Colonna'S Shipyard, Inc

National Labor Relations Board - Board Decisions

Mar 8, 1989

293 N.L.R.B. 136 (N.L.R.B. 1989)

136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Colonna's Shipyard, Inc and United Industrial
Workers , Service , Transportation , Professional
and Government of North America , Local 14, of
the Seafarers International Union of North
America, Atlantic , Gulf, Lakes and Inland
Waters District, AFL-CIO Cases 5-CA-
17937, 5-CA-17882, and 5-CA-18015
March 8, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 6, 1987, Administrative Law Judge
Claude R Wolfe issued the attached decision in
this proceeding The Respondent filed exceptions
and a supporting brief and the General Counsel
and the Charging Party each filed cross-exceptions
with a supporting and answering brief On August
13, 1987, the National Labor Relations Board
issued an unpublished Order, reopening the record
and remanding the proceeding to the judge for fur-
ther hearing, in which it ordered that the hearing
be reopened to receive evidence on the Respond
ent's responsibility for Supervisor Bernard Chitty's
antiunion petition under the test of Montgomery
Ward & Co, 115 NLRB 645 (1956) The supple-
mental hearing for this limited purpose was held on
December 1 and 2, 1987, and on February 24,
1988, the judge issued the attached supplemental
decision The Respondent filed exceptions and a
supporting brief The General Counsel filed cross
exceptions and a supporting and answering brief
The Charging Party filed cross-exceptions and a
supporting brief, to which the Respondent filed an
answering brief The Respondent filed a motion to
strike the General Counsels answering brief and
the General Counsel filed a response to the motion
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the record and the at-
tached decisions in light of the exceptions and
briefs' and has decided to affirm the judge's rul-
ings , findings,2 and conclusions and to adopt the
recommended Order as modified
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Colonna's Shipyard, Inc, Norfolk, Vir-
ginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied
1 Substitute the following for paragraph 2(a)
"(a) Furnish the Union, on request, the informa-
tion requested in its letter of February 26, 1987 "
2 Substitute the attached notice for that of the
administrative law judge
We correct the following inadvertent errors in the judge s decision In
par 20 of sec III he states that the collective bargaining agreement ex
pired in March 1986 However earlier in his decision he correctly identi
feed the date as March 1985 In par 16 of sec III the judge stated Inas
much as there has been no collective bargaining agreement since March
1985 there has been no contract for stewards to monitor It is clear
from other portions of the judge s decision however that he correctly
stated that contractual terms and conditions of employment survive the
expiration of a collective bargaining agreement The judge cited Laystrom
Mfg Co 151 NLRB 1482 ( 1965) in finding that new employees are pre
sumed to support a union in the same ratio as the employees they replace
However in his supplemental decision at fn 7 he states that the Board
found in Station KKHI 284 NLRB 1339 ( 1987) that there is no basis for
such a presumption That holding however only applies to sinker re
placements not a factor in this proceeding See Pennex Aluminum Corp
288 NLRB 439 (1988)
We find it unnecessary to rely on the judge s discussion in sec III par
15 of his decision concerning the effect of the Unions failure to file
unfair labor practice charges with respect to changes in terms and condi
tions of employment made by the Respondent following the expiration of
the contract but preceding the events forming the basis of the instant
complaint In the absence of relevant complaint allegations we will not
speculate as to the possible merits of issues not before us
We find no ment in the Charging Party s exception to the judge s re
fusal in his supplemental decision to grant the General Counsels request
for a general bargaining order We find it inappropriate to grant his
remedy given the limited scope of our remand Order and that the Gen
eral Counsel and the Charging Party are now raising a matter which was
not the subject of an exception filed against the judge s original decision
The General Counsel has excepted to the judge s denial of her request
for a visitatorial clause We agree with the judge See Cherokee Marine
Terminal 287 NLRB 1080 (1988)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
' We deny the Respondents motion to strike the General Counsel s an
swering brief to its exceptions to the supplemental decision
2 Though the Respondent states in its brief in support of exceptions to
the judge s supplemental decision that it does not dispute any of the
judges credibility resolutions we agree with the General Counsels asset
tion in her response to the Respondents motion to strike her answering
brief that the clear tenor of the Respondents brief indicates that it is in
fact challenging some of these findings The Board s established policy is
not to overrule an administrative law judge s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950)
enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record
and find no basis for reversing the findings
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these
rights
To organize
To form, join, or assist any union
To bargain collectively through represents
tives of their own choice
293 NLRB No 15
COLONNA S SHIPYARD 137
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT refuse to bargain with United In-
dustrial Workers , Service , Transportation , Profes-
sional and Government of North America, Local
14, of the Seafarers International Union of North
America , Atlantic , Gulf, Lakes and Inland Waters
District , AFL-CIO as the exclusive bargaining rep-
resentative of our employees in an appropriate unit,
by refusing , on request , to furnish it with informa-
tion relevant and reasonably necessary to fulfilling
its representative duties , nor will we deny its
agents access to our premises for purposes of ad-
justing grievances , consulting with unit employees,
or observing that terms and conditions of a collec-
tive-bargaining agreement are being observed
WE WILL NOT tell unit employees that they are
not represented by the Union
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of the rights guaranteed them by Sec
tion 7 of the Act
WE WILL immediately furnish the Union, on re-
quest , the information it requested in its letter of
February 26, 1986
WE WILL notify the Union in writing that its
agents may enter our premises for the purposes set
forth in article XX of the collective-bargaining
agreement between us which expired on March 6,
1985
find Respondent has violated the Act as alleged in the
complaint
On the entire record,2 and after considering the able
posttnal briefs of the parties, I make the following
FINDINGS AND CONCLUSIONS
I BUSINESS OF EMPLOYER
Colonna s Shipyard, Inc (Respondent) is a Virginia
corporation with an office and place of business in Nor
folk, Virginia, where it is engaged in the maintenance
and repair of ships During the 12 months preceding the
issuance of the complaint, a representative period, Re
spondent, in the course and conduct of these business op
erations, purchased and received at its Norfolk facility
goods valued in excess of $50,000 directly from points
located outside the State of Virginia Respondent is, and
has been at all times material , an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act
II LABOR ORGANIZATION
United Industrial Workers, Service, Transportation,
Professional and Government of North America of the
Seafarers International Union of North America, Atlan
tic, Gulf Lakes and Inland Waters District, AFL-CIO
(the Union), is now and has been at all times material a
labor organization within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Facts and Findings
Respondent has recognized and negotiated with the
Union as the collective bargaining representative of its
employees in an appropriate unit since 1963 3 During this
COLONNA'S SHIPYARD, INC
Steven E Nail Esq for the General Counsel
William H Andrews Esq for the Respondent
Richard Gabriele Esq for the Union i
DECISION
STATEMENT OF THE CASE
CLAUDE R WOLFE, Administrative Law Judge This
proceeding was litigated before me at Norfolk Virginia
on 24 and 25 September 1986 pursuant to charges timely
filed and consolidated complaint issued on 11 July 1986
The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (Act)
by unilaterally denying the Union access to its facility
and by refusing to furnish it with necessary and relevant
information, and violated Section 8(a)(1) by telling em
ployees Respondent no longer had a union Respondent
admits many of the allegations of the complaint, but
denies the commission of unfair labor practices On the
facts and for the reasons set forth below I conclude and
i Stephen Burrow Esq on brief for the Union
2 Respondent in its brief urges me to receive R Exhs 5 and 8 into evi
dence These documents are respectively dismissals by the Board s Re
gional Director for Region 5 and the General Counsel of union charges
on grounds there was insufficient evidence to show that Respondent vio
lated the Act by sponsoring Supervisor Bernard Chitty s circulation of a
petition to decertify the Union These exhibits are not probative evidence
that Respondent did or did not engage in unfair labor practices They
are rather exercises by the General Counsel and his agent the Regional
Director of the General Counsels unreviewable statutory authority to
make the final decision whether a complaint shall issue The wisdom or
correctness of that decision is not subject to review by me but that deci
sion is neither determinative of nor admissible evidence relating to issues
before me The admissions of these exhibits would I am persuaded be
prejudicial error Accordingly R Exhs 5 and 8 are again rejected as
they were at hearing
Similarly R Exhs 22 23 and 24 concerning a decertification petition
filed by one Richard E Keffer after Respondent had withdrawn recogni
tion from the Union are again as they were at hearing rejected because
the withdrawal of recognition in February 1986 could not have been
based on this March 1986 petition and if the February 1986 conduct of
Respondent violated Sec 8 (a)(5) of the Act which would rather obvious
ly improperly affect the bargaining relationship itself Guerdon Indus
tries 218 NLRB 658 661 ( 1975) the violation precludes a finding the Re
spondent in good faith in an unfair labor practice free atmosphere relied
on the March 1986 petition B & B Gallo Pest Control Services 265 NLRB
535 539 (1982) Moreover if the withdrawal of recognition in February
1986 be not violative of the Act then Respondent thereafter had no bar
gaining obligation and the March 1986 petition is surplusage
2 The unit appropriate for the purposes of collective bargaining within
the meaning of Sec 9(b) of the Act is
Continued
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining relationship the parties entered into several
collective bargaining agreements , the latest one expiring
6 March 1985 Negotiations for a new contract com
menced in early 1985 and continued until 8 March 1985,
when Respondent made what it termed its final and best
offer After securing the names and addresses from Re
spondent, the Union, on 28 March 1985, mailed a sum
mary of Respondents proposal to unit employees, to
gether with a mail ballot they were requested to mark as
either an acceptance or rejection of Respondents pro
posal The employees were further instructed to seal and
mail their ballots to the Union's post office box by 11
April 1985
Before the ballots were due, Bernard Chitty filed a de
certification petition4 with the Board s Regional Office
on 4 April 1985 Shortly thereafter, Chitty presented
Thomas Godfrey Jr, director of finance and administra
tion for Respondent, with employee signatures on sheets
of paper bearing the following heading We the em
ployees of Colonna s Shipyard, Inc wish to remove the
UIW as our bargaining representative We do not need
this union as we would rather deal with the company di
rectly
Respondent was not presented with the original docu
ments bearing the employees signatures 5 Godfrey testi
feed that he took no steps to verify the signatures pre
sented by Chitty, is not familiar with all of them, and did
not see anyone sign The signatures presented to God
frey, including 6 which are illegible, number 118 The
payroll for the week ending 10 April 1985, which in
cludes the petition filing date and probably the date
Godfrey was given the signatures by Chitty, shows 216
unit employees Eight of the petition signers do not
appear on the payroll at all 6 and two others listed on
the payroll, Brook Louk and R E Wallace, are shown
as discharged (Louk) and laid off during a probationary
period (Wallace) Neither is credited with any hours
worked that week I conclude both were terminated
prior to that week For purposes of this computation the
six illegible signatures are counted as valid Accordingly
eliminating the 10 signers not employed during the week
the petition was filed and reported to the Respondent by
Chitty and deducting Louk and Wallace from the pay
roll, comparison of Respondent's payroll with the signa
lures delivered by Chitty indicates that 108 of 214 em
ployees signed the petition This figure is however also
questionable because five the signers' are listed as super
visors on the 2 March 1986 payroll There is no separate
listing or identification of supervisors on the 10 April
1985 payroll received in evidence as Respondents Exhib
All production and maintenance employees employed at Respond
cuts shipyard on Indian River Road at Norfolk Virginia excluding
office clerical employees office janitor porter salesmen guards
watchmen professional employees foremen superintendents and all
other supervisors as defined in the National Labor Relations Act as
amended
4 Case 5-RD-890
6 It appears the originals were submitted to the Board s Region 5 with
the decertification petition No party sought to place them in evidence
6 Bruce Bremley Johnnie Clark George Ewell Bill Garrett Edward
Holmes Lewis Hutcheson Jack Phillips and Jeff Phillips
' Michael DiGiovanni Randy Haddock Kenneth Holder John Par
tarn and Aubrey Williams
it 21 All that can be gleaned from the record indicative
of their status on 10 April 1985 other than their later
listing as supervisors on 2 March 1986, is their hourly
wage in April 1985 of $10 30 for two of them, $10 80 for
one, $10 50 for another, and $9 80 for the fifth, all ex
ceeded Bernard Chitty s wage of $9 40 Of the five, there
were four earning $1140 and one at $11 55 in March
1986, as opposed to Chitty s $10 50 Respondent has
proffered nothing to clarify the status of these five men
I am persuaded that a tentative inference may be drawn
from their greater wage than Chitty in 1985 and 1986,
and their listed supervisory status in 1986, that they were
also supervisors in 1985 The state of the record on the
matter being what it is, and the burden of proving its
good faith doubt of union majority status resting on Re
spondent as it does,8 which includes, I believe, the duty
to present clear, unambiguous, and persuasive evidence, I
perceive no sound evidentiary basis on which to base a
conclusion Respondent could fairly count these five sig
natures as those of unit employees or has produced ade
quate, unambiguous evidence that it had reasonable cause
to believe on the basis of a comparison of Chitty's lists of
signatures with its payroll of 10 April 1985 that more
than 103 of the 209 unit employees on the payroll had
signed Chitty's documents Respondent has simply not
met its heavy burden of proving Chitty's petition, fairly
considered, was unambiguous objective evidence the
Union had lost its majority status A decertification peti
tion supported by less than a majority of the unit em
ployees does not, standing alone, provide reasonable
ground to doubt a union s majority status 9
Chitty s petition was dismissed, after a hearing by the
Regional Director on 24 January 1986 because Chitty
was found to be a supervisor within the meaning of Sec
tion 2(11) of the Act No request for review of the Re
gional Director's decision was filed That decision there
fore is the law of that case Chitty s status was not reliti
gated before me
According to Godfrey, Respondent decided to with
draw recognition from the Union on 20 or 21 February
1986 and implemented that decision on 24 February
when it denied the Union access to its premises If one
includes the six illegible signatures on the Chitty petition,
75 of the signatories were employed in the appropriate
unit on 24 February which then numbered 358 Re
spondent thus had no reasonable basis at the time of its
withdrawal of recognition 10 to believe the Chitty peti
tion was objective evidence the Union had lost majority
status
Respondent had earlier questioned the Union s majon
ty by letter of 18 September 1985 to Brian Doherty the
Union's Atlantic region coordinator, i i but had not with
drawn recognition
8 See e g Louis Pappas Restaurant 275 NLRB 1519 (1985) Celanese
Corp 95 NLRB 664 (1951) Terrell Machine Co 173 NLRB 1480 (1969)
e Dresser Industries 264 NLRB 1088 (1982)
10 See NLRB Y Gulfmont Hotel Co 362 F 2d 588 589 (5th Cir 1966)
for the proposition that Respondent to prevail must have had a reasons
ble basis for its asserted belief at the time it withdrew recognition
i i The letter reads as follows
Continued
COLONNA S SHIPYARD 139
The complaint alleges , Respondent admits, and the
evidence shows that Respondent has on and after 24
February 1986, denied the Union access to its facility
Respondent' s admissions and other record evidence fur
ther establish that Respondent has, since 28 February
1986 refused to comply with the Unions 26 February
1986 request for a listing of all unit employees and their
addresses, dates of hire, classifications, and rates of pay
Similarly, Respondent admits, and I find, that on or
about 25 March 1986, Respondent, atting through its su
pervisor and agent Al Denson, told Respondent's pipe
shop employees that Respondent no longer has a union
The legality of the denial of access, refusal to furnish in
formation, and Denson s statement depends on whether
Respondents withdrawal of recognition was lawful
Respondent urges that it had a good faith doubt of the
Union s majority status because there was (1) employee
dissatisfaction with the Union, (2) union inactivity, and
(3) heavy employee turnover in the bargaining unit since
1985 The General Counsel and the Union argue to the
contrary
In addition to the Chitty petition, Respondent enumer
ates the following specific factors in support of its con
tention employees were dissatisfied with the Union, and
furnishes the evidence discussed below in support there
of
(a) Employee Statements of Disaffection with the
Union
(b) The Lack of Attendance at Union Meetings
(c) The Defection of Union Stewards and Dissen
sion on the Bargaining Committee
(d) Mass Defections from the Union and the
UIW s Failure to Attract New Members at Colon
na s since March 1985
While the litigation of Chitty s petition proceeded
there were additional things happening on which Re
spondent bases its contentions Between 8 February and
27 June 1985 Respondent received 11 written requests
from employees to terminate payment of union dues 2
written requests to terminate dues and revoke checkoff, 1
to stop dues deductions, and 1 to revoke membership
and dues checkoff Apart from the fact this only reflects
requests of 15 employees in a unit of more than 200
hardly a mass defection, it is well settled that neither
expressions of lack of interest in union membership nor
the number on dues checkoff establish a reasonable doubt
This is in reference to your letter of September 4 1985 concern
mg the layoffs at Colonna s Shipyard Inc Colonna s questions
whether your Union represents a majority of the employees at the
shipyard and whether you or your Union is authorized to make a
request on their behalf As you know there is a question concerning
representation pending before the National Labor Relations Board
[This refers to Chitty s petition I
Notwithstanding enclosed is a list of laid off employees that you
requested Please be advised that furnishing you with a copy of this
list does not acknowledge that your Union properly represents Co
lonna s Shipyard Inc s employees and further that the furnishing of
this list does not waive the Company s right to contest your Union s
majority status
of a union majority, especially in a right to work state
like Virginia 12
Both before and during the processing of the petition
employees complained about delays and general confu
sion and inefficiency in the handling of claims under the
contractual health insurance plan, which was referred to
by some as the Union s plan Some erroneously believed
that union membership was a prerequisite to receiving
benefits under the plan and that a union membership
card had to be presented as a condition of claim process
ing These incorrect beliefs seem to have stemmed from
advice from other employees including at least one union
steward Starting in 1984, Respondent issued several
memos to employees advising them that they did not
have to be members in order to receive the insurance
benefits and, after the memos issued, took other steps to
convey the proper requirements for medical coverage to
employees When Respondent, after a bargaining im
passe, unilaterally implemented a Blue Cross/Blue Shield
plan to replace the old contractual plan, employees ex
pressed their approval of the change Respondent cites
Upper Mississippi Towing Co, 246 NLRB 262 (1979), for
the proposition that employee expressions of dissatisfac
Lion with a health insurance plan for which they held the
Union responsible provide an objective basis for doubt
ing the Union's majority The case does not support the
argument Employee complaints about the insurance plan
in Upper Mississippi were only considered a factor be
cause a union official admitted to the employers attor
ney that the Union could not win an election unless and
until it developed and implemented a new health insur
ance plan satisfactory to the employees No such admis
sion is present in this case, and I conclude that expres
sions of unhappiness with the plan or its administration
have not been shown to be equivalent to rejections of
union representation in this case
According to Godfrey after Chitty s petition was dis
missed , and before recognition was withdrawn, several
foremen advised Godfrey that employees wanted to vote
on the Union's status and resented the Union's continued
claim of representation Neither the foremen nor employ
ees referred to were identified by Godfrey At or about
the same time, employees Keffer and Jones approached
Godfrey, told him they knew of the dismissal of the peti
tion, said they felt an overwhelming number of employ
ees wanted to get rid of the Union, and asked what
could be done Although Godfrey says this conversation
was one of the reasons for withdrawing recognition, he
concedes that he was not given the names of the alleged
ly dissatisfied employees The absence of evidence con
firming the expressions of opinion by Keffer, Jones, and
the foremen leaves nothing but speculative conclusions
that Respondent may not reasonably rely 13
Godfrey testified that disagreement among the mem
bers of the union bargaining committee the withdrawal
12 Terrell Machine Co v NLRB 427 F 2d 1088 (4th Cir 1970) enfg
173 NLRB 1480 (1969) Pioneer Inn Associates v NLRB 578 F 2d 835
(9th Cir 1978) enfg 228 NLRB 1263 (1977) Stratford Visiting Nurses
Assn 264 NLRB 1026 (1982) Odd Fellows Rebekah Home 233 NLRB
143 (1977)
13 MRA Associates 245 NLRB 676 678 (1979)
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Union s senior shop steward from the Union s ne
gotiating team, and what he perceived as the inability of
the bargaining committee to propound a contract propos
al reasonable and logical for the employees were factors
causing Respondent to have a serious question of the
Union s majority status in February and March 1985
The steward in question, Ardell Wright, allegedly told
Respondent's operations manager, Buck Johnson that
she did not want to take any part in the negotiations
Neither Wright nor Johnson testified The only evidence
of her statements is hearsay related by Godfrey on the
basis of what Johnson told him Neither disagreement
among members of the Union s team nor Wright s deci
sion not to participate further in the negotiations can be
logically interpreted as evidence that employees no
longer wish to be represented by the Union 14 More
over, for whatever it is worth Godfrey s conclusion as
to what might be a reasonable and/or logical contract
proposal by the Union is entitled to no deference and
proves nothing but his opinion
Low attendance at a union meeting to vote on Re
spondent s proposal and other meetings the Union s fail
ure to attract new members since the parties reached a
bargaining impasse in March 1985, the Union s failure to
process grievances, file unfair labor practice charges, or
request bargaining over unilateral changes made by Re
spondent, the failure to appoint new union stewards to
monitor the contract after March 1985 and the fact that
only 70 employees took part in the ratification vote on
Respondents last offer, are all offered as support for a
good faith doubt of union majority status
The low attendance at meetings contention is based on
employee reports to Godfrey particularly that only
about 30 employees were present and voted on 8 March
1985 to reject Respondents contract proposals Doherty,
the Union s vice president, estimates there were closer to
50 Which is more nearly correct is of no consequence
for the Board and courts have held that poor attendance
at union meetings does not warrant an inference that any
employees do not desire continued union representation,
particularly in a right to work state, which Virginia is 16
The same reasoning applies to the matter of only 70 em
ployees voting on ratification This does not mean those
who did not vote thereby rejected union representation
Whether the Union attracted new members is of no con
sequence because it is also well settled that resignation
from or failure to acquire union membership does not
support an inference of rejection of union representa
tion 16 As to grievances the Union had filed very few
grievances over the many years that its majority status
went unchallenged It filed one in 1985 prior to the expi
ration of the last collective bargaining agreement This
was processed by the parties, but when the Union at
tempted to file a grievance over a discharge after the
agreement expired the Respondent refused to process it
on grounds there was no contract and the termination
14 Flex Plastics 262 NLRB 651 657 (1982) International Medication
Systems 253 NLRB 863 868 (1980)
15 See e g Hutcheson Hayes International 264 NLRB 1300 1306-1307
(1982) and cases cited therein
16 Terrell Machine Co 173 NLRB 1480 1481 (1969) enfd 427 F 2d
1088 1090 (4th Cir 1970)
was final Respondent cannot be permitted to rely on a
failure to file grievances when it serves notice it will not
accept them Moreover, it appears that the filing of only
one or two grievances a year has not been an unusual
occurrence over the more than 20 year period of amica
ble relations between the parties The Union s conduct
with regard to grievances in 1985 does not show any
diminution of the Union s majority status Likewise Re
spondent s reliance on the Union s failure to file charges
or request bargaining over Respondents unilateral
changes in wages, hours, and working conditions as
reason for questioning the Union s majority is patently
without merit The parties agree the changes were made
by Respondent after a good faith impasse was reached in
negotiations The Union took no action other than a
letter of protest on the matter because it received legal
advice that Respondents conduct was proper and legal
action would be unsuccessful How Respondent can seek
to rely on the Unions failure to demand bargaining or
take legal action doomed to fail against lawful conduct
as support for an asserted doubt of the Union s majority
is puzzling indeed but I need not decipher this reasoning
because the facts do not support the inference Respond
ent draws
Unlike Nu Southern Dyeing & Finishing 17 on which
Respondent relies to support its argument that the Union
failed to appoint stewards to monitor the contract there
is no evidence here that it was practically impossible to
get anyone to hold union offices in the plant' during the
contract term, as was the case in Nu Southern, or at any
other time All this record shows is that in 1985 one
steward left Respondents employment another resigned
the position and neither have been replaced Inasmuch
as there has been no collective bargaining agreement
since March 1985 there has been no contract for stew
ards to monitor It is elementary that one cannot monitor
what does not exist There is no evidence it is practical
ly impossible' or even difficult for the Union to secure
shop stewards if and when they are needed It might
here be noted that Respondents refusal to entertain
grievances since the contract expired practically elimi
nates a stewards ability to represent employees in en
forcing any terms or conditions of employment Accord
ingly I conclude the failure to appoint new stewards
does not, as Respondent contends in and of itself illus
trate the difficulties of the UIW in filing union official
positions and both a low level of UIW activity and little
employee support of the Union'
Respondents personnel manager Rick Wellons testi
feed that the employee turnover percentage from 1 Janu
ary 1985 to 1 January 1986 was 82 7 percent He further
testified that this is a typical turnover rate, no different
from previous years that the total number of employees
used included all employees, not just unit employees and
that he guesses two thirds to three fourths of the em
ployees were in the unit, but is not sure what percentage
of the turnover was in the bargaining unit Wellons states
that he does not know whether his statistics include laid
17 NLRB v Nu Southern Dyeing & Finishing 444 F 2d 11 (4th Cir
1971)
COLONNA S SHIPYARD
off or recalled employees as opposed to termination and
new hires but avers that all laid off and recalled people
were treated in his figures as if they were hired There
are therefore some imponderables in Wellons statistics
More to the point, the Board has long held that employ
ee turnover standing alone is not enough to establish a
reasonable doubt of union majority status because new
hires are presumed to support a union in the same ratio
as those they replace Furthermore, Wellons prepared his
statistical survey at the request of Respondent's counsel
for trial purposes, and Respondent therefore did not have
this information to consider when it engaged in the con
duct alleged to be unlawful 18
On the record as a whole I conclude that when Re
spondent engaged in the conduct alleged in the com
plaint it did not have a reasonable doubt based on objec
tive considerations that a majority of the unit employees
wanted to be represented by the Union Accordingly it
is appropriate to discuss the alleged violations of the
Act
When Union Representative Mark Evans attempted to
enter Respondents premises on 24 February 1986, he
was denied access by the security officer on duty at the
gate Les Naghiu, Respondents security director was
then paged Naghiu went to the gate met with Evans,
and told him Respondent had decided to deny access to
union representatives because Respondent believed the
Union had lost its majority status and had no valid claim
of representation Respondent admits that Respondent
has on and after that date denied Union access to its fa
cility Godfrey testified, and Naghiu agrees, that the
policy had been to permit access to union agents, but he
instructed Naghiu to exclude them from the premises be
cause Respondent concluded the Union no longer repre
sented the employees I have found this conclusion was
not based on objective considerations
The collective bargaining agreement that expired in
March 1986 contained the following provision
ARTICLE XX
VISITATION
Any official representative of the Union shall be
permitted to visit the Employers premises during
working hours for the purpose of adjusting griev
ances, consulting with employees or observing that
the terms and conditions of this Agreement are
being observed, provided the same does not inter
fere with work in progress
The General Counsel contends the Board agrees and
I find that access provisions such as the foregoing sur
vive the expiration of a collective bargaining agreement
Houston Coca Cola Bottling Co 265 NLRB 766 777-778
(1982) Respondent does not claim and the evidence
does not show that the Union was utilizing its access
rights in a manner inconsistent with article XX of the
contract or past practice The Board has recently reaf
firmed that denial of such access rights for invalid rea
18 Laystrom Mfg Co 151 NLRB 1482 (1965) King Radio Corp 208
NLRB 578 (1974) Odd Fellows Rebekah Home 233 NLRB 143 (1977)
141
sons violates Section 8(a)(1) of the Act Gilliam Candy
Co 282 NLRB 624 (1986) The denial of access in Gil
Liam was not alleged to violate Section 8(a)(5) as the
complaint before me does, but it was so alleged and so
found in Houston Coca Cola, supra Accordingly I find
and conclude Respondent has violated Section 8(a)(5)
and (1) of the Act by denying access to its premises to
union agents seeking admission for purposes encom
passed by the terms of the visitation clause set forth
above
The Union s request of 26 February 1986 for a listing
of all bargaining unit employees, together with their ad
dresses, dates of hire, classifications and rates of pay
which Respondent admits it did not honor asks for in
formation relevant and necessary to the Union in per
forming its duties as the unit employees representative
All items requested must be produced because they are
intrinsic to the core of the employer employee relation
ship, 19 and presumptively relevant to the Union s role
as bargaining agent' 20 Respondents refusal to carry out
its duty to furnish this mfoimation21 violated Section
8(a)(5) and (1) of the Act
That Respondents supervisor and agent Al Denson
told employees, as Respondent concedes he did that Re
spondent no longer has a union is found to violate Sec
Lion 8(a)(1) of the Act because the Board has held that
such deliberate misstatements at a time when the employ
er has unlawfully withdrawn recognition from a union
serves to undermine employee support for the Union and
violated the Act 22
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 By refusing on and after 26 February 1986 to fur
nish the Union with the names addresses dates of hire
classifications and rates of pay for all employees in the
bargaining unit representated by the Union, Respondent
violated Section 8(a)(5) and (1) of the Act
4 By denying access to its premises to union agents
seeking admission for purposes of adjusting grievances
consulting with employees or observing that the terms
and conditions of collective bargaining agreement are
being observed Respondent violated Section 8(a)(5) and
(1) of the Act
5 By telling employees they are not represented by
the Union Respondent violated Section 8(a)(1) of the
Act
18 San Diego Newspaper Guild v NLRB 548 F 2d 863 867 (9th Cir
1977) Procter & Gamble Mfg Co v NLRB 603 F 2d 1310 1315 (8th Or
1979)
20 Bozzuto s Inc 275 NLRB 353 (1985) quoting Georgetown Holiday
Inn 235 NLRB 485 486 (1978)
21 NLRB v Acme Industrial Co 385 U S 432 437 (1967)
22 Flex Plastics 262 NLRB 651 659 (1982)
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I issue the follow-
ing recommended23
ORDER
The Respondent, Colonna's Shipyard, Inc., Norfolk,
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Industrial Work-
ers, Service, Transportation, Professional and Govern-
ment of North America, Local 14, of the Seafarers Inter-
national Union of North America, Atlantic, Gulf, Lakes
and Inland Waters District, AFL-CIO as the exclusive
bargaining representative of the employees in the follow-
ing bargaining unit by refusing to furnish it with infor-
mation it requests that is relevant and reasonably neces-
sary to fulfilling its duty to represent the employees:
All production and maintenance employees em-
ployed at Respondent's shipyard on Indian River
Road at Norfolk, Virginia, excluding office clerical
employees, office janitor-porter, salesmen , guards,
watchmen, professional employees, foremen, super-
intendents, and all other supervisors as defined in
the National Labor Relations Act, as amended.
(b) Refusing to bargain with the Union by denying its
agents access to Respondent's premises for purposes of
adjusting grievances, consulting with unit employees, or
observing that terms and conditions of a collective-bar-
gaining agreement are being observed.
(c) Telling unit employees they are not represented by
the Union.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Immediately furnish the Union with the informa-
tion it requested by letter of 26 February 1986.
(b) Notify the Union in writing that its access to Re-
spondent's premises has been restored for the purposes
enumerated in article XX of the collective-bargaining
agreement between the parties which expired 6 March
1985.
(c) Post at its Norfolk, Virginia facility copies of the
attached notice marked "Appendix."24 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately on receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
23 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
sonable steps shall be taken by the Respondent to insure
that these notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order, what steps the Re-
spondent has taken to comply.25
25 The circumstances of this case do not warrant the inclusion of a vi-
sitatorial clause authorizing the Board , for compliance purposes , to obtain
discovery from Respondent under the Federal Rules of Civil Procedure
under the supervision of any United States court of appeals enforcing this
Order.
SUPPLEMENTAL DECISION
CLAUDE R. WOLFE, Administrative Law Judge. I
issued a decision in this proceeding on 6 February 1987.
By Order of 13 August 1987, the Board directed that the
record be reopened for the limited purpose of inquiring
into Respondent's alleged involvement with, and possible
responsibility for Supervisor Bernard Chitty's solicitation
of employee signatures in support of the decertification
effort in Case 5-RD-890.1
Chitty was included within the bargaining unit and
covered by the collective-bargaining agreement. The test
for determining Respondent's responsibility for Chitty's
conduct is set forth in Montgomery Ward & Co., 115
NLRB 645 (1956), in which the Board states, in relevant
part:
When a supervisor is included in the unit by agree-
ment of the union and the Employer and is permit-
ted to vote in the election, the employees obviously
regard him as one of themselves. Statements made
by such a supervisor are not considered by employ-
ees to be the representations of management, but of
a fellow employee. Thus they do not tend to intimi-
date employees. For that reason, the Board has gen-
erally refused to hold an employer responsible for
the antiunion conduct of a supervisor included in
the unit, in the absence of evidence that the em-
ployer encouraged, authorized, or ratified the super-
visor's activities or acted in such manner as to lead
employees reasonably to believe that the supervisor
was acting for and on behalf of management. How-
ever, a supervisor, although mistakenly permitted to
vote in the election by agreement of the parties, re-
mains an arm of management . To the extent, there-
fore, that an employer's accountability for the con-
duct of a supervisor does not depend on employee
reaction, the employer's responsibility for the super-
visor's action is not affected by the fact of inclusion
in the unit. Hence, an employer is chargeable with
knowledge of union activities acquired by such a
supervisor. And the supervisor's statements are ad-
missible as evidence of his employer's motivation in
discharging individuals. In neither of these situa-
tions is employee reaction a condition to employer
responsibility.
' As noted in my original decision , the petition in Case 5-RD-890 was
dismissed because it was filed by Supervisor Chitty.
COLONNA S SHIPYARD
The hearing was reopened and evidence relating to the
remand order was taken from the parties on 1 and 2 De
cember 1987 After considering the additional evidence 2
the demeanor of the witnesses as they testified, the able
posttrial briefs filed by the parties on 29 January 1988,
and the applicable precedents, I make the following find
ings and conclusions
The decertification petition in Case 5-RD-890 was
filed by Chitty on 4 April 1985 Thomas Godfrey, Re
spondent s director of finance concedes that Respondent
supported the employees decertification petition after it
was filed and, on 10 April 1985 Respondents president,
W W Colonna, Jr, addressed a letter to employees
reading, in pertinent part, as follows
We have been advised by the National Labor Re
lations Board (Board) that the Colonna employees
have filed a petition with the Board indicating that
they no longer wish to be represented by the union
Within the next several weeks, a hearing will be
held to determine the details of the secret ballot
election
Remember, our federal government protects your
right to vote in this secret ballot election and to get
rid of the union, if that is your desire Over the next
several weeks, I look forward to meeting with you
personally to discuss the many advantages of a
union free company In the meantime, I would be
happy to personally discuss with you any questions
that you may have concerning this procedure
In addition to supporting the 5 April 1985 petition after
it was filed, Respondent relied on the signatures solicited
by Chitty prior to filing the petition as evidence in sup
port of its contention it had a good faith doubt of the
Union s majority status based on objective considerations
when it withdrew recognition on 24 February 1986 It
has been held that by expressly relying on a petition cir
culated by a nonsupervisory employee3 or a supervisor
in the unit4 as a ground for challenging a union s majon
ty an employer condones and ratifies the conduct of that
employee in securing the petition signatures There is no
need however to rely on that narrow ground to find em
ployer responsibility here, nor would such a finding re
solve the issue of responsibility for Chitty s conduct at
the time he was so engaged Significant and persuasive
evidence of Colonna s responsibility is found in the testi
mony of employee witnesses regarding Chitty s conduct
2 Chitty is deceased His pretrial affidavit given to a Board agent was
received in evidence consistent with Fed R Evid Sec 804(b)(5) and nu
merous Board decisions such as Central Freight Lines 250 NLRB 435
(1980) The Board has speci fically held that although admissible such an
affidavit must be evaluated with maximum caution and only be relied
on if and when consistent with extraneous objective and unquestionable
facts United Sanitation Services 262 NLRB 1369 1374 (1982) Industrial
Waste Service 268 NLRB 1180 fn 1 (1984) A rule of cautious scrutiny
also applies to the testimony of witnesses regarding conduct of the de
ceased See e g Sears Roebuck & Co 224 NLRB 558 (1976) Goodwater
Nursing Homes 222 NLRB 149 fn 2 (1976) Consistent with the forego
mg instructions I have evaluated Chitty s affidavit his testimony in Case
5-RD-890 and testimony by others about Chitty s conduct with great
caution when such evidence has been relevant to this proceeding
a Primrose Super Market of Salem 171 NLRB 1028 1036 (1968)
1 Connecticut Distributors 255 NLRB 1255 1261 (1981)
143
while he was soliciting signatures prior to the filing of
the petition
According to Murray Cahoon formerly employed by
Respondent as a machinist, he observed Chitty passing
his petition to four employees while they were working
in March 1985 Cahoon asked Chitty to let him see the
document Chitty rejoined that he would if Cahoon
would sign it Cahoon then opined that the petition was
full of crap To which Chitty replied that is the way
the company wants it They want the union out of the
yard Chitty then walked over to the production trailer
where he stopped and talked to production manager
Buck Johnson, Superintendent Bruce McCricket,5 and a
couple of other employees As they talked, Chitty held
the petition down by his leg Cahoon did not overhear
the conversation Prior to talking to Chitty that day,
Cahoon had been told by his brother in law, Jimmy Bal
lance , who is stipulated to be a leadman and statutory su
pervisor, that Chitty was passing a petition around On
another occasion, within the same week, according to
Cahoon, when Chitty and Sid Johnson, foreman and stip
ulated statutory supervisor and others were working to
gether, he heard Sid Johnson say We have enough sig
natures to get the union out of the yard
On cross examination Respondents counsel elicited
from Cahoon testimony that when Cahoon saw Chitty
solicit the four men to sign he also heard Chitty tell one
employee it could jeopardize his job if he did not sign
Notwithstanding Cahoon s acknowledgement he did not
examine the document Chitty had I conclude from all
the circumstances and the absence of evidence that
Chitty was securing signatures for another purpose that
it was the petition seeking decertification of the Union
Cahoon s testimony is credited I have considered that he
was discharged by Respondent about 3 months before
the reopened hearing for insubordination but this consid
eration is outweighed by the fact he appeared to be testi
fying truthfully as best he recalled and without malice or
fabrication and the further fact that his testimony is un
controverted Jimmy Ballance s comment to Cahoon
about the existence of Chitty s petition confirms God
frey s testimony that employees, foremen, and everybody
were talking about Chitty s petition at the time it was
being circulated There is no evidence Respondent took
any steps during the solicitation by Chitty to disavow his
conduct or to assure employees it was neutral with re
spect to Chitty s conduct and I therefore find Respond
ent took no such steps
With respect to Chitty s statements testified to by
Cahoon they must be evaluated in the light of Montgom
ery Ward's careful instruction that a supervisor included
in the unit remains an arm of management and may make
statements in the nature of admissions for which his em
ployer must bear the responsibility That this remains the
law is clear from the Board's adoption of Administrative
Law Judge Stone s explication of the applicable rule in
Connecticut Distributors, supra at 1259-1261 Thus, when
Chitty told Cahoon that Respondent wanted the petition
° Buck Johnson is deceased Bruce McCncket Sid Johnson and
Jimmy Ballance did not testify Chitty s affidavit does not contradict
Cahoon
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and wanted the Union out of the yard he was acting as
Respondents agent making an admission against interest
that Respondent was supporting Chitty s solicitation in
an effort to rid itself of the Union Moreover, Sid John
sons comment to Chitty and others that we had
enough signatures to get the Union out of the yard may
fairly be considered an admission by a supervisor and
agent not included in the unit that Respondent supported
the solicitation and would utilize its fruits as a basis for
rejection of the Union
William Hill was an employee when Chitty was solic
iting signatures for the petition in 1985, but was later
forced to resign for reasons unrelated to union or other
protected activity Hill signed Chitty s petition on 29
March 1985 and relates the following sequence of
events On 28 March 1985 Chitty asked him to sign the
petition to do away with union representation, and
stated This is for getting rid of the union The compa
ny is going to offer you a lot of benefits and help you
out in the long run Hill walked away without respond
ing On 29 March after the whistle blew to start the
workday, Chitty called Hill into his office as usual to re
ceive a job assignment When Hill was receiving his as
signment, Chitty said, While I have got you here go
ahead and sign this," referring to the petition which lay
on the desk Hill and employee Bruce Perkins signed
While the signing of the petition was taking place, em
ployee Jack Jones came in with another copy of the peti
tion, and told Chitty he had secured a lot of signatures
the night before Chitty replied that he would talk to
Jones later Bruce Perkins did not testify Neither Chit
ty s pretrial affidavit nor his testimony in Case 5-RD-
890 speak to Hill's testimony Hill s testimony is there
fore uncontroverted Even though Hill may feel some re
sentment against Respondents handling of his forced res
ignation, which he denies, nothing in his demeanor his
testimony or elsewhere in the record convinces me that
his testimony is a fabrication or embellished for this pro
ceeding Crediting Hill s testimony as I do, I conclude
that Chitty s 28 March comments to Hill conveyed that
Respondent would provide additional benefits and other
assistance to employees if it was rid of the Union I do
not find that this statement violated Section 8(a)(1) be
cause it is not so alleged and for the further reason that
Chitty was a unit member See Montgomery Ward, supra
I do however find that Chitty s statement indicated to
Hill that Respondent was supporting Chitty's decertifica
tion efforts, and is in the nature of an admission by an
agent of Respondent that it in fact was Hill s testimony
also demonstrates that Chitty used his office for the pur
pose of soliciting signatures during the workday and as a
place for other participants in the decertification effort to
report their progress to Chitty
Dale Tiller a sometimes confused witness who was
discharged in June 1986, testified that, during a conversa
tion with Chitty in March 1985, Chitty advised him the
insurance plan offered by Respondent in negotiations
was better than that of the Union When Tiller said he
would like to know more about it Chitty arranged a
meeting with Thomas Godfrey for later that day Ac
cording to Tiller, Chitty took him to Godfrey s office
where Godfrey explained the insurance plan to him for
about 2 1/2 hours Tiller claims Chitty was there the
whole time and left the office with Tiller Later that day,
in the storeroom, Chitty asked if Tiller was ready to sign
up Tiller thinking he was being asked to subscribe for
insurance, said he was Chitty gave him the petition seek
ing the expulsion of the Union as employee representa
tive Tiller refused to sign Chitty said this was what he
wanted Tiller to sign Tiller protested he thought Chitty
had asked him to sign for insurance Chitty said that was
not the case and that once the Union was busted out of
the yard Tiller could sign up for insurance Tiller still
refused to sign Chitty said he had to sign then because
Chitty was taking the petition to Richmond that night
They then repaired to the office of Blackie' Black
wood storeroom foreman and stipulated statutory super
visor There Blackwood further explained the insurance
When Tiller asked why Blackwood had not explained it
earlier, Blackwood said he did not want to get involved
and was a neutral party After this Tiller/Blackwood ex
change, Chitty told Tiller that the Company had busted
him back so that he could pass the petition around Tiller
also testified that during the time period Chitty was so
liciting signatures for the petition, Sid Johnson told him
that they are going to get rid of the union and that I
Tiller was on my way out, too
Neither Blackwood nor Sid Johnson testified Chitty
in his 5 June 1985 pretrial affidavit, states, in relevant
part
I did tell some employees that in my opinion
there was a possibility that the company may put
the insurance plan they proposed to the union
during negotiations in effect if the union was voted
out I also told some employees what I knew about
the insurance plan From what I have heard about
the plan it is almost the same insurance plan that I
had when I worked for about 4 1/2 years at Allied
I did not take any employees to see Tom God
frey, the company s assistant business manager to
discuss the insurance and pension plans the compa
ny proposed to the union I told employees that if
they wanted to know more about the plans to go
and see Godfrey Its (sic) my understanding that
one or two employees went and saw Godfrey, but I
didn t go with them I know for sure that one em
ployee went to see Godfrey after work one day I
know this to be true because Bill and I were
leaving work that day and he told me that he was
going to see Godfrey I didn t go into the office I
left the yard
I never told any employees that I had been
busted back from leadman so that I could pass
around the petition I have never been a leadman
while working for the company
On 24 July 1985 Chitty testified in Case 5-RD-890 The
portions of the transcript of record in that case placed in
evidence by the parties reveal nothing relevant to Tiller s
testimony, and affirmatively show Chitty was precluded
by the hearing officer from testifying regarding his circu
lation of the petition or any possible involvement of the
Respondent in that circulation Tiller testified at the
COLONNA S SHIPYARD 145
same representation case hearing The portions of his tes
timony, on 25 July 1985, at that hearing which were
placed in evidence in the case before me and his sworn
statement given to the Board on 24 April 1985, are con
sistent with Tiller s testimony before me in this case
except for the fact that when he testified on 25 July
1985, he placed the time of Chitty s comments about
being busted back as roughly around May Tiller s
24 April 1985 statement places it on 27 March 1985 In
asmuch as the event thus clearly took place prior to 24
April 1985, I find 27 March 1985 is the more probable
date Godfrey testifies that he had two discussions with
Tiller of approximately 15 or 20 minutes each in which
they discussed the insurance plan proposed by Respond
ent Godfrey asserts that Chitty was not present during
these discussions, but does not recall whether Tiller told
him that Chitty had sent him to Godfrey to talk about
insurance Godfrey explains that employees had ques
tions about Respondent s insurance plan and he became
the one who explained the plan to them when they in
quired about it
Tiller s testimony is clearly not of recent invention or
significantly inconsistent with prior statements I do not
however, believe it likely that Godfrey would spend 2
1/2 hours with him explaining the insurance plan It is
more probable and I credit Godfrey that his meetings
with Tiller were of 15 to 20 minutes in duration I fur
ther credit Godfrey, who was quite certain and believ
able on this point, that Chitty was not present during the
Godfrey/Tiller conversations I credit Tiller that Chitty
conducted him to Godfrey for the insurance explanation
Tiller's uncontroverted testimony regarding Sid John
son s comments is believable and credited The failure of
Blackwood to testify and the absence of any other good
reason not to credit Tiller regarding his talk with Black
wood persuade me that Tillers recitation is truthful
Treating the affidavit of Chitty and the various state
ments of Tiller regarding Chitty s conduct with caution
as established law requires I credit Tiller in which he
and Chitty differ regarding the content of Chitty's state
ments Tiller was imputing the same conduct to Chitty
while Chitty was still alive, and Tiller was then still an
employee not likely to falsely testify against those who
controlled his employment future Federal Stainless Sink
197 NLRB 489 491 (1972) I therefore cannot conclude
that Tiller s testimony is designed to take advantage of
Chitty's inability to now reply nor do I conclude that
Tiller s discharge prior to his current testimony but after
his earlier consistent sworn statements is any reason to
now disbelieve him I detected nothing in his demeanor
to warrant discounting his testimony, and the mere fact I
credit Godfrey over Tiller on some points does not re
quire a finding of falsus in uno , falsus in omnibus
NLRB v Universal Camera Corp 179 F 2d 749 754 (2d
Cir 1950) Here again Chitty has made an admission that
Respondent was supporting his decertification conduct
and Sid Johnson admits Respondent is trying to get rid
of the Union
The General Counsel also presents Michael Richards
testimony that in early March 1985, about 2 weeks
before he saw the petition being circulated by employees
Keffer and Jones he overheard employee Poindexter and
Billy Colonna III Respondents special projects manag
er, discussing the pension plan and how employees
would benefit if the Union were not present Richards
entered the conversation by asking how employees
would benefit Colonna said the 60 cents devoted to the
welfare plan would return to employees and the other
benefits would be as good or better if the Union were
out Colonna s statements are not alleged to be unlawful,
and do nothing to establish any connection between Re
spondent and Chitty s conduct
There is sufficient evidence to conclude that Chitty,
and other employees, solicited employee signatures for
the decertification effort during working time The evi
dence is equally as strong that various other types of so
licitations, including prounion solicitation, were permit
ted during working time I am persuaded that Respond
ent s solicitation and distribution rules were simply not
being enforced in 1985 either prior to, during, or after
the March solicitation That they may have been en
forced some time later in 1986 is irrelevant to the inquiry
into Chitty's conduct
Godfrey acknowledges that Chitty s solicitation con
duct was widely discussed at Respondents facility while
it was going on, and that Respondent supported the de
certification effort after the 5 April 1985 petition was
filed by Chitty The 10 April 1985 letter of Respondent s
President W W Colonna Jr, confirms that support, and
Respondent adopted the results of Chitty s efforts as a
basis for withdrawing recognition Chitty as an arm of
management , made statements in the nature of admis
sions that he was acting on Respondents behalf" when
he solicited signatures from Cahoon Hill, and Tiller
Similarly Sid Johnson' s comments testified to by
Cahoon and Tiller imply company involvement in Chit
ty s efforts The statements of Chitty and Sid, Johnson
are sufficient to warrant findings that (1) Respondent's
agents acted in such a manner as to lead employees rea
sonably to believe Chitty was acting for and on behalf of
management, and (2) Respondent encouraged and au
thorized Chitty s solicitation Accordingly, I conclude
and find that Respondent is responsible for Chitty s acts
in circulating the decertification petition in March 1985
and may not rely on the signatures secured by Chitty as
a basis for withdrawing recognition This conclusion and
finding reinforces my earlier conclusion to which I now
adhere 7 that Respondent has not demonstrated sufficient
objective evidence to support its asserted good faith and
reasonably grounded doubt of the Union s majority
status when Respondent withdrew recognition from the
Union in February 1986
Additional Matter Raised on Remand
At the outset of the hearing on remand, counsel for
the General Counsel advised he would ask as additional
remedy that Respondent rescind its withdrawal of rec
ognition and that a general bargaining order be granted
6 Connecticut Distributors supra at 1261
7 My original decision recited a presumption that new hires support a
union in the same ratio as those they replace The Board has since found
there is no basis for such a presumption Buckley Broadcasting Corp 284
NLRB 488 (1987)
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in this case " I advised the General Counsel that I was
not inclined to grant these additional remedial measures
In his posttrial brief on remand , counsel for General
Counsel states that , ` based upon his findings that the Re
spondent improperly withdrew recognition from the
Union , a matter which has been fully litigated , we are re
questing that the Administrative Law Judge expand the
proposed remedy to recognize and bargain with the
Union "
The complaint does not allege nor has the General
Counsel sought to amend it to allege either that Re
spondent has violated the Act by refusing to meet and
bargain on request or by unlawfully withdrawing recog
ration from the Union Counsel for the General Counsel
appearing in the original hearing in September 1986 spe
cifically pointed out in his posttrial brief at page 5, foot
note 9 , Respondent 's withdrawal of recognition was
never the subject of any unfair labor practice charge
filed by the Union and therefore never the subject of any
unfair labor practice complaint allegation ' To the extent
my earlier decision states or implies that the withdrawal
of recognition was unlawful under the Act, my decision
is in error because the General Counsel specifically de
clined to so allege The most that I can and do find re
garding the withdrawal of recognition is that it was not
based on sufficient objective evidence to support a rea
sonable doubt of the Union s continuing majority, and
therefore is not a valid defense to a finding that Re
spondent violated the Act in the ways alleged in the
complaint It logically follows from the rejection of Re
spondent s reasons for withdrawing recognition that Re
spondent 's bargaining obligation continued to exist on
and after 24 February 1986, the date of the withdrawal
Nevertheless , I do not believe the state of the pleadings
and the General Counsels specific disavowal of any con
tention the withdrawal of recognition was an unfair labor
practice , notwithstanding the fact the validity , but not
the legality , of the withdrawal of recognition has been
litigated , will fairly permit me to grant the broad relief
requested by the General Counsel
The record , as supplemented on remand , requires no
modification of the Conclusions of Law or recommended
Order set forth in my decision of 6 February 1987, and
they are accordingly reissued