Harpeth Steel, Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1974

208 N.L.R.B. 545 (N.L.R.B. 1974)

HARPETH STEEL, INC. 545
Harpeth Steel, Inc. and International Association of
Bridge , Structural and Ornamental Iron Workers,
Shopmen 's Local 733. Case 26-CA-4532
January 21, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND PENELLO
On April 30, 1973, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a brief in support thereof.
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.
Unlike our dissenting colleague, we agree with the
Administrative Law Judge that Respondent violated
Section 8(a)(5) of the National Labor Relations Act,
as amended, when it withdrew recognition from the
Union on September 19, 1973, and thereafter refused
to bargain with it.
In our view of the record, these are the critical
facts: In March 1966, the Union was certified to
represent Respondent's employees. It thereafter
negotiated bargaining contracts with the Respon-
dent, the last one effective by its terms from May 1,
1969, until April 30, 1972, but extended by the
parties to May 14, 1972. On February 25, 1972, the
Union requested negotiations for a new contract and
filed a grievance, and also transmitted to Respondent
dues-checkoff authorizations signed by 13 employ-
ees, a majority of the unit. Bargaining sessions were
held until July 7, when an impasse was reached. The
Union requested a resumption of bargaining on
September 6. But at a grievance meeting held on
September 8, a union representative stated that, for
the period of the last contract prior to February
1972, it had no members in the unit. Thereafter, by
letter dated September 19, Respondent noted this
statement, reminded the Union that it had made a
final offer on July 7, asserted that only seven of those
for whom checkoff authorizations were submitted in
February were still on its active payroll, and advised
the Union that it would no longer meet with it until
certified. There is no evidence of employee dissatis-
faction with the Union's representation of them at
any time.
On the basis of well-established law, the Union's
certification and long contractual relationship with
Respondent gave rise to a presumption of majority
status in favor of the Union, which was fortified by
tangible evidence of dues-checkoff authorizations. In
the face of this presumption and direct evidence of
majority status, 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 September 19, 1972, or
(2) Respondent had a reasonably based doubt as to
the Union's continuing majority status.'
With respect to these matters, we note that the
Union has acted as bargaining representative for
Respondent's employees since 1966. It must, of
course, be assumed, the Administrative Law Judge
found, that the employees were aware of the fact that
the Union was negotiating contracts for them and
otherwise acting as their bargaining representative.
Yet there is no evidence-none at all-that the
employees did not desire this representation by the
Union. Indeed, in February 1972, a majority of them
chose to become members of the Union and signed
dues-checkoff authorizations. By September 19, six
of those employees were apparently separated;
thereafter, the number of employees who signed
union membership cards fluctuated, as did the
employee complement.
Absent any overt expressions by the employees of
dissatisfaction with the Union as their bargaining
representative, the fact that there were periods when
employees may not have chosen to become members,
as during the period of the contract prior to February
1972, cannot be taken as proof that, at such times,
the employees no longer favored the union represent-
ation they had selected and that the presumption of
continued majority status became inoperative. "For,
a showing as to employee membership in, or actual
financial support of, an incumbent union is not the
equivalent of establishing the number of employees
who continue to desire representation by that
union." 2 As reasoned by the Administrative Law
Judge, employees may desire union representation
even though they do not become members; they may
desire to have the benefits of union representation
without paying dues or otherwise belonging to a
union.
Nor do changes in the employee complement, such
as accounted for the separation of some employees
who signed dues-checkoff authorizations in Februar-
y, provide a sound basis for believing that the Union
chosen by the employees to represent them is no
longer the employees' choice. The Board has long
held that new employees will be presumed to support
a union in the same ratio as those whom they have
replaced.3
We also do not believe it reasonable to base a
I Celanese Corporation of America, 95 NLRB 644, 672, Emerson
Manufacturing Company, Inc, 200 NLRB No 33
2 Terre!! Machine Company, 173 NLRB 1480, 1481
3 Maywood Packing Company, 181 NLRB 778
208 NLRB No. 84
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding of lack of majority support in the fact that
the Union delayed for 2 months before communicat-
ing again with Respondent on September 6, follow-
ing the bargaining impasse in July, or that it did not
resort to strike action to break that deadlock. It is
difficult for us to reconcile the dissent's suggestion
that the Union's inaction in these respects demon-
strates a lack of majority status and its finding that
the Union was without majority status even when it
did act on September 6 to seek a resumption of
bargaining and met with. Respondent on September 8
to process the grievance it had filed in February, all
of this before the Respondent's withdrawal of
recognition on September 19.
Accordingly, we conclude that it has not been
established that the Union lost its majority status as
of September 19, 1972, or that Respondent had a
reasonable basis for believing so. It follows that
Respondent's withdrawal of recognition at that time
and its refusal to bargain thereafter violated Section
8(a)(5) as found by the Administrative Law Judge.
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 Harpeth Steel, Inc., Franklin,
Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in said
recommended Order.
CHAIRMAN MILLER, dissenting in part:
I agree with my colleagues that the Respondent ran
afoul of the Act when, on November 10, 1972,
President Cole advised employees that he would
meet with them collectively, but not with representa-
tives of Local 733.4 Likewise, I would find that the
Respondent engaged in proscribed conduct by
subsequently rendering unlawful assistance in the
formation and administration of the employees'
Shop Committee and by thereafter bargaining with
the Shop Committee over a wage increase.
However, contrary to my colleagues, I would not
find that the Respondent's admitted refusal to
continue bargaining with Local 733 on and after
September 19, 1972, violated Section 8(a)(5) and (1)
of the Act.
The ^ relevant facts are largely uncontroverted.
Local 733 was certified as collective-bargaining
4 In this respect, and for the reasons hereinafter set forth , 1 would not
find that the Respondent was required to bargain with Local 733 after
September 19, 1972, but only that a question concerning representation
existed
5 The Respondent's payroll records show that from July 30 to October 22
the number of employees who had signed checkoff authorization cards for
representative of the employees in 1966. Prior to
February, 1972, the Union admittedly had no
members among the Respondent's employees. Dur-
ing February the Union obtained checkoff authoriza-
tion cards from 13 of the Respondent's 25 unit
employees. On February 25, the Union forwarded
the authorization cards to the Respondent together
with a letter regarding grievances and another
notifying the Respondent of the Union's desire to
negotiate a new agreement to replace the current
contract which was subsequently extended, by
mutual consent of the parties, to May 14, 1972.
Thereafter, negotiating sessions were held on April
21, 27, and 28; May 6, 18, and 30; and July 7, 1972.
At the last meeting of July 7 the Respondent
submitted its final proposal. The union negotiator
advised the Respondent that the proposal was
unacceptable. Notwithstanding, the Union took no
further action, and a 2-month hiatus ensued.
On September 6, the Union wrote the Respondent,
seeking resumption of contract negotiations. On
September 8, an arbitration hearing was held on the
grievances which had been filed by the Union during
the preceding February. At this arbitration, a union
representative testified that Local 733 had no
members among the Respondent's employees prior
to February 25.
On September 19, the Respondent replied to the
Union's request for resumption of negotiations. It
declined to bargain further with the Union, citing the
facts substantially as set forth above, adding:
Further, of the employees for whom -you submit-
ted checkoff authorizations on February 25, 1972
to the Company only seven of those employees
are still on the active payroll of the Company
which today includes twenty-four employees.5
In sum, the Respondent apprised the Union of its
belief, based on its record evidence, that the latter no
longer represented a majority of the employees
involved, and that further negotiations might subject
the Respondent to charges that it had violated
Section 8(a)(2) of the Act.
It is clear that, absent special circumstances, a
union enjoys an irrebuttable presumption of majority
status for 1 year after certification and that,
thereafter, the presumption continues, but becomes
rebuttable upon a sufficient showing to cast serious
doubt on the union's continued majority status.6
In this case, the Union was certified in 1966 and
the Union the previous February at no time exceeded 50 percent of the
employees in the unit During the crucial month of September when the
demand for resumption of negotiations was made , only 8 of the
Respondent's 20 unit employees were signatory to the checkoff authoriza-
tion cards Only seven cards had been forwarded to the Respondent
6 Taft Broadcasting, WDAF-TV, AM-FM. 201 NLRB 801, Southern
HARPETH STEEL, INC. 547
the certification year had, thus, long since expired.
Thereafter, there remains only the question as to
whether those factors on which the Respondent relies
on withdrawing recognition from, and refusing to
bargain with, the Union are sufficient to cast serious
doubt upon the latter's continued majority status-a
presumption no longer set in cement. In my view,
that presumption is no longer tenable in the face of
the record before us.
On September 19, 1972, the day of its refusal to
recognize the Union, Respondent knew, as indicated
by its letter of refusal, that the Union's strength had
deteriorated to the point where the employees, who
had signed cards the previous February, no longer
constituted a majority of the employees involved.
This knowledge, supported by the statement of the
union representative at the arbitration hearing on
September 8 that the Union had no members prior to
February and the failure of the Union to supply
further evidence of its majority thereafter, upon
being apprised by the Respondent of the precise
reasons for its stated doubts, would logically lead to
the conclusion that the Union's support in February
represented its maximum strength among the em-
ployees. Moreover, the Union had not communicat-
ed with the Respondent for almost 2 months after the
Respondent had made its final proposal on July 7,
either by requesting further bargaining or by submit-
ting its own contract proposals. Nor did it take strike
action, as it earlier threatened to do, to enforce its
demands. Further, there is not a scintilla of evidence
that this demonstrated deterioration in employee
support for the Union resulted in any manner from
unfair labor practices committed by the Respondent.
Indeed, the Administrative Law Judge found that the
Respondent had bargained in good faith for over 3
months, even in the face of an apparent impasse, and
my colleagues do not dispute that finding.
Nevertheless, my colleagues would adopt the
Administrative Law Judge's finding that the Respon-
dent violated the Act by refusing, on and after
September 19, to bargain with the Union. The
Administrative Law Judge "considered" the forego-
ing and concluded merely that the Respondent did
not have a "good faith doubt based upon objective
considerations that the Union no longer represented
a majority of the employees in the appropriate
bargaining unit" (emphasis supplied.) Further, ac-
cording to the Administrative Law Judge, the
Respondent's subsequent unfair labor practices "cast
great doubt upon the purity of its alleged good faith
belief of lack of union majority status." In this
respect, it is abundantly clear that subsequent
unlawful conduct does not estop the Respondent
from relying on the objective considerations on
which it justifies its earlier doubt.? And I am not
satisfied that the Administrative Law Judge's subjec-
tive "good-faith" assessment satisfies the require-
ment that we determine whether the existence of
certain objective factors extinguished the Union's
rebuttable presumption of continued majority status.
My colleagues have attempted to bolster the
findings below by restating a series of inferences and
presumptions which, to me, are not persuasive. We
are not here determining whether or not majority
support may have existed-we are determining
whether Respondent had objective evidence suffi-
cient for him to have been entitled, legally, to
question such support and demand some reasonable
proof that such support had, in fact, continued. The
facts of this record are sufficient, in my view, to have
so entitled this Respondent.
Contrary to my colleagues, therefore, I would find,
on this record, that the Respondent had reasonable
grounds, based on the objective considerations
herein discussed, for doubting that the Union
continued to represent a majority of its employees
and, therefore, that the Respondent's refusal to
bargain with the Union, on and after September 19,
1972, did not violate Section 8(a)(5) and (1) of the
Act. My colleagues offer no other ground upon
which to impose a bargaining order, and I find none.
Wipers, Inc, 192 NLRB 816, Viking Lithographers, Inc, 184 NLRB 139,
Stoner Rubber Company, Inc, 123 NLRB 1440
' Automated Business Systems, A Division of Litton Business Systems, Inc,
A Subsidiary of Litton Industries, Inc, 205 N LRB No 35
DECISION
STATEMENT OF THE CASE
JERRY B . STONE, Admin istrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended, was tried pursuant to due
notice on February 27 and 28, 1973, at Nashville,
Tennessee.
The original charge was filed on October 30, 1972.
Thereafter the first amended charge was filed on Decem-
ber 12, 1972, and the second amended charge was filed on
January 13, 1973. The amended complaint in this matter
was issued on February 7, 1973. The issues concern (1)
whether Respondent has violated Section 8(a)(5) and (1) of
the Act, by overall bad-faith bargaining during negotia-
tions, by withdrawal of recognition of the Union, and by
making unilateral changes in conditions of employment;
(2) whether Respondent has violated Section 8(a)(1) of the
Act by various threats; and (3) whether Respondent has
violated Section 8(a)(2) of the Act by dominating and/or
interfering with and aiding and assisting the Shop
Committee.
The General Counsel moved to amend the complaint in
this matter to reflect that the Employee Committee was a
party in interest. This motion was granted. The facts as
litigated reflect that the committee which is a party in
interest to this proceeding is more accurately described as
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "Shop Committee." Accordingly, the name of the
committee, a party in interest to this proceeding, is
corrected to reflect that it is the "Shop Committee"
(Harpeth Steel, Inc.), Party in Interest.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel and the Respondent and have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and
admissions therein.
Harpeth Steel Inc., the Respondent, is now, and has been
at all times material herein, a corporation with an office
and plant located at Franklin, Tennessee, where it is
engaged in the fabrication of steel.
During a representative 12-month period, Respondent,
in the course and conduct of its business operations,
received at its Franklin, Tennessee, location, goods and
materials valued in excess of $50,000 directly from points
outside the State of Tennessee, and, during the same period
of time, Respondent sold and shipped from its Franklin,
Tennessee, plant, goods and materials valued in excess of
$50,000 directly to points located outside the State of
Tennessee.
As conceded by Respondent and based upon the
foregoing, it is concluded and found that the Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Ii. THE LABOR ORGANIZATIONS INVOLVED
Based upon the pleadings and admissions therein, it is
concluded and found that International Association of
Bridge, Structural and Ornamental Iron Workers, Shop-
men's Local 733, is and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
The General Counsel alleges, and Respondent denies,
that the Employee Committee (Harpeth Steel, Inc.) is a
labor organization within the meaning of Section 2(5) of
the Act.
The facts are not in real dispute. The facts as litigated
reveal, as Respondent points out in its brief, that the
Employee Committee may be more properly described as
the Shop Committee. The facts are clear that on November
22, 1972, a meeting of all the employees who were working
for Respondent on that day was held on company
premises, that a Shop Committee consisting of five
employees was elected by vote of all the employees present,
and that a chairman of said Shop Committee was similarly
elected. The facts also reveal that the Shop Committee held
several organizational meetings thereafter with respect to
the purpose and function of representing all of the
employees in negotiations or discussions with the Respon-
dent as to wages, hours, and working conditions. The facts
reveal that after November 22, 1972, and prior to January
8, 1973, said Shop Committee had discussions with
Respondent's officials concerning wages, hours, classifica-
tions, vacations, and working conditions. The facts clearly
reveal that said Shop Committee negotiated with Respon-
dent as to a wage increase, that Respondent agreed with
said Shop Committee as to the proposed wage increase,
and that Respondent placed into effect such wage increase
as agreed to with the Shop Committee for its employees.
Considering the foregoing, it is clear, and I conclude and
find that the Shop Committee was on November 22, 1972,
and continuing thereafter, a labor organization within the
meaning of Section 2(5) of the Act.
ill. THE UNFAIR LABOR PRACTICES
A. Preliminary Facts
The pleadings establish the following preliminary facts:
1. At all times material herein, the following named
individuals occupied the positions set opposite their names,
and have been and are now, agents of Respondent and
supervisors within the meaning of Section 2(l 1) of the Act:
Novice Cole-president; Murray Dennis-vice president.
2. All production and maintenance employees, includ-
ing truckdrivers, but excluding office clerical employees,
professional employees, guards, and supervisors as defined
in the Act constitute an appropriate unit of Respondent's
employees for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
B. The Representative Status of the Union
The General Counsel alleges in his complaint that:
At all times since February 25, 1966, and continuing to
date, the Union has been the representative of the
employees in the unit described above for the purpose of
collective bargaining and by virtue of Section 9(a) of the
Act has been, and is now, the exclusive representative of all
the employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
There is no issue and the facts clearly reveal that the
Union was the exclusive representative of the employees in
the appropriate bargaining unit until May 14, 1972. The
Respondent denies that the Union has represented a
majority of the employees in the appropriate bargaining
unit since May 14, 1972.
The facts are not disputed and it is clear that on or about
February 25, 1966, a majority of the employees of Cole
Steel Company, Inc., now Harpeth Steel , Inc., in the unit
described above, by a secret ballot election conducted
under the supervision of the Regional Director for Region
26 of the Board, designated and selected the Union as their
representative for the purpose of collective bargaining with
Cole Steel Company, Inc., and on or about March 7, 1966,
said Regional Director certified the Union as the exclusive
collective-bargaining representative of the employees in
said unit.
The facts are not disputed and it is also clear that a
collective-bargaining agreement between the Union and
Respondent covering the employees in the unit described
HARPETH STEEL , INC. 549
above was, by its terms for 3 years, effective May 1, 1969,
and due to expire on April 30, 1972, but by agreement of
the parties , the expiration date was extended to May 14,
1972, at which time the collective-bargaining agreement
expired.
The above referred- to collective -bargaining agreement
contained union-security and checkoff provisions . During
the period of time from on or about May 1, 1969, to
February 1972, the facts reveal that for practical purposes
none of Respondent 's employees were members of the
Union nor had their dues checked off for the Union by the
Respondent . There is no evidence of overt expression of
employee dissatisfaction with the Union as their exclusive
bargaining representative.
In February 1972, the Union secured 13 members from
among Respondent 's employees, secured signed authoriza-
tions for dues checkoff from such members, and transmit-
ted copies of such authorizations to Respondent on
February 25, 1972.
It is undisputed that the Union on February 25, 1972,
requested negotiations with the Respondent with respect to
a new collective bargaining agreement , that the Respon-
dent and the Union met in negotiation sessions on April
21, 27, and 28, that the parties agreed to extend the
expiration date of the old contract to May 14, 1972, and
that further negotiating sessions were held on May 6, 18,
and 30, and on July 7, 1972. During the session of May 6,
1972, it appeared to the parties that an impasse had been
reached, and agreement was reached to secure the services
of a Federal Mediator . The sessions of May 18, 30, and
July 7, 1972, were held with the Federal Mediator . During
the last session the Respondent made what it characterized
as its final proposal. The Union rejected the same. Nothing
further occurred as regards negotiations until the Union
wrote letters to the Respondent on September 6, and 12,
seeking further negotiations.
On September 19, 1972, the Respondent 's attorney
replied to the Union's request for negotiations by letter as
is revealed by the following excerpts from said letter.
On September 6 and September 12, 1972, you wrote
me and proposed a further meeting for the purpose of
negotiating a collective-bargaining agreement between
my client, Harpeth Steel , Inc., and Shopmen 's Local
733.
As you undoubtedly recall , the collective-bargaining
agreement between Shopmen 's Local Union 733 and
my client expired, by its terms, on April 30,1972. Due
to the inability of the Union and the Company to reach
agreement on the terms of a collective-bargaining
agreement , the contract was extended , by mutual
agreement on April 28, 1972, to expire at midnight on
May 14, 1972. Since no agreement was reached on a
new collective-bargaining agreement by the expiration
of the extension , the contract expired at midnight May
14, 1972.
On February 25, 1972, Shopmen 's Local 733
forwarded three documents to Harpeth Steel, Inc.:
A. A letter representing a grievance filed by
the Union against the Company;
B. A letter enclosing checkoff authorizations
of thirteen employees executed between February
22 and February 25, 1972; and
C. A letter 'notifying the Company of the
Union's desire to terminate the collective-bar-
gaining agreement on its expiration date and to
negotiate a new agreement.
During the arbitration of the grievance before
Bernard H . Cantor, Esq., Arbitrator, on September 8,
1972, you, as business agent for the Union , admitted
that the Union had no members at Harpeth Steel, Inc.
prior to the week of February 20, 1972 for the entire
term of the contract . Although negotiating sessions
were held on April 21, April 27, April 28, May 6, May
18, May 30, and July 7, 1972, both at the Company
offices and at the offices of the Federal Mediation &
Conciliation Service in Nashville, no agreement was
reached and you were advised by the Company that it
had submitted its final proposal . Although the chief
negotiator for the Union, Carl W. Franklin , stated that
the proposal of the Company was unacceptable, no
counter proposals were advanced nor was any strike
action undertaken under the auspices of the Union or
any other organization by the employees of Harpeth
Steel , Inc. to support the Union 's bargaining position.
A period of two months has elapsed since the July 7,
1972 meeting and your letter of September 6, 1972.
Further, of the employees for whom you submitted
checkoff authorizations on February 25, 1972 to the
Company only seven of those employees are still on the
active payroll of the Company which today includes
twenty-four employees.
Since the Company made to you what it thought to
be a fair and final offer on July 7, 1972 , we see no
further purpose to be gained from a meeting as
requested . Additionally, we do not believe that Shop-
men's Local 733 represents an uncoerced majority of
the employees of Harpeth Steel , Inc. at this time and,
therefore, are of the opinion that any agreement which
we might negotiate with Shopmen 's Local 733 might
well subject the Company to a violation of Section
8(a)(1) and (2) of the National Labor Relations Act, as
amended . For these reasons, Harpeth Steel, Inc.
declines to further meet and negotiate with Shopmen's
Local 733 until such has been certified by the National
Labor Relations Board , pursuant to an election by
secret ballot , as the exclusive representative for the
purposes of collective bargaining for the employees of
Harpeth Steel , Inc. in a unit found to be appropriate by
the National Labor Relations Board.
Yours very truly,
/s/ Charles Hampton White
Charles Hampton White
The facts are clear that the Respondent , since September
19, 1972, has refused to recognize , meet with , or negotiate
with the Union. The General Counsel contends that the
bargaining by the Respondent during the bargaining
sessions on April 21, 1972, and at various times to and
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including July 7, 1972, was that of bad-faith bargaining. As
set out later , I find and conclude that Respondent did not
engage in bad-faith bargaining on April 21, and on various
dates thereafter until and including July 7, 1972.
Presented as an issue is whether the Union was the
majority representative of the employees in the appropriate
bargaining unit on and after May 14 , 1972, on September
19, 1972, as of November 12, 1972, and as of January 8,
1972.
It is clear as previously set forth that the Union was the
certified exclusive representative of the employees in the
appropriate unit. The 1966 certification creates a rebutta-
ble presumption of such status. Because of the facts in this
case , I find it proper to set out the facts with respect to the
number of employees on Respondent 's payroll and the
number of employees who had executed cards, signifying
their authorization of the Union as their bargaining
representatives.[
Date Unit Cards Signed
1972
Feb. 6
13
20
27 23 13
Mar. 5 22 13
12 21 12
19 22 12
26 22 12
Apr. 2 21 12
9 23 12
16 21 12
23 21 12
30 20 12
May 7 21 12
14 22 11
21 22 10
28 21 10
June 4 21/22 10
11 21 10
18 19 9
25 18 9
July 2 17 9
9 17 9
16 16 8
23 15 8
30 16 8
Aug. 6 18 8
13 19 8
20 21 9
27 21 9
Sept.3 20 8
10 20 8
17 20 8
24 20 8
Oct. 1 19 8
8 18 8
15 21 8
22 20 9
29 19 10
Nov. 5 23 13
12 20 11
19 23 11
26 19 11
Dec. 3 19 10
10 18 10
17 24 10
24 26 10
31 21 10
1973
Jan. 7 22 10
14 22 10
21 23 10
28 23 10
Feb. 4 23 10
11 23 9
18 23 9
25 23 9
The presumption of continued majority status upon a
Board 's certification is postulated upon a considered
judgment that the number of employees working for an
employer will normally fluctuate within a reasonable norm,
that the union membership will also fluctuate within a
reasonable norm , and that employees whether actually
union members or not are presumed to desire continued
representation in accordance with the desires expressed in
the NLRB election . There is no evidence in this case that
employees engaged in any act of rejection of union
representation prior to November 10, 1972. Considering all
of the above facts, I conclude and find that the presump-
tion of continued majority status of the Union has not
been rebutted as to any period of time prior to November
10, 1972. Thus, the facts reveal that when Respondent
asserted to the Union a belief that the Union no longer
represented a majority of the employees in the appropriate
bargaining unit, the Union was able to secure enough
additional cards from employees to signify continued
majority status. It is proper to infer, and I do infer that it
was the desire of such employees for the Union to
represent them on May 15 and thereafter, preceding
September 19, and thereafter to the time of their execution
of cards. The facts are clear that on November 10, the
Union enjoyed a majority status of II of 20 employees. As
to the question of whether the Union was the majority
representative of the employees in the appropriate bargain-
ing unit on January 8, 1973 , I find it unnecessary to decide.
As indicated , I find later that Respondent engaged in
conduct violative of Section 8(a)(5) and (1) by its
withdrawal of recognition and its refusal to negotiate on
and after September 19, 1972. I also find later herein that
Respondent violated Section 8(a)(1) and (2) of the Act, by
certain conduct on November 10 and thereafter in
indicating it would not meet with the Union unless
recertified as the representative but would meet with the
i These facts are based upon the exhibits relating to union authorization
cards , dues checkoff cards, s tipulations , and an exhibit relating to
employees of the Respondent on various dates
HARPETH STEEL, INC.
employees collectively , by interfering with and assisting the
formation of an employee committee as a labor organiza-
tion , and by bargaining with such committee and granting
a wage increase when clearly, at most , a question
concerning representation existed . Because of the compos-
ite effect of the unfair labor practices , whether the conduct
was violative or 8(a)(5) or not as regards the conduct on
and after November 12, 1972, 1 find it necessary to
properly remedy such conduct by an 8(a)(5) type remedy.
Thus, the Union was the majority representative of the
employees on November 10, 1972. The 8(a)(1) and (2)
conduct of Respondent found later herein significantly
interfered with the employees ' right to have the union
represent them and clearly contributed to the failure of a
continuing majority of the employees to support the
Union . Under such circumstances , a fair and proper
NLRB representation election could not have been held,
and in my opinion the normal type 8(a)(1) and (2) remedy
would not restore the status quo existing prior to the unfair
labor practices , and a fair NLRB representation election
can not now be held until after an 8(a)(5) type remedy has
remedied the total effect of the unfair labor practices.
C. The Bad-Faith Bargaining Issue
The General Counsel alleges in effect , and the Respon-
dent denies, that the Respondent engaged in bad-faith
bargaining and with no intent to enter into a final or
binding collective-bargaining agreement during the bar-
gaining sessions that occurred on April 21, 27, and 28, May
6, 18, and 30 , and July 7, 1972.
The facts relating to this issue consist of the testimony
of Franklin, Cole, and White; documentary exhibits; the
collective-bargaining agreement that expired on April 30,
1972; the Union's proposal submitted on April 21, 1972:
the Respondent's proposal submitted on April 27, 1972;
and a Respondent 's proposal submitted on May 18, 1972.
Essentially, the only factual dispute is whether Respon-
dent, by Cole or White, gave reasons in support of some of
Respondent 's bargaining proposals or positions. Franklin,
negotiator for the Union , testified to the effect that as to
some of Respondent's proposals or positions, Respondent
did not advance any reasons; and that as to some of the
other positions , he did not recall whether Respondent gave
reasons in support thereof . Cole and White testified to the
composite effect that as to most of the positions or
proposals referred to by Franklin as not having been
supported by reasons, reasons were advanced . Considering
the total amount of bargaining session time and subject
matter discussed , it is reasonable to believe that Franklin
would not remember all that was said. Franklin took notes
at the bargaining sessions and refreshed his memory
substantially while testifying. Considering the totality of
the testimony, the written documents, and the fact that I
found the testimony Cole and White worthy of belief, I
credit their testimony relating to the assertion of reasons in
support of their bargaining positions and proposals.
Considering the totality of the testimony and documents
submitted, I conclude and find that the Respondent
adequately and in good faith discussed the bargaining
proposals during he bargaining sessions.
I have considered the bargaining proposals, the discus-
551
sion of the proposals at the bargaining sessions , and I am
persuaded that the facts reveal that Respondent engaged in
good-faith bargaining during the bargaining sessions held
on April 21, 27, and 28, May 7, 18, and 30, and July 7,
1972.
The bargaining commenced on April 21, 1972, just prior
to the expiration of an existing contract on April 30, 1972.
The Union's initial contract proposal as compared to the
contract due to expire may be said to have constituted a
proposal for additional benefits and protection for the
employees involved . The Respondent's initial contract
proposal as compared to the contract due to expire may be
said to have constituted a decrease in benefits and addition
of qualifications restricting benefits . Bargaining is not in a
vacuum . The parties had an existing contract , and the
Union had been certified since 1966 . Despite this and the
fact that the existing contract contained union -security and
checkoff provisions , prior to February 1972, the employer
had not been furnished with checkoff cards from its
employees for the deduction of dues for the Union. Parties,
even when bargaining in good faith , may be expected to
postulate their bargaining proposals upon their evaluation
of the economic strength each has in support of his
position.
The Respondent's proposal as a whole came within the
perimeter of the terms of the collective -bargaining agree-
ment due to expire on April 30, 1972. The Respondent's
proposal eliminated some of the provisions in the due-to-
expire contract . Thus, Respondent's proposal did not
include provisions concerning union-security or checkoff
provisions , concerning the specific exclusion of the
international union as a party , and other provisions not
necessary to refer to herein. The Respondent 's proposal
included, inter alia, changes as to the time that an
employee would be probationary , as to classifications, as to
the number of holidays and eligibility therefore, and as to
"requirements" for overtime.
Considered as a whole, Respondent's proposal can not
be described as the type that would reveal that it was
intended to offer the Union a proposal that a self-
respecting union could not accept . Similarly, it can not be
said to be one that in and of itself revealed bad faith and
lack of intent to enter into a final or binding collective-
bargaining agreement.
Much of the initial sessions concerned discussions of
classifications . There were discussions of each party's
proposal on and before April 28, 1972. The facts reveal
that each of the parties was for practical purposes sticking
to its own proposals and positions on April 21, 27, and 28.
Respondent 's counsel suggested and initiated an agreed-to
extension of time as to the expiration of the old contract
with the new expiration date to be May 14, 1972.
Bargaining continued on May 6, 1972, with virtually no
progress . The parties were in practical agreement at such
time that an impasse had been reached and decided to seek
the services of a Federal mediator.
Bargaining sessions utilizing the services of a Federal
mediator took place on May 18 and on May 30, 1972.
Without going into all the details, it may be said that the
highlights of disagreement concerned the shift hours and
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overtime requirements, holidays, holidays eligibility, and
the question of the employees' probationary penod.
The disagreement and positions on the shift hours and
overtime requirements are illustrative of the parties'
bargaining positions. As indicated previously, the Respon-
dent's basic contract proposal was submitted to the Union
on April 27, 1972. With respect to the question of hours of
employment, the, Union's proposed contract was to
continue the same provisions of the existing contract as
regards the hours of employment provisions. The Respon-
dent's proposal as to shift hours was to continue the same
shift hours. The Respondent's proposal contained signifi-
cant changes as regards the requirements of employees to
work overtime. The Union's bargaining representatives
opposed the Respondent's overtime provisions. The Res-
pondent on May 18 then submitted a proposal relating to
hours of overtime and proposed shifts of hours based on a
10-hour regular workday. When one or two shifts were to
be employed, the regular workweek was to be 4 days and
40 hours. When three or four shifts were to be employed,
the regular workweek would he 3 days and 30 hours. This
proposal relating to shift hours and overtime was included
in Respondent's final proposals on May 18 and 30 when it
indicated that it would agree to the old contract excepting
for changes in Sections 7, 8, and 9 thereof, and with wage
offers of 1-1/2-percent yearly increase each year for 3 years
(the offer on May 18, 1972) and with wage offers of 2-
percent yearly increase each year for 3 years (the offer on
May 30, 1972).
The Respondent's proposals relating to shift hours and
overtime provisions which were made on May 18, 1972,
were different from its April 27 proposal. The Union,
however, had clearly opposed the proposed overtime
provisions. Respondent's May 18, 1972, proposals appear
to be a bargaining technique to obtain Respondent's
original desired flexibility as to the requirements of
employees to work overtime. The May 18, 1972, proposals
relating to shift hours and overtime further appear to
enhance Respondent's economic position as to overtime
and to minimize individual employee's receipt of overtime
pay. Cole explained at the bargaining sessions that his
reasons for the shift hours and overtime provisions were
based upon considerations that overtime had been exces-
sive from an economic viewpoint, that absenteeism had
been a factor, and that he believed the employees would
like a 4-day week, 10-hour-a-day schedule. The question of
wages was not discussed until the bargaining sessions held
with the aid of the Federal mediator on May 18 and 30,
1972, and on July 7, 1972. What occurred at these sessions
is not in real dispute and is revealed by the following
credited excerpts from Franklin's testimony.
Events of May 18, 1972
Q. What time was this meeting set for?
A. It was set for 10:00 a.m.
Q. Well, what happened on the 18th?
A. When we got into the room, there was two
separate conference rooms at the Federal Mediation
Office. And the company was-The Company went
into a session among themselves, I reckon. They were
in the building, they were in the Federal Mediation
area there, but they were in the Conference Room there
by themselves and didn't show in the room with us
until noon.
s # s s s
Q. (By Mr. Irby) Without relating what Mr.
Bradley may have said, did you in fact meet with the
Company on this date, the 18th?
A. Yes, we did.
Q. All right. Now, what was discussed between you
and the Company? Were these hours and wage
classifications discussed?
A. Yes, we did. We discussed the classifications.
This time we were talking about 53 classifications,
which was actually 23 different classes of work.
Q. From which side of the Company's proposals
were there 53 different classifications?
A. Well, it was the Company's proposal.
Q. Very well. After discussion of the classifications,
what else did you discuss, other than the classifica-
tions?
A. Well, Mr. Cole made a statement, something to
the effect, the only way the Company can compete is to
increase efficiency. We went on through and we
discussed pros and cons about what had taken place
over the last few years since they had gone into-since
1966. We adjourned at 1:00 and came back at 2:00.
The Commissioner opened the meeting , by stating that
the Company had a proposal. Mr. White made a
statement that, technically the contract ran out Sunday
night, but they're not aware of the fact that-they were
aware of the fact that it was the fault of neither of us.
So here's the Company's proposal: "Three-year agree-
ment. Old contract, except Section 7, which consists of
four 10-hour shifts, and their proposal on Section 8, as
of May 6, their proposal on Section 9, as of May 6, with
eight paid holidays, the Company proposal on 9(c), as
of May 6, which was a 60-day probationary period, and
Section 10(a), classifications as the current agreement,
Section 17, work days, that's the probationary penod.
No change in Section 13 or Section 14. The rest of the
contract as is, which will be a three-year agreement,
with a one-and-one-half percent across the board
increase each year to be effective May 1, 1972, one-
and-a-half percent May 1, 1973, and one-and-a-half
percent May 1, 1974. And that proposed contract
would expire April 30, 1975."
They stated that the above-offerred would remain
open until May 19, mid-night. If not accepted by that
time, it will be withdrawn. I responded to this by telling
Mr. White that if that was the case, then he could
withdraw it now. I told him that if he was serious about
that proposal, it will not be accepted by tomorrow
night or any other time.
And that was the end of that meeting.
Q.
A.
Q.
Events of May 30, 1972
When was your next meeting?
The next meeting was on May 30.
Where did this meeting take place?
HARPETH STEEL , INC. 553
A. This meeting also took place in the offices of the
Federal Mediation.
Q. All right. What happened at this meeting?
A. The Union and the Company got together at
10:40. We gave the Company a proposal of 12 percent
across the board. And Mr. White asked for a caucus.
And he stated that we had not given them a proposal
on wages before. And I responded by stating that I was
of the opinion that they had been given a proposal of
15 percent. Then the Company returned at 11:05 p.m.,
and the Company stated-
Q. (Interrupting) 11:05 p.m.?
A. I mean 11:05 a.m., I'm sorry. The Company
stated that they had met and discussed our proposal.
They had considered our proposal and would like to
have an agreement. Our proposal is not legal, he stated,
at 12 percent. The Company proposal is no longer on
the table.
They offered another proposal effective June 1, 1972
to April 30, 1975. Section 7, four 10-hour days. Section
8 as prior proposal, that was the Company's proposal.
Section 9, Company's proposal 60 days. Section 17,
probationary penod 60 calendar days. Section 10,
classifications as is, effective May 1, 1972, two percent,
May 1, 1973, two percent, May 1, 1974, two percent
He stated that this proposal was open until mid-night
May 31, 1972.
I told the Company that we want an agreement, but
we don't want to put a yolk on our people, and we
don't intend to do so. I told Mr. Cole that he wanted a
prison with a fence around it, but we would-but he
would never have it with this Local Union. The
meeting adjourned at 11:25.
(It is noted that the facts reveal that the Union had not
made a wage proposal for a 15-percent increase in wages
prior to May 30, 1972.)
Events of July 7, 1972
Q. Were there any other meetings after this one on
May 30?
A. 7/7/72.
Q. All right, where was this meeting?
A. It was with the Commissioner, too, 10:00 a.m.
Q. What happened at this meeting?
A. The Company came in 45 minutes late. I
reported to the Company that at the last meeting that
they had given us a proposal and that had been
unanimously rejected. Mr. Bradley asked if we had any
proposal for the Company, and I told him that in light
of the Company's position on ours, etcetera, we had
nothing to offer. Then, I changed to this by stating that
we would offer to reduce our wage demand by one
percent. This would mean an II percent across the
board, with the remaining portion of our proposal as
the same. This was done at that time to show a change
in the Union position. White told us that our proposal
was unacceptable and asked to see the Commissioner.
(It is noted that the Company did not come to the
meeting late . The parties, however, did not get together
for a joint meeting for a period of time after 10 a.m.)
The parties had no further contact as to negotiations
until the Union wrote letters in September 1972 seeking
further negotiations.
Considering the totality of Respondent's conduct during
the negotiating sessions, highlighted by the facts above
discussed, I am persuaded that the facts reveal that
Respondent engaged in hard but good-faith bargaining
during the bargaining sessions on and after April 21 and
through July 7, 1972. The Respondent met with and
bargained as to a collective-bargaining agreement on April
21, 27, and 28, initiated an agreed-to extension of the old
contract while bargaining was in progress, ultimately in
May 1972, retreated on many positions and offered wage
increases of 1-1/2 percent and then 2 percent per year. The
Union's ultimate wage offers were of 12 percent and then
decreased to a Il-percent wage increase. The bargaining
occurred during the time of wage controls, and it appears
that both parties may have had this point in mind with
respect to a final meeting place of agreement. Under such
circumstances, I am persuaded, and conclude and find that
the facts do not reveal that Respondent engaged in bad-
faith bargaining and with no intent to enter into a final and
binding agreement as alleged on April 21, 1972, and
thereafter in bargaining sessions. I conclude and find that
Respondent has not violated Section 8(a)(5) and (1) of the
Act by its conduct in bargaining as regards the bargaining
sessions on April 21 and to and including the bargaining
session of July 7, 1972.
D. The Withdrawal of Recognition
The General Counsel alleged in his complaint in effect
that Respondent, on or about September 19, 1972,
withdrew and continues to withhold recognition of the
Union as representative of the employees in the appropri-
ate bargaining unit and did refuse to meet with and/or
bargain with the Union.
The Respondent, in its answer, admitted that on or about
September 19, 1972, it declined to meet further with the
Union or to bargain with the Union with respect to
negotiation of a new collective-bargaining agreement until
the Union again demonstrated majority status in a
representation proceeding conducted by secret ballot
under the auspices of the National Labor Relations Board.
I have previously found that the Union was in fact the
exclusive bargaining representative of the employees
involved on September 19, 1972. Essentially, the facts
reveal no evidence of employee dissatisfaction with union
representation during the time of the Union's certified
status from 1966 until November 10, 1972, no dissatisfac-
tion with union representation during the time of the
collective-bargaining agreement between May 1, 1969, and
April 30, 1972, the extension thereof until May 14, 1972, or
between May 14 and September 19, 1972. Employees may
desire union representation even though they do not
become members; they may desire to have benefits without
paying dues or otherwise belonging to a union. As
indicated previously, there are presumptions of majority
flowing from the Union's certified status, from contractual
relationships, and even from the mere fact of establishment
of majority status. Certainly, where a union is engaging in
collective bargaining for a unit of around 20 employees
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and has approximately 5 of such employees participating
in the bargaining, the employees in the unit are aware that
the Union is representing them . Under such circumstances,
absent some objective evidence of dissatisfaction by the
employees in the unit , it is to be presumed that the Union
is the desired representative of the employees . Further,
when employees in the unit execute authorization, mem-
bership , or dues check -off cards , as done in the instant
case , at a later date , an inference can be drawn under the
circumstances of this case that those employees approved
of the Union as their representative prior to September 19,
1972.
The question of proof of majority status or exclusive
bargaining representative status is an evidentiary matter.
Proof may be presented of direct evidence , such as
membership cards, dues check -off cards , polls, and of
other acceptable evidence . Proof may be presented of a
presumptive nature such as evidence of a Board 's certifica-
tion of exclusive representative status, or of collective-
bargaining agreements . The Board 's certification , after (-
year , constitutes presumptive evidence of exclusive repre-
sentative status which can be rebutted.
Board cases have often described that the presumption
of exclusive status conferred by a Board certification can
be rebutted after 1 -year by a good-faith doubt by a
Respondent based upon objective consideration.
In Terrell Machine Company, 173 NLRB 1480 , the Board
set forth:
It is well settled that a certified union, upon
expiration of the first year following its certification,
enjoys a rebuttable presumption that its majority
representative status continues .' This presumption is
designed to promote stability in collective -bargaining
relationships , without impairing the free choice of
employees .2 Accordingly, once the presumption is
shown to be operative, a prima facie case is established
that an employer is obligated to bargain and that its
refusal to do so would be unlawful . The prima facie
case may be rebutted if the employer affirmatively
establishes either ( 1) that at the time of the refusal the
union in fact no longer enjoyed majority representative
status; 3 or (2) that the employer 's refusal was predicat-
ed on a good-faith and reasonably grounded doubt of
the union 's continued majority status . As to the second
of these , i.e., "good faith doubt," two prerequisites for
sustaining the defense are that the asserted doubt must
be based on objective considerations4 and it must not
have been advanced for the purpose of gaining time in
which to undermine the union .5 [Footnotes omitted.]
As indicated , considering all of the objective facts, I have
concluded and found that the Union was the exclusive
bargaining representative of the employees in the appropri-
ate bargaining unit on September 19, 1972.
Next to be considered is whether Respondent, on
September 19, 1972 , had a good -faith doubt , based upon
objective and well grounded reasons, that the Union did
not represent a majority of the employees in the appropri-
ate bargaining unit ; and, if so whether such doubt could
constitute a basis for its refusal to bargain with the Union
which was in fact the exclusive bargaining representative
for the employees involved.
The evidence relating to this issue may be summarized as
follows: ( I) The Union was certified as exclusive bargain-
ing representative for the employees involved in 1966. (2)
There were collective -bargaining agreements between the
Employer and the Union covering the employees involved
during the period of time May 1, 1966, to April 30, 1972.
(3) There is no evidence that the Union did not service said
employees during the contract period . Cole credibly
testified to having been in contact with the Union several
months prior to February 25, 1972 . (4) Excluding the
knowledge of the certified status of the Union and the
existence of a collective -bargaining agreement containing
union -security and check -off provisions , the above re-
ferred- to contacts with the Union, the Respondent appar-
ently had no knowledge of individual union members after
May 1969 , excepting those for whom dues -checkoff
authorization cards were submitted by the Union in
February 1972. The number of employees for whom such
dues-checkoff authorization cards were submitted was 13.
(5) Wright , the union representative , made a statement on
September 8, 1972 , at an arbitration proceeding that he
had not had any members among Respondent 's employees
prior to February 1972. (6) Between February 25, 1972,
and September 19, 1972 , six of the employees for whom
dues-checkoff authorization cards had been submitted on
February 25, 1972, had ceased to work for the Employer.
No new dues-checkoff authorization cards had been
submitted after February 25, 1972 , to the Employer. (7)
Respondent and the Union had engaged in bargaining
sessions on April 21 , 27, and 28 , May 6, 18, and 30, and on
July 7, 1972. Respondent 's conduct in bargaining had been
on a good -faith basis . (8) The Union did not contact the
Respondent for further bargaining after July 7, 1972, until
September 6, 1972 . (9) The Union did not call a strike
among the employees involved at any time in 1972 prior to
September 19, 1972 , in support of its bargaining demands.
(10) Cole , Respondent's President , testified that the
decision to withdraw and withhold recognition from the
Union on September 19, 1972 , was legal counsel's decision.
(11) Respondent 's counsel on September 19, 1972 , sent the
Union the letter relating to its withdrawal and withholding
of recognition from the Union and its reasons therefor.
The Respondent also contends that the fact that only six
employees appeared at the September 8, 1972, arbitration
proceeding constitutes objective basis for a good-faith
doubt of the Union 's majority status . It is sufficient to say
that this argument is without merit. The Union's letter of
February 25 , 1972, relating to a grievance of employees
being misclassified referred to 15 employees . Six of these
15 referred-to employees were no longer employed by
Respondent on September 8, 1972. One of the employees
referred to was on the Respondent's payroll but had been
ill and had not actually worked for a number of months as
of September 8, 1972 . Six of the 8 remaining employees
referred to were present at the arbitration proceeding on
September 8, 1972. In sum , the failure of some of the
named employees involved in the classification grievance
to be present at the arbitration meeting does not objective-
ly reveal lack of support for the Union.
HARPETH STEEL, INC. 555
Considering all of the foregoing , I am not persuaded that
the Respondent had a good -faith doubt based upon
objective considerations that the Union no longer repre-
sented a majority of the employees in the appropriate
bargaining unit . The objective facts do not rise above
strong speculation . They are not sufficient , as previously
indicated to cast a doubt upon the reliability of a
presumption of continued exclusive representation status
on the part of the Union . Furthermore , actions in dealing
on a collective basis with its employees in November and
December 1972, and in January 1973, while refusing to
negotiate with the Union , cast great doubt upon the purity
of its alleged good -faith belief of lack of union majority
status.
In sum , I conclude and find that the Respondent, on
September 19, 1972, did not have a good -faith doubt as to
the Union 's right to be accorded exclusive bargaining
representative status. Accordingly, I conclude and find
that Respondent , by its admitted refusal to meet and
negotiate with the Union on and after September 19, 1972,
violated Section 8(a)(5) and (1) of the Act.
E. The Strike
Events-November 7-10, 1972
At the end , of the week on November 5, 1972, the
Respondent had 23 employees on its payroll. Of these 23
employees , 13 had executed cards (membership , authoriza-
tion , or dues-checkoff authorization) for the Union. Six of
these cards had earlier been transmitted to the Respon-
dent . On November 7, 1972, Grissom signed a union card
bringing the total number of employees who were on the
payroll as having signed union cards to 14. During the
week , employees Basham and Pratt left the Respondent's
employment . The record does not reveal exactly when
Basham and Pratt last worked during the week of
November 12, 1972. Respondent 's counsel's questions
indicated a contention that Basham and Pratt last worked
on November 7, 1972. Considering the contentions, it is
clear that there were 23 employees on Respondent 's payroll
as of November 7 and that , of this number, 14 had
executed union cards.
Around 14 of the employees who had executed union
cards had a meeting at a community center in Franklin,
Tennessee , on November 7, 1972, and decided to have a
strike. The reasons that these employees decided to go on
strike were the fact that negotiations between the Union
and the Respondent were not getting anywhere and the
fact that the Union could not get a negotiation meeting set
up with the Respondent.
On November 8, 1972, Respondent's employees com-
menced a strike . This strike lasted for 3 days, November 8,
9, and 10 . All but two of Respondent 's employees honored
the picket line. Two of Respondent 's employees (Larry
Carter and Marvin Brown , Jr.) continued to report for
work . As indicated , Respondent had 23 employees on the
payroll on November 7, 1972. The number of employees
on Respondent 's payroll decreased by three during the
week of November 12, 1972. L. C. Kinnard was terminated
on November 8, 1972. Basham and Pratt left Respondent's
employment during the week . Perhaps, as indicated by
questions presented by Respondent's Counsel, but not
established , Basham and Pratt left Respondent 's employ-
ment on November 7, 1972.
During the strike, 2 of the 23, 21, or 20 employees on
Respondent's payroll continued to cross the picket line.
The rest of the 23, 21, or 20 employees, excepting perhaps
for the one or two employees who were ill (Miles and L. C.
Kinnard), honored the picket line. Dodson testified that
there were 13 or 14 "out on strike ." Boshers testified that
there were 15 "out on strike." William Crawford testified
that 16 "participated" in the strike. It is difficult to tell
whether these were estimates of employees honoring the
picket line or estimates of those affirmatively supporting
the strike otherwise. Considering the evidence relating to
the employees who had signed cards, the facts warrant an
inference that at least I I to 14 employees were affirmative-
ly supporting the strike at any given point of time therein.
As best gathered from the record , the strike was initiated
and carried on by Respondent's employees on their own.
No evidence was presented to reveal that the Union had
anything to do with the initiation or conduct of the strike.
Wright testified, however, that his last contact with the
employees prior to the trial of this matter occurred when he
was called by some employees who told him the strike was
over.
As indicated, little evidence as to the details of the strike
was presented . No evidence was presented to reveal
whether the pickets carried signs , and if so, what the
legends on such signs were. Nor was any evidence
presented to reveal whether the strikers communicated the
purpose of the strike to Respondent. The General
Counsel's clear position at the trial was that he was not
alleging that the strike was an unfair labor practice strike.
The General Counsel's position was that the evidence was
adduced relating to the question of the Union's majority
status.
The only evidence as to the number of employees who
were on the picket line consisted of the testimony of
Robert Crawford and Murray Dennis . Thus, Crawford
testified that there were roughly 10 to 12 employees on the
picket line . Dennis , one of Respondent 's officials, estimat-
ed that there were around 10 employees on the picket line
on the occasions that he crossed the picket line. If
considered with respect to a burden of Respondent to
establish a good-faith doubt based upon objective consid-
erations that the presumption of majority status of the
Union should be rebutted, the facts relating to the strike do
not establish Respondent 's burden. If considered with
respect to a burden of the General Counsel to in fact
establish a majority status for the Union , absent a
presumption of majority status, the facts would not
establish such burden for the General Counsel.
F. Events of November 10, 1972
At some point of time during the 3-day strike, employees
Robert Turnage and Dwight Henson went into Respon-
dent's offices and met with President Cole and Vice
President Dennis. The employees asked Cole and Dennis if
they would meet with all of the employees. The employees
told Cole and Dennis that the men on the picket line would
like to meet with management.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cole and Dennis told the employees in effect that they
could not and would not meet with them, that, however, if
the employees were having coffee some place, Cole and
Dennis might have coffee at the same place. It is clear from
the facts that management (Cole and Dennis) agreed to
meet with some of the employees at a specified time and
place. It is also clear that all involved would know that
Cole's and Dennis' remarks were made in a sophisticated
manner to rationalize such agreed meeting as not being a
meeting.
Later, on November 10, 1972, Cole and Dennis met an
employee committee at the Holiday Inn. The employee
committee consisted of employees Zamitalo, Robert
Crawford, Henson, Turnage, and Dodson.
The General Counsel alleged that Respondent, by Cole,
committed violations of Section 8(a)(1) during the referred
to meeting on November 10, 1972. The issues are as
follows:
1. The General Counsel alleged, and Respondent
denied, that Respondent, by Cole, on or about November
10, 1972, threatened to close its plant unless its employees
deserted the strike then in progress.
2. The General Counsel alleged, and Respondent
denied, that Respondent, by Cole, on November 10, 1972,
threatened to replace employees who were engaged in said
strike.
The witnesses to these issues were Dodson, Robert
Crawford, Cole, and Dennis. In general, Dodson's and
Crawford's testimony is not sufficient to determine in a
chronological and complete context what occurred. Cole's
and Dennis' testimony was essentially presented in a
summary fashion. Despite this, it may be said that there is
a thrust of the facts as to the specific issues. Considering
the testimony of Dodson, Crawford, Cole, and Dennis in
composite effect and in the context of the logical
consistency of all the facts, I conclude and find that Cole
on November 10, 1972, discussed with Dodson and
Crawford the pending strike, told Dodson and Cole that he
could have brought in other workers to replace the strikers,
that he had not wanted to do that, that he respected their
position in striking, and that rather than bring in other
employees, he would rather just close the doors down.2
Considering the foregoing, I am not persuaded that
Cole's remarks constitute conduct violative of Section
8(a)(1) of the Act. The employees were on strike. The
General Counsel does not contend that the strike was an
unfair labor practice strike. Under such circumstances. the
Respondent had a right to attempt to operate his plant with
replacement employees. His statement concerning the fact
that he could have replaced the employees is essentially
correct, although technically incorrect in that it may be
said that such replaced employees retain certain rights of
future potential reemployment. Further, a Respondent
does not have to resist employee strike pressure by
attempting to operate his plant during a strike. His remarks
were not to the effect that he would permanently close the
plant, but merely that he would rather close the doors than
2 Some of Cole's and Dennis' testimony might he construed as a denial
that Cole referred to the fact that he would rather close the doors to the
plant If so, it is discredited. 1 believe Dodson's testimony despite the
leading nature of the questions directed to him
bring in other employees. It is the General Counsel's
burden to establish conduct violative of Section 8(a)(1). He
has not met this burden. Accordingly, I conclude and find
that the facts do not reveal that Respondent violated
Section 8(a)(1) of the Act by Cole's remarks about
replacement of the employees on strike and as to "closing
the doors."
3. The General Counsel alleged, and the Respondent
denied, that the Respondent, by Cole on November 10,
1972, told its employees that he would go broke fighting a
union before he would sign a contract with the Union.
The General Counsel's evidence in support of this issue
consists of the testimony of Robert Crawford which is
revealed by the following excerpts from Crawford's
testimony: 3
Q. Do you recall whether Mr. Cole, at this time,
said anything about what he would do before he signed
a contract with the Union.
A. No. sir.
Q. Do you recall what he said whether he would go
broke fighting the Union before he would sign such a
contract?
A. Yes, sir, he did say that, I believe.
Dennis testified in denial that Cole had made remarks
about going broke fighting the Union before he would sign
a contract. Cole adopted Dennis' testimony in such regard.
I credit Dennis' testimony. I am not persuaded that
Crawford's recollection is accurate and reliable and goes
beyond a "belief." I discredit his testimony as to this issue.
Accordingly, it is concluded and found that the General
Counsel has not established that Respondent violated
Section 8(a)(l) of the Act as alleged in this regard.
4. The General Counsel alleged, and Respondent
denied, that Respondent, by Cole, on November 10, 1972,
told employees that he would not meet with the Union but
would meet with the employees.
The credibility resolution with respect to this issue is
difficult. The testimony of General Counsel's witnesses
Dodson and Crawford was presented in a piecemeal and
fragmentary manner and was elicited by leading questions.
The testimony of Dennis was largely summary in fashion.
Cole's testimony in large part constituted an adoption of
Dennis' testimony. In considering the determination of
credibility as to this issue, it must be noted that Cole stated
that he was not agreeing to the meeting on November 10,
1972, when he indicated that he could not meet with the
employees but they could get together by coincidence for
coffee. Further, the facts reveal that later Cole did meet
with a committee. All of the witnesses appeared to have
truthful demeanor. In balance, I am persuaded that
Dennis' testimony that Cole did not flatly say he would
meet with the committee is truthful and so credit. I am
persuaded that Crawford and Dodson construed Cole's
total remarks about the committee as being an agreement
to meet with the committee.
The facts as to what occurred is revealed by the
following excerpts from the testimony of the witnesses.
J The reLord at p. 31. I 3 is corrected by substitution of the word
"fighting" for fining This is based upon my recollection of what transpired
and is agreed to by the parties
HARPETH STEEL, INC. 557
Excerpts from Dennis' testimony
A. It was a lot of conversation, Your Honor. I
don't remember exactly who said what. But the thrust
of it was that the men would like to return to work, and
that one of their fellow employees, Mr. Ralph Zamita-
lo, had suggested the idea to them that it might be a
good idea if they form a shop committee, which would
be composed of their fellow employees, elected by
them. It would consist of a yet determined number. The
committee's purpose would be to meet and discuss with
management the working conditions of the plant.
At this point, I am persuaded that Cole made the
following remarks as revealed by the following credited
excerpts from Dodson's testimony.
Excerpts from Dodson's testimony
A. Well, he said that it seemed that we could sit
down like men and settle our own problems amongst
ourselves.
Cole then related to Dodson and Crawford that the
Respondent was not in negotiations with the Union and
would not meet further with the Union until it won in an
election conducted by the National Labor Relations
Board.
Considering all of the facts, I conclude and find that
Cole did not flatly say that he would meet with the
employees collectively but not with the Union. However,
Cole's remarks, coupled with his sophisticated agreement
to meet with three employees on November 10, 1972,
certainly carried the message that he would meet with the
employees collectively but not with the Union until it
demonstrated majority status in a National Labor Rela-
tions Board election. In my opinion, this conduct is
violative of Section 8(a)(1) of the Act. The facts reveal that
the Union was the exclusive collective-bargaining repre-
sentative of the employees involved on November 10, 1972.
To indicate that Respondent would meet with the
employees but would not meet with the Union, under such
conditions, clearly interferes and restrains the employees in
their right to self-organization. Even if the Union were not
the exclusive collective-bargaining representative of the
employees involved, under the circumstances there would
exist , at most, a question concerning representation. Under
such circumstances, to agree to meet with employees
collectively without a showing that this was the desire of a
majority of such employees, and to indicate a refusal to
meet with the. Union unless it demonstrated its majority
status, constitutes interference and restraint of the employ-
ees as to their right to engage in self-organizational efforts.
In short, it is clear that Respondent, by Cole, on November
10, 1972, violated Section 8(a)(1) of the Act by remarks
calculated to be construed as agreement to meet with the
employees collectively but not to meet with the Union until
it demonstrated its majority status in a Board election. It is
so concluded and found.
The Termination of the Strike
After the five employees met with President Cole and
Vice President Dennis at the Holiday Inn on November 10,
1972, the employees returned to the picket line and
discussed what had occurred with the other employees on
strike. The employees then voted on whether to continue
the strike or to return to work. A majority of the employees
voted for returning to work on Monday, November 13,
1972. The record indicates that the strike terminated on
November 10, 1972. It is absolutely clear that the strike
terminated before the employees returned to work on
Monday, November 13, 1972.
The Events of November 13, 1972, and Thereafter
The employees returned to work on Monday, November
13, 1972. On Wednesday, November 15, 1972, President
Cole called a meeting of all employees. This meeting was
held in the company shower room and commenced at 3:30
p.m. and lasted about 30 minutes. All of the employees
who were working attended the meeting.
Respondent's officials Cole and Dennis were present.
What occurred is revealed in part by the following credited
excerpts from Dennis' testimony:
A. We informed the employees that-first of all,
we were glad to see them back to work. And secondly,
we obviously realized there were some things that they
were unhappy about. But at this point, we could only
listen to anything, any suggestions they might have. But
under advise of Counsel, we could not respond to them
due to a NLRB charge was pending against us.
Zamitalo, an employee, suggested that the employees
could form a shop committee, told the employees that he
had worked at a plant that had had a shop committee,
explained how the shop committee had worked, and
expressed the idea that a shop committee at Harpeth Steel,
Inc., would be a good idea. Cole expressed the idea that the
shop committee was a good idea , that it would be good to
have a committee to work with the Company, that the men
should talk among themselves, should do whatever they
wanted to do, and should form their own committee or do
whatever they wanted to do.4
Some of the employees had requested further meetings.
On November 21, 1972, the Respondent posted the
following notice.
Notice
TO: All Shop Employees
FROM: Murray Dennis , Vice President
DATE: 11-21-72
IT IS MANAGEMENT 'S DESIRE TO MEET WITH ALL SHOP
EMPLOYEES.
4 i have considered the question of logical consistency of facts , the fact
that Respondent did strongly participate in the formation of the shop
committee on November 22, 1972, and that Respondent dealt with such
committee despite the continuation of pendency of unfair labor practice
charges I am persuaded that Cole , in a manner similar to his remarks about
the planned November 10. 1972. meeting. spoke to the employees in a
doubletalk fashion
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE PURPOSE OF THIS DISCUSSION WILL BE TO LISTEN TO
YOUR POSITION ON VARIOUS MA rTFRS AFFECTING THE
WORKING ARRANGEMFNrS OF THIS SHOP.
THE TIME AND PLACE OF THE MEFTING WILL BE
WEDNESDAY AFT ERNOON, NOVEMBER 22, AT 3:30 P.M. IN
THE SHOP WASH ROOM.
WE HOPE EVERYONE WILL ATTEND.
/s/ Murray Dennis, Vice President
All of Respondent's employees who were working on
November 22, 1972, along with Respondent's officials,
including Cole and Dennis, attended this meeting.
The facts relating to the November 22, 1972, meeting
were presented in a piecemeal and generalized manner.
The facts as established by a composite of the credited
testimony of all witnesses thereto may be summarized as
follows:
1. All of the employees working on November 22, and
Respondent's officials Cole and Dennis were present for
the entire meeting.
2. The employees decided to form a shop committee.
3. The employees elected Robert Crawford as tempo-
rary chairman for the meeting.
4. Robert Crawford had some difficulties functioning
as chairman. On occasion, President Cole attempted to
help Robert Crawford out of his difficulties as is revealed
by the following credited excerpts from William Craw-
ford's testimony:
Q. And what do you recall Mr. Cole saying at this
meeting?
A. Well, someone had brought up a subject, and
then another would bring up another. And he would
say, well, Mr. Chairman, suggest this. Or, Mr. Chair-
man, suggest that. And then we'd all put up a vote and
decide.
Exactly what Cole said when he made suggestions to
Robert Crawford concerning what to do as chairman is not
revealed. The thrust of the evidence, however, reveals that
the suggestions were not substantive in nature but were
ministerial .6
5. The employees nominated and elected a five-man
shop committee, and nominated and elected a chairman of
the five-man shop committee. The elections were by secret
ballot.
6. Neither Cole. Dennis, nor any other official nomi-
nated or voted for any of the positions filled.
7. Robert Turnage was the employee who was elected
as chairman of the Shop Committee. Turnage requested of
management that there be other meetings. Turnage then
adjourned the meeting.
Events after November 22, 1972
After the November 22, 1972, meeting, the Shop
Committee held some meetings for organizational purpos-
es. It is not clear whether there were several such meetings
or not. It is clear that one such meeting occurred around
' At most of the meetings that occurred there were other company
supervisors present with Cole and Dennis
6 To the extent that Cole and Dennis denied that suggestions were made,
December 8, 1972. What occurred at this meeting is
revealed by the following credited excerpts from Dennis'
testimony:
A. Well, like I said, it was mainly an organizational
meeting for the committee itself to determine which
committee-man would be responsible for what areas,
for working done-for working conditions. They chose
up among themselves that one would take vacations,
undertake this, that, and the other. They assigned other
employees of the shop to each committee-man, so that
Tie would have a certain number of shop employees
under him. And if they had any suggestions or
complaints, they would come to him.
Q. Now, how long did this meeting last?
A. Maybe an hour-and-a-half, an hour.
In addition to the employees on the Shop Committee,
Respondent's officials Cole and Dennis were present at the
meeting. The meeting which took place on or about
December 8, 1972, took place in the company conference
room.
Thereafter, at some point of time prior to January 8,
1973, the Shop Committee discussed, among themselves,
the question of a wage increase and decided to propose a
wage increase to the Respondent. There is no evidence to
reveal whether this meeting of the Shop Committee
preceded or followed the following announcement by the
Respondent which was posted around January 2, 1973.
Notice
January 2, 1973
THE NEXT MEETING BETWEEN MANAGEMENT AND THE
SHOP COMMITTEE WILL BE HELD ON MONDAY , JANUARY 8,
IN THE OFFICE CONFERENCE ROOM.
ANY INTERESTED PARTIES ARE INVITED TO ATTEND.
however, IN THE INTEREST OF TIME , PLEASE VOICE YOUR
OPINIONS THROUGH YOUR COMMITTEE CHAIRMAN.
/s/ Murray Dennis
Murray Dennis
Executive Vice President
On January 8, 1973, Respondent's officials met with the
Shop Committee. What occurred is revealed by the
following credited excerpts from Dennis' testimony.
Q. After this meeting on or about December 8,
1972, were there any further meetings?
A. Yes, there was.
Q. When?
A. January 8.
Q. All right, will you tell us where that meeting was
held and who was present, as best you can remember?
A., This was also held in the Conference Room of
the company. All five committee-men were there this
time . Mr. Cole was there, and I was there, Mr. Elmer
Thomas, Jr. was there, possibly the shop superintend-
ent. I 'd have to refer to my notes.
I discredit such testimony Essentially, the matter is one of witnesses
interpreting what is a suggestion.
HARPETH STEEL, INC 559
Q. All right What was the subject of this meeting?
A. The subject of this meeting was pure and simply
a request from the committee for across-the-board
wage increase.
Q. Now, Mr. Dennis, the contract expired by its
terms on April 30, 1972. It was extended to May 14,
1972. State whether or not, at any time after May 14,
1972, through December 31, 1972, any of the employ-
ees of Harpeth Steel had received wage increases.
A. No, they had not.
Q. Now, what happened on or about January 8,
1972?
A. The committee presented the demand, as I said,
for a 5.5 percent across-the-board wage increase.
Management requested that we caucus about this,
which we did for about 10 minutes. And we came to the
conclusion that the increase was within reason and
decided to grant it.
The Respondent, around January 8, 1973, placed into
effect the agreed wage increase for its employees retroac-
tive in effect to January 1, 1973. Subsequent to January 8,
1973, there have been no specific requests by the Shop
Committee for further meetings with the Respondent, and
there have been no further meetings between the Respon-
dent and the Shop Committee.
Considering all of the foregoing, I am persuaded and
conclude and find that Respondent, in violation of Section
8(a)(1) and (2) of the Act, interfered with the formation
and administration of the Shop Committee, and rendered
unlawful aid and assistance to the Shop Committee. Thus,
on November 22, 1972, and thereafter, Respondent
recognized and bargained with the Shop Committee as the
exclusive representative of the employees in the appropri-
ate bargaining unit. It is clear that Respondent' s unfair
labor practices, including unlawful withdrawal of recogni-
tion of the Union and interference with employee rights by
expressions of refusal to bargain with the Union but that it
would meet with employees, undermined the Unions'
majority. It is also clear that even if Respondent had not
engaged in such unfair labor practices, there existed at
least a question concerning representation. Under such
circumstances, recognition of and bargaining with the
Shop Committee constituted interference with employees'
organizational rights, and constituted unlawful aid and
assistance to the Shop Committee. The facts are clear that
Respondent's officials Cole and Dennis were present at the
November 22, 1972, meeting wherein the Shop Committee
was formed. Respondent summoned the employees to this
and similar meetings . Cole and Dennis were also present at
the various organizational meetings of the Shop Committee
held after November 22, 1972. It is clear that the presence
of Respondent's officials, Cole and Denms, at the various
meetings interfered with employees' organizational rights,
and interfered with and constituted aid and assistance to
the Shop Committee. Employees as a result of Respon-
dent's total conduct were clearly shown that the Respon-
dent did not want to deal with the Union, but preferred to
deal with the employees collectively or with an employee
committee . The issuance and posting of notices concerning
employee meetings, Shop Committee meetings , and urging
employees to work through the Shop Committee, under the
circumstances, clearly interfered with employees' organiza-
tional rights and constituted unlawful aid and assistance to
the Shop Committee. Permitting the Shop Committee to
use company premises, similarly, constituted interference
with employee organizational rights and constituted
unlawful aid and assistance to the Shop Committee.
Finally, under all the circumstances set forth beforehand
herein, the bargaining and agreement with the Shop
Committee as 'to a wage increase on January 8, 1973,
clearly interfered with employee organizational rights and
constituted unlawful aid and assistance to the Shop
Committee In sum, I conclude and find, as alleged, that
Respondent violated Section 8(a)(1) and (2) of the Act by
the above-described conduct.
The General Counsel alleges and contends, and Respon-
dent denies, that Respondent dominated the Shop Com-
mittee by the conduct referred to above and that
Respondent thereby violated Section 8(a)(1) and (2) of the
Act. Essentially, the question is whether Respondent's
conduct, as described, constituted domination or constitut-
ed unlawful interference , aid, and assistance.
In my opinion, the facts warrant a finding of unlawful
interference with, and unlawful aid and assistance to, the
Shop Committee. A close question is presented as to
whether the totality of Respondent's conduct in such
regard amounted to Respondent's domination of the Shop
Committee. The facts reveal that the totality of Respon-
dent's conduct as regards its relationship with the Shop
Committee reveals extremely strong interference with
employees' organizational rights, and unlawful aid and
assistance to the Shop Committee. The cases cited by the
General Counsel (Eugene and Veronica McManus, co-
partners d/b/a Sunrise Manor Nursing Home, 199 NLRB
1120; and Drives, Incorporated, 172 NLRB 969) on a
factual basis appear to be substantially similar to this case
insofar as the degree of interference , unlawful aid, and
assistance is involved. In neither of these cases did the
Board find the facts to constitute domination of the
committee or plan involved.
In the instant case , the facts reveal that the idea of a
Shop Committee was suggested by an employee. The
Respondent did not suggest the names of persons to be
selected on the committee, and no supervisory person
voted in the selection of the individuals on the committee.
The General Counsel argues that there was no arms-
length bargaining as to the wage increase agreed to on
January 8, 1973. As I see the facts, the Respondent
considered the committee to be a weak creature and agreed
to what it was willing to do to mollify employee discontent
as to wages. It very well may have been that Respondent,
during negotiations with the Union earlier, would have
agreed to a similar increase . Averaging out Respondent's
wage increase offers to the Union, the wage increase would
have averaged out on the proposed 3-year term to 3
percent and to 4 percent as compared to the 5.5-percent
increase agreed to on January 8, 1973. One cannot say that
Respondent would not have agreed to the Union's
demanded wage increase if it had dropped closer to the 5.5-
percent figure.
The distinction between whether a Respondent has
unlawfully dominated a labor organization, committee or
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plan or has only interfered with and unlawfully aided and
assisted such labor organization , committee or plan is one
of degree . If the Respondent creates such labor organiza-
tion , committee , or plan , then the labor organization,
committee or plan is Respondent 's creature and can be
disestablished by the Respondent . If the labor organiza-
tion , committee , or plan is not Respondent 's creature, then
Respondent should not be required to disestablish such
organization but only to remove its unlawful aid and
assistance from such organization. Of course , as a practical
matter , if a labor organization, committee , or plan is so
weak that its continued existence is dependent upon aid
and assistance from a Respondent , removal of such
unlawful aid and assistance virtually destroys the unlawful-
ly assisted labor organization , committee , or plan , insofar
as the employees are concerned . In the instant case, the
remedy recommended for the removal of Respondent's
unlawful aid and assistance to the committee would appear
to virtually obtain the same result as a disestablishment
remedy, especially when a concurrent remedy is the
requirement that Respondent bargain with the Union, as is
required in this case.
I am not persuaded that the totality of the facts reveal
that the Respondent dominated the Shop Committee.
Rather, I am persuaded that the Respondent interfered
with the formation of the Shop Committee , rendered
unlawful aid and assistance to the Shop Committee, and
dealt with a "weak" representative accordingly.
The General Counsel also alleged , and Respondent
denied , that Respondent violated Section 8(a)(5) of the Act
by according recognition to the Shop Committee on or
about November 13, 1972.
I have already found that Respondent violated Section
8(a)(1) and (2) of the Act by recognizing and bargaining
with the Shop Committee . I do not find it necessary to
determine whether such conduct violated Section 8(a)(5) of
the Act . The composite effect of the unfair labor practices
requires remedies of the same type as would be imposed if
a finding of a violation of Section 8(a)(5) in such regard
were made.
The Wage Increase
Alleged Refusal To Bargain
The General Counsel alleged , and Respondent denied,
that the Respondent , on or about January 12, 1973,
unilaterally changed existing wage rates and other terms
and conditions of employment of the employees in the
appropriate bargaining unit.
The facts are clear that Respondent bargained with the
Shop Committee as to a wage increase, agreed with the
Shop Committee as to a wage increase , and placed such
wage increase in effect around January 8, 1973. It is clear
that Respondent did not bargain with the Union as regards
the wage increase granted on or around January 8, 1973. It
is clear that Respondent by the foregoing conduct, in
connection with all the facts in this case , interfered with
employees ' organizational rights in violation of Section
8(a)(1) of the Act . I do not find it necessary to determine
whether Respondent violated Section 8(a)(5) of the Act by
such conduct . Because of the composite effect of all of the
unfair labor practices by the Respondent , the remedy
required for such violative conduct will be the same,
whether such conduct is deemed violative of Section
8(a)(5) or only of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the Respondent's
operations described in section 1, above , have a close,
intimate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices , it will be recommended that the Respon-
dent cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
Having found that Respondent has violated Section
8(a)(5) and ( 1) of the Act by its withdrawal of recognition
and refusal to bargain with the Union , it will be
recommended that the Respondent , upon request , bargain
with the Union as the exclusive representative of its
employees in the appropriate unit . It will also be recom-
mended that Respondent , if requested to do so by the
Union , rescind the wage increases granted as a result of
bargaining with the unlawfully assisted Shop Committee.
However , it is provided that absent request for the
rescinding of such wage increases , nothing in this decision
requires the withdrawal of such wage increases.
Having found that Respondent interfered with, and
unlawfully assisted and aided, the formation of the Shop
Committee , it will be recommended that Respondent
withdraw and withhold recognition of such Shop Commit-
tee until such time as said Shop Committee may be
certified by the Board as the employees ' exclusive
bargaining representative.
Because of the character of the unfair labor practices
herein found , the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with , restraining , and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Harpeth Steel, Inc., the Respondent , is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Association of Bridge , Structual and
Ornamental Iron Workers , Shopmen's Local 733 , is, and
has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
3. The Shop Committee (Harpeth Steel, Inc.), is, and
has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
4. By interfering with the formation of, and rendering
HARPETH STEEL, INC. 561
aid and assistance to, the Shop Committee, Respondent
has violated Section 8(a)(2) and (1) of the Act.
5. All production and maintenance employees, includ-
ing truckdrivers, but excluding office clerical employees,
professional employees, guards and supervisors as defined
in the Act constitute an appropriate unit of Respondent's
employees for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
6. At all times on and after February 25, 1966, and
until November 10, 1972, the Union was the exclusive
representative of all the employees in said unit for the
purpose of collective bargaining with respect to rates of
pay, wages, hours of employment, and other conditions.
Such loss of majority as may have occurred thereafter
resulted from Respondent's unfair labor practices found
herein.
7. By withdrawing recognition of the Union on
September 19, 1972, and by thereafter withholding recogni-
tion from and refusing to bargain with the Union,
Respondent has violated Section 8(a)(5) and (1) of the Act.
8. By the above, and by expressing that Respondent
would meet with and bargain with employees but would
not meet with or bargain with the Union until recertified
by the Board, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act, and thereby
Respondent has engaged in unfair labor practices pros-
cribed by Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER?
Respondent, Harpeth Steel, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Telling employees that it will meet with them
collectively, or with a committee of such employees, but
that it will not meet with or negotiate with the Union until
it is recertified by the National Labor Relations Board as
the exclusive representative of its employees.
(b) Refusing to bargain collectively with the Union as the
exclusive representative of the employees in the unit herein
found to be appropriate.
(c) Interfering with the formation or administration of
the Shop Committee or any other labor organization of its
employees.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request bargain collectively with the Interna-
tional Association of Bridge, Structual and Ornamental
Iron Workers, Shopmen's Local 733, as the exclusive
representative of Respondent's employees in the unit
herein found appropriate and embody any understanding
reached in a signed agreement. The appropriate bargaining
unit is as follows: All production and maintenance
employees, including truck drivers, but excluding office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
(b) Upon request by the Union, rescind the wage
increases granted in January 1973 as a result of agreement
with the Shop Committee. However, it is provided that
nothing in this Decision or Order requires the rescinding of
such wage increase as granted unless the Union so
requests.
(c) Withdraw and withhold recognition from the Shop
Committee as a representative of its employees unless and
until such time as the Shop Committee is so certified by the
National Labor Relations Board.
(d) Post at Respondent's plant at Franklin, Tennessee,
copies of the attached notice marked "Appendix."8 Copies
of said notice, on forms provided by the Regional Director
for Region 26, after being duly signed by Respondent's
representatives, shall be posted by it immediately upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of receipt of this
Decision, what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative herein be
dismissed.
' 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.
B 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell our employees that we will meet
with them collectively, or with a committee of employ-
ees, but that we will not meet or negotiate with the
Union until it is recertified by the National Labor
Relations Board as exclusive representative of our
employees.
WE WILL NOT interfere with the formation or
administration of the Shop Committee or any other
labor organization of our employees.
WE WILL NOT refuse to bargain collectively with the
Union as the exclusive representative of the employees
in the unit herein found to be appropriate.
WE WILL NOT in any other manner interfere with,
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrain , or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the Act.
WE WILL , upon request , bargain collectively with the
Union , the International Association of Bridge , Struc-
tural and Ornamental Iron Workers , Shopmen 's Local
733, as the exclusive representative of our employees in
the unit herein found appropriate and embody any
understanding reached in a signed agreement. The
appropriate bargaining unit is:
All production and maintenance employees,
including truck drivers , but excluding office
clerical employees , professional employees,
guards and supervisors as defined in the Act.
WE WILL , upon request by the Union , rescind the
wage increases granted in January 1973 , as a result of
agreement with the Shop Committee. However it is
provided that nothing in the Decision or Order requires
us to rescind such wage increase as granted unless the
Union so requests.
WE WILL withdraw and withhold recognitions from
the Shop Committee as a representative of our
employees unless and until such times as the Shop
Committee is so certified by the National Labor
Relations Board.
Dated By
HARPETH STEEL, INC.
(Employer)
(Representative) I (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office , Clifford Davis Federal
Bldg., Room 746 , 167 North Main Street , Memphis,
Tennessee 38103, Telephone 901-534-3161.