Emerson Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 148 (N.L.R.B. 1972)

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emerson Manufacturing Company, Inc. and United
Industrial Workers of North America, of the
Seafarers International Union of North America,
Atlantic, Gulf, Lakes and Inland Waters District,
AFL-CIO. Case 4-CA-5865
November 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 19, 1972, Administrative Law Judge 1
Arthur Leff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, General Counsel filed an
answering brief, and Charging Party filed cross-
exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Emerson Manufac-
turing Company, Inc., Pennsauken, New Jersey, its
officers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Trial Examiner: This case, heard at
Philadelphia, Pennsylvania, on May 8, 1972, pursuant to a
charge filed on February 23, 1972, by the above-named
Union ("Union") against the above-named Company
("Respondent") and a complaint issued on March 27,
1972, presents the following question: Did the Respondent
violate Section 8(a)(5) and (1) of the National Labor
Relations Act by refusing, on and after January 17, 1972,
to bargain collectively with the Union as the exclusive
1 The appropriate unit is more specifically described in the complaint,
and admitted in the answer, to be as follows:
All production and maintenance employees employed by Respondent
bargaining representative of its employees in the unit to be
described below?
Upon the entire record in the case, my consideration of
the briefs filed on June 5, 1972, by the General Counsel,
the Union, and the Respondents, and from my observa-
tions of the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a New Jersey corporation, with its
principal place of business at Airport Industrial Park,
Pennsauken, New Jersey, is engaged in the manufacture
and sale of storm windows. During the past year, the
Respondent sold and delivered to points outside the State
of New Jersey goods valued in excess of $50,000. The
Respondent, as it admits, is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of Events
On March 7, 1966, following a secret ballot election, the
Union was certified by the Board as the exclusive
bargaining representative of the Respondent's production
and maintenance employees, a bargaining unit which I
find is appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.' The unit is
a small one. At the times material herein it contained 11
employees.
The Union, following its certification, enjoyed amicable
relations with the Respondent for a period of about 6
years. Two 3-year contracts were negotiated during that
period, each containing union-shop provisions in the
conventional form. The later contract was for a term
running from March 21, 1969, to March 20, 1972, with a
provision for annual renewals thereafter in the absence of
notice by either party of contrary intent given 60 days
before the expiration date.
On January 10, 1972, the Union by appropriate notice
informed the Respondent that it desired to negotiate a new
agreement to succeed the contract expiring March 20,
1972. The Union did not then indicate the specific changes
it desired to negotiate.
About a week after receipt of the Union's notice-under
date of January 17, 1972, to be precise-the Respondent,
over the signature of its president, Joseph F. Bovino,
addressed a letter to the Union's New York City
headquarters, reading in relevant part as follows:
This is to notify you that ... we do not intend to
renew this contract for any additional period of time
.... The reason for this action on our part stems from
our inability to shoulder this substantial financial
at Airport Industrial Park, Colonial Lane, Pennsauken, New Jersey,
excluding office, clerical, salaried, and professional employees, supervi-
sors, and guards as defined in the Act.
200 NLRB No. 33
EMERSON MANUFACTURING COMPANY , INC. 149
burden and is causing, serious complications concern-
ing our financial structure.
We do, however , intend at some future date to submit
this question of membership in the Union to our
employees by secret ballot.
If there are any questions concerning this matter, I
would appreciate your contacting us immediately.
Bovino testified that mention of a future election was made
in his letter because "I felt that the Union did not have a
clear majority of these people and that these people .. .
had a right to vote whether they wanted to continue with
the Union or not." Asked why, then , he ascribed the
Respondent's unwillingness to deal further with the Union
to financial considerations , Bovino testified,
I told my [corporate attorney] my intentions and not
being a labor lawyer he wrote the letter for me and
these were his words that he used and I felt that these
words were appropriate since when you have a contract
with someone and you 're going to alter the contract
that he would know the right thing to say and I went
along with his context of the letter because he basically
got in there what I asked for which was an election.
Although not in a strong "liquid" position , added Bovino,
the Respondent did not then have any financial problem
with the Union "from the standpoint of proposals and that
type of thing" because "the letter was written before I even
got the proposals."
The Union 's New York headquarters transmitted the
Respondent's letter to John Fay, its assistant regional
director for the geographical area in which the Respon-
dent 's plant is located . Fay, in turn, communicated the
contents of the letter to Grover Browne, the Union's
business agent who had serviced the bargaining unit since
1966. Fay instructed Browne to ascertain from the unit
employees their desires for new contract terms and to
proceed as he had done in the past in his dealings with the
Respondent.
On January 27, Browne called at the Respondent's plant
and requested Naomi Hartley , the shop steward , to obtain
the employees ' proposals for a new contract . A meeting,
called by Hartley, was held for that purpose during the
employees ' lunch hour that day. All employees then
present in the shop-almost all of those in the unit-at-
tended the meeting and participated in the discussion
relating to contract demands.
Later that same day , Browne and Hartley called on
Bovino to set up a date for an initial negotiating session. A
meeting date was agreed upon for February 11. On
February 2 , after the Union's contract proposals were
drawn up in written form , Browne and Hartley again
called on Bovino and submitted to him a copy of the
proposals . Neither at this time , nor on the earlier occasion
when the February 11 meeting date was agreed upon, did
Bovino express any unwillingness to bargain , declare any
doubt of the Union 's majority status, or make any mention
of a desire for an election.
However , several days after the submission to him of the
Union 's contract proposals , Bovino notified Hartley,
without telling her why, that he did not intend to keep the
February 11 meeting date that had been arranged. When
Browne telephoned Bovino for an explanation , Bovino told
him that he saw no reason for a meeting as he could not
afford the Union , did not want the Union , and did not
think that a majority of the employees wanted the Union
either . This was the first time during the many years that
Browne had dealt with Bovino that Bovino had indicated
to him any question about the employees ' continued desire
for union representation . Bovino expressed his opinion that
the employees did not want a Union simply in terms of his
personal feelings . He did not then, or at any later time,
state any basis for that opinion.
Thereafter, the Respondent persisted in its refusal to
bargain with the Union . On February 9, at Browne's
request, Bovino met with him and Hartley at Bovino's
office . Browne asked Bovino what he intended to do about
the contract proposals that had been submitted to him.
Bovino said he intended to do nothing, reiterating what he
had previously told Browne on the telephone , that he could
not afford the Union, did not want a union, and did not
think the employees wanted one either . On the following
day, Fay, the Union's assistant regional director, asked
Bovino to come to his office to discuss the Respondent's
refusal to negotiate . Bovino accepted Fay's invitation, but
at this meeting he simply restated in substance the position
the Respondent had declared in its letter of January 17.
On February 11, Bovino called at the Board's regional
office to discuss the "problem" he was having with the
Union. In the course of that discussion he informed the
staff attorney to whom he spoke that he wanted to petition
for an election . He was informed that under the Board's
established procedures no representation petition could be
accepted during the 60-day insulated period preceding the
contract's expiration date. Following his visit to the
Board's office , Bovino , as appears from his testimony,
advised his employees that he was not "working" on a new
contract because he wanted them to have the privilege of
an election . At the same time he informed them of what he
had learned at the Board 's regional office and distributed
to them literature he had obtained at the Board 's office
relating to the Board 's rules and procedures governing
representation elections in its various forms. There is
nothing, however , in Bovino 's testimony, or in other record
evidence , to indicate that the employees manifested any
support for the position Bovino was taking assertedly in
their behalf ; such testimony as does bear on that point is to
the contrary.2
On March 22, the Respondent filed an "RM" petition,
docketed as Case 4-RM-776, for an election to determine
whether the unit employees desired continued representa-
tion by the Union . The petition was not accompanied by
any evidence to indicate that the Respondent had
reasonable grounds for believing that the Union had lost
its majority status since certification .3 Prior to the filing of
the petition , the Union, on February 23, had filed its
charge in the instant proceeding alleging that the Respon-
dent had unlawfully refused to bargain with it since
January 17, 1972. On March 29 , the Regional Director
notified the Respondent that in view of the issuance, on
2 Thus, Hartley testified that none of the employees wanted to work
when the contract expired on March 20, 1972, but only remained on the job
on the advice of union counsel.
3 See U.S. Gypsum Co., 157 NLRB 655.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 27, of the complaint herein, based in part on his
investigative determination that no genuine question
concerning representation existed, he was dismissing the
Respondent's petition in Case 4-RM-776. On appeal, the
Board upheld the Regional Director's action, ruling that
the dismissal of the petition was warranted because of the
pending 8(a)(5) complaint.
B. The Contentions of the Parties
The Respondent concedes that it refused to bargain with
the Union since January 17, 1972, as alleged in the
complaint, but it disputes that the Union at that time, or at
any time thereafter, occupied the status of a majonty
representative entitled to recognition for the purposes of
negotiating a new contract. It contends, moreover, that its
refusal to bargain, though initially expressed in its letter of
January 17 to have been motivated by financial considera-
tions-a reason which it now admits is insufficient in
law-was in reality predicated on a good-faith doubt of the
Union's continued majority, a doubt which, it says, it was
entitled to have resolved via an election before being
compelled to deal further with the Union. The General
Counsel and the Charging Party, on the other hand, rely on
the presumption of continuing majority flowing from the
1966 certification as establishing the Union's majonty
status at the times relevant herein. They dispute that doubt
of the Union's majonty was a true reason for the
Respondent's refusal to bargain. But they assert that even
if it was, this would still notjustify in law the Respondent's
refusal because the asserted doubt was, at most, a
subjective one, and not one reasonably grounded on
objective considerations. The Charging Party, but not the
General Counsel, contends additionally that the Respon-
dent, having failed expressly to assert a doubt of majority
prior to the 60-day insulated period preceding the
expiration date of the 1969-72 contract, or to have
challenged the Union's majority status by an appropriate
representation petition within the 60-90 day open period
preceding that expiration date, did not raise a timely
objection to the Union's majority status under the Board's
contract-bar rules, and that for that reason, without more,
its refusal to bargain with the Union within the insulated
period should be found a per se violation of the Act.
C. The Applicable Principles
The principles of law applicable to the issues in this case
are well settled. They were restated in Laystrom Manufac-
turing Co., 151 NLRB 1482, 1483, as follows:
Absent unusual circumstances, there is an irrebutable
presumption that the majority status of a certified
union continues for 1 year from the date of certifica-
tion. After the first year the certificate still creates a
4 Although the court denied enforcement in the Laystrom case (359 F 2d
799 (C A 7)), the Board in subsequent cases has continued to adhere to the
principles there declared These principles have generally met with the
approval of other circuit courts of appeal that have had occasion to pass on
the question See, e g , N LR B v Gulfmont Hotel Co, 362 F 2d 588 (C A
5), N L R B v Rush Equipment Co, 407 F 2d 1098 (C A 4), Terrell Machine
Co v NLRB , 427 F 2d 1088 (C A 4), cert denied 398 U S 929, N L R B
v Little Rock Downtowner, 414 F 2d 1084 (C A 8)
5 See Barrington Plaza, 185 NLRB No 132, and cases there cited As
presumption of majority status, but the presumption is
normally rebuttable by an affirmative showing that the
Union no longer commands a majority. Moreover,
where the certificate is a year or more old an employer
may withhold further bargaining without violating the
Act and insist that the union re-establish its statutory
representative status if, but only if, he in good faith has
a reasonable doubt of the union's continuing majority.
A showing of such doubt, however, requires more than
an employer's mere assertion of it and more than proof
of the employer's subjective frame of mind. The
assertion must be supported by objective considera-
tions. The applicable test as defined in the Celanese
case [95 NLRB 664], is whether or not the objective
facts furnish a "reasonable basis" for the asserted
doubt, or, put another way, whether or not there are
"some reasonable grounds for believing the union has
lost its majonty status since its certification."4
The Board applies the same standards in situations
where the presumption of continuing majority status arises
from a bargaining history which has not been initially
founded, as in the instant case, on a Board certification.5
In situations involving incumbent union representatives,
the Board also applies a like test in determining whether a
question concerning representation exists warranting the
processing of an RM petition .6 The requirement of
demonstrable and reasonably based grounds for challeng-
ing an incumbent union's presumed continued majonty
status at the end of a contract term is designed to
effectuate statutory policy of promoting stability in a
collective-bargaining relationship without foreclosing em-
ployees' freedom of choice.? Quite clearly, it would only be
disruptive of stable and uninterrupted bargaining relation-
ships to allow employers at their option, and without good
reason therefor, to put unions to the burden and expense of
going through an election campaign at the end of each
contract term to reestablish their majonty status as a
condition to the negotiation of a new contract.8
With these legal principles in mind, I now turn to
consider whether on the facts of this case, the Respondent
was justified in announcing to the Union, on January 17,
1972, its intent not to negotiate a new agreement, and in
thereafter refusing to bargain with the Union.
D. Additional Findings, Analysis and Conclusions
The initial question to be considered is whether the
record as a whole supports a finding that doubt of the
Union's continued majority was the real reason for the
Respondent's refusal to bargain. I am by no means
satisfied that it does. No such doubt was expressed by the
Respondent in its letter of January 17, wherein it first
declared its intention not to negotiate a new contract with
the Union. The only reason there given for the position the
pointed out in the cited case, even in the absence of a certification, the
existence of a prior contract, lawful on its face, raises a dual presumption,
that the Union had majority status when the contract was executed, and
that the majority continued at least through the life of the contract
6 See United States Gypsum Co, 157 NLRB 652
7 Terrell Machine Co, 173 NLRB 1480, enfd. 427 F 2d 1084 (C A 4),
Celanese Corporation of America, 95 NLRB 664, 671-2
8 See United States Gypsum Co, supra, 655
EMERSON MANUFACTURING COMPANY, INC. 151
Respondent was taking was "our inability to shoulder this
substantial financial burden . . .," a reason which the
Respondent now concedes could provide no lawful
justification for refusing to negotiate. Although the letter
also expressed an intent at some undesignated "future
date" to submit to an election the question of the
employees' desire for "membership" in the Union, this was
not stated as a reason for withholding bargaining. Nor, in
the context of the letter as a whole, may it reasonably read
as implying that the Respondent, notwithstanding its
specifically expressed financial reason for not wanting to
deal further with the Union, would nevertheless still be
willing to bargain for a new contract if the Union
reestablished its majority status in an election. Bovino's
testimony that the financial reason he stated in the letter
was not his' actual reason for refusing to bargain, but was
rather one improvised by his corporate attorney who was
unskilled in labor law, does not appear plausible, particu-
larly when one considers that Bovino himself in his later
contacts with union representatives repeatedly stressed the
Respondent's financial position as a primary reason for his
unwillingness to deal further with the Union. It is true that
in these later contracts with union representatives-more
than 3 weeks after the letter was written-Bovino did state
that he was refusing to bargain, not only because he did
not want the Union and could not afford the Union-these
essentially were the reasons stated in the letter-but also
because lie did not think the employees wanted the Union.
But the belated addition of that reason, when considered in
context with the other reasons given, strongly suggests that
it was thrown in as a make-weight and did not reflect the
actual reason for the stance the Respondent was taking.
In any event, even if the record were found to support
the Respondent's contention that the Respondent's unwill-
ingness to deal further with the Union was rooted in a
doubt of majority, this alone would not bring the
Respondent home free. It would only lead to the next
question, now to be considered, whether the Respondent
has sufficiently demonstrated on this record that its
asserted doubt of a majority was reasonably based on
objective considerations.
To support its claim of a reasonable basis for doubt, the
Respondent relies largely on the employee turnover that
occurred during the 6-year period intervening between the
Union's March 1966 certification and the January 1972
refusal to bargain.9 The Board has consistently held,
however, that employee turnover is not alone enough to
provide a reasonable basis for concluding that a union has
lost its majority status.10 As the Board stated in Laystront,
As to this, the record shows that of the 11 employees on the
Respondint's payroll at the time of its refusal to bargain, only two had been
employed at the time the 1966 election was held. However, it also shows that
6 of the 10 employees who were working for the Respondent when the
1969-72 contract' was negotiated were still with the Respondent in January
1972.
1o See; e:g., Laystrom Mfg. Co., supra, Massey-Ferguson, Inc., 184 NLRB
No 106. And see, also, N L R B v. Little Rock Downtowner, Inc., supra, and
court cases there cited.
11 Bovrng was wrong in his speculation about Rodriguez . Rodriguez, a
credible witness, testified that he was not a member of the Torres group that
drove to work and lunched together.
Bovines testimony concerning what Torres told him is in some respects
confusing and contradictory. Thus, Bovmo's testimony on direct examina-
tion reflects that Torres specifically mentioned his "cronies" in describing
"new employees will be presumed to support a union in the
same ratio as those whom they replaced." In the instant
case, the Respondent has not shown anything unusual
about the Respondent's hiring practices, or the presence of
any other special circumstances, that would serve to negate
or rebut the normal presumption.
The only other "objective considerations" to which
Bovino pointed in his testimony as supplying a reasonable
basis for doubt were the following:
(a) One employee, Daniel Tones, on one occasion, in
December 1971 or January 1972, came to him and said, "If
you want to get rid of the Union, we're with you." Tones
in that statement to Bovino did not specify to whom else, if
anyone, he was referring by his use of "were." But Bovino,
according to his testimony, assumed from Tones' use of
the plural pronoun that Tones must have been speaking,
not only for himself, but also for employees Audeliz
Mendez and Manolin Perez, and possibly also-Bovino
was not sure-for Henry Rodriguez, because they com-
posed a closely knit ethnic group who always lunched
together and drove in the same carpool.ll Bovino admitted
that of the 11 employees in the bargaining unit at the time
of the Respondent's refusal to bargain, Torres was the only
one who had ever indicated to him directly that he did not
want the Union. And, except as it may be implied from
what Tones told Bovino, there is nothing in the record to
show that Bovino indirectly ever acquired any specific
intelligence of this kind relating to any other employees in
the unit. Bovino did testify at one point that at the time of
the refusal to bargain he was "certain" that "3 or 4" of the
unit employees did not want the Union. But, as his
testimony makes clear, his "certainty" was founded
entirely on Tones' statement to him mentioned above, a
statement which at best is ambiguous, and is certainly less
than reliable in its revelation of the attitude toward the
Union of anyone but Torres himself.12 In any event a
belief that 3 or 4 in a unit of 11 did not want the Union is
scarcely enough to support a reasonable doubt of majority.
(b) As a further reason for doubting the Union's
majority, Bovino, according to his testimony, relied on the
fact that employees complained to him about the deduc-
tion of dues when their paychecks were handed out. The
sweep of Bovino's testimony to this effect was narrowed
when, asked specifically to identify those in the unit in
January 1972 who had complained, he was able to name
only three-Daniel Tones and Henry Rodriguez, who
have already been referred to, and Nettie Sullivan.
Bovino's testimony as to Torres stands undenied. Rodri-
guez, whom I credit, testified that he spoke to Bovino' only
whom he was speaking for. On cross, Bovino testified at one point that
Torres "named" the other employees included in the pronoun "we", at
another point he testified that Torres did not. Bovmo's final version was
that there was no specific identification of the others ; that Torres simply put
it in terms of "We're with you," and that from this Bovino inferred that
Torres must have been referring to the people he customarily had lunch
with. The finding I have made is based on this last version.
12 The unreliability of Torres' statement in this respect is verified by the
fact that both Rodriguez and Perez, as rebuttal witnesses for the General
Counsel, denied that they had ever told Torres that they were dissatisfied
with the Union . Perez' testimony also reveals that Torres' opposition to the
Union was attributable to his religious sect, a fact of which Bovmo
presumably was aware . Perez' testimony further indicates that Mendez also
belonged to that religious sect.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
once about this subject-when he returned to work for the
Respondent a second time after having earlier left the
Respondent's employ. No complaint was involved, only an
inquiry whether he would again have to pay an initiation
fee under the union-security provision of the contract.
Nettie Sullivan testified credibly that she had complained
to Bovmo about a dues deduction on only one occasion.
This was when the Respondent had, or so she thought,
deducted dues three payroll periods in a row, although
dues were supposed to be taken out only once a month.
Both Rodriguez and Sullivan admitted that in casual
conversations with employees they had at times engaged in
the customary form of griping about payroll deductions.
Their griping, however, was not limited to dues, but
covered all payroll deductions, including deductions for
social security and income taxes, which served to reduce
the gross amount of their wages. It has been held that
failure of employees to pay dues to a union is not the
equivalent of showing lack of union support 13 Certainly,
griping of the kind engaged in by Rodriguez and Sullivan
provides an even less reasonable basis for concluding that
employees no longer desire union representation.
(c) As an additional ground for doubting the Union's
majority, Bovino referred in his testimony to a number of
employees who had been members of the Union during
earlier periods of their employment, but who upon their
return to the Respondent's employ had been reluctant to
pay union dues, one of whom the Respondent had been
obliged to discharge for that reason. Bovino identified
those in this category as Darnel Torres, Francis (not
Nettie) Sullivan, Alphonso Torres and Bonnie Haynes.
Except for Daniel Tones, none of those named was in the
Respondent's employ at the time of its refusal to bargain;
the last to leave, Bonnie Haynes, having been terminated
on September 16, 1971. This item manifestly has de
minimus significance as an objective consideration reflect-
ing on the majority sentiment for continued representation
by the Union at the times material herein.
(d) As a final item of "objective considerations," the
Respondent's brief, not Bovino's testimony, stresses that
among the 11 employees in the bargaining unit at times
here material there were a substantial number who,
according to company records, did not join the Union
(submit checkoff authorizations?) within the first 31 days
of their employment, as required by the contract's union-
security provision. The brief names eight such employees.14
Reference to the Respondent's own exhibit shows that as
to three of the eight, the Respondent is mistaken. They did
join (submit checkoff authorizations?) within 31 days. Two
of the others did so on the 32nd day following the
beginning of their employment. There was an appreciable
13 See Terrell Machine Co. v N L.R. B., 427 F 2d 1088, 1090 (C A. 4),
cert. denied 398 U S. 929, where the Court said:
A showing that less than a majority of the employees in the bargaining
unit were members of the Union or paid union dues [is] not the
equivalent of showing lack of union support Manifestly-many
employees are content neither to join the union nor to give it financial
support but to enjoy the benefits of its representation. Nonetheless, the
union may enjoy their support, and they may desire continued
representation by it
Accord, N L.RB. v. Gulfmont Hotel, 362 F.2d 588, 592 (C A. 5).
14 It inadvertently omits the name of Daniel Torres who also should
have been included.
overdue delay, ranging from 11 to 20 days, with respect to
only three of them. There is no evidence in the record to
explain the delay. It might have been attributable to any
number of reasons besides unwillingness of the employees
to be represented by the Union, such as, for example,
absences of the employees from work, delays by the union
representatives in submitting cards to the employees for
signature or in filing signed cards with the Respondent, etc.
The Respondent makes no claim that it was in possession
of any information indicating that the delays were
connected in any way with an unwillingness to join the
Union. Nor did Torres in his testimony expressly assert
that he took this specific item into account in shaping his
asserted doubt of majority. For the reasons stated, I can
attach no significant weight to this item in assessing the
issue at hand.
Taking into account all the "objective considerations" on
which the Respondent relies , I am persuaded, and find,
that they are insufficient to demonstrate that the Respon-
dent had reasonable grounds for believing that the Union
no longer commanded majority employee support at the
time of its refusal to bargain. This, coupled with the fact
that the Respondent made clear when it refused to bargain
that it did not want to deal further with the Union and
initially explained its refusal on a ground unrelated to the
Union's continued majority, leads me to the conclusion
that the Respondent's asserted doubt of majority was not,
under the applicable principles stated above, a reasonably
based good-faith doubt, justifying its refusal to bargann.15
Accordingly, I find, as more fully alleged in the
complaint, that the Union at all times material herein was,
and now is, the exclusive representative by virtue of
Section 9(a) of the Act of the Respondent's employees in
the appropriate unit described in footnote 1, above, and
that the Respondent, by its refusal to bargain with the
Union on January 17, 1972, and thereafter, violated
Section 8(a)(5) and (1) of the Act, thereby engaging in
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices proscribed by Section 8(a)(5) and (1) of the
Act, it will be recommended that it be required to cease
and desist therefrom and take certain affirmative action
which I find necessary to effectuate the policies of the Act.
Having found that the Respondent unlawfully refused to
bargain with the Union as the exclusive bargaining
representative of the employees in the appropriate unit
described in footnote 1, above, I shall recommend that it
15 1 find no meet in the Respondent 's contention, made at oral
argument, that these principles are not properly applicable to this case
because of the absence of any showing of independent unfair labor practices
by the Respondent . See, e .g., Maywood Packing Co., 181 NLRB 778, 781;
Kentucky News, 165 NLRB 777, Palmer Asbestos & Rubber Co., 160 NLRB
723; Laystrom Mfg Co., 151 NLRB 1482
Because of the result I reach on other grounds, I find it unnecessary for
purposes of decision in this case to consider or pass upon the merits of the
Charging Party's contention that the Respondent's refusal to bargain should
be found a per se violation because of its failure to raise a timely objection
to the Union's majority status under contract bar rules.
EMERSON MANUFACTURING COMPANY, INC. 153
be ordered to do so, upon request, and, if agreement is
reached, to embody the agreement in a signed contract.16
Upon the foregoing findings of fact and conclusions, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:17
ORDER
The Respondent, Emerson Manufacturing Company,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing to bargain collectively concerning
rates of pay, wages, hours of employment, or other terms
and conditions of employment, with United Industrial
Workers of North America, of the Seafarers International
Union of North America, Atlantic, Gulf, Lakes and Inland
Waters District, AFL-CIO, as the exclusive representative
of its employees in the following appropriate unit:
All production and maintenance employees employed
by the Respondent at Airport Industrial Park, Colonial
Lane, Pennsauken, New Jersey, excluding office,
clerical, salaried, and professional employees, supervi-
sors, and guards as defined in the Act.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action, found neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative of
the employees in the above-described appropriate unit with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a
written signed agreement.
(b) Post at its plant at Airport Industrial Park, Pennsauk-
en, New Jersey, copies of the attached notice marked
"Appendix." 18 Copies of said notice, on forms provided by
the Regional Director for Region 4, after being duly signed
by the Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of the receipt of this Decision,
,what steps the Respondent has taken to comply herewith.19
16 The Union in its brief to me has specifically requested that the
remedial order include a provision requiring the Respondent to maintain
the contract dated March 21, 1972, in full force and effect until such time as
the Respondent complies in good faith with its bargaining obligations, and
that the Respondent also be directed to make retroactive payment of health,
welfare, and pension plan contributions from the date of the expiration of
the contract until such time as the Respondent comphes with its bargaining
obligations. Although this issue was neither raised nor litigated at the
hearing in this proceedmg, it does appear from certain testimony of Bovino
that a controversy, which is the subject of civil litigation, now exists between
the Union and the Respondent as to whether the Respondent was required
under the terms of its aforesaid contract to make contributions to the
Union's pension plan. Moreover, certain provisions of the contract, such as
its union-security provisions, cannot under the law survive the contract's
termination. For these reasons, among others, I shall not include in the
recommended order the affirmative requirements specifically requested by
the Union. The breadth of the cease-and-desist provisions of my
recommended order is such, of course , as to encompass within its
proscription any unlawful unilateral changes by the Respondent concerning
terms and conditions of employment of the employees in the bargaining
unit.
17 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
is In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
19 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 4, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL bargain collectively, upon request, with
United Industrial Workers of North America, of the
Seafarers International Union of North America,
Atlantic, Gulf, Lakes and Inland Waters District,
AFL-CIO, as the exclusive representative of all our
employees in the bargaining unit described below, with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if
an understanding is reached, embody such understand-
ing in a signed agreement. The bargaining unit is:
All production and maintenance employees
employed by us at Airport Industrial Park,
Colonial Lane, Pennsauken, New Jersey, exclud-
ing office, clerical, salaried, and professional
employees, supervisors, and guards as defined in
the Act.
WE WILL NOT by failing or refusing to bargain with
the aforesaid labor organization as required above, or
in any like or related manner, interfere with, restrain, or
coerce our employees in the exercise of their right to
self-organization , to form, join, or assist any labor
organization, to bargain through representatives of
their own choice, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities except to the extent permitted by
Section 8(a)(3) of the Act.
EMERSON MANUFACTURING
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days directed to the Board's Office, 1700 Bankers Securities
from the date of posting and must not be altered , defaced, Building, Walnut & Juniper Streets, Philadelphia, Pennsyl-
or covered by any other material . Any questions concern- vania 19107, Telephone 215-597-7601.
ing this notice or compliance with its provisions may be