Decorel Corp.

National Labor Relations Board - Board Decisions

Feb 27, 1967

163 N.L.R.B. 146 (N.L.R.B. 1967)

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees within 7 days after the Regional
Director's approval of the stipulation for consent
election agreement. While the Employer-Petitioner
does not deny that the list was filed on
September 11, 1966, 4 days after the prescribed
filing time, it contends first that the parties, with the
approval of the Board agent, agreed that the list
would be filed on September 11 at a preelection
conference, and, secondly, that even if the
agreement were not effective, its substantial
compliance with Excelsior rule is sufficient so as not
to warrant the setting aside of the election.
Like the Regional Director, we find it unnecessary
to determine whether the parties reached an
agreement providing for a later filing date. However,
unlike the Regional Director, we find nothing in our
Decision in Excelsior which would require the rule
stated therein to be mechanically applied. The
principle underlying rationale of Excelsior, requiring
the employer to disclose the names and addresses of
eligible voters to the union , is to provide the union
with an opportunity to inform the employees of its
position so that they, the employees, will be able to
vote intelligently. Here, the unit is relatively small;
the list was submitted 4 days late; and the Union had
the list in its possession for a period of 10 days prior
to the election. In these circumstances, we find that
the Union was afforded sufficient opportunity to
communicate with employees prior to the election
and therefore that the Employer-Petitioner has
substantially complied with the requirements of the
Excelsior rule. We shall therefore overrule the
Union's Objection 1.
As the tally of ballots shows that the Union has not
received a majority of the valid votes cast in the
election, and as the challenged ballots are
insufficient in number to affect the results of the
election, we shall certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
IT Is HEREBY CERTIFIED that a majority of the
valid votes have not been cast for Toy and Novelty
Workers of America, Local223, Affiliated with
International Union of Dolls, Toys, Playthings,
Novelties and Allied Products of U.S. and Canada,
AFL-CIO, in the election held herein, and that said
Union is not the exclusive representative of the
employees in the unit found appropriate within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
Decorel Corporation : Reliance-Illinois
Corporation ; and Ridgecraft Corporation
and Upholsterers International Union,
AFL-CIO,-Acting through its Agent
Picture Frame Workers, Molding Workers
& Furniture Handlers , Local 18-13. Case
13-CA-7047.
February 27, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
On July 5, 1966, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged
in certain unfair labor practices and recommending
that they cease and desist therefrom and take
certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondents filed exceptions to the Trial
Examiner's Decision and supporting briefs, and the
General Counsel filed cross-exceptions and
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following additions and
modifications.'
We agree with the Trial Examiner's findings that
Respondents violated Section 8(a)(5) and (1) of the
Act. However, in adopting the Trial Examiner's
finding of an 8(a)(5) violation we rely on the following
rationale.
For many years Respondents and the Union have
' Respondents have excepted to the Trial Examiner's
statement that they did not file a brief with him. Apparently as a
result of misunderstanding, Respondents filed the brief intended
for the T,ial Examiner with the Regional Director who did not
forward it to the Trial Examiner. Section 102.42 of the Board
Rules and Regulations places on the party desiring to file a brief
the responsibility for filing with the Trial Examiner, with copies
served on the other parties. Respondents have attached to their
brief to the Board copies of the brief intended for the Trial
Examiner . We have considered both briefs.
163 NLRB No. I1
DECOREL CORPORATION 147
bargained collectively for Respondents ' production
and maintenance employees . Collective -bargaining
contracts have been between "Upholsterers
International Union , AFL-CIO, acting through its
agent , Picture Frame and Moulding Workers' Union,
Local 18-B" and Respondents . Each contract
provided that the agreement was not to become
effective until countersigned by a duly authorized
officer of the International. Each contract also had
separate spaces for signatures by the International
"Through its agent" Local 18-13, by the latter's
president , and by an International officer at
Philadelphia . Negotiations on behalf of the
International were customarily conducted by
officers and committees of the Local.
In early December 1964 , the parties began
negotiations for a new collective -bargaining contract
to succeed the existing contract which was to
terminate on December 31, 1964. The negotiations
continued into February 1965 . During negotiations,
the parties were informed that a decertification
petition had been filed by Respondents ' employees
on February 2, 1965. Nevertheless the negotiators
continued their negotiations and reached agree-
ment on terms of a new agreement to be submitted
to employees for a ratification vote . The employees
ratified the terms at a meeting held on February 8,
1965.
The document embodying the terms of agreement
between the negotiators provided , as did previous
collective -bargaining agreements between the
parties, that it "shall not , however, become effective
until countersigned by a duly authorized officer of
the International Union ," and, "When so
countersigned the within agreement shall be deemed
to have become effective as of the date set forth in
the first paragraph of this article ." Although local
union officials initialed the document , International
officials refused to countersign . On April 27, 1965,
the International informed the Local that it could not
approve the contract because the wage rates were
below standard , many beneficial provisions in
previous agreements had been omitted from the new
contract , and the health and welfare clause differed
markedly from the standard International clause on
the subject . The International instructed the Local
to reenter negotiations to obviate its objections.
Meanwhile , Respondents put into effect some of
the provisions of the agreement reached with Local's
officials. Also on April 9 , Respondents ' president,
Stuart Scheyer , wrote to the Local asking when it
could expect to receive the countersigned
agreement . The Local's attorney replied on April 13
that "In this connection, as you well know , there are
matters which require discussion between the
parties." The letter also complained that certain
benefits had not been given to employees, and
concluded with a question about Respondents' good
faith in collective bargaining and a suggestion "that
an early meeting would be desirable for the purpose
of affording you an opportunity to clarify the
situation ." President Scheyer answered this letter
on April 16 stating that a contract had been
negotiated and that "There is no need for an `early
meeting ... to clarify the situation .' Returning a
signed contract to us is all the clarification that is
needed." On the same day, April 16, Scheyer wrote
to the Local that "If we do not receive the contract
signed by you and countersigned by the
International by April 23 we will assume that you do
not intend to honor it."
On May 7 , the parties entered into an agreement
for a consent election which was held on May 21.
The Union lost but filed objections to the election.
The Regional Director upheld the objections in a
report issued on August 17 and set aside the
election.
On August 19, 2 days after the Regional Director
issued his report setting aside the election, the Local
wrote Respondents requesting a meeting to
negotiate a collective -bargaining agreement.
Respondents refused the request and referred again
to the agreement previously reached which the
International officials had refused to countersign.
On August 28, Respondents filed a motion with the
Regional Director for reconsideration of his ruling
setting aside the election. The Regional Director
denied the motion on September 21. Two days later
the Local Union repeated its request for a meeting to
resume collective -bargaining negotiations and
requested certain data necessary for bargaining. On
September 30, Respondents rejected these requests
with the statement that they did not in good faith
believe that a majority of employees wanted the
Local to represent them.
At no time prior to this letter of September 30,
1965, did Respondents question the Union's majority
status. Despite the fact that Respondents became
aware about February 4, 1965, that a decertification
petition had been filed, Respondents continued to
bargain with the Union without questioning its
standing as bargaining representative, and
subsequently insisted that a binding collective-
bargaining contract had been reached in these
negotiations . Respondents further stipulated that at
the time agreement was reached between Local
officials and Respondents-February 8, 1965-the
Union was the majority representative, and that
Respondents' Vice President William Hamilton
would testify that he stated in an affidavit dated
March 31, 1965, "At no time did I express any doubt
to the Union that it represented a majority of the
employees."
The Trial Examiner found that as a result of the
February negotiations a binding agreement had been
reached and that Respondents might have insisted,
if they chose, upon the proper signatures being
affixed, but that they abandoned their position
immediately after consenting to an election on the
decertification petition, disavowed the existence of a
contract , and engaged in conduct calculated to
undermine the Union's representative status. The
General Counsel has excepted to the finding that a
295-269 0-69-11
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract was reached as the result of the 1965
negotiations. We agree with this exception.
By its own terms, which were in accord with
previous practice and the understanding of the
parties,2 the agreement as to terms and conditions of
employment reached in negotiations was not to
become effective until countersigned by a duly
authorized officer of the International. Approval of
contract terms by the International was therefore a
condition precedent to the creation of a valid
subsisting collective-bargaining contract.3 As the
International never signed the proposed 1965
contract, we find, contrary to the Trial Examiner,
that no binding contract was ever reached by the
parties.
Because the tentative agreement reached in
negotiations never became effective, the provisions
of Section 8(d) of the Act4 are not applicable, and
Respondents remained under a duty to resume
negotiations upon request with a view toward
reaching agreement on terms of a new collective-
bargaining contract.5 The Union made requests for
meetings with Respondents on April 13, August 19,
and September 23. Each of the requests was denied
by Respondents. Although we find that by each of
their refusals Respondents violated Section 8(a)(5),
the reason for finding the rejection of the April
request unlawful is different from that for the other
refusals.
As of April 13, the International had not yet
informed the Local that it would not approve the
contract previously negotiated. In its letter of the
date requesting a meeting, the Local neither said nor
could it have intended to say that it desired to meet
with Respondents to negotiate a new collective-
bargaining agreement. The request, rather, was for a
2 Respondents clearly understood that approval of the contract
by the International was necessary to effect a binding agreement,
as evidenced by the following Respondents' president, Scheyer,
assembled for duplication the final document which contained the
countersigning requirement In his April 16, 1965, letter to the
Local, Scheyer wrote, "If we do not receive the contract signed by
you and countersigned by the International by April 23 we will
assume that you do not intend to honor it." In May, in a note
returning checked-off union dues to employees, Respondents said
that the money had been deducted "before we learned that the
Union had refused to sign the contract that your fellow workers
voted into effect In view of this refusal, we have no contract and
as a result , your deduction authorization is not valid
J Adams Division, LeTourneau Westtnghoi.se Co, 143 NLRB
827, 830-831, Charles Leonard, Inc. 131 ,'ILRB 1104, 1105,
Zangerele Peterson Co , 123 NLRB 1027
4 Section 8(d) provides , inter alia
. the duties [imposed by Section 8(d)] shall not be
construed as requiring either party to discuss or agree to any
modification of the terms and conditions contained in a
contract for a fixed period, if such modification is to become
effective before such terms and conditions can be reopened
under the provisions of the contract.
5 F W Means & Company, 157 NLRB 1434 Respondents
except to the Trial Examiner 's finding that they disavowed the
contract after consenting to the decertification election
Respondents argue that they did not disavow the contract and
assert its discontinuing validity in justification of their refusal to
meet with the Union on a contract already concluded Under our
view of the case we do not reach the issue whether Respondents'
meeting to discuss matters affecting the day-to-day
relationships of the parties, and particularly the
terms and conditions of employment under which
the employees were then working.
The Respondents rejected this request on the
untenable grounds that the attorney who had
participated in the negotiation was not an
appropriate official to initiate a request for
discussions,6 and that return of the signed contract
was all the clarification needed. With respect to this
latter ground, matters affecting employees' current
terms and conditions of employment are matters
,which an employer is obligated to discuss with the
representative of its employees, whether or not a
collective-bargaining agreement is then in effect.
Thus, where there is in effect a valid subsisting
agreement, as the Respondents contend there was
here, there exists an obligation to meet and confer
concerning the meaning, application, and
administration of the terms of such an agreement.?
Where no such agreement exists, as we have found
to be the fact in this case, the statutory bargaining
requirement, as set forth in Section 8(d) of the Act,
still encompasses the obligation, separate from the
obligation to meet with respect to the negotiation of
an agreement, "to meet . . . and confer in good faith
with respect to wages, hours, and other terms and
conditions of employment ...... 8 In view of all these
circumstances, therefore, we find that the
Respondents' summary rejection of the April 13
request for a meeting was unlawful.
By August 19, the International's refusal to sign
the February agreement was known to both parties.
On that date and again on September 23, the Union
clearly requested meetings for the purpose of
negotiating a new collective-bargaining agreement.
conduct, particularly their preelection misconduct , can be said to
constitute a disavowal of an effective contract For the reasons set
out herein, we find that the parties did not execute a binding and
effective contract because the agreement negotiated by
Respondents and the Local Union had not been countersigned by
the International
The Crescent Bed Company, Inc., 157 NLRB 296, relied on by
Respondents to show that the parties ' written agreement did not
require countersigning by the International to be binding, does
not support that contention On the contrary, the decision in that
case held that the contract negotiated by an International Union's
staff representative together with a local union committee and
the employer was binding and effective on the International
Union because it had been countersigned by International
officers
6 See The Prudential Insurance Company of America, 124
NLRB 1390.
r N.L R B v Sands Mfg Co , 306 U.S 332; Danner Press, Inc.,
153 NLRB 1092, 1107.
tl See N.L R B v Katz, 369 U S 736, 743, where the Supreme
Court stated, with respect to this quoted language
Clearly, the duty thus defined may be violated without a
general failure of subjective good faith, for there is no
occasion to consider the issue of good faith if a party has
refused even to negotiate in fact-"to meet and
confer"-about any of the mandatory subjects A refusal to
negotiate in fact as to any subject which is within §8( d), and
about which the union seeks to negotiate , violates §8(a)(5)
though the employer has every desire to reach agreement
with the union upon an over-all collective agreement and
earnestly and in all good faith bargains to that end
DECOREL CORPORATION
By rejecting these requests for meetings, as well as
the Union's further request contained in the letter of
September 23 for information which was necessary
to collective bargaining, Respondents additionally
violated Section 8(a)(5) of the Act.
As noted, Respondents did not express doubt as to
the Union's majority status until September 30,
when they rejected the Union's request of
September 23 for the resumption of collective-
bargaining negotiations. Respondents did not
question the Union's majority standing at the time of
the initial refusal to bargain in April, although they
were aware that a decertification petition was then
pending. Indeed, Respondents stipulated that on
Febrlary 8, when the tentative agreement was
reached, and despite their knowledge of the
decertification petition, the Union was the majority
representative. There is no proof, and not even a
contention, that the Union had lost its majority
between that date and the date when Respondents
rejected the Union's April request for a meeting. As
we have found above, this refusal to meet with the
Union was unlawful; it therefore requires the
issuance of a bargaining order to remedy the
violation of Section 8(a)(5) without regard to the
legality of the subsequent refusals to bargain.
Moreover, despite the decertification election, the
subsequent refusals to bargain were also unlawful.
Although the Union lo;.t the election, the Regional
Director set it aside because, as a result of
Respondents' misconduct preceding the election,
which we have found violated Section 8(a)(1) of the
Act, the results thereof did not fairly reflect the
desires of the employees. There is, therefore, no
probative evidence that the Union had in fact lost its
majority at any time after February 8. The Union
accordingly continued to be the majority
representative at all times material to this
proceeding.9 The Respondents rejected the
August 19 request because of the alleged prior
agreement, a ground which the Respondents then
clearly knew was untenable. They rejected the
September 23 request because of their alleged doubt
as to the Union's continuing majority status, which
alleged doubt we find was not advanced in good
faith.10 Consequently, these refusals were in
themselves independent unlawful refusals to
bargain, which also require the issuance of a
bargaining order.
As we have ordered Respondents to bargain with
the Union, we shall dismiss the petition in Case
13-RD-650 and vacate all proceedings held in
connection therewith.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondents, Decorel
Corporation, Reliance-Illinois Corporation, and
149
Ridgecraft Corporation, Mundelein, Illinois, their
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that the petition for
decertification in Case 13-RD-650 be, and it hereby
is, dismissed, and that all proceedings held
thereunder be, and they hereby are, vacated.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleged
violations of Section 8(a)(1) of the Act other than
those found herein.
9 Assuming , however, that the Union did in fact lose majority
support after April, we find that the loss was attributable to
Respondents' unlawful refusal to bargain in April and to the
additional unlawful conduct found by the Trial Examiner
10 Medo Photo Corp v. N.L.R B , 321 U S 678, 685-687, Joy
Silk Mills, Inc , v N L R B , 185 F.2d 732, 744-745 (C A D C.),
cert denied 341 U S 914, Wabana, Inc, 146 NLRB 1162,
1171-72, 1184-85, Yale Upholstering Company, Inc, 127 NLRB
440, 441-442, Celanese Corporation of America, 95 NLRB 664,
673
Respondents argue that Bernel Foam Products Co , 146 NLRB
1277, cited by the Trial Examiner , is not applicable to this case
We do not find it necessary to discuss this argument because we
find that the facts here fall within precedent established apart
from Bernel Foam
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner: This proceeding
was heard at Chicago, Illinois, on April 5 and 6, 1966,
pursuant to due notice. The complaint, which was issued
under Section 10(b) of the National Labor Relations Act on
November 15, 1965, on a charge dated June 3, 1965,
alleged in substance that Respondents engaged in unfair
labor practices proscribed by Section 8(a)(1) and (5) of the
Act by promising economic and other benefits to their
employees from May 13 through May 19, 1965, to
undermine the Union and destroy its majority, by refusing
to bargain with the Union as the exclusive bargaining
representative of their employees on and after April 16,
1965, and by refusing to furnish to the Union certain
information concerning the wages, hours, and working
conditions of the employees requested by the Union on
September 23, 1965. Respondents answered by letter to
the Regional Director denying the unfair labor practices
with which they were charged.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondents are Illinois corporations maintaining
offices and a place of business at Mundelein, Illinois,
where they are engaged in the manufacture of wooden
picture frames and related products. Decorel was founded
in 1945, and in December 1960 Ridgecraft and Reliance
moved from Chicago to Mundelein. Ridgecraft
manufactures raw and finished picture frame moldings
and Reliance manufactures wooden picture frames and
framed pictures. Ridgecraft sells most of its production to
150 DECISIONS OF NATIONAL
Reliance which in turn sells most of its production to
Decorel, which packs, purchases, sells, and ships
merchandise. Respondents interchange employees and
have a common plant manager.
Respondents are affiliated businesses with common
offices, ownership, control, directors, and operators and
constitute a single integrated business enterprise whose
officers and directors formulate and administer a common
labor policy for the three corporations affecting their
employees. Respondents bargain jointly with the Union
and though they sign separate agreements, such
agreements are identical.
Respondents in the course of their said business
operations manufacture, sell, and distribute annually from
their said place of business goods and materials valued in
excess of $50,000 directly to extrastate points.
Respondents are therefore engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Upholsterers International Union , AFL-CIO, acting
through its agent , Picture Frame Workers, Molding
Workers & Furniture Handlers, Local 18-B, herein called
the Union and UIU, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Respondents have recognized and bargained with the
Union as the exclusive bargaining representative of their
production and maintenance employees for many years;
Reliance since 1939, Decorel since 1945, and Ridgecraft
since 1952, and each has executed collective-bargaining
contracts with the Union during said periods. Negotiations
for new contracts began in December 1964, after due
notice, pursuant to the provisions of earlier contracts
which were in effect from January 1, 1962.
The negotiations were concluded around February 5,
1965, immediately following the filing of a decertification
petition in Case 13-RD-650, though a question later arose
whether a binding contract was reached. Following a
consent agreement, an election was held in the
decertification proceeding on May 21, which the Union
lost, but the Regional Director set the election aside on
August 17, sustaining the Union's objections to conduct
affecting the results of the election. I
There is no issue herein as to the appropriate unit (see
Conclusion of Law 2, infra), none that the Union requested
Respondents to bargain on April 13, August 19, and
September 23, 1965, and none that Respondents refused
those requests. The chief issues as litigated at the hearing
are whether a contract was reached during the
negotiations as Respondents contend, whether
Respondents had a good-faith doubt of the Union's
majority, and whether they . engaged in unfair labor
practices prior to the decertification election to undermine
the Union and destroy its majority. A further question
going to the matter of an appropriate remedial order is
whether the principles of Bernel Foam Products Co., Inc.,
The ultimate disposition of that proceeding remains in the
Regional Director's hands for it was not consolidated with the
present one
2 Though Respondents sought unsuccessfully to establish that
Jacobs was hired by and was directly representing the.
LABOR RELATIONS BOARD
146 NLRB 1277, and IrvingAir Chute Co., Inc., 149 NLRB
627, are controlling in a situtation like the present where
the election was held in a decertification proceeding and
where the Regional Director set aside the election, finding
the Union's objections to be meritorious.
There is no substantial issue concerning the facts which
are relevant to determination of the foregoing issues,
including those concerning the contract, with which we
begin.
B. The Issues as to the New Contract
All contracts between the parties named the
International Union as the "party of the second part" and
specified that it was "acting through its agent, Picture
Frame and Molding Workers Union, Local 18-B." Each
contract also provided that the agreement should not
become effective until countersigned by a duly authorized
officer of the International, and there appeared at the end
of the contract two separate spaces for signatures by the
International, the first, "Through its agent," Local 18-B,
by the latter's president, and a second space for
countersigning by an International officer at Philadelphia.
Negotiations were customarily conducted on the
International's behalf by the officers (and committees) of
the Local, whose authority to reach contracts binding upon
it the International did not question. The 1964-65
negotiations began as usual, but late in January the Local
retained its attorney, Joseph M. Jacobs, to assist its
officers in concluding the negotiations.2 Jacobs joined in
the final series of negotiations on February 3, 4, and 5, and
a final impediment concerning insurance and
hospitalization benefits was removed by agreement that
the Union would have its carrier (Occidental) furnish at the
same cost the broader coverage which Respondents were
proposing through Equitable.
There was ultimately no conflict in the testimony
(including Jacobs' admissions on cross-examination) that
on the conclusion of negotiations on February 5 final
agreement was reached on a contract which was to be
submitted to the employees for ratification, that the
submission was made as agreed on February 8, that the
employees ratified the contract, and that the contract was
thereupon initialed as customary by representatives of
Respondents and of the Local. All that remained was the
countersigning signature of an officer of the International
Union, which was customarily affixed at Philadelphia and
which on past occasions had been delayed for as much as
30 days (as late as March 14, in one instance), during
which it was customary to put the new contract terms into
effect.
The International did not sign the contract nor did it
inform Respondents that it was refusing to do so. Instead,
when Respondents' President Stuart Scheyer wrote the
Local on April 9, referring to the fact that Respondents
had not received the (signed) contract, Jacobs' reply of
April 13 not only did not deny the existence of a contract
but complained to the contrary that Respondents were not
complying with its terms in the following respects:
I am advised that the various employees employed on
the night crew have not yet been given the wage
increase, that the Company has failed to increase the
International , the point is immaterial because the Local's
authority to represent the International was unquestioned and
because Jacobs was in turn fully empowered to represent the
Local in the negotiations the latter was conducting on the
International 's behalf.
DECOREL CORPORATION 151
percentage payments as provided in the Welfare
Fund provision and accumulative retroactive
payments have not been paid to any employee.
The letter concluded with a request for an early meeting
"to clarify the situation." Thus instead of disavowing the
contract, the Union was seeking to administer its terms in
protection of employees' rights (as the General Counsel
concedes in his brief) which is, of course, an essential
function of a union. Hastings & Sons Publishing Co., 102
NLRB 708, 715.
I conclude and find on the foregoing facts that a binding
contract was reached and that Respondents might have
insisted, if they chose, upon the proper signatures being
affixed.3 But though Respondents rejected Jacobs' request
on April 16 with a demand for return of the signed
contract, they abandoned their position immediately after
consenting to an election on the decertification petition,
disavowed the existence of a contract, and engaged in the
conduct set forth in section C, infra, which, as I there
conclude and find, was calculated to undermine the
Union's representative status.
C. The Decertification Proceeding; Respondents'
Campaign Conduct
On May 7, the parties entered into a consent election
agreement , which was approved on May 10 by the
Regional Director, who scheduled an election for May 21.
Between May 10 and 21, Respondents engaged in an
intensive campaign to unseat the Union, as follows:
They refunded to the employees the union dues and fees
which they had checked off under the new contract,
informing the employees that:
This check represents dues and/or initiation fees
deducted from your check before we learned that the
Union had refused to sign the contract that your
fellow workers voted into effect. In view of this refusal
we have no contract and as a result, your deduction
authorization is not valid.... [Emphasis supplied.]
Around the same time they made payment of retroactive
backpay as agreed during the negotiations, informing the
employees again that it was "based on the contract which
they voted into effect and which the Union has refused to
sign."
Also, on May 13 Respondents informed the employees
that they had offered an insurance proposal (the Equitable
plan) during negotiations which "was better than any
union plan ," and they made the flat promise that if the
Union were voted out, that better plan "will immediately
be put into effect." Appended was a table in which
comparisons were purportedly made between the higher
benefits under Respondents' plan with lesser ones under
the Union's plan and what Respondents represented to be
"Current coverage." See footnote 4, supra.
In addition the employees were bombarded with
literature whose persistent theme was that the Union
could accomplish nothing for the employees which
Respondents would not do without a unions and that,
indeed, without a union , things "can only improve."
Respondents also cited the example of their Oxnard,
California, plant where after the employees voted to be
represented by a union:
They then learned that the Union could not win one
benefit for them that the Company was not willing to
grant even without a union . They had learned that
their first decision was wrong and after 12 months
they petitioned to decertify the Union.
Furthermore, upon learning the election results on
May 21, Respondents immediately made good the
promised reward for voting the Union out by instituting
their Equitable plan. That hasty action ignored entirely the
fact that the physical balloting of the employees was not
finally determinative of the Union's representative status,
a matter that necessarily would await the Board's
investigation and disposition of any properly filed
objections (cf. Ralph Printing & Lithographing Co., 158
NLRB 1353); it formed plainly part of a single, continuous
course of conduct by which Respondents sought to insure
the successful inducement of the employees to reject the
Union.
Here as in Ralph Printing, supra, the benefits were
granted at a time when the election was clearly subject to
invalidation if meritorious objections were filed, and as the
Board held in that case (footnote 3):
We must therefore view the precipitous haste of the
Employer's promise of improvements to its employees
immediately after a bare majority had cast physical
ballots against the Union as an attempt to gain their
support and to assure a continued majority against the
union representation in the event a second election
was directed by the Board.
Similar situations were presented in Northwest
Engineering Co., 148 NLRB 1136, 1145, and Gal Tex Hotel
Corp., 154 NLRB 338, where the Board held that the
increases were granted as a reward to the employees for
having rejected the union in the election and as a further
inducement to employees to vote against the union in the
event a second election were directed. Cf. Ambox,
Incorporated, 146 NLRB 1520, 1521, and, Paramount
Textile Machinery Co., 97 NLRB 691.
I therefore conclude and find that Respondents' actions
in promising the better insurance benefits if the Union
were rejected (Imperial Eastman Corp., 139 NLRB 1255)
and in granting those benefits immediately following the
election (Ralph Printing, Northwest Engineering, and Gal
Tex Hotel, supra) violated Section 8(a)(1) of the Act and
also improperly interfered with the Board' s election
procedures and made a fair election impossible.
D. The Union's Majority Status; Respondents Alleged
Good-Faith Doubt Thereof
The General Counsel relies upon a presumption of the
Union's continuing majority status arising from the long
history of collective-bargaining relations between
Respondents and the Union. Mitchell Standard
3 Respondents filed belatedly on January 31, 1966, an 8(b)(3)
charge against the Union under Case 13-CB-1956 (dismissed by
the Regional Director), based on the Union's refusal to sign the
contract An entirely different case might have resulted if
Respondents' charge had been timely filed and if it had adhered
to its original position
' The Regional Director's subsequent report on objections
recited that Respondents ' position during his investigation was
that they finally concluded from remarks made at the May 7
conference (at which the consent election agreement was
reached) that an agreement did not exist between them and the
Union and furthermore that the current insurance benefits had
reverted to the lower level benefits of the old contract.
5 Interspersed were various statements to the effect that the
Union's chief concern was in collecting dues from the employees,
but I do not find that those statements were such as improperly to
interfere with the election. Caressa, Inc , 158 NLRB 1745.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation, 140 NLRB 496, 500; Watertown
Undergarment Corporation, 137 NLRB 287, 303. That
presumption is rebuttable, of course, by a showing of good-
faith doubt at the time of the refusal to bargain.
The mere filing of the decertification petition was not
sufficient to rebut the presumption, for such a petition
need be supported by only a 30-percent showing of
interest. Furthermore Respondents not only continued to
bargain with knowledge that the petition had been filed
but claimed a binding agreement with the Union, and it
stipulated that at the time that such an agreement was
reached (February 8, 1965), the Union had a majority. It
also stipulated that Vice President William F. Hamilton
would testify if called that his affidavit dated March 31,
1965, contained the statement that, "At no time did I
express any doubt to the Union that it represented a
majority of the employees."
Scheyer's testimony showed that he also did not
question the Union's majority prior to May 21, for he
maintained that the contract was in effect at least from
February 8 through the latter date despite the filing of the
decertification petition. Scheyer testified that it was the
election results which convinced him the Union no longer
represented the employeess and that the contract did not
apply. But as found in the preceding section,
Respondents, after consenting to the election, engaged in
unfair labor practices which were designed to undermine
the Union and to dissipate its majority. Such conduct
refuted the existence of Respondents' alleged good-faith
doubt of the Union's majority status (acknowledged to
exist until the election) and established the illegality of
Respondents' refusal to bargain. Lake Butler Apparel
Company, 158 NLRB 863, and cases there cited at
footnote 2; N.L.R.B. v. Overnite Transportation Co., 308
F.2d 279, 283 (C.A. 4). For Respondents may not rely on a
loss of majority which was directly attributable to their
unfair labor practices. Medo Photo Supply Corp. v.
N.L.R.B., 321 U.S. 678, 687.
E. The Refusal to Bargain
By their letters of April 16, August 26, and
September 30, Respondents rejected the Union's requests
to bargain of April 13, August 19, and September 23,
respectively, the latter of which contained a request that
Respondents furnish specified information which was
necessary to collective bargaining. By refusing to bargain
as aforesaid, Respondents engaged in unfair labor
practices proscribed by Section 8(a)(5) and (1) of the Act.
The foregoing findings raise the question whether an
order to bargain is appropriate to remedy Respondents'
unfair labor practices. The Board held in Bernel Foam
Products Co., Inc., 146 NLRB 1277, that a labor
organization which loses an election may nevertheless
seek bargaining relief under Section 8(a)(5) or 8(a)(1) in
appropriate circumstances, where it appears that the
employer has engaged in conduct requiring that the
election be set aside; and in Irving Air Chute Co. Inc., 149
NLRB 627, 629-630, the Board added the qualification
6 After the Regional Director set aside the election on
August 17, Respondents took shifting and inconsistent positions
on the question of the Union's representative status. Claiming no
contract because no majority from May 21 to August 17,
Respondents reasserted their contract on August 26, implicitly
acknowledging representative status. On September 30, however,
they claimed good-faith doubt of the Union's majority and filed an
RM petition seeking to have the question concerning
that such relief would not be granted unless the election
were set aside upon meritorious objections.
The findings herein plainly qualify the present case
within those holdings unless the mere circumstance that
the election with which Respondents unlawfully interfered
was held on a decertification petition. Respondents filed
no brief and suggested no reason why the principles of
Bernel Foam and Irving Air Chute should not be
controlling and there is nothing in those decisions which
indicate that their application is to be affected by the
particular type of representation petition involved or by
the identity of the petitioner. Indeed, both the statute,
Section 9(c)(1), and the Board's Rules and Regulations
pursuant thereto, Section 102.60 et seq., provide that such
petitions may be filed by an employee or group of
employees, or any individual or labor organization acting
in their behalf, or by an employer, and Section 9(c)(2)
provides that in determining the question concerning
representation, the same regulations and rules of decisions
shall apply, irrespective of the identity of the persons filing
the petition or the kind of relief sought.
I therefore conclude and find that the Union was
entitled to seek bargaining relief under Section 8(a)(5), and
I shall recommend that Respondents be ordered to bargain
with the Union upon request.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing their
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondents engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
2. All production and maintenance employees
employed by Respondents at their Mundelein, Illinois,
place of business, but excluding office clerical employees,
professional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
3. At all times on and after January 2, 1962, the Union
has been the exclusive representative of the employees in
the aforesaid unit for the purposes of collective bargaining.
4. By refusing to bargain with the Union on April 16,
August 26, and September 30, 1965, and by refusing to
furnish on the latter date information relevant to
bargaining requested by the Union, Respondents have
engaged in unfair labor practices proscribed by Section
8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents engaged in certain
unfair labor practices, I shall recommend that they cease
and desist therefrom and that they take certain action of
the type which is conventionally ordered in such cases as
representation resolved and omitting any reference to their
alleged contract Finally, on January 31, 1966, Respondents filed
their Section 8(b)(3) charge which again implicitly conceded the
Union's representative status by seeking to hold them to the
alleged contract
Thus, according to the expediency of the moment, Respondents
sought to eat their contract cake and have it too
DECOREL CORPORATION 153
provided in the Recommended Order below and which I
find necessary to remedy and to remove the effects of the
unfair labor practices and to effectuate the policies of the
Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following:
RECOMMENDED ORDER
Decorel Corporation, Reliance-Illinois Corporation and
Ridgecraft Corporation, their officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Promising and granting benefits to their employees
to reject the Union.
(b) Refusing to furnish to the Union upon request
information which is relevant to collective bargaining.
(c) Refusing to bargain with the Union as the collective-
bargaining representative of the employees in the
appropriate unit.
(d) In any like or similar manner interfering with,
restraining, or coercing their employees in the exercise of
their right to self-organization, to form, join, or assist said
Upholsterers International Union, AFL-CIO, acting
through its agent , Picture Frame Workers, Molding
Workers & Furniture Handlers, Local 18-B, or any other
labor organization, to bargain collectively through
representatives of their own choosing or to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that
such right may be affected by an agreement in conformity
with Section 8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Furnish to the Union, upon request, information
relevant to collective bargaining.
(b) Bargain with the Union, upon request, as the
collective-bargaining representative of their employees in
the appropriate unit herein found.
(c) Post in their offices, plant, and place of business at
Mundelein, Illinois, copies of the attached notice marked
"Appendix.`7 Copies of the said notice to be furnished by
the Regional Director for Region 13, after being duly
signed by Respondents' representative, shall be posted by
Respondents immediately upon receipt thereof, and
maintained by them for 60 consecutive days thereafter, in
conspicuous places, where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps Respondents have taken to comply herewith."
APPENDIX
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT promise or grant benefits to our
employees to reject the Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization , to form, join, or assist said
Upholsterers International Union, AFL-CIO, acting
through its agent , Picture Frame Workers, Molding
Workers & Furniture Handlers, Local 18-B, or any
other labor organization, to bargain collectively
through representatives of their own choosing or to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities
except to the extent that such right may be affected
by an agreement in conformity with Section 8(a)(3) of
the Act.
WE WILL furnish to the Union, upon request,
information which is relevant to collective bargaining.
WE WILL bargain with the Union, upon request, as
the exclusive representative of our employees in the
appropriate unit concerning rates of pay, wages,
hours of employment, and other conditions of
employment. The appropriate unit is:
All production and maintenance employees
employed at our Mundelein, Illinois, place of
business, but excluding office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization except to the
extent that such right may be affected by an agreement in
conformity with Section 8(a)(3) of the Act.
DECOREL CORPORATION
(Employer)
Dated By
Dated By
Dated By
In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
9 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify the
Regional Director for Region 13, in writing, within 10 days from
the date of this Order, what steps Respondents have taken to
comply herewith."
(Representative ) (Title)
RELIANCE-ILLINOIS
CORPORATION
(Employer)
(Representative) (Title)
RIDGECRAFT CORPORATION
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
828-7597.