Cantor Bros., Inc.

National Labor Relations Board - Board Decisions

May 21, 1973

203 N.L.R.B. 774 (N.L.R.B. 1973)

774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cantor Bros ., Inc. and Automotive and Allied Indus-
tries Employees of San Diego County, Local Union
No. 481 of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Cases 21-CA-11174 and 21-CA-11285
May 21, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On February 9, 1973, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions ' and a supporting brief,' and the General Coun-
sel filed cross-exceptions and a supporting brief, and
an answering brief to Respondent 's exceptions.3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, except
as noted below,4 and to adopt his recommended Or-
der.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Cantor Bros ., Inc., San
Diego, California, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
IT IS FURTHER ORDERED that the complaint herein be,
and it hereby is, dismissed insofar as it alleges unfair
labor practices not found herein.
i The General Counsel has moved to quash Respondent's exceptions on
the ground that they do not comply with Sec . 102.46(b) of the Board's Rules
and Regulations , which requires exceptions to identify the portion of the
Administrative Law Judge 's Decision to which objection is made and to
designate by precise citation of page the portions of the record relied on, and
states that any exception which fads to comply with these requirements may
be disregarded . The motion is denied. Although we do not condone the
failure to comply with the Board's Rules and Regulations , we find that it was
not prejudicial , inasmuch as Respondent 's brief does cite the portions of the
Administrative Law Judge's Decision objected to and the pages in the record
upon which Respondent relies.
2 Respondent's request for oral argument is hereby denied, as the record,
including the briefs, adequately presents the issues and the positions of the
parties.
3 The Charging Party stated in a telegram that it joined in the General
Counsel 's exceptions and brief , as well as in the motion to quash
Respondent 's exceptions, which we have denied in In . I, supra.
We do not adopt the Administrative Law Judge's rationale insofar as it
relies on the statement that a decertification petition-which was not filed
here-cannot give an employer a valid basis for withdrawing recognition
from a union . See Telautograph Corp., 199 NLRB No. 117, in which a majori-
ty of the Board held that a decertification petition, supported by an adequate
showing of interest and filed in a context free of employer unfair labor
practices , may raise a question concerning representation and thus relieve the
employer of his duty to bargain with the incumbent union until the question
concerning representation is resolved . Member Jenkins does not concur in
this view However , we agree with the Administrative Law Judge that Re-
spondent could not raise a good-faith doubt of the Union's majority status
in the instant case , in view of its unlawful solicitation of strikers to abandon
the Union , an unfair labor practice clearly designed to undermine the Union.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ . Administrative Law Judge : This case
was tried in San Diego , California , on November 21, 1972,1
The charge in Case 21 -CA-11174 was filed on August 10
and in Case 21-CA-11285 on October 2 . A complaint is-
sued on September 22 and an order consolidating cases and
a consolidated amended complaint issued on October 30
alleging that Cantor Bros ., Inc., herein called Respondent,
violated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, as amended.
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(1) of the
Act by soliciting employees to abandon their support of
Automotive and Allied Industries Employees of San Diego
County, Local Union No. 481 of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein called the Union; promised increased
benefits to the employees if they did abandon their support
of the Union; and bargained directly with those employees.
2. Whether Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to meet and negotiate with the Union
on and after September 28, 1972, on the claim that the
Union no longer represented a majority of the employees in
the bargaining unit.
All parties were given full opportunity to participate, to
introduce relevant evidence. to examine and cross -examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.2
Upon the entire record in the case and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
i All dates are in 1972 unless otherwise specified
2 The General Counsel has moved to strike portions of Respondent 's brief
that purportedly set forth matters not in the record The motion is denied
The findings of fact in the Decision are, however, based solely on record
evidence.
203 NLRB No. 116
CANTOR BROS ., INC. 775
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged at its facility in San
Diego in the manufacture of recapped automobile and truck
tires and the wholesale and retail distribution of such tires
and related products. Respondent's annual gross revenue is
in excess of $500,000 and Respondent annually purchases
goods valued in excess of $50,000 directly from suppliers
located outside of California. Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background, the Negotiations,
and the Strike
In about 1950, Respondent recognized the Union as the
collective-bargaining representative of its employees in the
following unit: All recappers, general servicemen, gas island
attendants, brake and wheel mechanics, washers and polish-
ers, and casing men ; excluding all office and clerical em-
ployees, guards, professional employees and supervisors as
defined in the Act. Respondent concedes and I find that
that unit is appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act. In
about 1950, Respondent and the Union entered into a col-
lective-bargaining agreement. They have been parties to
successive collective-bargaining agreements, the last of
which expired on July 31, 1972. That contract contained a
union-security clause . Negotiations for a new contract be-
gan on June 29, 1972. Between then and July 28, there were
five meetings . Bernard I. Sosna, Respondent's vice presi-
dent and secretary, attended these meetings on behalf of
Respondent. Negotiators for two other independent tire
companies were also at these meetings and the three compa-
ny negotiators informed the Union that they represented the
entire unionized independent tire industry, which consisted
of about 15 employers. However, the parties stipulated for
the purposes of this proceeding that Respondent was at all
times engaging in individual rather than association bar-
gaining. Thus, it is not alleged that subsequent agreements
with other employers in the industry were binding on Re-
spondent. On July 28, the employer negotiators made an
offer to the Union which was subsequently rejected by the
union membership. There is no contention that an impasse
was reached on that day and in fact a number of subsequent
negotiation sessions were held.
On August 1, Respondent discharged six employees.
Though an arbitration was pending at the time of the trial
regarding that matter, there is no allegation in the complaint
nor does the General Counsel contend that the six employ-
ees were discharged in violation of the Act. In the absence
of such a contention, I must assume that those employees
lost their status as employees on August 1.
On that day, Willard Kline, the union secretary- treasurer,
spoke to Sosna about the discharges and also told him that
the Union wanted to sit down and negotiate an agreement.
On August 2, the Union struck Respondent and the other
unionized independent tire industry employers. In the nego-
tiations preceding the strike, Respondent's representative
was present when the employers offered a package consist-
ing of a 20-cent raise for the first year, 15 cents for the
second year, and 15 cents for the third together with a
prescription payment plan and a floating holiday. Between
August 7 and 10, all of the unionized independent tire in-
dustry employers except Respondent signed a contract with
the Union that called for raises of 20 cents the first, 20 cents
the second, and 20 cents for the third year. No agreement
was reached with Respondent and, as of the date of the trial,
the strike and picketing were still in progress.
On August 3, Sosna met with Kline and offered him a
raise of 10 cents the first year, 10 cents the second year, and
10 cents the third year. At another meeting on August 8,
Sosna raised the offer to Kline to 12 cents, 10 cents, and 15
cents but wanted to take out of the contract provisions for
an employee's birthday being a holiday. Sosna wanted a
provision giving the Company the unilateral right to termi-
nate an employee when in the Company's judgment the
employee's work performance was unsatisfactory, without
any recourse to grievance or arbitration, and also wanted
the unilateral right to determine whether an employee was
sick before granting sick leave. During this meeting, Kline
pointed out that the employers had already offered 20 cents,
15 cents, and 15 cents to which Sosna replied: "Well, if you
hadn't struck us, maybe things would have been different."
Kline asked Sosna to sign a stipulation providing that Re-
spondent would abide by whatever terms were worked out
with the industry. Sosna refused. There were four negotiat-
ing sessions after that time. Respondent reiterated its wage
proposal and the Union demanded 35 cents, 35 cents, and
35 cents. The Union took the position that after a long
strike, the employees were entitled to more than the 20
cents, 20 cents, and 20 cents agreed to with the rest of the
industry. The last of these meetings took place on Septem-
ber 25. Agreement was not reached and another meeting
was scheduled for September 29. On September 28, William
Brown, Respondent's attorney, called Kline and said that
the meeting scheduled for 8:30 a.m. the next day was being
called off because Respondent had filed a petition for an
election. Kline consulted with his attorney, who on the same
day sent a telegram to Respondent stating that the Board
will not process an election petition with a pending refusal-
to-bargain charge and insisting that negotiations go forward
as scheduled on September 29. On September 29 representa-
tives of the Union went to William Brown's office at 8:30
a.m. for the negotiating meeting but the office was closed.
On October 2 Kline received a call from Brown saying that
Sosna was still out of town but that he would call on the
following morning to set up another meeting. Kline did not
hear from Brown again.3
Sosna testified that he stopped meeting with the Union
3 These findings are based on a combination of the credible testimony of
Kline and Sosna, much of which was mutually corroborative.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after September 26 because Respondent felt the Union no
longer represented the employees and Respondent had
asked the Board for an election . He also testified that the
election was denied and the matter was pending on appeal.
According to Sosna , he based his belief that the Union no
longer represented the employees on conversations he had
with a few employees who told him they were "a bit con-
cerned about the Union," and that they had heard stories
and were upset. Sosna testified that these few employees
indicated that they did not want to be represented by the
Union and that from talking to these employees , he believed
that there were quite a few employees who felt the same
way.
Twenty-six employees struck Respondent on August 2,
1972. During the course of the strike , three of these went
back to work for Respondent and one accepted employ-
ment from another employer. As of September 28, when
Respondent refused to meet with the Union on the grounds
that the Union no longer represented a majority of the
employees, there were 22 striking employees ." The number
of replacements hired is somewhat in doubt . Sosna averred
that on or about September 25 there was a good deal of
turnover going on but there were about 22 or 23 employees
in the unit. He then changed his testimony to aver that there
were between 22 and 26.
B. Respondent 's Efforts to Induce the
Strikers to Return to Work
Sosna testified that he was friendly with the employees
and that he often spoke to pickets on the picket line. Ac-
cording to Sosna , employees asked him when he was going
to sign the contract or when they could come back to work,
and he always told them in substance that with regard to
coming back to work it was up to them . He also averred that
he never urged the pickets to quit the Union , that he never
promised increased benefits if they abandoned their support
of the Union, and that he never bargained directly with the
employees . A number of employees presented a different
picture of what occurred.
Gilberto 0. Maldonado, an employee who struck on Au-
gust 2 , testified that he was on the picket line 2 or 3 days
after the strike began when Sosna spoke to him in the pres-
ence of other employees. Maldonado credibly testified that
Sosna told them that they didn't know what they were fight-
ing for, and that it was just for a penny. Maldonado also
credibly averred, and I find, that Sosna said: "Why don't
you come back to work and forget the Union? You are
going to save $9 a month and you are going to have the same
4 These findings are based in part on the testimony of Kline, and in part
on the testimony of Sosna Kline testified that there were 32 strikers at the
beginning of the strike , that 3 returned to work , that I found employment
elsewhere , and that there were currently 28 striking employees . Apparently,
he included in his figures the six employees who had been discharged on
August I , the day before the strike As those discharges were not litigated in
this proceeding, I must find that the employment status of those employees
terminated on August 1, and that, therefore , they were not strikers on August
2. Except as to those six employees , I have credited Kline's testimony with
regard to the number of strikers . Sosna testified that there were 21 rather than
22 strikers . However , at another point in his testimony he averred that there
were between 21 and 25 strikers and at still another point he testified that
there were 21 strikers plus the 6 who were fired.
benefits from me." The $9 referred to union dues. Maldona-
do testified that he interpreted Sosna's remark about the
"same benefits" to mean the same benefits that were paid
by other companies under the union contract. He then
changed his testimony to specifically allege that Sosna said,
"You are going to have the same benefits as the other com-
panies got." I believe that in his changed testimony, Maldo-
nado was confusing his interpretation of what was said with
what he heard and that his initial testimony was accurate.
Sosna's remark that "You are going to have the same bene-
fits from me" can mean that if he returned to work Maldo-
nado would receive the same benefits he had in the past.
The savings would be $9 a month that he would not pay
the Union rather than a raise from Respondent. In the light
of Respondent's refusal to go along with the industry wage
offer, as well as the fact that the industry had not yet
reached an agreement as of that conversation, such an inter-
pretation of Sosna's remark appears plausible. Maldonado
credibly testified that similar conversations occurred on
three or four other occasions while he was on the picket line.
Francisco Guzman was employed by Respondent from
1962 to 1967. About 6 days before the strike began, Respon-
dent reemployed Guzman. Guzman was one of the employ-
ees who struck on August 2. About 2 weeks after the strike
began, Guzman went to Respondent' s premises to pick up
a check and Sosna spoke to him . Because Guzman had
some difficulty with English Sosna had his remarks inter-
preted into Spanish by Joe Ledesma, a person Guzman
considered to be his boss. Sosna told Guzman that he was
not a member of the Union because he was out for 4 years,
that it would be to Guzman's benefit to stay and work, that
if he did stay and work he would have a permanent job, and
that if he worked Guzman would have the same benefits
and he would save the union dues. Guzman had paid a
withdrawal fee of 50 cents to the Union so that he would
not have to pay the initiation fee when he came back. The
Union has paid him strike benefits.5
Jose Fuentes is an employee who went on strike on Au-
gust 2. About a week after the strike began, while Fuentes
was on the picket line with other employees, Sosna asked
Fuentes why he didn't want to work with him rather than
with the Union. Sosna told Fuentes that he would be paid
the same wages and would receive the same benefits, that
he should not be dumb, that he should take advantage and
go back to work, that he should tell the other employees
about it, and that he (Sosna) would talk to the other employ-
ees one by one .6
Norberto Sandoval is an employee who struck and pick-
eted on August 2. In early September while he was on a
picket line, Sosna spoke to him through an interpreter
named Pedro. Sosna told him to leave the Union because
it was useless to pay $9. Sandoval also testified that word
3 These findings are based on the credited testimony of Guzman. Sosna
testified that he did not have any such conversation with Guzman but that
when Guzman came to pick up his check, he spoke to Guzman about paying
back the money that Guzman owed Respondent I credit Guzman 's version
of the conversation.
6 These findings are based on the credited testimony of Fuentes. Sosna
testified that he spoke to Fuentes who told him that the whole crew wanted
to come back to work , that he replied that Fuentes could not talk for the
whole crew and that he told Fuentes that he should decide for himself what
he wanted to do I credit Fuentes' version of the conversation.
CANTOR BROS ., INC. 777
was sent to him through Fuentes that they should leave the
Union and that they would get the same guarantees without
paying the $97
Donaciano Ledesma was one of the employees who were
fired on August 1. When the strike began on August 2, he
participated in the picketing. According to Ledesma' s testi-
mony, on the first day of the strike while he was picketing
with about five employees, Sosna told the group to come
back to work, that they didn't need a union, that they were
fighting for a penny, and that they would have union bene-
fits . Sosna denied ever asking Ledesma to come back to
work and averred that the only conversation lie had with
Ledesma was one in which Ledesma asked to come back
and he told Ledesma that he had been fired for just cause
and there was nothing to talk about . I credit Sosna 's asser-
tion that he never asked Ledesma individually to come back
to work . However, I credit Ledesma's assertion that Sosna
did tell the group of striking employees that they should
come back to work, that they did not need a union, and that
they could save the $9 union dues. In the light of the testi-
mony of the other witnesses concerning Sosna's overall re-
marks, I do not believe that Sosna said that they would get
union benefits . In the context of Sosna's other remarks and
in view of the avowed refusal of Sosna to meet union stan-
dards, I believe that Ledesma was reading that meaning into
Sosna's remarks and Sosna said that they would be the same
benefits.
Jesus Lopez Diaz was another one of the employees who
were discharged on August 1 and who participated in the
picketing. He testified that on the first day of the picketing,
Sosna asked him whether he wanted to come back to the
shop and he replied that he did not because there was not
a signed contract . Diaz also averred that he reminded Sosna
that Sosna had fired him, and Sosna merely replied, "oh,
yes." Sosna denied recalling the conversation with Diaz. I
credit Diaz.
C. Conclusions as to the 8(a)(1) Allegations
Summing up the relevant credited testimony of the strik-
ers and picketers, I find that Sosna asked the striking em-
ployees to return to work and told them that they did not
need the Union, that they would receive the same benefits,
and that they would not have to pay the $9 a month union
dues. Implicit in Sosna's remarks that the employees who
came back to work would save the $9 a month union dues
was the assumption that if they did return to work that they
would abandon the Union. In its overall context, Sosna's
statements constituted a request that the employees aban-
don not only the strike but the Union. I do not believe,
however, that the General Counsel has established by a
preponderance of the evidence that Respondent promised
union benefits to employees to induce them to abandon the
Union. I have not credited the testimony that the Respon-
dent offered the employees such benefits to return. Instead,
I believe that Respondent was simply offering them the
same benefits they had previously received if they returned.
On the basis of the facts set forth above , I must also
conclude that the General Counsel has not established by
a preponderance of the credible evidence that Respondent
bargained directly with the employees outside the presence
of representatives of the Union. Whether or not
Respondent 's solicitation of the employees to abandon the
strike and the Union constituted a violation of the Act, I do
not believe that that solicitation constituted individual bar-
gaining with the employees . Gem Knits, Inc., 174 NLRB 449,
which the General Counsel cites in his brief , is distinguisha-
ble on its facts . In that case, individual bargaining was
found where an employer solicited the formation of an em-
ployee committee and offered a contract containing holi-
days , vacations , and other benefits . In the instant case, the
Employer offered employees their jobs back under the then
existing pay and benefit scale.
The question remains whether the solicitation of employ-
ees to abandon the strike and the Union in the context of
the facts set forth above is a violation of the Act. In Mer-
chandiser Press, Inc., 115 NLRB 1441, the Board adopted
the Trial Examiner 's Decision which stated that it was a
violation of Section 8(a)(1) for an employer "to solicit the
return to work of individual strikers , since at the time .. .
the Union was the majority representative and such action
necessarily had the effect of undermining its authority."
However , in Webb Wheel Division, American Steel & Pump,
Corp., 121 NLRB 1410, the Board held at fn. 3:
For the reasons stated in the Texas Company case, 93
NLRB 1358 , we find , in agreement with the Trial Ex-
aminer , that the individual noncoercive solicitation of
the strikers to return to work was not per se violative
of Section 8(a)(1) of the Act. In the Texas Company
case , the Board noted that in all cases in which such
noncoercive solicitation was found to have been viola-
tive of the Act, one or both of the following factors had
been present : ( 1) the solicitation constituted an integral
part of a pattern of illegal opposition to the purposes
of the Act as evidenced by the respondent's entire
course of conduct; or (2) the solicitation was conducted
under circumstances , and in a manner , reasonably cal-
culated to undermine the strikers ' collective-bargaining
representative , and to demonstrate that the employer
sought individual rather than collective bargaining.
Neither of such factors is present in the instant case,
which is therefore clearly distinguishable from Mer-
chandiser Press, Inc., 115 NLRB 1441.
In Texas Company, 93 NLRB 1358, enforcement denied on
other grounds 198 F.2d 540 (C.A. 9,1952), the Board, in
refusing to find that the company violated Section 8(a)(1)
by soliciting strikers to return , relied heavily on the finding
that there was no evidence of union animus on the part of
the company and that the company made no effort to un-
dermine or disparage the union .8 A solicitation for strikers
8 Where an employer engages in other unfair labor practices and solicits
an employee to withdraw from a union and abandon a strike it does violate
Sec. 8(a)(1) of the Act. Collins & Arkman Corporation, 165 NLRB 678, enfd.
in pertinent part 395 F 2d 277 (C.A. 4, 1968); Mississippi Steel Corporation,
7 These findings are based on the credited testimony of Sandoval . Sosna 169 NLRB 647 , 653, enfd . in pertinent part 405 F 2d 1373 (C.A.D C., 1968).
in his testimony denied knowing any individual named Pedro who interpret - In addition , the solicitation of employees to abandon a union can go beyond
ed for him and in substance denied the entire conversation as testified to by the free speech protections of Sec . 8(c) of the Act and constitute a violation
Sandoval . I credit Sandoval . Continued
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to return to work need not be accompanied by threats or
promises of benefits to constitute a violation of Section
8(a)(1) of the Act . Dubois Chemicals, Inc., 140 NLRB 103,
116, enfd . 327 F.2d 494 (C.A. 5, 1964).
In the instant case , Respondent 's solicitation of the em-
ployees to abandon the strike and return to work was cou-
pled with statements that the employees did not need the
Union and that they would receive the same benefits with-
out paying dues . Implicit in these remarks was the assump-
tion that employees would drop out of the Union if they
returned to work . Respondent was in effect conditioning its
offer to the employees to return on the employees' willing-
ness to drop out of the Union. In addition , Respondent was
going well beyond any legitimate effort to restaff its work
force . Cf. N.L.R.B. v. Bradley Washfountain Co., 192 F.2d
144, 153 (C.A. 7, 1951). Respondent undermined the Union
by telling its employees that they did not need the Union;
that they would receive the same benefits and that they
would not have to pay the $9 a month union dues. This
undermining of the Union took place at a time when the
Employer was negotiating with the Union and had a duty
to bargain in good faith . I find that by such conduct Re-
spondent violated Section 8(a)(1) and (5) of the Act.9
D. Conclusions as to the Section 8(a)(5) Allegation
The underlying legal principles to be applied in situations
where an employer seeks to withdraw recognition from an
established bargaining representative are summarized in
Nu-Southern Dyeing & Finishing, Inc., 179 NLRB 573, enfd.
in part 444 F.2d 11 (C.A. 4, 1971), where the Board held:
In finding . . . that Respondent violated Sec. 8(a)(5)
of the Act, we apply the standards governing previous-
ly established bargaining relationships rather than
those relating to initial organization situations . (Cf. N.
L.R.B. v. Gissel Packing Company, 395 U.S. 575). The
principle has long been established that an employer
may not lawfully withdraw recognition from an incum-
bent union because of an asserted doubt of the union's
continued majority unless his assertion of doubt is
raised in a context free of unfair labor practices, and
is supported by a showing of objective considerations
providing reasonable grounds for a belief that a majori-
ty of the employees no longer desire union representa-
tion . See, e .g., Celanese Corporation of America, 95
NLRB 664, 671-672; Laystrom Mfg. Co., 151 NLRB
1482, 1484, enft. denied on other grounds 359 F.2d 799
(C.A. 7); Terrell Machine Co., 173 NLRB No. 230;
N.L.R.B. v. Gulfmont Hotel Co., 362 F.2d 588 (C.A. 5);
N.L.R.B. v. The Little Rock Downtowner, Inc., 414 F.2d
1084 (C.A. 8). And, cf. United States Gypsum Co., 157
NLRB 652. The burden of proving the existence of
such reasonable grounds rests on the employer (ibid).
These legal principles apply whether the Union has been
certified by the Board or recognized as the bargaining agent
of Sec. 8(aXl) Cf. Winfield Mfg Co., Inc., 173 NLRB 733, enfd. 424 F.2d
818 (C.A.D.C, 1970), Astronautics Corporation of America, 164 NLRB 623
9 Violations of Sec. 8(a)(l) of the Act which tend to undermine a union,
with which an employer has an obligation to bargain in good faith, also
violate Sec . 8(a)(5) of the Act. Gem Knits, Inc, 174 NLRB at 453
of the employees by the company without Board certifica-
tion. Emerson Manufacturing Company, Inc., 200 NLRB No.
33; N.L.R.B. v. Denham, 469 F.2d 239 (C.A. 9, 1972).
Respondent's asserted doubt as to the Union's continued
majority was based on three considerations. They were (1)
Sosna's conversations with employees, (2) the filing of the
representation petition, and (3) the number of permanent
replacements hired.
As to Sosna's conversations with the employees, Sosna
spoke to a few employees who told him that they were "a
bit concerned" about the Union, and that they had heard
stories and were upset. Sosna also received an indication
from these employees that there were quite a few employees
who felt the same way. As the Board pointed out in Lays-
trom Mfg. Co., supra, an employer's assertion of good-faith
doubt that the Union no longer represents a majority must
be based on objective considerations and the employer's
mere assertion of it or proof of the employer's subjective
frame of mind is insufficient. Sosna spoke to only a few
employees and his impressions based on those discussions
cannot be considered objective considerations. Nu-Southern
Dyeing & Finishing, Inc., supra at 577; Fred Tuch Buick, 199
NLRB No. 118.
The fact that Respondent filed a petition for an election
in no way establishes that Respondent had a good-faith
doubt based on objective considerations that the Union no
longer represented a majority. Cf. United States Gypsum
Company, 157 NLRB 652. The Board has held that even
where a decertification petition had been filed by employees
and the employer had overheard indications of employee
dissatisfaction, that employer did not have a valid basis for
withdrawing recognition from a union. Fred Tuch Buck,
supra. In Cavalier Corporation, 192 NLRB 290, the Board
held at 291:
Neither the filing of a decertification petition nor the
fact that a substantial number of employees elected to
work during the strike is sufficient to establish that the
Union had, in fact, lost its majority. Moreover, the
defense of the good faith doubt of the Union's majority
is without merit where, as here, an employer has en-
gaged in substantial other unfair labor practices.
If the filing of a decertification petition is insufficient to give
an employer a basis for withdrawing recognition, then, a
fortiori, the filing by the employer of a petition for an elec-
tion is also insufficient. In the case of a decertification peti-
tion it is apparent that at least some of the employees want
an election, which indicates that those employees may be
dissatisfied with the union. The filing of a petition by the
employer simply indicates that the employer wants an elec-
tion.
About the time that Respondent withdrew recognition
from the Union there were 22 striking employees.
Respondent's estimate of the number of employees working
at about that time was very vague. Sosna testified at first
that there were 22 or 23 employees, but then he changed his
testimony and averred that there were between 22 and 26.
As Respondent has the burden of establishing by objective
considerations that it had a good-faith doubt as the Union's
continued majority the vagueness of the testimony concern-
ing the number of working employees should be construed
against Respondent. However, even if Respondent 's largest
CANTOR BROS., INC.
figure of 26 is accepted , it appears that there were 22 strikers
and 26 employees at work of whom 3 were strikers who had
returned to work . Thus, there were 22 strikers, 3 returned
strikers , and 23 strike replacements . Even though economic
strikers are permanently replaced they must be counted as
employees . As the Board said in C. H. Guenther & Son, Inc.,
d/b/a Pioneer Flour Mills, 174 NLRB 1202 , enfd. 427 F.2d
983 (C .A. 5, 1970):
In counting the economic strikers as part of the unit
for purposes of determining the Union 's majority sta-
tus we realize , of course, that we are departing from the
standard used in Stoner Rubber Company, Inc., 123
NLRB 1440, and other cases following it, in which
replaced economic strikers were excluded . Those cases
have followed the pre- 1959 Act which provided that,
"Employees on strike who are not entitled to reinstate-
ment shall not be eligible to vote ." We are of the opin-
ion that the 1959 amendment to Section 9(c)(3) requires
that the Board 's approach in this matter be revised. In
the 1959 amendments to the Act the language of Sec-
tion 9(c)(3) was changed to provide that, "Employees
engaged in an economic strike who are not entitled to
reinstatement shall be eligible to vote under such regu-
lations as the Board shall find are consistent with the
purposes and provisions of this Act in any election
conducted within twelve months after the commence-
ment of the strike."
* * * *
Although Section 9(c)(3) deals with representation
matters and the eligibility of voters in a Board conduct-
ed election , we consider the provision pertinent to an
8(a)(5) allegation in determining whether an employer
has a reasonable basis for questioning an incumbent
union's presumed majority status, since the ultimate
basis for the employer 's asserted doubt here is that a
majority of the employees in the unit are not union
adherents.
See also Little Rock Airmotive, Inc. v. N.L.R.B., 455 F.2d
163 (C .A. 8, 1972). In Coca Cola Bottling Works, Inc., 186
NLRB 1050 , the Board held that an employer could not rely
on either the refusal of some employees to go on strike or
the return of striking employees to work as a basis for with-
drawal of recognition from the union . The Board said:
The Board has clearly stated that the mere failure of
employees to support a strike called by their bargaining
representative does not give rise to a presumption that
the employees have repudiated the union as their bar-
gaining representative . Employees who join the strike
at the outset , but later abandon it are also not pre-
sumed to have indicated their lack of support for the
union as their bargaining representative.
See Cavalier Corp., supra; Frick Company, 175 NLRB 233,
enfd . 423 F .2d 1327 (C.A. 3, 1970).
It thus appears that even assuming the numbers most
advantageous to Respondent, about September 28, 1972,
the date of Respondent 's admitted refusal to bargain with
the Union , there were 22 strikers and 3 strikers who had
returned to work , none of whom had been shown by Re-
779
spondent to have withdrawn from the Union the right to
represent them . Even assuming that none of the remaining
23 employees desired the Union to represent them, those 23
would have to be considered as part of an overall employee
complement of 48 employees (22 strikers, 3 strikers who
returned to work and 23 others ). Respondent has therefore
not demonstrated that the Union no longer represented a
majority of the employees nor has it established that objec-
tive considerations existed on which it could base a good-
faith doubt that the Union had lost its majority.10
Moreover , as found above, Respondent engaged in a
course of conduct from the beginning of the strike which
was intended to undermine the Union . Respondent solicited
the strikers to abandon not only the strike but the Union
and told them that they did not need the Union , that they
would receive the same benefits and that they would not
have to pay the $9 a month union dues. As the Board held
in Nu -Southern Dyeing & Finishing, Inc., supra, an employer
can only raise a good faith doubt as to the Union 's contin-
ued majority in a context free of unfair labor practices. In
Sky Wolf Sales d/b/a Pacific Industries of San Jose, 189
NLRB 933, enfd . 470 F.2d 827 (C.A. 9, 1972), the Board
relied solely on a company's assistance in regard to the
initiation and circulation of a decertification petition as the
basis for finding an 8(a)(5) violation predicated on the
respondent 's refusal to continue bargaining with a union.
In conclusion I find that Respondent violated Section
8(a)(5) and (1) of the Act by withdrawing recognition from
and refusing to meet and bargain with the Union on and
after September 28, 1972.
E. The Conversion from an Economic
to an Unfair Labor Practice Strike
The strike which began on August 2, 1972 , was motivated
by the Union 's desire to put economic pressure on Respon-
dent to secure what it considered to be an acceptable con-
tract . As such it was an economic strike . The complaint does
not allege that the strike was converted to an unfair labor
practice strike by Respondent's unlawful efforts to cause the
employees to abandon the strike and the Union . " The com-
plaint does allege, however , that Respondent caused the
strike to be prolonged and converted it into an unfair labor
practice strike by cancelling negotiations on September 28,
1972, and refusing thereafter to meet and bargain with the
Union . I have found above that the withdrawal of recogni-
tion and refusal to meet and bargain beginning on Septem-
ber 28, 1972, did constitute a refusal by Respondent to
10 In the instant case, as in Fred Tuch Buick, supra , the Union was engaging
in current bargaining and was fully active as the bargaining agent of the
employees Both cases are therefore distinguishable from Viking Lithogra-
phers, Inc., 184 NLRB 139, and Southern Wipers, Inc., 192 NLRB 816, in
which the Board found that the employer could withdraw recognition from
a Union where it had engaged in no independent violations of the Act and
where the Union had manifested by its actions a lack of interest in pursuing
its function as the bargaining agent.
11 The factual situation in the instant case is similar to that in The Cincin-
nati Steel Casting Company, 86 NLRB 592, where the Board held, "As found
below , during the strike the Respondent unlawfully solicited strikers to return
to work, in derrogation of the authority of the Union . It is not contended,
however, and there is no evidence to show , that these unfair labor practices
prolonged the strike or even tended to do so." See also Cavalier Corp., supra.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain and violated Section 8(aX5) and (1) of the Act. By
refusing to negotiate with the Union Respondent blocked
the means by which a strike settlement could have been
attempted . I find that on and after September 28, one of the
purposes of the strike was to protest Respondent's unfair
labor practices . An unlawful refusal to bargain , such as the
one present here , creates serious impediments to the settle-
ment of a strike and converts it from an economic to an
unfair labor practice strike . Cavalier Corp., supra.
The names of the striking employees do not appear in the
transcript of this proceeding and the situation with regard
to replacements was not fully litigated. These matters to-
gether with anything else required to determine to whom
offers of reinstatement must be made and what backpay, if
any, is due, may, if necessary, be litigated in a backpay
proceeding.
CONCLUSIONS OF LAW
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with the operations of Re-
spondent described in section I, above , have a close, inti-
mate, 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 be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(aX5) and (1) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and, upon request, bargain collectively in
good faith with the Union as the exclusive representative of
all employees in the unit set forth above, and, in the event
that an understanding is reached , embody such under-
standing in a signed agreement.
Having found that the economic strike that began on
August 2, 1972, was prolonged on September 28, 1972, by
Respondent's unlawful refusal to bargain with the Union
and that the strikers therefore became unfair labor practice
strikers on and after September 28, 1972, I shall recommend
that Respondent be ordered, upon application, to offer to
those employees reinstatement to their former or substan-
tially equivalent positions, without prejudice to their senior-
ity or other rights and privileges , as follows:
1. Striking employees whose jobs were not filled by per-
manent replacements before September 28, 1972, are, upon
application, to be offered immediate reinstatement, dismiss-
ing persons hired on or after that date, if necessary, to make
room for them.
2. Any striker whose job was filled by a permanent re-
placement prior to September 28, 1972, is, upon application,
to be offered reinstatement upon departure of that replace-
ment.
I shall further recommend that in the event the Respon-
dent does not reinstate the striking employees in the manner
set forth above within 5 days from the date reinstatement
is required, backpay shall commence running with interest
at 6 percent 12 from the date on which the 5 days expires.
12 As prescribed in F. W Woolworth Company, 90 NLRB 289, Isis Plumb-
ing & Heating Co , 138 NLRB 716
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(a) of the Act:
All recappers, general servicemen, gas island atten-
dants, brake and wheel mechanics, washers and polish-
ers, and casing men; excluding all office and clerical
employees, guards , professional employees and super-
visors as defined in the Act.
4. The Union is the exclusive representative of the em-
ployees in the aforesaid unit for the purposes of collective
bargaining with respect to rates of pay , wages , hours of
employment, and other terms and conditions of employ-
ment.
5. By withdrawing recognition from the Union and by
refusing to meet and bargain with the Union on and after
September 28, 1972, and by undermining the Union, and
soliciting striking employees to abandon a strike and the
Union, Respondent violated Section 8(a)(5) of the Act.
6. By the foregoing conduct Respondent has interfered
with , restrained , and coerced its employees in the exercise
of their rights guaranteed to them by Section 7 of the Act,
in violation of Section 8(a)(1) of the Act.
7. On September 28, 1972, because of Respondent's un-
lawful refusal to bargain with the Union, the strike then
taking place was converted to an unfair labor practice
strike.
8. The aforementioned unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER 13
Respondent, Cantor Bros., Inc., its officers , agents, suc-
cessors, and assigns shall:
1. Cease and desist from:
(a) Refusing to recognize , meet and bargain with Auto-
motive and Allied Industries Employees of San Diego
17 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 by 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
CANTOR BROS., INC. 781
County, Local Union No. 481 of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive representative of its
employees in the following unit:
All recappers, general servicemen, gas island atten-
dants, brake and wheel mechanics, washers and polish-
ers, and casing men; excluding all office and clerical
employees, guards, professional employees and super-
visors as defined in the Act.
(b) Undermining said Union and soliciting its employees
to abandon a strike and the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with said Union as
the exclusive representative of its employees in that bargain-
ing unit and, in the event that an understanding is reached,
embody such understanding in a signed agreement.
(b) Upon application reinstate the unfair labor practice
strikers and make them whole for any loss of earnings that
they may have incurred in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(c) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due.
(d) Post at its San Diego, California, plant copies of the
attached notice marked "Appendix." 14 Copies of the no-
tice, on forms provided by the Regional Director for Region
21, after being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced or covered by any
other material.
(e) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
14 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall 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
tions Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things except to the
extent that membership in a union may be required
pursuant to a lawful union-security clause.
WE WILL NOT do anything that restrains or coerces
employees with respect to these rights.
WE WILL NOT refuse to recognize, meet or bargain with
Automotive and Allied Industries Employees of San
Diego County, Local Union No. 481 of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive
bargaining representative of our employees in the fol-
lowing unit:
All recappers, general servicemen, gas island atten-
dants, brake and wheel mechanics, washers and pol-
ishers, and casing men; excluding all office and
clerical employees, guards, professional employees
and supervisors as defined in the Act.
WE WILL NOT undermine said Union and solicit our
employees to abandon a strike and the Union.
WE WILL, upon request, bargain collectively with said
Union as the exclusive representative of our employees
in that bargaining unit and, in the event that an under-
standing is reached, embody such understanding in a
signed agreement.
WE WILL, upon application, reinstate our striking em-
ployees, who it has been found were, on and after
September 28, 1972, protesting our unlawful refusal to
bargain with that Union, as follows:
(1) Striking employees whose jobs were not filled by
permanent replacements before September 28, 1972,
will, upon application, be offered immediate rein-
statement, and persons hired on or after that date
will be dismissed if necessary to make room for
them.
(2) Any striker whose job was filled by a permanent
replacement prior to September 28, 1972, will, upon
application, be offered reinstatement upon depar-
ture of that replacement.
(3) If we do not reinstate the striking employees in
the manner set forth above within 5 days from the
date reinstatement is required, backpay shall begin
running with interest at 6 percent from the date on
which the 5 days expire.
Dated By
CANTOR BROS., INC.
(Employer)
(Representative) (Title)
After a trial at which all sides had a chance to give evidence,
an Administrative Law Judge of the National Labor Rela- This is an official notice and must not be defaced by
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anyone. this notice or compliance with its provisions may be direct-
This notice must remain posted for 60 consecutive days ed to the Board 's Office , Eastern Columbia Building, 849
from the date of posting and must not be altered, defaced , South Broadway, Los Angeles, California 90014, Telephone
or covered by any other material . Any questions concerning 213-688-5229.