George Braun Packing Co.

National Labor Relations Board - Board Decisions

May 29, 1974

210 N.L.R.B. 1028 (N.L.R.B. 1974)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Braun Packing Co. and Amalgamated Meat
Cutters and Butcher Workmen of North America,
Local Union No. 171, AFL-CIO. Case
23-CA-4721
May 29, 1974
DECISION AND ORDER
On December 7, 1973, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding . Thereafter , both the General Coun-
sel and the Union filed exceptions and supporting
briefs , and Respondent filed cross-exceptions , a brief
in support of cross -exceptions , and an answering
brief.
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 conclusions2 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 the complaint be, and it hereby is,
dismissed in its entirety.
MEMBERS FANNING AND JENKINS, dissenting:
Our colleagues find that the evidence set forth in
the decision of the Administrative Law Judge is
sufficient to meet the standards established in United
States Gypsum Company, 157 NLRB 652, with
respect to processing RM petitions and conclude that
since a proper RM petition was filed herein, no
violation based upon a refusal to bargain may be
found. In reaching that conclusion, the majority
departs from Board precedent and, in our opinion,
misconstrues the intent of United States Gypsum
Company. In that case, the Board held that:
... in petitioning the Board for an election to
question the continued majority of a previously
certified incumbent union, an employer, in
addition to showing the union's claim for contin-
ued recognition, must demonstrate by objective
considerations that it has some reasonable
i The Administrative Law Judge inadvertently stated that 5 years and 8
months have passed since the Union was certified as representative of a unit
of the Respondent's employees The record shows that actually 4 years and
8 months have elapsed since that certification and we hereby correct the
inadvertence
2 We are affirming the Administrative Law Judge's dismissal of the
complaint herein because, in our view, the evidence set forth by him in his
Decision is sufficient to meet the standards established in United States
Gypsum Company, 157 NLRB 652, with respect to processing RM petitions
Accordingly, as a proper RM petition was filed herein, no violation based
grounds for believing that the union has lost its
majority status since its certification.3
However, the determination of whether or not an
employer has met the "reasonable grounds" require-
ment for processing the petition is an administrative
determination, based solely upon an employer's
prima facie showing, and is not litigable at any stage
of the representation proceeding. Therefore, such a
finding is not regarded as determinative of an
employer's obligation to engage in further bargain-
ing, or necessarily dispositive of a related refusal-to-
bargain charge filed by an incumbent collective-
bargaining representative.4 In other words the filing
of an RM petition and the administrative determina-
tion to process the petition does not in any way
prejudge the merits of a related refusal-to-bargain
charge.
This case presents the situation of a certified union
whose majority status is challenged by Respondent.
On the basis of well-established law, the Union's
certification gave rise to a presumption of majority
status in favor of the Union. In the face of this
presumption, Respondent's withdrawal of recogni-
tion must be found unlawful unless (1) competent
evidence establishes that the Union no longer
commanded a majority as of the date of Respon-
dent's refusal to bargain,5 or (2) Respondent had a
reasonable doubt based on objective facts as to the
Union's continuing majority status. A showing of
such doubt requires more than an employer's mere
assertion of it, and more than proof of the employer's
subjective frame of mind.6 The assertion must be
supported by objective considerations, that is, "some
reasonable grounds for believing the union has lost
its majority status since its certification." 7
The facts are detailed by the Administrative Law
Judge in his Decision. Briefly, the evidence shows
that the Union was certified on August 5, 1968. The
Respondent thereafter refused to bargain in good
faith with the Union and was found by the Board to
have violated Section 8(a)(1) and (5) of the Act.8 On
December 31, 1971, the Court of Appeals for the
Fifth Circuit enforced the Board's Order. Respon-
dent filed a Motion for Rehearing, which was denied
on February 28, 1972. Bargaining resumed in April
1972, and continued until July 13, 1972. However, on
June 1, 1972, an economic strike commenced and
was in progress when the Union filed the instant
on a refusal to bargain may be found
i Untied States Gypsum Company, 157 NLRB at 656
4 United States Gypsum Company, 161 NLRB 601.
s No evidence was introduced with respect to this issue
6 Celanese Corporation of America, 95 NLRB 664, 672.
7 Laysirom Manufacturing Co, 151 NLRB 1482 , 1483, enforcement
denied 359 F 2d 799 (C A 7) See also Emerson Manufacturing Con{Qany,
Inc, 200 NLRB No 33, and Terrell Machine Company, 173 NLRB 1480
8 186 NLRB 745
210 NLRB No. 146
GEORGE BRAUN PACKING CO. 1029
refusal-to-bargain charge on April 4, 1973. The
parties stipulated that 152 employees refused to
report to work on June 1, 1972. On March 12, 1973,
Respondent filed an RM petition, which was
originally processed by the Regional Director. On
August 15, 1973, the Regional Director dismissed the
RM petition because of the blocking 8(a)(5) charge
which was found to have merit.
The Administrative Law Judge listed several
circumstances which, in his opinion, established
Respondent's reasonable doubt of the Union's
continued majority. Contrary to the Administrative
Law Judge, we find from these facts that it is clear
that Respondent not only lacked reasonable grounds
for believing that the Union had lost its majority
status, but that the Union actually demonstrated its
continued majority status. The circumstances relied
on by the Administrative Law Judge follow and will
be discussed seriatim.
1. "The number of employees in the bargaining
unit have more than doubled since the original
certification." This may not be considered as an
objective consideration since the law is clear that
new employees are presumed to support a union in
the same ratio as those whom they replaced .9
Additionally, the record reveals that the Union in
early 1972 conducted a new membership drive and
obtained approximately 125 signed cards, which
were sent to the Respondent.10 Following the
commencement of the strike, an additional 50
signatures were obtained. It is also undisputed that
152 employees went out on strike on June 1, 1972,
which number was virtually the entire bargaining
unit.
2. "At the time of the strike there were only 12
employees on the payroll that were a part of the
original bargaining unit-of this number, 1 contin-
ued to work and 11 remained on strike." This reason
is a slight variant of the one just considered, and the
considerations discussed with respect to the previous
finding are applicable. The irrelevance and nonpro-
bative character of such a circumstance are amply
demonstrated by the Union's obtaining of over-
whelming card support, and the overwhelming
support of the employees for the strike.
3. "Five years and 8 months have passed since
the original certification-more than 15 months have
passed since the court order enforcing a Board order
to bargain." The Union was certified on August 5,
1968, and Respondent did not bargain with the
Union until finally ordered to do so by the circuit
court on February 28, 1972. It is untenable to permit
Respondent to rely upon the age of the certification
as a basis for its doubt when the delay in bargaining
is attributable to Respondent's violation of its duty
to bargain.
4. "Eight months had passed since the last
bargaining session and there is no probative evidence
to indicate the Union had, in any manner, sought to
reinstate bargaining during this time." This reason
ignores the fact that, throughout this 8-month hiatus
period, a strike supported by practically all the unit
employees was in progress, which demonstrated both
the Union's continued determination to represent the
unit employees and the continued support of the
employees it represented. Moreover, the Union and
Respondent were engaged in almost continuous
litigation throughout the period. In view of the
above, there was no obligation on the part of the
Union to initiate a request for resumption of
bargaining, since the issues dividing the parties were
obvious, and further negotiations would have been
f utile. i i
5. "The frequent and violent acts of coercion and
vandalism by the Union and/or striking employees
created a fear in the minds of many which deterred
them from reporting for work." This reason is
speculative, for it appears that only a handful of
employees told Respondent that they were afraid to
return to work. But, even if this is considered as
"evidence," it is immaterial to the issue of Respon-
dent's alleged doubt of the Union's majority, since
more than approximately 140 employees of the 157
in the unit were striking at the time. Moreover, even
if a majority of employees had shown a desire to
return to work, this would not support a doubt of the
Union's continued majority status, for the Board has
held that employees, who join the strike at the outset
but later abandon it, are not presumed to have
indicated their lack of support for the union as their
bargaining representative.12
6. "The frequent request from the working
employees for the Company to do what it could to
obtain an election." The only evidence adduced was
that approximately six employees asked Respondent
why they couldn't get an election. A desire for an
election does not, of course, indicate union support
or the reverse. But more important, virtually all of
the original work force of about 152 was on strike.
Thus, an expression of interest in an election by this
insignificant number of employees can hardly consti-
tute evidence warranting a doubt of the Union's
majority-unless our colleagues are adopting the
Administrative Law Judge's -theory, that only non-
9 Laystrom Manufacturing Co., supra bargaining unit.
'° It was stipulated that Respondent 's payroll records for the penod it The Little Rock Downtowner , Inc, 168 NLRB 107.
ending April 14, 1972, indicate that there were 157 employees in the 12 Coca Cola Bottling Works, Inc, 186 NLRB 1050, 1053
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers' views should be considered in determining
whether the Union retained majority support.13 And
even on this basis, 6 is an inconsequential number of
the current replacement work force of 135, demon-
strating nothing as to majority or lack of it.
7. "The mere fact that a full work complement
was willing to report for work daily-in spite of the
picket line abuse and potential physical danger-is
strong evidence that a substantial number of employ-
ees were disenchanted by Respondent." This "evi-
dence" proves precisely nothing, for, as noted above,
the Board has held that the mere failure of employees
to support a strike does not give rise to a presump-
tion that these employees have repudiated the union
as their bargaining representative.14 The record
reveals that a majority of the unit employees were on
strike, and those employees who were working were
replacements for the strikers. Here again, in relying
only on views attributed to nonstrikers our col-
leagues are in effect concluding that the views of the
striking work force, who well outnumbered the
replacement work force, are of no account.
8. and 9. "There is no evidence of illegal
antiunion activities by Respondent, and there is
nothing in the record to indicate that in raising the
majority issue the Respondent was seeking time to
undermine the union." This "reason" is inaccurate,
of course, for Respondent did unlawfully refuse to
bargain with the Union until almost 4 years had
elapsed after the certification, and only after the
court of appeals affirmed the Board's unfair labor
practice finding and Order. Respondent again
refused to bargain with the Union on the latest
occasion only 11 months after commencing to
bargain under compulsion of a court order. In the
face of a complete lack of evidence supporting a
reasonable doubt of the Union's majority, an
inference might well be drawn that Respondent's
second refusal constituted an effort to undermine the
Union. While such an inference might justify
dismissing the RM petition, the absence of under-
mining efforts by Respondent establishes nothing
about the Union's lack of majority.
In sum, there is no evidence here showing any
objective circumstances upon which Respondent
could reasonably doubt the Union's presumed
continued majority. From the record, it is clear that
Respondent not only lacked reasonable grounds for
believing that the Union had lost its majority status,
but had acquired convincing evidence that the Union
enjoyed continued majority support in the unit.
Accordingly, we would find that Respondent, by
withdrawing recognition when it had no real doubt
about the Union's continued majority status, violated
Section 8(a)(5) and (I) of the Act.
13 As the Administrative Law Judge phrased his rationale (in the first
paragraph of the section entitled "Analysis" in his Decision), "the majority
of the working force wanted to be rid of the [Union 1 "
14 Coca Cola Bottling Works, supra
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY , Administrative Law Judge: This case
was teed before me in San Antonio , Texas, on October 24
and 25 , 1973,1 upon a complaint issued by the General
Counsel of the National Labor Relations Board (herein
Board) and an answer filed by George Braun Packing Co.
(herein Respondent).2 The complaint alleges a violation of
Sections 8(a)(5) and 8(a)(1) of the National Labor
Relations Act, as amended (herein Act) by failing and
refusing to bargain with the above -named Union, which
the complaint alleges at all times to have been the
representative of the Respondent 's employees in an
appropriate bargaining unit. Respondent 's answer admits
most of the factual allegations of the complaint , but denies
that its course of conduct has been in violation of the Act
as alleged by the General Counsel . Helpful briefs have
been received from both the General Counsel and the
Respondent and have been duly considered.
Upon the entire record in this proceeding and from my
observation of the demeanor and testimony of the
witnesses , I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent is, and at all times material herein has
been , a corporation duly organized under and existing by
virtue of the laws of the State of Texas with its office and
place of business located at 675 Steves Avenue, San
Antonio, Texas , where it is engaged in the business of
slaughtering livestock and processing meat and meat
byproducts. During the preceding 12 months , Respondent
has sold products valued in excess of $50 ,000 to employers
in the State of Texas , who are engaged in the business of
processing food products and annually make direct sales of
these products valued in excess of $50 ,000 to customers
located outside the State of Texas . On the basis of these
admitted facts , I find that Respondent is now , and at all
times material herein has been , an employer engaged in
commerce within the meaning of Section 2 (2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION
The Amalgamated Meat Cutters and Butcher Workmen
of North America, Local Union No. 171, AFL-CIO
(herein Union or Charging Party), is now, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
1 All dates hereinafter will be 1973, unless otherwise indicated.
2 The charge herein was filed by the Union on April 4 and served by
registered mail on Respondent on the same date . The complaint and notice
of hearing herein is dated August 23 and was served on Respondent on the
same date
GEORGE BRAUN PACKING CO. 1031
III. THE UNFAIR LABOR PRACTICES
A. The Issue
The issue to be resolved in this dispute may be phrased
in the form of a question as follows: Was the Respondent's
refusal to bargain with the Union based on a good-faith
doubt of the Union's majority status?
B. Background
The Union was certified as the collective-bargaining
representative of the employees in an appropriate bargain-
ing unit on August 5, 1968. There is no dispute concerning
the appropriate bargaining unit, which may be described
as, "All production and maintenance employees, including
truck drivers at the Respondent's plant located at 675
Steves Avenue, San Antonio, Texas, excluding all office
employees, salesmen , guards and supervisors as defined in
the Act." Following certification the principal parties held
a number of unproductive bargaining sessions , which were
ultimately terminated. In November 1969 a refusal-to-
bargain charge against the Respondent resulted in the
issuance of a complaint and a hearing in which the
Respondent was found to be in violation of Section 8(a)(l)
and (5) of the Act.3 On December 23, 1971, the Court of
Appeals for the Fifth Circuit enforced the Board's order.4
Thereafter the parties resumed negotiations and continued
their efforts to reach agreement until the last contract
negotiating session , which was held on July 13, 1972.
However, on June 1, 1972, employees of the Company
went out on strike and it has been stipulated that 152
employees failed to report for work on that day. On June 7,
1972, the Union filed an 8(a)(1), (3), and (5) charge against
the Company, which charge was dismissed by the Regional
Director on August 9, 1972. The Union appealed the
dismissal of the charge, and the appeal was denied by the
General Counsel on November 29, 1972. Of the 152
employees that failed to report for work on June 1, 1972,
approximately 12 have returned to work during the course
of the strike and as of this past June seven of that number
remained employed. On June 14, 1972, the Respondent
filed unfair labor practice charges against the Union
alleging violations of Section 8(b)(1) (A), which charge
resulted in a complaint being issued on July 19, 1972, by
the Regional Director, which complaint set forth 23
different acts of violence or coercion on the part of the
Union or its agents .5 On September 7, 1972, the parties
entered into a settlement agreement resulting in the Union
posting appropriate notices cautioning union members in
their dealings with the George Braun Packing Co.
employees. (Case 23-CB-1301). On August 21, 1972, the
Respondent herein obtained a state court injunction, which
limited the number of strikers at the entrance to the Braun
plant to 15. In March Joe B. Morales and David Lopez
were found to be in contempt of the aforementioned
injunction and each were ordered confined in the Bexar
County jail for a brief period of time as punishment for
their contemptable conduct.
On March 12 of this year (Case 23-RM-283), the
Company filed an RM petition . A hearing was held in
connection with the election petition and the Regional
Director issued a Decision and Direction of Election on
June 13 . The election was scheduled for July 11, and
appropriate notices of the election were posted in suitable
and conspicuous places at the plant.
During the meantime while Respondent RM petition
was following its normal course , the Union began to
pursue its course of action . On March 23 (a date
subsequent to the filing of the RM petition ) the Union
wrote Respondent asking it to resume bargaining . On April
10, 1973, the Company acknowledged the Union 's request,
but advised "that it would not be appropriate to engage in
collective bargaining while the petition for election is
pending before the NLRB ." On April 4, 1973, the Union
filed its charge in the instant case alleging the Respondent
to be in violation of Section 8(a)(5) and ( 1) of the Act. On
June 12 , 1973, the acting Regional Director for Region 23
advised counsel for the Union that the charge in the instant
case was being dismissed . The Regional Director dismissal
of the instant case was appealed to the General Counsel in
Washington , and by letter dated August 7 , 1973, the
Director of the Office of Appeals in Washington, D.C.,
sustained the Union 's appeal and directed that an
appropriate 8(a)(5) and ( 1) complaint be issued. Thereafter
by letter dated August 15, the Regional Director for
Region 23 advised Respondent 's counsel that the RM
petition was being dismissed inasmuch as the charge in
Case 23-CA-4721 was found to have merit.
C. The Testimony
The testimony developed that while there were approxi-
mately 152 employees working at the time the strike started
in June 1972, approximately 40 of these employees were
employed on the night-shift involved exclusively in killing
sheep and goats. The sheep and goat killing operation,
which provided the work for the night shift, is a seasonal
operation and will normally occur twice a year, in the
spring and fall. The sheep and goat kill night-shift
operation may operate for a few days, or for as long as 2 or
3 months depending on the number of sheep and goats
available. At the particular period of time material to this
case, the operation might not occur at all, because of the
various ramifications stemming from the economic situa-
tion and the price freeze on certain foods. The point being
that while there were 152 employees that went out on strike
in June 1972, the prevailing work force would appear to be
approximately 112 employees .6 This means that the
permanent work force had more than doubled since the
original certification in 1968.
Mr. Harral, vice president and part owner of Respon-
dent, Mr. Robert Elliott, plant superintendent, and
Rodney Spencer, general manager for Respondent, all
testified to numerous incidents of violence and coercion on
3 See George Braun Packing Co, 186 NLRB 745
4 See N.L R B. v George Braun Packing Co., 456 F.2d 800. (C A. 5, 1971)
5 On July 31 the complaint was amended to add two additional acts of
misconduct by the Union.
6 Rodney N. Spencer, general manager for Braun, testified that there are
currently 135 employees but that that number vanes between a low of 105
to a maximum of 135
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the part of the union adherents, which violence was
directed not only at the Braun Division of the Respondent,
but also at the L. and H. Packing Company plant, not
directly involved in this dispute. Their testimony in this
regard is supported not only by the complaint that issued
against Union (Case 23-CB-1301) and the subsequent
settlement, but also by the state court injunction against
the Union and the contempt citations thereunder, as well
as the numerous individual written complaints by employ-
ees and the numerous police reports all of which are in
evidence (see Resp. Exh. 6 and 7).
Because of these acts of violence and coercion the
Company received numerous reports from employees that
they were afraid to return to work although they would
have liked to return to work. Harral, Elliott and Spencer
each testified to having received complaints from various
employees expressing resentment and dissatisfaction with
the violence and coercion and expressing a desire for an
election.
Miss Hortense Gonzales testified on behalf of the
Charging Party and indicated that she was the secretary
and office clerical for the Union and her records reflexed
that one Andres Chavez, a striker at the Braun Packing
Co., was now employed at San Antonio Packing and was a
member of the Union. Miss Gonzales also testified that
Jesse Leal, an employee of the Respondent at the time of
the strike, had made an application to belong to the Union.
Erben Rendon, the financial secretary for Charging
Party, Local 171, testified that during the months February,-
March, and April, 1972, that a "sign-up drive" had been
conducted among the employees of Respondent following
the Circuit Court of Appeals enforcement of the unfair
labor practice against Respondent and it had resulted in
approximately 125 or 128 sign-up cards having been
received. Rendon testified that these cards were mailed to
the Respondent's attorney, Mr. McGown, who had
represented the Respondent at the bargaining table and
that the cards had been returned to Rendon by McGown
at one of the following bargaining sessions . While receipt
of the cards by McGown seems clear, the evidence is not
clear that the cards were ever looked at or examined by
McGown and no evidence that even their receipt was
communicated to Harral.
Analysis
The evidence is crystal clear and stands in the record
undisputed that following the strike by the Union it has
been unceasingly tireless in its efforts to prevent, through
both legal and illegal means, employees from exercising
their right to render services for and on behalf of the
to be nd of the violence and coercion. Respondent felt that
the proper way to accomplish this would be to have a free
and untrampled expression of all employees involved by
having an election conducted by the National Labor
Relations Board.
The evidence also establishes that there was no request
by the Union for bargaining from July 13, 1972, a period
shortly after the strike started, until March 23, 1973, which
was after the Respondent filed its RM petition for an
election. While the Charging Party and the General
Counsel seek to minimize the consequences of this passage
of time, because the parties had frequent contact with one
another as exemplified by the numerous charges and
countercharges both in the state court and the NLRB,
nevertheless, I cannot find that these contacts, primarily
between counsel, ever became a request for a resumption
of negotiations. Obviously this act of lagging, coupled with
the continuous turnover of employees and the comments
which Respondent's supervisors were hearing from the
employees regarding their desires for an election, provided
Respondent a sound basis for concluding that the Union
no longer represented a majority of the employees.
The basic law involved in resolving this case is set forth
by the Board in the Celanese Corporation of America case
(1951) 7 wherein it is said:
In the interest of industrial stability, this Board has
long held that , absent unusual circumstances, the
majority status of a certified union is presumed to
continue for 1 year from the date of certification. In
practical effect this means two things: (1) That the fact
of the union's majority during the certification year is
established by the certificate, without more, and can be
rebutted only by a showing of unusual circumstances;
and (2) that during the certification year an employer
cannot, absent unusual circumstances, lawfully predi-
cate a refusal to bargain upon a doubt as to the union's
majority even though that doubt is raised in good faith.
However, after the first year of the certificate has
elapsed, though the certificate still creates a presump-
tion as to the fact of majority status by the union, the
presumption is at that point rebuttable even in the
absence of unusual circumstances. Competent evidence
may be introduced to demonstrate that, in fact, the
union did not represent a majority of the employees at
the time of the alleged refusal to bargain. A direct
corollary of this proposition is that, after the certificate
is a year old, or in cases where there is no certificate,
the employer can, without violating the Act, refuse to
bargain with a union on the ground that it doubts the
union's majority, provided that the doubt is in good
faith. (Footnotes omitted).
Respondent . These violent and coercive measures have s « s
caused much bloodshed by the employees and many added
burdens for the Respondent, but it has not prevented the
Respondent from maintaining and even improving its
production through the hiring of permanent replacements
for the striking employees. The record evidence supports,
and I find herewith that the Respondent was fully justified
in its opinion that the majority of the working force wanted
By its very nature, the issue of whether an employer
has questioned a union's majority in good faith cannot
be resolved by resort to any simple formula. It can only
be answered in the light of the totality of all the
circumstances involved in a particular case. But, among
such circumstances, two factors would seem to be
r Celanese Corporation of America, 95 NLRB 664. For a more recent 1482 ; Terrell Machine Co, 173 NLRB 1480; Viking Lithographers, Inc, 184
discussion of the basic issue, see Laystrom Manufacturing Co, 151 NLRB NLRB 139; Southern Wipers, Inc, 192 NLRB 816
GEORGE BRAUN PACKING CO. 1033
essential prerequisites to any finding that the employer
raised the majority issue in good faith in cases in which
a union had been certified. There must, first of all, have
been some reasonable grounds for believing that the
union had lost its majority status since its certification.
And, secondly, the majority issue must not have been
raised by the employer in a context of illegal antiunion
activities or other conduct by the employer aimed at
causing disaffection from the union or indicating that
in raising the majority issue the employer was merely
seeking to gain time in which to undermine the union.
The following facts are amply established by the
evidence in this case : (1) The number of employees in the
bargaining unit have more than doubled since the original
certification; (2) at the time of the strike there were only 12
employees on the payroll that were a part of the original
bargaining unit-of this number, I continued to work and
II remained on strike; (3) 5 years and 8 months have
passed since the original certification-more than 15
months have passed since the court order enforcing a
Board order to bargain; (4) 8 months had passed since the
last bargaining session and there is no probative evidence
to indicate the Union had, in any manner, sought to
reinstitute bargaining during this time; 8 (5) the frequent
and violent acts of coercion and vandalism by the Union
and/or striking employees created a fear in the minds of
many which deterred them from reporting for work; (6) the
frequent request from the working employees for the
Company to do what it could to obtain an election; (7) the
mere fact that a full work complement was willing to report
for work daily-in spite of the picket line abuse and
potential physical danger-is strong evidence that a
substantial number of employees were disenchanted with
the Union; (8) there is no evidence of illegal antiunion
activities by Respondent; and (9) there is nothing in the
record to indicate that in raising the majority issue the
Respondent was seeking time to undermine the Union.
While any one of these factors standing alone might be
insufficient to provide a basis for supporting a good faith
doubt of the Union's majority status, I am convinced that
the Respondent gave credence to all of these factors in
reaching its decision that the Union no longer represented
a majority of the employees. In my opinion, the Respon-
dent has provided sufficient evidence, when considered in
its entirety, to cast serious doubt on the Union's continued
bargaining role and to support the Respondent's decision
to reassess the Union's majority status.9
The good faith of the Respondent is further supported by
the fact that during the period of time following the court
order (December 1971) there is not one scintilla of
evidence to indicate that the Respondent has been guilty of
illegal antiunion activities or delay although the regional
8 The evidence tending to show that there had been frequent " contacts"
between the Charging Party's attorney and the Respondent's attorney is
totally insufficient to nullify this fact
9 Taft Broadcasting, 201 NLRB 801
iu See Section 9(c)(3) of the Act, which provides in pertinent part,
"Employees engaged in an economic stnke who are not entitled to
reinstatement should be eligible to vote under such regulations as the Board
shall find are consistant with the purposes and provisions of this Act in any
election conducted within 12 months after the commencement of the
strike." Cf Bally Case and Cooler, Inc, 172 NLRB 1127, wherein the Board
office did have occasion to thoroughly investigate its
conduct. (The Union's charge in Case 23-CA-4390 was
dismissed by the Regional Director and on Appeal the
dismissal was sustained .) Moreover, the good faith of the
Respondent is further supported by the timing of its filing
of the RM petition . Mr. Harral , the Respondent's vice
president and apparently its primary decision maker in this
dispute, was advised by counsel prior to making the
decision to file the RM petition on March 12 that striking
employees would be allowed to vote in any election held
pursuant to a petition filed prior to June 1 of 1973.
Nevertheless, the Respondent elected to file its petition at a
time when the striking employees would have been eligible
to cast a ballot in the election.to
I conclude that at the time Respondent raised the issue
of the Union's majority status it had sufficient objective
grounds for believing that a majority of the employees no
longer desired union representation. The underlying
purpose of the Act is to aid in establishing industrial peace.
To deny the Respondent the right to rely on the objective
considerations established by the evidence herein is not
conducive to that end, it is inimical to it. Accordingly, I
find that Respondent did not violate Sections 8(a)(5) and
(1) of the Act and shall recommend dismissal of the
complaint.
CONCLUSIONS OF LAW
(1) The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6) and (7) of the
Act.
(2) The Amalgamated Meat Cutter and Butcher Work-
men of North America, Local Union No. 171, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
(3) All production and maintenance employees, includ-
ing truck drivers at the Respondent's plant located at 675
Steves Avenue, San Antonio, Texas, excluding all office
employees , salesmen, guards and supervisors as defined in
the Act, constitute an appropriate bargaining unit.
(4) The Respondent did on March 12, 1973, and at all
times since that date , have good and sufficient objective
reasons for doubting the Union 's majority status in the
heretofore found appropriate bargaining unit.
(5) The Respondent has not engaged in unfair labor
practices as alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
regarded the timing of the Respondent 's questioning of the Union's
continued majority status adversely to the Respondent, because the
Respondent had not asserted its doubt at a time which would have provided
the maximum opportunity for an expression of the employees free and
untrampled choice.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER" Respondent, George Braun Packing Co., be and it is
hereby dismissed.
It is ordered that the complaint issued herein against the
" In the event no exceptions are filed as provided by Sec 102 46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings , its findings, conclusions , and order, and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec deemed waived for all purposes.