Grace and Hornbrook Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 15 (N.L.R.B. 1976)

GRACE AND HORNBROOK MANUFACTURING 15
Grace and Hornbrook Manufacturing Company and
Hanlo Gage and Engineering Company and Inter-
national Union , United Automobile , Aerospace and
Agricultural Implement Workers of America
(UAW) and its Local 157. Case 7-CA-12282
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
June 24, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 5, 1976, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed a
reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This pro-
ceeding was initiated by a charge filed by the above-cap-
tioned Union on September 2, 1975) Pursuant thereto,
complaint issued on October 30 alleging that the above-
captioned Respondent had violated Section 8(a)(1) and (5)
of the Act by imposing unlawful conditions on bargaining
and by withdrawing recognition for the asserted reason
that the Union no longer represented a majority of its em-
ployees. On December 8, hearing was held in Detroit,
Michigan.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs filed by the
parties, I hereby issue the following-
Unless otherwise indicated, all dates hereinafter are in 1975
Grace and Hornbrook Manufacturing Company and
Hanlo Gage and Engineering Company (hereinafter collec-
tively called Respondent) are separate corporations en-
gaged in the manufacture and sale of gages, gage compo-
nents, large fixtures, and special machinery at a plant
facility located in Southfield, Michigan. The complaint al-
leges, the answer admits, and I find that Grace and Horn-
brook and Hanlo Gage constitute a single employer within
the definition of Section 2(2) of the Act. The complaint
alleges, the answer admits, and I find that the Respondent
meets the Board's direct outflow standard for the assertion
of jurisdiction and constitutes an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
On September 9, 1974, the Union was certified as the
representative of Respondent's employees in a production
and maintenance unit. Thereafter the parties entered into
negotiations. On November 19, 1974, the employees went
out on strike and continued on strike until February 12,
1975. At the time of the strike the employee complement
consisted of between 30 and 35 employees, 26 or 27 of
whom went out on strike. At the time the strike ended 19 or
20 employees were still on strike.
The plant operated during the strike and negotiations
were continued without reaching agreement. Substantial
progress had been made by April 24, but the parties were
still apart on several issues.
On June 20, a decertification petition was filed. On July
7, it was dismissed for untimeliness.
In early July, a charge was filed by the same employee
who had filed the RD petition alleging, in essence, collu-
sion between Respondent and the Union to reach a certain
type of agreement, including a fixed vote on the matter.
The charge was dismissed.
During the pendency of the charge, officials of Respon-
dent met with Attorney Katz, Respondent's representative
in bargaining, to discuss the matters raised by the charge,
and, as a result, on July 18, Katz advised the Union by
letter that it was Respondent's position that any agreement
reached was subject to ratification by a vote of all unit
employees.
On July 22, a negotiating meeting was held. Respondent
asked the Union for its position on a ratification vote by all
employees and the Union replied that only union members
would vote. Thereupon, Respondent's officials left the
meeting to discuss the matter They returned to inquire
again about the Union's position, and when the Union reit-
erated its position, according to Joseph Mazzola, vice pres-
ident of the Union, Bob Hornbrook, Respondent's vice
president and treasurer, stated that they were not negotiat-
ing any more, that there would be no more meetings and
he left. Katz confirmed that Hornbrook stated he was not
going to meet because of the voting issue, but he asserted
that Hornbrook did not use the word "future, or future
meetings or anything." When Mazzola remarked that
225 NLRB No. 4
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hornbrook was refusing to meet, Katz cautioned him not
to twist the facts, that Hornbrook "is relating to the single
issue only."
Mazzola testified on direct examination that on July 25
he had a telephone conversation with Katz in which Katz
stated Respondent had not changed its position on the vot-
ing issue. Katz denied this and pointed out at the hearing
that on cross-examination Mazzola had admitted to a tele-
phone conversation with Katz before August 1 wherein
Katz had suggested further negotiations and that the vot-
ing question would not be an issue any more. On August 1,
Katz notified Mazzola by letter that Respondent was not
refusing to meet to negotiate a contract. The ratification
issue was never raised again except that at the meeting of
August 21, in reply to Mazzola's inquiry, Katz confirmed
that the issue was off the table.
Prior to July 22, the parties had been keeping notes of
agreements reached on separate sheets of paper and at the
July 22 meeting Katz offered or agreed to prepare a docu-
ment incorporating all the provisions agreed upon and to
transmit it to Mazzola. On or about August 12, Mazzola
received the document.
On August 7, Respondent received a petition signed by
19 of the employees in the unit expressing a desire for a
vote on the question of union representation 2 Attorney
Katz recognized the names of 5 employees who had never
joined the strike and 3 employees who had abandoned it;
at the time, 23 employees were employed and 4 were on
layoff status.
Sometime thereafter, Katz telephoned Mazzola to tell
him of the petition and that the Respondent entertained a
doubt of the Union's majority status and it would propose
at the next negotiating meeting that the expiration date of
any contract agreed to be coextensive with the end of the
certification year. On August 21, the parties met and Re-
spondent took the position outlined above. The Union re-
jected any suggestion of a contract of such brief duration
and relied on the fact that all prior negotiations had oc-
curred in the context of a 3-year agreement. Mazzola then
purported to accept the 3-year contract proposed by Re-
spondent in earlier negotiations . Nothing was accom-
plished.
On September 8, Mazzola hand delivered a letter to Katz
again purporting to accept a 3-year agreement. There is no
showing of any response On September 12, the parties met
with a mediator, but Respondent asserted its doubt of the
Union's majority status and refused to negotiate.
B. Analysis and Conclusions
The principal issue presented herein is the legality of
Respondent's proposal for a contract with a duration
clause coextensive with the expiration of the certification
year and its postcertification year refusal to bargain. All
other issues are subsidiary.
The first such issue involves testimony by Vytout Petrul,
a tool operator and chairman of the negotiating committee
about statements made to him by General Manager Lee
2 The petition contains 20 signatures, but apparently 1 is that of a nonunrt
employee
Chenowith on the day Petrul returned to work. Petrul was
placed on layoff status when the strike ended and did not
return to work until May 27. He testified that on that day
Chenowith told him to get back to work, no fooling around
and let's get the plant going back again. (These remarks are
not alleged to have been violative of the Act.) Shortly
thereafter , Petrul received a call from Mazzola informing
him of a meeting and Petrul went to inform another com-
mittee member of the meeting at his place of work just
outside the office. Later, Chenowith came to Petrul and
told him he should not do any talking on union activities in
the plant, that if he had anything to talk about to anybody
he should do it outside the building.
The conduct attributed to Chenowith by Petrul forms
the basis for a complaint allegation that Respondent pro-
mulgated an unlawful no-solicitation rule in violation of
Section 8(a)(1) of the Act. If Petrul were credited, the alle-
gation would be sustained. However, Chenowith, who ad-
mitted to the first conversation with Petrul, denied the sec-
ond conversation ever took place. I am disposed to credit
Chenowith.
Petrul's testimony on this matter was very brief and
sketchy and there is very little in the record to rely upon to
lend credence to it. However, there are circumstances
which militate against giving his testimony credence. For
one thing, the fact of his conversation with another com-
mitteeman was not corroborated. For another, according
to Petrul's own testimony, the incident came about as a
result of a call from Mazzola which was apparently re-
ceived at the plant, and Respondent's cooperation in such
a call would be inconsistent with any edict such as Petrul
attributed to Chenowith. It would be consistent, however,
with Chenowith's uncontradicted testimony that Respon-
dent permitted such calls despite a rule against nonwork
related activity during working time. Moreover, it is note-
worthy that neither Petrul nor Mazzola protested any such
unlawful restriction on Petrul's union activities at any of
the meetings held after May. For the foregoing reasons, I
credit Chenowith and I shall dismiss the complaint allega-
tion predicated on Petrul's testimony.
The second subsidiary issue relates to Respondent's re-
fusal to continue the meeting of July 22, because of the
Union's refusal to agree to permit all unit employees to
vote on ratification of any contract proposal. First there is
the question: Did Bob Hornbrook state that there would
be no more meetings because of the Union's position on
the ratification vote? I find he did. Both Mazzola and Pe-
trul testified to that effect and while neither was an impres-
sive witness (Mazzola gave very disjointed testimony) their
testimony was not contradicted. Hornbrook did not testify,
Chenowith was not examined about the matter; and Katz
did not specifically contradict Mazzola's testimony. As
noted earlier, Katz stated Hornbrook had not used the
word "future," but Mazzola did not accuse him of doing
so; he testified that Hornbrook said there would be no
more meetings.
The second question is the significance of that remark
and Respondent's conduct in leaving the meeting and
aborting any discussion of contract issues. The complaint
alleges that such conduct was violative of Section 8(a)(1)
and (5) of the Act. The theory of the violation is that the
GRACE AND HORNBROOK MANUFACTURING 17
question of ratification is an internal union matter and a
nonmandatory subject of bargaining , and that an employer
may not insist to impasse on a nonmandatory subject. This
is clearly the rule of law .3 But, did Respondent insist to the
point of impasse? While I have found that Respondent
walked out of the July 22 meeting because of this issue with
the statement there would be no more meetings , the fact of
the matter is that within a few days Respondent , by coun-
sel, retracted from that position and removed the issue
from the bargaining table . General Counsel has cited no
authority for a finding that such conduct constituted a bar-
gaining to impasse . I find that Respondent did not insist to
impasse on a ratification vote on any agreement arrived at
and did not violate Section 8(a)(l) and (5) of the Act as
alleged in the complaint.
Next to be considered is the Respondent 's conduct at the
meeting of August 21. There is no dispute about the facts.
At the meeting Respondent admittedly proposed a con-
tract to expire on September 9, 1975, the date of the expira-
tion of the certification year. In other words , Respondent
proposed a contract for a 2-1 /2-week period . Respondent
argues that its proposal did not exclude a contract retroac-
tive to the beginning of the certification year, thereby sug-
gesting that the proposal was not a frivolous one, nor one
from which an inference of bad faith could be drawn. Giv-
en the background of the negotiations and the consider-
ations that Respondent relied on in making such proposal,
I am persuaded that the possibility of such retroactivity
was so remote as to make it a meaningless consideration.
In my judgment , the proposal cannot be disguised as any-
thing other than a proposal for a 2-1 /2-week contract. Fur-
thermore , in my judgment, it was a proposal no union
could be expected to accept.
It does not follow from the foregoing that Respondent's
proposal was necessarily violative of Section 8(a)(5) of the
Act. Although it is a firmly established rule that, about
unusual circumstances , a union 's majority status is conclu-
sively presumed for a year following a Board certification,4
it has nevertheless been held that an employer who has
reason to doubt a union 's continued majority support may
insist upon a contract duration coextensive with the certifi-
cation year. The Hinde & Dauche Paper Company, 104
NLRB 847 ( 1953); Vulcan Steel Tank Corporation, 106
NLRB 1278 (1953); Lloyd A Fry Roofing Company, 123
NLRB 647 ( 1959). Such holdings appear to be inconsistent
with the certification year rule. Yet, as Administrative Law
Judge Louis Penfield pointed out in F. Strauss and Son,
Inc., 216 NLRB 95, 100 , ". . . the limited duration concept
seeks to recognize that circumstances may arise which
could result in forcing an unwanted representative on the
employees for an extended period of time."
Where an employer proposes a contract of such limited
duration , it must appear that the proposal is not in bad
faith or to achieve an illegal purpose (Lloyd A. Fry, supra at
650) and it must be based on a doubt of majority status
supported by objective considerations.
As to the first point, there is no allegation in the com-
plaint that Respondent did not bargain in good faith, nor is
there any evidence to warrant such a finding . While the
Respondent could not honestly have expected the Union to
accept a contract of such brief duration as it proposed, and
in that sense could be said to have made its proposal in bad
faith , I do not understand that the Board would infer bad
faith on the basis of the proposal alone where the proposal
was predicated on objective proof of loss of majority sup-
port . If bad faith were to be inferred from the mere fact of
the proposal , the entire concept of a contract of limited
duration in circumstances showing a loss of majority status
would be destroyed.
Nor do I understand the General Counsel 's position to
be otherwise ; rather, I understand his position to be two-
fold: that the asserted good -faith doubt was not supported
by objective considerations and that it occurred in the con-
text of unfair labor practices or conduct aimed at causing
dissatisfaction from the Union.
On the issue of objective considerations , Respondent as-
sertedly relied on six factors:
1. Effective April 24, 1975, a committeeman ceased at-
tending negotiation meetings and was not replaced thereaf-
ter on the Union's negotiating team.
In support of its reliance on this fact, Respondent cites
Lloyd McKee Motors, Inc., 170 NLRB 1278 (1968). I agree
with General Counsel that this fact afforded Respondent
no reason to doubt the Union's majority status. In Lloyd
McKee, there were several changes in the union negotiating
committee and the unfilled post was that of a steward.
Here , all that appears is that one member of the committee
ceased attending negotiating meetings. The mere fact that
he was not replaced is insufficient to warrant an inference
that the Union could not do so.
2. At the July 22 bargaining session, Mazzola made
strong comments relative to posting a sergeant-at-arms to
exclude nonmembers from attending any meeting where
the contract would be discussed.
Any remarks attributed to Mazzola on July 22 arose out
of Respondent's proposal that all employees in the unit be
permitted to vote on the question of contract ratification.
There is some conflict regarding precisely what Mazzola
said, but, assuming Mazzola made the remarks attributed
to him by Respondent, this afforded no basis for doubting
the Union 's majority status. I understand that it is a basic
tenet of any trade unionist that only union members will
vote on acceptance or rejection of a contract proposal and
all trade unionists will fiercely oppose the presence of any
nonmember in their deliberations though he be the only
nonmember in the unit . Apart from that , Mazzola's re-
marks at most suggested that less than a majority of the
unit employees were union members and the Board has
long held , as General Counsel points out, "there is no nec-
essary correlation because membership and the number of
union supporters , since no one could know how many em-
ployees who favor union bargaining do not become or re-
main members thereof ." Terrell Machine Company, 173
NLRB 1480, 1481 (1969).
3. On June 20, 1975, a unit employee filed a decertifica-
7 N L R B v Wooster Division of Borg-Warner Corporation, 356 U S 342 tion petition which was dismissed on July 7, 1975, as un-
(1958) timely.
4 Ray Brooks v N L R B, 348 U S 96 (1954) 4. In July 1975, the same employee who filed the decer-
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tification petition filed unfair labor practice charges alleg-
ing collusion between the Union and Respondent.
The two foregoing factors relied on by Respondent are
not adverted to by General Counsel. They need not have
been. The unfair labor practice charges evidenced discon-
tent by one employee, the decertification petition by per-
haps 30 percent of the employees (the record does not indi-
cate how many employees supported that petition)
Accordingly, the discontent evidenced by these two inci-
dents was insufficient to support a good-faith doubt of ma-
jority.
5. Overt repudiation of the Union by employees to Re-
spondent during all times material.
This factor is based on testimony of Respondent's attor-
ney and General Manager Chenowith respecting state-
ments to them by employees and their observations about
the number of employees who did not join the 12-week
strike or who abandoned it. Thus, according to Chenowith,
seven or eight employees did not go out on strike (at least
five of whose names are on the petition 5 ) and they ex-
pressed to him their opposition to the Union both during
and after the strike. In addition, three employees aban-
doned the strike and told him they were fed up with the
Union and wanted nothing to do with it and had resigned
from the Union. Three other employees (who apparently
had supported the strike throughout) told Chenowith they
were fed up with the Union and wanted nothing to do with
it.
According to the brief of Respondent, there were 15 oral
repudiations; according to General Counsel, 14. Neither
party gave record references on this point in their briefs
and, taking into consideration transcript errors I count
only 12 employees orally expressing dissatisfaction with the
Union. It is immaterial how many employees had made
oral expressions of dissatisfaction as I am not relying on
the number of oral statements in upholding Respondent's
position In this connection, however, I reject General
Counsel's contention that I should not credit the testimony
of Attorney Katz and Chenowith regarding oral statements
because of the failure of Katz to mention such statements
in a position paper submitted during the investigation of
the instant charge and the failure of Chenowith to include
them in his prehearing affidavit Apart from other consid-
erations, I note that their testimony was uncontradicted.
I find, therefore, that oral statements were made to Re-
spondent by a number of employees expressing dissatisfac-
tion with the Union. However, were such statements the
only circumstance to support an asserted doubt of majori-
ty, I would deem them insufficient. Some were made by
employees who had never supported the Union and the
others were made in the course of, or in connection with,
an unsuccessful strike. In such a circumstance, employees
may well be discontent over the turn of events without
wanting to forego continued union representation. Accord-
ingly, the only significance I attach to such oral statements
is that they could rightly be regarded by Respondent as
part of the evolutionary process which culminated in the
petition of August 7.
5 It may well be that the names of all seven or eight nonstrikers appeared
on the petition, but, if so, the record is far from clear on the point
6. The August 7 petition.
As noted earlier, on August 7 Respondent received a
petition signed by a majority of the employees in the unit
which stated "The following employees of Grace and
Hornbrook Mfg. Company and/or Hanlo Gage and Engi-
neering Company would like a re-vote in the matter of
certification of bargaining agent between the company and
ourselves."
General Counsel contends this petition could not be re-
lied upon for a good-faith doubt for a variety of reasons.
Since the signatures on the petition were dated in the week
immediately following Respondent's walking out of a
meeting because of the Union's refusal to permit all unit
employees to vote on the question of contract ratification,
General Counsel argues that it is only reasonable to as-
sume that the unit employees were confused as to the im-
port of the petition. Of course, we are weighing
Respondent's good-faith doubt, not the employees' possi-
ble confusion. But, be that as it may, the wording of the
petition is clear, it speaks in terms of a certification of
bargaining agent, not a ratification of contract.
General Counsel next argues that the wording of the pe-
tition does not indicate a repudiation of the Union. I do
not agree. Where there is a certified union representing
employees, and the employees sign a petition asking for a
revote, the conclusion that they are repudiating the Union
is inescapable. If they wanted the Union to continue to
represent them, obviously, they would be opposed to any
revote. As to the cases cited by General Counsel, they are
clearly distinguishable.
As noted earlier, General Counsel contended that Re-
spondent violated Section 8(a)(5) by its conduct at the July
22 negotiation session, a contention which I rejected. Gen-
eral Counsel argues alternatively that, even if Respondent
is not found guilty of a refusal to bargain on July 22, Re-
spondent was aware of employee concern over the ratifica-
tion issue and it could reasonably infer that by taking an
adamant stand on this nonmandatory subject of bargain-
ing it could cause employee disaffection with the Union. In
other words, General Counsel contends that Respondent
was instrumental in employees signing the petition and for
that reason it cannot now rely on the petition as a basis for
proposing a contract expiring with the certification year. I
am not persuaded that such a conclusion can be drawn
from the facts. Assuming, arguendo, that the employees
learned of the July 22 meeting and of the Union's position
and Respondent's reaction, why would the employees' ac-
tion in signing the petition be attributable to Respondent's
conduct, rather than the Union's? In other words, while the
Union had the legal right to exclude nonmembers from its
deliberations, it had no right to be insulated from employee
reaction to its exercise of that right, and the fact that a
majority of the employees signed the petition in the week
following the July 22 meeting is more likely to be attribut-
able to employee dissatisfaction with the Union's position
than to the Respondent's conduct. I would not, therefore,
preclude Respondent from relying on the August 7 petition
by reason of its conduct at the July 22 meeting.
In short, I conclude that the August 7 petition was not
shown to have been tainted by conduct of Respondent,
and that on the basis of such petition signed by a majority
GRACE AND HORNBROOK MANUFACTURING 19
of the unit employees , in the context of a history of 10
months of bargaining during which there had been an un-
successful 12-week strike and with employees voicing dis-
satisfaction with the Union , Respondent was justified in
proposing to limit the duration of any contract to the certi-
fication year. Lloyd A Fry Roofing Co, supra
The foregoing conclusion is dispositive of the sole re-
maining issue ; namely, the legality of Respondent 's refusal
to bargain after September 9. After the expiration of the
certification year, the presumption of the Union 's contin-
ued majority status was rebuttable and Respondent's as-
serted doubt of majority status was justified if based on
objective considerations . It would seem supererogatory to
point out that the considerations which supported the
Respondent 's proposal of a contract with a duration date
coextensive with the certification year constituted suffi-
cient objective considerations to support Respondent's as-
sertion of doubt after the expiration of the certification
year. Accordingly , I find that Respondent did not violate
Section 8 (a)(1) and (5) of the Act by refusing to bargain
with the Union after September 9, 1975.
employer engaged in commerce within the meaning of Sec-_
tion 2(6) and (7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW)
and its Local 157 are, labor organizations within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(1) of the Act
by promulgating an invalid no-solicitation rule, nor did it
violate Section 8(a)(1) and (5) of the Act by its conduct
respecting a ratification vote, by proposing a contract with
the same expiration date as the certification year, and by
refusing to bargain with the Union after expiration of the
certification year.
Upon the foregoing findings of fact, conclusions of law
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER6
The complaint is dismissed in its entirety
CONCLUSIONS OF LAW
1. Grace and Hornbrook Manufacturing Company and
Hanlo Gage and Engineering Company constitute a single
In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes