy, in view of the
employer's good reasons for doubting the union's majority
status, should be -limited to an order that the employer
cease and desist from the specific act found to constitute a
violation of Section 8(a)(5) of the Act (excluding the union
during the strike from participating in settlement of
grievances) in the event that the employees should
designate the union or any union as their representative
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act. In that case, the
employer's doubt of the union's majority, it will be noticed,
was not only in good faith but was based on reasonable
grounds, a factor not present in the instant case, which, in
this respect, resembles the situation in the Laystrom case.
Inasmuch as the Laystrom case represents current Board
policy, I shall recommend an order based on the one made
in that case.
RECOMMENDED ORDER
It is recommended that Respondents, C & C Plywood
Corporation and Veneers, Inc., Kalispell, Montana, their
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages,
hours, and other terms and conditions of employment with
Plywood, Lumber and Sawmill Workers Local Union
No. 2405, AFL-CIO, as the exclusive representative of all
their employees in the unit herein found appropriate.
(b) In any like or related manner interfering with,
restraining, or coercing their employees in the exercise of
their right to self-organization, to form, loin, or assist labor
organizations, including the above-named Union, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except as provided in Section 8(a)(3) of the Act.
2. Take the following affirmative action which, I find,
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all
employees in the appropriate unit and, if an understanding
is reached, embody such understanding in a signed
agreement.
(b) Post at their plants near Kalispell, Montana, copies
of the notice attached hereto and marked "Appendix."23
Copies of said notice, to be furnished by the Regional
Director for the Region 19 of the Board, shall, after having
been duly signed by Respondents' authorized
representative, be posted by Respondents immediately
upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to their employees are
customarily posted. Reasonable steps shall be taken by
Respondents to ensure that said notices are not altered,
defaced, or covered by any other material.
2S In the event that this Recommended Order is 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 is 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 "
24 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 19, 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, by refusing to bargain collectively or
in any like manner, interfere with, restrain, or coerce
our employees in the exercise of their right to self-
organization, to form labor organizations, to join or
assist Plywood, Lumber and Sawmill Workers Local
Union No. 2405, AFL-CIO, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except as provided by Section 8(a)(3) of the Act.
WE WILL bargain in good faith, upon request, with
the above Union as the exclusive representative of all
our employees in the bargaining unit described below
with respect to rates of pay, wages, hours of
employment, and other 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 at
our veneer and plywood plants near Kalispell,
Montana, excluding office clerical employees and
supervisors as defined in the Act.
C& C PLYWOOD
CORPORATION AND
VENEERS, INC.
(Employer)
Dated By
(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 complaince with its provisions, they may communicate
directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington 98101,
Telephone 583-7542.