C & W Lektra-Bat Co.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 776 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C & W Lektra-Bat Co. and Stuart Christie and C & W
Lektra-Bat Employees Association, Party in Inter-
est. Case 7-CA- 12804
September 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On October 15, 1975, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, C & W Lektra-Bat Co., Farmington, Michigan,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
Delete paragraph l(c) and reletter the subsequent
paragraphs accordingly.
I In adopting the Decision of the Administrative Law Judge, we find it
unnecessary to reach the issue of whether or not Respondent also violated
Sec. 8(a)(2) by its recognition of the illegally assisted employee committee
while a conflicting claim to representation existed as found by the
Administrative Law Judge. Accordingly, we do not rely on the Administra-
tive Law Judge's discussion or application of Midwest Piping and Supply Co..
Inc.. 63 NLRB 1060 (1945), as the affirmative remedy for illegal assistance
to the employee committee would be the same in either event.
DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge: On
February 27, 1976, Stuart Christie, the Charging Party,
filed an unfair labor practice charge against C & W Lektra-
Bat Co., the Respondent, pursuant to the National Labor
Relations Act, 29 U.S.C. 151, et seq. On April 12, 1976, the
Regional Director of the Board issued a complaint and
I The Personnel Policies and Practices Handbook. referred to infra,
identifies the organization as the "Employee Committee." I find that to be
its proper designation.
2 During the course of the hearing, the complaint was amended to
232 NLRB No. 121
notice of hearing on the charge. Service was duly made on
the Respondent, the Charging Party, and also upon C & W
Lektra-Bat Employees Association, an organization alleged
in the complaint to have been unlawfully assisted by the
Respondent.' The Respondent duly filed an answer
denying the allegations of the complaint.
Pursuant to notice, a hearing was held before me on July
6 and 7, 1976, at Detroit, Michigan. The General Counsel,
the Respondent, and the Charging Party appeared at the
hearing, the former two by counsel, and all parties were
afforded full opportunity to be heard, to introduce and to
meet material evidence, to present oral argument, and to
file briefs. The Employee Committee did not enter an
appearance at the hearing, qua Committee, although its
two present members, John Gannon and Larry Kappel,
testified as witnesses.
At the conclusion of the General Counsel's case in chief,
an allegation in the complaint to the effect that the
Respondent maintained surveillance of the employee
representative selection process was dismissed upon mo-
tion of the Respondent without objection from the General
Counsel. 2
The hearing was closed by order on August 19, 1976.
Briefs were received from the General Counsel and the
Respondent on September 20, 1976, and have been
considered.
Upon consideration of the entire record, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of, the laws of the State of Michigan.
At all times material herein, Respondent has maintained
its principal office and place of business at 24600 Crestview
Court in the city of Farmington, and State of Michigan,
herein called the Respondent's plant. Respondent is, and
has been at all times material herein, engaged in the
manufacture, sale, distribution, and repair of industrial
type batteries and related products. Respondent's plant
located at Farmington, Michigan, is the only facility
involved in this proceeding.
During the year ending December 31, 1975, which period
is representative of its operations during all times material
hereto, Respondent, in the course and conduct of its
business operations, purchased and caused to be transport-
ed and delivered at its Farmington, Michigan, plant, goods
and material valued in excess of $50,000, which were
transported and delivered to its plant in Farmington,
Michigan, directly from points located outside the State of
Michigan.
Respondent is now and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
include an allegation that the Respondent dominated and interfered with
the formation and administration of the Employee Committee. On August
19, 1976, on motion of the Respondent, the amendment was stricken on the
authority of Spiegel Trucking Company, 225 N L R B 178 (1976).
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C & W LEKTRA-BAT CO.
11. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 299, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and the Employee Committee, are
labor organizations within the meaning of Section 2(5) of
the Act.
Iii. THE UNFAIR LABOR PRACTICES
A. The Issue
The issue is whether the Respondent violated Section
8(a)(2) and (1) of the Act in rendering assistance and
support to the Employee Committee, and by recognizing
and contracting with the Committee at a time when
Teamsters Local 299 was claiming representation of the
employees.
B. The Facts
On January 12, 1972, the Board certified Local 299 of the
Teamsters as the bargaining representative of the Respon-
dent's production and maintenance employees. 3
On April 3, 1974, following the filing of an unfair labor
practice charge by Local 299, the Board found that the
Respondent had refused to bargain with Local 299 and
ordered it to bargain and to sign a contract agreed upon
between the parties.4
In its decision in that case, the Board said that the
evidence and the circumstances there,
. .all tend to suggest that Respondent was more
interested in getting rid of the Union than in obtaining
any legitimate benefit for itself in having the contract
ratified and, indeed, that insistence on ratification from
November 28 onward was intended toward this end.
On March 25, 1975, the U.S. Court of Appeals for the
Sixth Circuit granted enforcement of the Board's order.
Some months later, in late July 1975, the Respondent
signed the collective-bargaining contract pursuant to the
order of the court. By that time the contract, which was for
a 3-year period, had only a few months to run, its
expiration date being November 3, 1975.
About August 8, 1975, the Respondent posted on its
bulletin board the remedial notice provided by the Board's
order, which required posting in the plant for a period of 60
days in order to undo the effects of the unfair labor
practices. The testimony indicates that by this time, more
than 3 years after the certification, Local 299's supporters
were no longer employed in the shop. Inquiries from
employees as to the meaning of the notice prompted the
3 Case 7-RC- 10864.
C& W Lektra-Bat Co., 209 NLRB 1038, 1039.
As Stuart Christie testified:
". . .we never heard of the union being in the shop, or that C & W was
in the Teamsters until that bulletin was put up. So we were completely
in the dark as to what was coming off." And again: ". . we never
heard of the Teamsters, never knew that they were in the shop, or that
this was going on in court., and this was quite a surprise to all of us."
Employee Committeeman John Gannon testified that:
posting of another notice about August 11, 1975, advising
the employees that the Respondent had signed the
collective-bargaining contract with Local 299 pursuant to
the order of the circuit court. 5
That notice apparently prompted more inquiries, and
another meeting of employees was held in the plant about
August 12, 1975, conducted by the Respondent's legal
counsel, who explained the situation to the employees. At
this meeting a number of employees expressed opposition
to representation by Local 299. Questioned by employees
as to what they could do, Respondent's counsel told them
that, as the attorney for the Respondent, he could not
advise them, but that as to the contract they should consult
Local 299 representatives, and as to the legalities of the
matter they should consult the National Labor Relations
Board.
Apparently desultory efforts to reach Local 299 proving
abortive, a petition to decertify the union, supported by the
signatures of an apparent majority of the employees, was
filed with the Board's Regional Director on August 22.
1975 (case 7-RD-1271). On the same day the Respondent
wrote to Local 299 notifying it that the Respondent wished
to terminate the collective-bargaining agreement on its
expiration date, November 3, 1975.
The petition was dismissed by the Acting Regional
Director on September 3, 1975, on the authority of Mar-Jac
Poultry Company, Inc., 136 NLRB 785 (1962), and Ohio Car
& Truck Leasing, Inc., 169 NLRB 198 (1968), the Regional
Director ruling that the union had not been afforded a
reasonable time in which to bargain following compliance
with the circuit court's order.6
The Respondent appealed the Acting Regional Direc-
tor's ruling on the ground that he had misapplied the
authorities. On October 29, 1975, the Board dismissed the
appeal. There is no evidence that the petitioner appealed
the Acting Regional Director's ruling.
In September 1975, Local 299 wrote the Respondent
requesting a list of names, addresses, and classifications of
employees in the bargaining unit "in order to properly
administer the collective bargaining agreement." The letter
further advised the Respondent that Local 299 would be
requesting a retroactive dues-checkoff authorization from
employees in the bargaining unit. When the Respondent
posted this letter some time in mid-September, the
reference to the dues checkoff provoked further opposition
among employees.
The result of this ferment was that a number of meetings
were held in the plant between the employees and the
Respondent's officials which resulted in the formation of
the Employees Committee and the eventual execution of
an agreement between it and the Respondent.
. .the people that had orginally asked for the Teamsters to come in
there was no longer in the shop. And they-from the older employees
that I talked to, they claimed that they had voted the Teamsters down
previously. And were not given an), consideration on it.
n Those cases hold, in sum, that a certified or contracting union is not to
be depnved of its protected status as a bargaining representative by the mere
passage of time during the penod of an employer's refusal to bargain. and
provision must be made for preservation of the status for a peritod
approximating the duration of the unfair labor practice In the instant case.
as we have seen, the 3-year contract had slightly more than 3 months to run
when the Respondent finally executed it.
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The number and the times of these meetings are not clear
from the record, nor is it altogether clear as to exactly what
transpired. John Bondar, vice president and general
manager of the Respondent, along with Wade Lewis, plant
production manager, conducted the meetings. Bondar told
the employees that they could go along with the Teamsters
or choose another way. Bondar suggested the establish-
ment of a three-man employee committee as more
advantageous to the employees, stating that, with the
Teamsters, disciplinary rules would be strictly enforced
and the plant would be "no country club atmosphere."
Ultimately, Bondar told the employees that those who
wanted Local 299 should raise their hands. None did so.
Bondar then said: "Okay, the Teamsters are out . . . you
choose three representatives and we'll negotiate a con-
tract." Ballots were provided by the Respondent contain-
ing the names of all the employees. Bondar distributed the
ballots and directed the employees to vote for three of the
names on the ballot, two from the day shift and one from
the night shift. However, in the voting among the night
shift, Bondar instructed those employees to vote only for a
person on the night shift. No such limitation was imposed
on the day shift. The election was held during working
hours. Bondar was present during some of the balloting.
After the election was held, a night-shift employee
complained to Bondar that the restriction on selection by
the night shift was discriminatory, because it was not
applied to the day shift. Bondar then directed that the night
shift election be rerun, and that was done. All the ballots
were then counted and 3 representatives were declared
elected.
Under date of January 21, 1976, Local 299 notified the
Respondent that it wished to meet with the Respondent for
the purpose of negotiating a contract.
Following the election of the Employee Committee an
agreement was negotiated between the Respondent and the
Employee Committee, entitled "Personnel Policies and
Practices Handbook." The handbook, which recognizes the
Employee Committee as the collective-bargaining repre-
sentative, contains disciplinary rules, a statement of
conditions of employment, and provision for a grievance
procedure. It is signed by two members of the Employee
Committee and two representatives of management,
Bondar and Lewis, states that it shall be effective for 3
years, and was ratified by employees by majority of 26 to
II in a vote taken in the plant on February 5, 1976. The
grievance procedure terminates in final arbitration with the
costs to be split between the Respondent and the
employees.
The Employee Committee has no dues structure or
financial resources, and, so far as it appears, no formal
organization, officers, apparatus or structure, other than
the three employee representatives. It has no provision for
meetings or employee action other than a clause in the
Personnel Policies and Practices Handbook requiring
approval of the provisions of the handbook by a two-thirds
majority of the employees voting.
Conclusions
It is apparent that a substantial amount of the opposition
to Local 299 among the employees was spontaneous. This
is not surprising in view of the fact that when the notice
concerning the signing of the contract was posted in
August 1975 over 3-1/2 years had elapsed since the Union
had been certified as collective-bargaining representative,
the original Local 299 supporters were no longer employed
by the Respondent, and many of the employees were not
aware of the Union's representative status. Initial reluc-
tance to accept the stranger Local, which, in the interven-
ing years, had been unable to service the employees with a
contract, no doubt escalated by the news that the Local
would be asking for dues deduction, could be expected to
be heightened by Bondar's suggestion that the employees
would be better served by forming their own union, since
under Local 299 they could expect a strict administration
of disciplinary rules and no "country club atmosphere."
The inference is plain that life in the plant would be more
congenial and relaxed if Local 299 was repudiated.
In any event, the Respondent provided the forum, the
facilities, and the advice and suggestions which resulted in
the creation of the Employee Committee and the selection
of representatives. This is plainly assistance in support of a
labor organization in contravention of the statute. Spiegel
Trucking Company, 225 NLRB 178 (1976). See also
Sporispal, Inc., 214 NLRB 917 (1974); Graham Ford, Inc.,
218 NLRB 980 (1975); Packerland Packing Co., 93 LRRM
2128, LC ¶111,609 (C.A. 5, 1976).
The Respondent's participation in the establishing of the
Employee Committee and its assistance to it was thus
violative of Section 8(a) I) and (2) of the Act.
However, independently of that conclusion, the Respon-
dent's recognition of the Employee Committee, and its
action in contracting with it during the pendency of the
claim of Local 299 to recognition, was in contradiction of
the Respondent's duty of neutrality when faced with
conflicting claims to representation, and equally violative
of Section 8(a)(1) and (2) of the Act. Midwest Piping &
Supply Co., Inc., 63 NLRB 1060 (1945). The Teamsters had
continuously claimed to represent the employees beginn-
ning in 1972. In the case of American Can Company, 218
NLRB 102, 103 (1975), the Board stated the following
standard for application of the Midwest Piping principle:
"[T]he sole requirement necessary to raise a question
concerning representation within the meaning of the
Midwest Piping doctrine, as modified by the Board, is
that the claim of the rival union must not be clearly
unsupportable and lacking in substance." 1 There is no
requirement under this doctrine that the rival claim
must in fact be valid and that the employer is required
to bargain with the rival union. It is enough that the
rival claim to representation is not "clearly unsupporta-
ble or specious, or otherwise not a colorable claim."2
An employer faced with conflicting claims of rival
unions which give rise to a real question concerning
representation may not recognize or enter into a
contract with one of these unions until the representa-
tion question has been settled under the special
procedures of the Act.3 If the employer acts in
derogation of this principle it violates Section 8(a)(2)
and (I) of the Act.
I Plavkool, Inc., a Division of Milton Bradlei Conpany, 195 NLRB
560 (1972), enforcement denied 477 F.2d 66 (C.A. 7, 1973);: cf..
778
C & W LEKTRA-BAT CO.
American Bread Company, 170 NLRB 85 (1968), cert. denied 411 F.2d
147 (C.A. 6, 1969).
2 The Bo ,'s Markers, Inc. 156 NLRB 105, 107 (1965).
3 N.L.R.B. v. Hudson Berlind Corporation. 494 F.2d 1200 (C.A. 2,
1974). enfg. 203 NLRB 421 (1973): The Bo)'s Markets, Inc., supra.
See also Western Commercial Transport, Inc., 201 NLRB
17 (1973), enfd. 487 F.2d 332 (C.A. 5, 1973); Komatz
Construction, Inc., 191 NLRB 846 (1971), enfd. 458 F.2d
317 (C.A. 8, 1972).
On the basis of these authorities, it is found that by
recognizing the Employee Committee as a collective-
bargaining representative and contracting with it under the
circumstances outlined above, the Respondent was in
violation of the Board's Midwest Piping principle and
violated Section 8(a)(1) and (2) of the Act.
Upon the foregoing findings and conclusions, and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER7
The Respondent, C & W Lektra-Bat Co., Farmington,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Rendering unlawful assistance and support to the
Employee Committee, or any other labor organization of
its employees.
(b) Informing employees that terms and conditions of
employment and disciplinary rules will be more strictly
applied if they select as bargaining representative an
outside labor organization rather than an employee
representative committee or some other labor organization.
(c) Recognizing a labor organization while a conflicting
claim to representation by another labor organization is
pending.
(d) Recognizing the Employee Committee unless and
until certified as collective-bargaining representative by the
Board.
(e) Giving effect to the provisions of the Personnel
Policies and Practices Handbook. However, nothing herein
shall be construed as requiring the Respondent to rescind,
abandon, or vary any economic benefits or other terms or
conditions of employment granted employees thereunder.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights to self-organization guaranteed by the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the
Employee Committee as the representative of any of the
Respondent's employees for the purpose of dealing with
Respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of
employment unless and until said labor organization shall
have been certified as representative by the Board.
(b) Set aside the Personnel Polices and Practices
Handbook in accordance with I(e) above.
(c) Post at its plant copies of the attached notice marked
"Appendix. "s Copies of said notice, on forms provided by
the Regional Director for Region 7, after being duly signed
by Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of of this Order, what steps
the Respondent has taken to comply herewith.
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
s In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT render assistance to the Employee
Committee, or any other labor organization of our
employees, or give support to such labor organization.
WE WILL NOT inform employees that terms and
conditions of employment and disciplinary rules will be
more strictly applied if they select an outside labor
organization as bargaining representative rather than
the Employee Committee or any other labor oraganiza-
tion.
WE WILL NOT maintain in effect our existing
Personnel Policies and Practices Handbook, without,
however, disturbing present benefits.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights to self-organization, to join or assist Teamsters
Local Union No. 299 or any other labor organization,
and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or
protection.
WE WILL withdraw and withhold all recognition
from the Employee Committee as a bargaining repre-
sentative of any of our employees unless and until the
Committee has been certified as such by the Board.
C & W LEKTRA-BAT CO.
779