Hydro Conduit Corp.

National Labor Relations Board - Board Decisions

Mar 24, 1986

278 N.L.R.B. 1124 (N.L.R.B. 1986)

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hydro Conduit Corporation and Construction, Pro-
duction & Maintenance , Laborers' Local Union
No. 383, Laborers' International Union of
North America , AFL-CIO. Case 28-CA-6860
24 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 29 December 1983 Administrative Law
Judge Richard D. Taplitz issued the attached deci-
sion . The Union filed exceptions to the judge's de-
cision . The General Counsel and the Respondent
filed exceptions and supporting briefs . The General
Counsel also filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
The essential facts are not in dispute . The Re-
spondent and the Union were parties to collective-
bargaining agreements over a number of years. The
most recent agreement expired on 1 March 1982.2
On 2 March the Respondent filed a petition in Case
28-RM-415. On 24 March the Union filed the
8(a)(5) charge in the instant case . On 21 April the
Regional Director issued a Decision and Direction
of Election in which he found that a question con-
cerning representation existed . The Union did not
seek review of the Regional Director's decision in
the representation case . However, it did appeal the
Regional Director's subsequent dismissal of the
8(a)(5) charge . This appeal was granted by the
General Counsel , who directed the Regional Di-
rector to issue a complaint . The judge concluded
that he was foreclosed from finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by the unappealed decision of the Regional Direc-
tor in Case 28-RM-415 in which the.Regional Di-
rector determined that a question concerning repre-
sentation of the employees in the bargaining unit
existed . He made alternative findings , however,
that the Respondent refused to bargain with the
I The parties have excepted to some of the judge 's credibility findings.
The Board 's established policy is not to overrule an administrative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 All dates hereinafter are 1982 unless otherwise indicated.
Union on or after 2 March 1982;3 that on 25
March the Respondent received notice that the
Union had accepted the Respondent 's firm and
final offer as modified ; and that on that date and
thereafter the Respondent refused to execute a
written document embodying that agreement.
For the reasons set forth below , we find that the
disposition of the representation case does not fore-
close consideration of the unfair labor practice
case . Further , we agree with the judge 's alternative
finding . that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing to bargain
with the Union , but not with his additional alterna-
tive finding that the Respondent refused to execute
an agreed-upon collective-bargaining contract.
At the expiration of a collective -bargaining
agreement , an employer may, as here , file an RM
petition and the Board will hold an election, if the
employer can show an objectively based reasonable
doubt as to the union 's continuing majority sup-
port.4 The decision to process such a petition is
made by the Regional Director pursuant to an ad-
ministrative determination that the employer has
made a prima facie showing of objective consider-
ations that supports a reasonable doubt of the in-
cumbent union's majority status . The administrative
determination as to objective considerations is not
litigable . The Board has consistently refused to
allow litigation of the matter on the grounds that
determination by administrative action protects the
confidentiality of data submitted in support of the
petiion , and permits an expeditious resolution of
issues concerning employee choice of representa-
tive whenever an election for such purposes is. oth-
erwise timely .5 At the same time, the Board has
stressed that the administrative. determination that
objective considerations support an RM .petition is
not determinative of an employer 's obligation to
bargain. Thus , the Board stated in Gypsum 11:6
[A]s the Regional Director's determination is
based solely upon an employer 's prima facie
showing , and is not litigable at any stage of
the representation proceeding, his finding is
not to be regarded as determinative of an em-
ployer 's obligation to engage in further bar-
gaining , or necessarily dispositive of a related
refusal -to-bargain charge filed by an incumbent
collective bargaining representative.
These principles apply to the case at bar and
compel a finding that the Regional Director 's deci-
9 The judge inadvertently referred to this date as 2 March 1983 in the
last paragraph of his decision.
4 United States Gypsum Ca, 157 NLRB 652 ( 1966) (Gypsum 1).
5 United States Gypsum Ca, 161 NLRB 601, 602 ( 1966) (Gypsum 11).
6 Id. at fn. 3.
278 NLRB No. 164
HYDRO CONDUIT CORP. 1125
sion in the representation case does not preclude
litigation of the related unfair labor practice
charge.
Here, the Regional Director found that a ques-
tion concerning representation existed based on his
administrative determination that the Respondent
had a reasonable, objectively based doubt about the
Union's continued majority. The Regional Direc-
tor's Decision and Direction of Election, issued on
21 April, became final when the Union failed to file
a request for review with the Board. Under
Gypsum II, the Regional, Director's decision cannot
be regarded as dispositive of the refusal-to-bargain
charge. Nor does the Union's failure to appeal the
Regional Director's decision require a different
result. Even when a Regional Director's determina-
tion is appealed and review is granted by the
Board, the issue is not subject to litigation and the
union, having no access to the evidence submitted
by the employer, is limited to an appeal based on
the assertion that the employer's "objective consid-
erations" are inadequate. In these circumstances,
the Board's action on the appeal is no more dispos-
itive of the unfair labor practice issues than is the
Regional Director's decision. In both instances, the
decision is based solely on the finding of a prima
facie showing by an employer which is not subject
to examination by the opposing party.
For these reasons, we disagree with the judge's
conclusion,that the unappealed decision in the rep-
resentation case controls here. To hold otherwise
would result in a denial of due process. For while
an administrative determination is proper in a rep-
resentation case where no' violation of law is at
issue, it is not proper in a case which involves alle-
gations that unfair labor practices have been com-
mitted. In such cases, the Act requires that the par-
ties ' be afforded an opportunity to fully litigate all
the relevant issues.?
Although the judge decided that he was preclud-
ed from finding that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by the Regional Di-
rector's previous finding in the representation case,
he proceeded to make factual findings and conclu-
sions of law in the unfair labor practice case in the
event the Board disagreed with his interpretation
of the impact of the representation case on the
unfair labor practice case. Accordingly the judge
found, and we agree for the reasons set forth in his
T' The judge found no problem with due process because the Union
was the Charging Party and "its right to a full hearing when it desires to
prosecute a case is very different from its right when it seeks to defend."
we-disagree. In an unfair labor practice hearing, it is not the charging
party, but the General Counsel who prosecutes the matter. Further, the
General Counsel acts on behalf of the public interest and not merely on
behalf of the charging party - In these circumstances a full hearing on the
relevant issues is necessary.
decision, that on the basis of the recently expired
contract, the Union is presumed to represent a ma-
jority of the employees; that the Respondent failed
to rebut the presumption by showing that it had an
objectively based reasonable doubt that the Union
represented a majority, of the employees;8 and that
the Respondent refused to bargain with the Union
on and after 2 March. We therefore find that the
Respondent has violated Section,8(a)(5) and (1) of
the Act.
However, we disagree with the judge's addition-
al alternative conclusion that the Union accepted
the Respondent's last negotiation offer, and that the
Respondent, therefore, violated Section 8(a)(5) and
(1) by failing to execute a written agreement. The
judge acknowledged that the Union never directly
communicated to the Respondent acceptance of the
Respondent's offer. Instead, he found that the
Union's filing and service on the Respondent of an
unfair labor practice charge alleging refusal to exe-
cute an agreement to which the parties have con-
sented constituted notice to the Respondent of the
Union's acceptance of the Respondent's outstand-
ing offer. We find no legal support for the judge's
analysis.
The judge's reliance on the unfair labor practice
charge is similar to reliance on a union's filing of a
representation petition to find that the union has
made a demand for recognition and bargaining. Yet
the Board has long held that the mere filing of a
representation petition does not constitute a, request
for recognition or bargaining such as to make an
employer's failure to bargain, without more, a vio-
lation of Section 8(a)(5) of the Act.9 By the same
token, we find that the mere filing and service of
an unfair labor practice charge does not constitute
notice of acceptance of an offer in collective-bar-
gaining negotiations between private parties, such
as to make an employer's failure to execute an
agreement a violation of Section 8(a)(5) and (1) of
the Act. 10
s In agreeing with the judge that the employer failed to show sufficient
objective considerations on which to base a reasonable doubt of majority
support for the Union, we find it unnecessary to rely on the presumption,
articulated in Pennco, Inc, 250 NLRB 716 (1980), enfd; on the other
grounds 684 F.2d 340 (6th Cir. 1981), that striker replacements support
the union in the same proportion as those employees they replace.
Here, there were 7 striker replacements, bringing the total number of
employees in the unit to 35. The judge found, and we agree, that the Re-
spondent properly could rely on the comments of only six employees that
they no longer desired union representation . Even if the Respondent
were entitled to presume that every striker replacement opposed union
representation, there would still be insufficient ground to believe that the
Union had lost its majority support.
9 Eagle Material Handling of New Jersey, 224 NLRB 1529 (1976); L.' B.
Foster Co., 168 NLRB 83, 87 fn. 28 (1967), enfd. 418 F_2d 1 (9th Cir_
1969).
1° Member Dennis agrees the judge 's alternative finding that the Re-
spondent unlawfully refused to execute an agreed -upon contract must be
Continued
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
By refusing on and after 2 March 1982 to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appro-
priate unit, the Company has engaged in unfair
labor practices within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union and, if an understanding is reached, to
embody the understanding in a signed agreement.
ORDER
The National Labor Relations Board orders that
the Respondent, Hydro Conduit Corporation,
Phoenix, Arizona, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Construction, Pro-
duction & Maintenance, Laborers' Local, Union
No. 383, Laborers' International Union of North
America, AFL-CIO as the exclusive bargaining
representative of the employees in the bargaining
unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All plant maintenance mechanics (laborers),
helical machine operators, machinists, steel fit-
ting layout persons, combination weigh-master
mixer operators, centrifugal machine opera-
tors, brushcoat machine operators, lining ma-
chine operators, vertical cage machine opera-
tors, drum cage machine operators, assistant
reversed, but only for the following reasons The complaint alleged the
Respondent refused to execute a written contract about 3 March 1982;
this was the only theory of violation litigated at the hearing The judge
found no union acceptance of the Respondent's outstanding offer about
that date Instead, he concluded that the filing and service of a charge on
24 and 25 March, respectively, alleging a refusal to execute about 2
March constituted notification the Union had accepted the Respondent's
offer Aside from the illogic of using the charge itself to supply a missing
element of a cause of action, the judge's finding of unlawful conduct on a
basis neither alleged by the General Counsel nor litigated by the parties
constitutes a due-process violation The Board recently so held in closely
analogous circumstances. See Maintenance Service Corp., 275 NLRB 1422
(1985)
helical machine operators, hook tenders (loco-
motive crane), packerhead machine operators,
pre-stress wrapping machine operators, shop
welders, production welders, test machine op-
erators (steel), drum cylinder machine opera-
tors, rod wrap operators, gunite nozzle opera-
tors, maintenance persons, pneumatic wrench-
es, mesh cage assemblers, cage chairer and
tackers, ring fitters, mixer persons, assistant
machine operators, machine honer operators,
concrete fitting persons, concrete patching
persons, strippers, hoist operators, and labor-
ers, employed by the Employer at its Buckeye
Road, Phoenix Plant; excluding all office cleri-
cal employees, guards, watchmen, all other
employees, and supervisors as defined in the
'Act.
(b) Post at its Phoenix, Arizona place of business
copies of the attached notice marked "Appen-
dix."" Copies of the notice, on forms provided by
the Regional Director for Region 28, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date- of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the petition in Case
28-RM-415 is dismissed and the election held 14
May 1982 nullified.
i i If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall 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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Construc-
tion, Production & Maintenance, Laborers' Local
Union No. 383, Laborers' International Union of
HYDRO CONDUIT CORP.
North America, AFL-CIO as the exclusive repre-
sentative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request , bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All plant maintenance mechanics (laborers),
helical machine operators, machinists , steel fit-
ting layout persons, combination weigh -master
mixer operators , centrifugal machine opera-
tors, brushcoat machine operators , lining ma-
chine operators , vertical cage machine opera-
tors, drum cage machine operators, assistant
helical machine operators, hook tenders (loco-
motive crane), packerhead machine operators,
pre-stress wrapping machine operators, shop
welders, production welders, test machine op-
erators (steel), drum cylinder machine opera-
tors, rod wrap operators , gunite nozzle opera-
tors, maintenance persons, pneumatic wrench-
es, mesh cage assemblers , cage chairer and
tackers, ring fitters, mixer persons , assistant
machine operators , machine honer operators,
concrete fitting persons , concrete patching
persons, strippers , hoist operators, and labor-
ers, employed by the Employer at its Buckeye
Road, Phoenix Plant ; excluding all office cleri-
cal employees , guards, watchmen , all other
employees , and supervisors as defined in the
Act.
HYDRO CONDUIT CORPORATION
Michael J. Karlson, Esq., for the General Counsel.
Gerald Morales and Philip Prince, Esqs. (Snell & Wilmer),
of Phoenix , Arizona, for the Respondent.
Gerald Barrett, Esq. (Ward & Keenan , Ltd.), of Phoenix,
Arizona, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD D TAPLITZ , Administrative Law Judge. This
case was tried in Phoenix , Arizona, on June 7 and Octo-
ber 13 and 14 , 1983. The charge was filed on March 24,
1982, by Construction , Production Maintenance Labor-
ers' Local Union No. 383, Laborers ' International Union
of North America, AFL-CIO (the Union). The com-
plaint , which issued on November 19, 1982, alleges that
Hydro Conduit Corporation (the Company) violated
1127
Section 8(a)(5) and (1) of the National Labor Relations
Act. I
Issues
The primary issues are
1. Whether a final unappealed Regional Director's de-
cision in a representation case, which finds that a ques-
tion concerning representation existed at the time the
Company filed a petition for an election, precludes a
finding that the Company refused to bargain in violation
of Section 8(a)(5) of the Act.
2. If the representation case does not prevent such a
finding, then whether the Company refused to bargain
with the Union after the expiration of a collective-bar-
gaining contract at a time when the Company did not
have a good faith, objectively based doubt as to the
Union's majority status.
3. Whether the Company refused to execute a written
contract incorporating an agreement it had reached with
the Union.
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally , and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, the Company, and the
Union.
On the entire record2 of the case and from my obser-
vation of the witnesses and their demeanor , I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Company, a Delaware corporation , maintains an
office and place of business in Phoenix, Arizona, where
it manufactures and sells concrete pipe . During the year
immediately preceding issuance of the complaint the
Company purchased and received at its Phoenix, Arizo-
na facility goods valued in excess of $50,000 directly
from suppliers located outside of Arizona. The Company
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The Union is a Labor
organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Interrelation Between the Unfair Labor
Practice Case and the Representation Proceedings
1. The facts
For many years, at least since 1970, the Company and
the Union were parties to collective -bargaining agree-
I There were a number of procedural steps taken in the instant case
with regard to its relation to a representation case . Those matters are dis-
cussed below.
P The General Counsel 's unopposed motion to correct the transcript,
which is annexed to its brief dated December 2, 1983 , is granted and re-
ceived in evidence as G.C. Exh. 16 . Previously , a motion by the Re-
spondent to correct the record was granted by my order of June 24,
1983. That motion and order are annexed to the G.C. Exh. I (see also
G.C. Exh. 16(p)).
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments covering employees in a production and mainte-
nance unit at the Company 's Phoenix , Arizona facility.3
The last contract between the Company and the Union
was effective from March 1, 1979, to March 1, 1982. On
March 2, 1982, the Company filed a petition for an elec-
tion in Case 28-RM-415. On March 17, 1982, the Re-
gional Director for Region 28 issued a notice of repre-
sentation hearing setting a hearing date for March 25,
1982. On March 24, 1982, the Union filed the charge in
the instant case alleging that the Company violated Sec-
tion 8(a)(1), (3), and (5) of the Act by failing to execute
an agreement to which the parties had consented on
March 2, 1982, by engaging in direct bargaining with
employees , by discriminating against employees because
of their union activities, and by otherwise interfering
with the Section 7 rights of employees . The hearing was
conducted in the representation case on March 25. On
April 16 the Regional Director dismissed the charge in
the instant case . Shortly thereafter the Union appealed
the dismissal to the General Counsel in Washington,
D.C. On April 21, while the appeal to the dismissal of
the charge in the unfair labor practice case was pending,
the Regional Director issued a Decision and Direction of
Election in which he found that a question affecting
commerce existed concerning the representation of the
employees in the bargaining unit . In the decision the Re-
gional Director notified the parties of their right to re-
quest review of his decision pursuant to Section 102.67
of the Board 's Rules . Section 102.67(b) of those rules
provides that a decision by a Regional Director shall be
final unless a request for review is filed with the Board
in Washington within 10 days after service of the deci-
sion. The Union did not file such a request for review
and the Regional director 's decision which in part found
that there was a question concerning representation,
became final . By telegraphic order dated May 14, 1982,
the Board granted the Regional Director 's request to
conduct the election on May 14 and to impound the bal-
lots pending disposition of the appeal on the dismissal of
the unfair labor practice charge . The election was held
on that date and the ballots were impounded . They have
not yet been opened . On July 29 the General Counsel's
Office of Appeals reversed the Regional Director and di-
rected him to issue a complaint in the unfair labor prac-
tice case . On November 19, 1982 , the Regional Director
issued the complaint in the instant case which alleges
' A full description of the bargaining unit, which I find to be appropri-
ate for the purpose of bargaining, is:
All plant maintenance mechanics (laborers), helical machine opera-
tors, machinists, steel fitting layout persons, combination weigh-
master mixer operators, centrifugal machine operators, brushcoat ma-
chine operators, lining machine operators, vertical cage machine op-
erators, drum cage machine operators, assistant helical machine oper-
ators, hook tenders (locomotive crane), packerhead machine opera-
tors, pre-stress wrapping machine operators, shop welders, produc-
tion welders, test machine operators (steel), drum culinder machine
operators, rod wrap opeerators, 'gunite nozzle operators, maintenance
persons, pneumatic wrenches; mesh cage assemblers, cage chairer
and trackers, ring fitters, mixer persons, assistant machine operators,
machine honer operators, concrete fitting persons, concrete patching
persons, strippers, hoist operators, and laborers, employed by the
Employer at its Buckeye Road, Phoenix Plant; excluding all office
clerical employees, guards, watchmen, all other employees, and su-
pervisors as defined in the Act.
that the Company violated Section 8 (a)(5) and (1) of the
Act about March 3, 1982, by refusing to execute a writ-
ten contract embodying an agreement the parties had
reached and by failing and refusing to recognize and bar-
gain with the Union.
By letter dated December 3, 1982, the Regional Direc-
tor notified the Company that further processing of the
petition in the representation case was being held in
abeyance pending disposition of the unfair labor practice
charge . On December 10 the Company sought review of
the Regional Director's decision to hold the representa-
tion case in abeyance , and on December 22 the Board in
a telegraphic order denied the Company's appeal.
On February 28, 1983, the Company moved the Board
for a summary judgment in the unfair labor practice
case . By telegraphic order dated March 11, 1983, the
Board denied the Company's Motion for Summary Judg-
ment without prejudice to the Company's right to make
the same contention before the administrative law judge
at the hearing.
On May 24, 1983, the Company filed a motion for
judgment on the pleadings which was referred for ruling
to the administrative law judge conducting the hearing.
The hearing opened before me on June 7, 1983, at which
time all parties presented their views with regard to the
Company's motion for judgment on the pleadings.
Though the parties stipulated to some background facts
to put the motion in context , no testimony or documen-
tary evidence was adduced on the unfair labor practice
complaint at that time . After ruling, in substance, that
the final, unappealed, decision of the Regional Director,
which found that a question concerning representation
existed , precluded the finding of a refusal to bargain in
the unfair labor practice case, I granted the Company's
motion and dismissed the complaint.
Thereafter, the General Counsel and the Union filed
with the Board requests to review my dismissal of the
complaint . The Company filed an opposition to that re-
quest and all parties filed voluminous written arguments
with the Board . By telegraphic order dated August 26,
1983, the Board reversed my order dismissing the com-
plaint with the following language:
General Counsel 's and Charging Party's requests for
review of Administrative Law Judge's order grant-
ing Respondent's motion for summary judgment
and dismissing the complaint is granted , the Admin-
istrative Law Judge is reversed and this matter is
remanded to the Administrative Law Judge with in-
structions to permit the introduction of evidence in
connection with Respondent's objective consider-
ations for refusing to bargain with the Union.
Pursuant to the direction of the Board , I rescheduled
the hearing for October 13, 1983. By motion dated Sep-
tember 29 , 1983, the Company sought to continue the
hearing pending resolution by a Federal district court of
an action the Company had ,initiated against the Board
and the General Counsel which sought to enjoin the Oc-
tober 13 hearing before me . I denied that motion and the
Company filed a request for special permission to appeal
that denial . The Board denied the Company's motion.
HYDRO CONDUIT CORP.
An evidentiary hearing was held before me on Octo-
ber 13 and 14, 1983.
2. Conclusions with regard to the impact of the
representation case on the unfair labor practice case
The threshold question relates to the impact of the
Board 's August 26, 1983 telegram reversing my dismissal
of the complaint and remanding the matter to me to take
testimony . The Board may have been indicating that it
fully considered the interrelation of the representation
case and unfair labor practice case and that it was
making a finding that nothing in the representation case
barred a finding on the merits of the unfair labor practice
case . On the other hand, the Board may simply have
been indicating that it was reluctant to review the dis-
missal of the complaint on the basis of a partial record
and that it was withholding final judgment with regard
to a complex legal issue until such time as the parties had
a full opportunity to develop a record and make their ar-
gument based on the total litigation . The cursory nature
of the Board 's telegram is some indication that the Board
was unprepared at that time to fully evaluate the legal
questions at issue without a full record. However, a seri-
ous argument could also be made that the Board has no
duty to explicate the reasons for a reversal of an adminis-
trative law judge and that in the absence of further ex-
planation , the reversal simply means that the Board did
not agree with the judge on the legal questions resolved
by the judge. As I am uncertain in this regard , •I have
divided my decision into two parts. In the first part I
will take a fresh look at the interrelation between the
representation case and the unfair labor practice case and
assume that the Board has not precluded me from basing
my decision on that issue . In the second part I will ana-
lyze the evidence adduced at the hearing, make credibil-
ity resolutions, and review the outstanding law without
regard to the argument that the representation case pre-
cludes a finding of an unfair labor practice.
The central issue in this case is whether the Company
is entitled to an election or whether the Union is entitled
to continued recognition in the absence of an election.
There is no allegation in the complaint that the Union
discriminated against employees in violation of Section
8(a)(3) of the Act, attempted to undermine the Union's
majority status, or did anything other than refuse to bar-
gain by failing to recognize the Union and sign a con-
tract after a petition for election was filed . If in fact
there was a real question concerning representation,
raised by the Company' s good-faith, objectively based
doubt about the Union's continued majority status, at the
time the petition was filed, then the Company could law-
fully refrain from bargaining until that question was re-
solved. That does not mean that the mere filing of the
petition for an election by the Company established such
a question concerning representation . In itself, that estab-
lished nothing more than the fact that the Company
wanted an election . Nor does the Company have to rely
on the Regional Director's action in ordering a hearing
on the petition. Here there is a formal finding in a Re-
gional Director's decision concerning representation. To
reach that conclusion, the Regional Director had to
make' an administrative determination that the Company
1129
had an objectively based good-faith doubt that the Union
continued to represent the employees . The Decision and
Direction of Election became final when the Union
failed to file a request for review . After the Regional Di-
rector's decision became final, it was tantamount to an
order of the Board . Under Section 102 .67 of the Board's
Rules, a failure to request review shall preclude litigation
in any related subsequent unfair labor practice proceed-
ing of any issue which was or could have been raised in
the representation proceeding.
At the expiration of a collective-bargaining agreement
there are two public policy considerations that some-
times conflict . On the one hand it is desirable to permit
access to the Board 's election procedure to allow resolu-
tion of questions concerning a union 's majority status.
On the other hand it is damaging to industrial stability to
permit undue questioning of that majority status, particu-
larly where the question is raised by the employer and
not the employees themselves . In attempting to achieve a
balance between those conflicting public policy goals,
the Board has held that a petition for an election will not
raise a real question concerning representation in all
cases . When the petition is filed by the employees, it
must be supported by a' 30-percent showing of interest
among the employees . When the petition is filed by an
employer, the employer must demonstrate to the Region-
al Director that it has a good -faith , objectively based
doubt about the Union's continued majority. As the
Board held in United States Gypsum Co., 157 NLRB 652,
656 (1966):
[I]n petitioning the Board for an election to ques-
tion the continued majority of a previously certified
incumbent union, an employer , in addition to show-
ing the union's claim for continued recognition,
must demonstrate by objective considerations that it
has some reasonable grounds for believing that the
union has lost its majority status since its certifica-
tion.
The General Counsel argues that the duty to bargain
continued even after the filing of the petition . It is true
that the filing of a petition in itself does not give rise to a
justification for an employer to refuse to bargain. How-
ever, if at the time of the filing of a petition , the employ-
er has a good-faith , objectively based doubt concerning
union majority , then it need not bargain . If the Regional
Director's decision , which found that a question con-
cerning representation , based on the Company's good-
faith doubt , was binding and conclusive with regard to
the unfair labor practice case, then it would follow that
the Company did have "objective considerations" at the
time of the filing of the petition . As the Board held in
George Braun Packing Co., 210 NLRB 1028 (1974), when
the standards established in U.S. Gypsum Co., 157 NLRB
652, supra , are met with respect to the processing of an
employer 's petition (RM petition), no violation based on
refusal to bargain may be found . The General Counsel
points to that case for the assertion that the question of
the U.S. Gypsum Co. standards should be litigated in the
unfair labor practice case, as it was there.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The question whether an employer is precluded from
obtaining an election and whether the union is entitled to
continued recognition without an election can be evalu-
ated in an unfair labor practice case as well as a repre-
sentation case. In Dresser Industries, 264 NLRB 1088,
1089 at fn. 7 (1982), the Board held that the mere filing
of a decertification petition would no longer require or
permit an employer to withdraw from bargaining or exe-
cuting a contract with an incumbent union. The Board
went on to state:
The rule we announce today in no way erodes the
principle that an employer is privileged to with-
draw from bargaining if, on the basis of objective
evidence, it has a good-faith doubt as to the union's
continued majority status. Thus, for example, if an
employer is presented with a valid decertification
petition supported by a majority of the unit employ-
ees, it may be privileged to withdraw from bargain-
ing. We will test an employer's good-faith doubt as
to continued majority status by our traditional crite-
ria, regardless of the filing of a decertification peti-
tion.
The 'Board does not indicate in that decision whether the
"objective evidence" considerations can be finally re-
solved in a representation case as opposed to an unfair
labor practice proceeding.
At the expiration of a contract, an incumbent union is
presumed to be the majority representative and is enti-
tled to continued recognition. That presumption may be
rebutted if the employer shows that in fact the union has
doubt as to the union's majority status.4 The Company in
this case makes no contention that the Union in fact had
no majority. The Company does contend that it had a
good-faith, objectively based doubt concerning the
Union's majority.
There is a substantial overlap in the criteria used by a
Regional Director in deciding whether an RM petition
raises a real question concerning representation to war-
rant an election and the criteria used by the Board in de-
termining whether an employer has a defense to a refus-
al-to-bargain complaint. In both cases the critical element
is whether the employer had a good-faith, objectively
based doubt, its RM petition raises a question concerning
representation, and it is entitled to an election. Also if it
has such a doubt, it has a good defense against a com-
plaint which alleges that it refused to bargain. However,
there are substantial procedural differences. A determina-
tion about the "objective considerations" on which an
RM petition or the showing of interest on which an em-
ployee petition is based is a matter of administrative de-
termination for the Regional Director. It is not subject to
normal litigation. Milwaukee Independent Meat Packers
Assn., 223 NLRB 922 (1976); Plains Cooperative Oil Mill,
123 NLRB 1709, 1711 (1959). In the unfair labor practice
case, the issue of "objective consuderations" is subject to
full litigation. The Board law is not altogether clear with
regard to what appellate rights a union has when a re-
gional director finds "objective considerations" in as RM
4 See Dresser Industries, supra, and cases cited below
case. In United States Gypsum Co., 161 NLRB 601
(1966), the Board held that a Regional Director's deter-
mination with regard to "objective considerations" was
based on an employer's prima facie showing, was not liti-
gable in any stage of the representation proceeding, and
was "not to be regarded as determinative of an employ-
er's obligation to engage in further bargaining, or neces-
sarily dispositive of a related refusal to bargain charge
filed by an incumbent collective barrgaining representa-
tive." However, in National Gypsum Co., 215 NLRB 74
(1974), the Board granted a request for review of a Re-
gional Director's decision which held that a showing of
interest was adequate. The Board reversed the Regional
Director, held that the showing of interest was inad-
equate, and dismissed the petition. The showing of inter-
est with regard to a petition filed by a union is equiva-
lent of "objective considerations" in an RM case. In a
similar vein, in Phillips Petroleum Co., 129 NLRB 813
(1960), the Board reversed a Regional Director who had
dismissed a decertification petition based on an inad-
equate showing of interest. It thus appears that the Board
will review administrative determinations of a Regional
Director. In the instant case if the Union had requested
review of the Regional Director's decision in which a
question concerning representation was found, the Board
could have reviewed the administrative determination
and concluded based on the material in the Regional Di-
rector's file that the Regional Director was mistaken and
there were no "objective considerations." The Board
could have found to the contrary. If the Board decided
that it did not have enough factual material to make such
a determination, it could have deferred a decision pend-
ing the outcome of the appeal to the dismissal of the
charge or to the outcome of litigation on a complaint.
The Union waived its chance to obtain a resolution by
the Board by failing to file a request for review. Instead
it chose to rely on the unfair labor practice case proce-
dures.
One of the causes of the delay in this proceeding was
the dual function that the Regional Director is required
to perform. In effect, he is the servant of two masters
and those masters were not in agreement.
With regard to representation proceedings the Region-
al Director is an agent of the Board. Under Section 3(b)
of the Act and Section 102.67 of the Rules, he is delegat-
ed the responsibility to hold hearings and issue decisions
and directions of election. In so doing he is not responsi-
ble to the General Counsel. Any appeal must go to the
Board. If there is no request for review of the Regional
Director's decision made to the Board, the Regional Di-
rector's decision becomes final d is tantamount to a
Board decision. In this case there an is a final decision that
the Company's petition raised a question concerning rep-
resentation.
With regard to the unfair labor practice case, the Re-
gional Director's authority has a completely different
source. He is an agent of the General Counsel who is in
essence responsible for investigating cases, issuing com-
plaints, and litigating before the Board. When the Re-
gional Director acts on a complaint, he does so on behalf
of the General Counsel. The General Counsel does not
HYDRO CONDUIT CORP.
have judicial powers and when a representative of the
General Counsel litigates a case before an administrative
law judge, that agent is simply one of a number of party
litigants. .
Here , the same Regional Director who is required to
rule on "objective considerations " with regard to the
question concerning representation in the RM case had
to rule on the same "objective considerations" in deter-
mining whether to issue a complaint . The Regional Di-
rector was consistent in both situations. He found that a
question concerning representation existed in the RM
case and he dismissed the charge . His action in the RM
case was appealable to the Board but became final when
no appeal was filed . His action with regard to the com-
plaint was appealable to the General Counsel and ulti-
mately, after the Regional Director's decision in, the RM
case had become final , the General Counsel reversed the
Regional Director and ordered him to issue a complaint.
In a sense the General Counsel has ordered the Regional
Director as his agent to issue a complaint and attack the
findings which the Regional Director made in the RM
case as an agent of the Board . Though the General
Counsel is solely responsible for the issuance of com-
plaint, it is the Board that has complete judicial power.
A very serious policy argument could be made that once
the Board , through its agent, the Regional Director, has
made a final , unreviewable decision with regard to a
question concerning representation , that decision should
not be subject to successful collateral attack in an unfair
labor practice case.
One of the main underlying questions in this situation
is whether the Union had a meaningful day in court to
argue its claim . The Union could not litigate the "objec-
tive considerations" in the representation case even
though that matter was the subject of administrative de-
termination by the Regional Director and there was a
possibility of review by the Board of that administrative
determination . In an unfair -labor practice case full litiga-
tion is required . No one can be found to have violated
the -law without a full day in court . However, in the in-
stant case, the Union is not charged with any wrongdo-
ing. It need not defend itself against the charge that it
violated the law.' It wishes to establish that someone else,
the Company , violated the law. Its right to a full hearing
when it desires to'prosecute a case is very different from
its right when it seeks to defend.
With regard to representation cases the need for expe-
dition is so compelling that full litigation procedures are
not always appropriate . The central question in this case
is whether there should be an election . If there should
be, then the Company has not violated the Act. That is
primarily a representation case type of issue and it calls
for a speedy resolution . Under these circumstances I be-
lieve that the representation case procedures should be
given preponderant weight . The Regional Director's
finding that there was a question concerning representa-
tion was based on his administrative determination that
there were "objective considerations." Once there is •a
final and binding decision that there should be an. elec-
tion, the way to resolve the question of the Union as ma-
jority should be through the election procedure and not
through the unfair labor practice procedures . I therefore
1131
find that I am bound by the unappealed decision of the
Regional Director with regard to his finding that a ques-
tion concerning representation , based on "objective con-
sidertations," was raised by the petition ; that the Board,
through its agent , the Regional Director , has spoken on
that matter ; and that the complaint must be dismissed.
B. The Question .of "Objective Considerations"
Litigated at the Trial
1. The sequence of events
As indicated above , I have recommended that the
complaint be dismissed in its entirety because of the
interrelation between the representation case and the un-
faiir labor practice case . However in the event that the
Board disagrees with my interpretation of its order re-
versing my original dismissal of the complaint , I shall set
forth the facts adduced at the hearing and evaluate them
with relation to the outstanding law as if the representa-
tion case did not impact on the unfair labor practice
case.
The Company and the Union had three bargaining ses-
sions before the contract expired by its terms on March
1, 1982 . The last of those meetings was on February 25,5
at which time there were substantial , unresolved differ-
ences between the parties.
On February 26 the Company gave the Union a copy
of a firm and final proposal . That proposal took the form
of a proposed agreement which simply had to be signed
and dated to become a collective -bargaining contract.
On February 27 the Union held a meeting at which
the employees unanimously voted to reject the Compa-
ny's. proposal and to go on strike . By telegram on the
same day the Union notified the Company that the Com-
pany 's proposal had been rejected. On March 1 the
Company notified the Union that there had been a cleri-
cal oversight with regard to certain premium pay for
leadmen in the proposed contract . The letter notified the
Union that a 35-cent-per-hour premium for leadmen was
to be retained . Enclosed was a new sheet with the
change that was to be added to the proposed contract.
At 12:01 a.m. on March 1 the employees in the bar-
gaining unit went out on strike and began picketing.
Shortly thereafter the Company began hiring strike re-
placements and some of those employees crossed the
picket line.
About 10 : 15 a.m. on March 2 the striking employees
gathered at the union hall for a special meeting . At that
time all but 4 of the 20 or 25 employees who attended
the meeting voted to accept the Company 's proposal as
modified on March 1 and to go back to work . Fermin
Martinez, an administrative assistant to the Union, then
called a Federal mediator and said that the contract had
been ratified. Martinez requested the mediator to arrange
for a meeting with the Company so that the proposal as
ratified could be formalized.
Shortly before noon on March 2 the striking employ-
ees returned to the plant together where they met Gary
Lanning, the plant manager . One of the employees told
Unless otherwise indicated, all dates are in 1982.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lanning that they wanted to go back to work. Lanning
told the employees that the day was too far gone, that
they should go home, and that he would call each indi-
vidual by 5 o'clock. He also told them that the Company
had not received any communication from their _repre-
sentative.6 Later that afternoon all but seven of the em-
ployees who had struck were called by the Company
and told to report to work the following morning. Those
seven had been replaced and Lanning personally called
them to tell them that they would be called back on the
basis of seniority.
The Company's petition for an election in Case 28-
RM-415 was dated March .1 and filed with the Regional
Office on March 2 where it was date-stamped 3:28 p.m.
The peetition stated that the Union had requested recog-
nition as bargaining representative on December 29,
1981, and that the Company had declined recognition
about March 1, 1982. However, the Company did meet
with the Union on March 3. At the time of that meeting
the Union had not yet received a copy of the Company's
petition for an election. That was received on March 4.
The March 3 meeting took place about 10 a.m. at the
office of Federal Mediator Ron Colotta in Phoenix.
Company Attorneys Robert Deeny and Philip Prince
were there with Plant Manager Lanning. The Union was
represented by Moya and Martinez. Three witnesses tes-
tified concerning what was said at that meeting.
Martinez testified that Moya told the company repre-
sentatives that the employees had ratified the firm and
final offer as modified and that they were there for the
purpose of consummating the agreement. He averred
that Moya said that there were some questions with re-
spect to pensions and a context of a request for informa-
tion rather than as a matter of further bargaining. Marti-
nez testified that Federal Mediator Colotta asked who
was going to prepare by the Company, and that Deeny
said that he would take care of it. According to Marti-
nez, Prince told the union representatives that there were
some employees at the Company who had a problem
with regard to the Union and that they might go to the
NLRB.
Moya, in his testimony, corroborated parts of Marti-
nez' testimony. He averred that he told the company
representatives that the Union was there to formalize the
proposals and that he simply asked for clarification on
6 This finding is based on the testimony of Lanning . Though I had
some reservations concerning Lanning 's reliability, I had even more with
Rick Bradford, an employee, whose testimony contradicted Lanning's.
There were no other witnesses who testified to this incident even though
almost all of the striking employees heard the conversation . Bradford tes-
tified that he told Lanning that the employees had voted to accept the
contract. Lanning testified that he was only told that the employees
wanted to return to work and he was not told that they had voted to
accept the contract On cross-examination counsel made inquiries direct-
ed at Bradford's authority to accept the contract. Bradford was shop
steward and had attended the ratification vote. Only on cross-examina-
tion did Bradford testify that John Moyn, the Union's assistant business
manager and secretary-treasurer, had told him to advise the Company
that the employees had voted on the contract and accepted it. Though
Moya testified at length, he made no` mention of his telling Bradford to
so advise the Company. I believe that Bradford was less than candid in
his testimony that Moya told him to advise the Company that the con-
tract had been accepted. That reflects poorly on Bradford's credibility
generally. I credit Lanning's assertion that Bradford did not tell him that
the Company's final proposal had been accepted.
certain matters, relating to the pension plan and a job
classification. Moyer averred that Prince said that there
was no further need for discussion, that the employees
had accepted the contract a proposed and that was that.
Moya also averred that Deeny said that he would pre-
pare the contract for signature. Part of Moya's testimony
was totally inconsistent with Martinez' testimony. Moya
unequivocally testified that no one from the Company at
the March 3 meeting said anything about a petition for
an election being filed. He averred that he did not re-
member anyone saying anything about employees ques-
tioning the union status or about the employees raising a
problem. Later in his testimony when he was asked again
about the filing of a petition with the Board, he averred
that he did not recall but it was possible because his
thoughts were on something else.
Lanning's testimony was substantially different from
either Martinez' or Moya's. According to Lanning, the
meeting lasted less than 10 minutes; Moyer said that he
would like more information with reference to the pen-
sion plan; he gave Moya a pamphlet from a firm that
was involved in pension plans and said that the Company
had an actuary working on various aspects of the prob-
lem; and Moya said that he wanted to set up a joint com-
mittee of Union and management to discuss the job clas-
sification groupings that the Company had put in the
firm and final proposal and he wanted the plant mechan-
ic classification included in the proposal. According to
Lanning, Deeny told the union representatives that they
should be advised that the Company had filed an elec-
tion petition with the NLRB. Lanning also averred that
nothing was said about the proposal being redrafted and
that he did not recall anything being said about it being
retyped. He also averred that he did not have any recol-
lection of any statement to the effect that the final pro-
posal was ratified or accepted and that he only learned
of acceptance from a letter from the Union at a much
later date.
I have a great deal of reluctance in accepting the testi-
mony of any of the three witnesses at face value. Lan-
ning's testimony, that the company lawyer told the Union
about the petition was fully credible. The petition had
been filed on March 2 and the Company knew that
either the Union had already received a copy from the
Board or would shortly receive one. Martinez' vague tes-
timony with regard to Prince's statement that some em-
ployees had a problem with regard to the Union and
they might go to the NLRB was undermined by the tes-
timony of Moya who heard no such statement. I do not
believe that Martinez or Moya were credible witnesses.
Their testimony was also somewhat undermined by Mar-
tinez testimony concerning why a contract was not ac-
tually signed on March 3. The Company's final proposal
was in final contract form. Martinez testified that a con-
tract was not signed on March 3 because the proposed
contract had to be changed to show the additional 35
cents for the leadmen and because there were a number
of typographical errors that had to be proofed. However
the change with regard to the leadmen was incorporated
in the Company's March I modification and that modifi-
cation had been accepted by the union membership at
HYDRO CONDUIT CORP.
the March 2 meeting. The modification had already been
reduced to writing and there was only a need to put in
an existing additional page to make the contract com-
plete . Certainly the typographic errors could have been
corrected right then and there . There is simply no ration-
al reason why the contract could not have been signed
on March 3 if, as the union representatives claimed, they
had agreed to a final and binding agreement on that date.
There would have been no need for Deeny to say that
he would ' draft an agreement and I do not believe that
Deeny said it. On the other hand it is difficult to believe
Lanning's assertion that the union representatives did not
tell him what happened at the union meeting on March 2
when the employees agreed to accept the contract
terms.' All the witnesses agreed that there were discus-
sions over such matters as pensions on March 3 and per-
haps the explanation is that the union representatives,
even though they had authority to accept the final pro-
posal, were holding off acceptance in the hope of pin-
ning down loose ends with regard to pension and other
matters. After evaluating all the testimony , I believe that
Lanning was a more credible witness than either Marti-
nez or Moya and I therefore credit his version of the
meeting . I believe that what actually happened was that
the union representatives arranged for the meeting in the
hope that they could salvage something on the pension
and other matters and in doing so they avoided commit-
ting the Union at that time to the Company 's firm and
final offer as modified , even though the employees had
voted to accept that offer . The Company , on the other
hand, had already filed. the petition for an election and
the company representatives were simply sitting back
and seeing what was going to happen . They did not con-
cede anything with regard to the Union 's requests con-
cerning pensions or the other matters raised and they no-
tified the Union that the petition had been filed.
On March 4 the Union received the petition: It took
no action for about 3 weeks and then on March 24 filed
the charge in the instant case . One of the allegations of
that charge was that the Company failed and refused to
execute an agreement to which the parties consented
about March 2 . The Union took no further action with
regard to the alleged contract for some 9 months. On
December 9, 1982, the Union 's attorney wrote to the
Company's attorney stating that the Union was renewing
its demand that the Company execute the agreement
which the parties reached on March 3 . The Company's
attorney responded by a letter dated December 22 stat-
ing that a question concerning representation existed and
the Company declined to enter into a collective -bargain-
ing agreement until such time as the Union was certified
as the representative of the employees
As noted above, the petition which was filed by the
Company on March 2 stated that the Company declined
recognition to the Union on March 1 . The Company did
meet with the Union on March . 3 and did correspond
7 In his testimony in the representation case Lanning acknowledged
that at that meeting a representative of the Union said that the members
voted on a final proposal and wanted to go back to work . Though that
somewhat vague statement does raise questions concerning Lanning's
credibility, it does not establish that the Union unequivocally accepted
the Company 's outstanding offer.
1133
thereafter with the Union concerning dues checkoff, but
the Company also made statements and took actions
which indicated that it was not going to bargain with the
Union until the questions raised by the petition for an
election were resolved.
Lanning credibly testified that he was the one who de-
cided to file the election petition . He also averred that at
the time he decided to file the petition he also decided
not to allow the Union's representatives on company
property unless directed to do so or unless the decision
was • made whether the Union represented a majority.
About a week or two after the filing of the petition,
Union Agent Loyce Barber came to the plant. Lanning
told Barber that Barber would not be allowed inside the
plant until the decision was made concerning whether
the Union represented a majority . Barber left but re-
turned in a few days . The second time he was told the
same thing . The hearing in the representation case took
place on March 25. During that hearing the attorney for
the Company unequivocally stated that the Company de-
clined to recognize the Union as the collective-bargain-
ing representative of any of its employees. -
Between the wording of the petition which was filed
on March 2, the "wait-and-see" position of the Company
at the March 3 meeting , the action of the Company in
keeping union agents off the premises, and the admission
of the company attorney on March 25 that the Company
was declining to recognize the Union, a finding is war-
ranted that the Company did refuse to bargain with the
Union on and after March 2, the date the petition was
filed.
As found above, the Union did not unequivocally
accept the Company's outstanding offer on March 3.
However in the charge that the Union filed on March
24, which was received by the Company on March 25,
the Union claimed that the Company had failed and re-
fused to execute an agreement to which the parties had
consented . At that point the Company had notice and
knew that the Union was willing to accept the terms of
its final offer . Though notification of that acceptance was
in a very roundabout manner, the Company's offer was
still outstanding on March 258 and the Union indicated
its acceptance of that offer and demanded that a written
contract be signed . I therefore find that as of March 25
the parties had reached a final agreement , that the terms
of that agreement were set out in the Company's firm
and final offer as modified , and the Union demanded that
the Company execute that agreement. If there was an
obligation on the part of the Company to bargain as of
March 25, then the Company would be required to exe-
cute that agreement.
2. The Company's claim with regard to "objective
considerations"
The Company's records together with the credible tes-
timony of Lanning established that for part of the first
week in March, which included March 3, there were 35
a See Pepsi Cola Bottling Co., 251 NLRB 187. 189 (1980), enfd. 659
F.2d 87, 89 (8th Cir. 1981 ); NLRB Y. Donkin 's Inn, 532 F.2d 138, 141 (9th
Cir. 1976), cert. denied 429 U.S. 895 (1976); Lozano Enterprises Y. NLRB,
327 F.2d 814, 818-819 (9th Cir . 1964).
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the bargaining unit . There were 28 employ-
ees in the bargaining unit immediately before the March
1-2 strike and 7 replacements who were hired during the
strike .9 The Union 's records together with the credible
testimony of Martinez established that 23 of the 28 em-
ployees in the bargaining , unit at the time the strike
began were members in good standing of the Union.
Lanning testified that from mid-February to March 1
he gradually came to the conclusion that the Union did
not represent a' majority of the employees . He averred
that he had the feeling that the Union was not represent-
ing the employees the way they should be represented
and that he wanted to give the employees an opportunity
to determine whether they wanted the Union . He also
testified that his belief that the Union was not represent-
ing the employees was reaffirmed by what employees
told him . Lanning was the one who decided to file the
petition for the election . It is his good-faith , objectively
based doubt the Union's majority that must be evaluated.
The Company points to a number of factors with
regard to the "objective considerations." Lanning's gen-
eralized belief that the employees would not want a
Union that did not represent them adequately is a com-
pletely - subjective matter and adds nothing to the Com-
pany's case.
The Company points out that as of March 1 it only
had six union checkoff authorizations signed by employ-
ees in its possession, that no employee signed a new
checkoff after that date, and that four employees signed
revocation of checkoff authorizations dated March 10.
None of that information is particularly helpful to the
Company's case . Arizona is a right-to-work State and
employees are under no compulsion to- pay dues. In any
event the four revocations were signed on March 10
which was well after the Company filed its March 2 pe-
tition for an election. -
The Company contends that it had a basis for doubt-
ing the Union's majority because of its observation, that
the employees all decided to return to work just a day
after there was a Union vote to strike . If anything, the
implication is to the contrary . The employees reversed
their position at a union meeting. They acted through
their Union which indicated that they still wanted the
Union to be their representative.
Lanning and two other supervisors testified to conver-
sations that they had with employees concerning the
Union. Such conversations can be the basis for "objec-
tive considerations" even when the only testimony con-
cerning them comes from the supervisors . Sofco, Inc.,, 268
NLRB 159 ( 1983).
On February 25 Plant Manager Lanning had a conver-
sation with employee Harland Hansen . 10 Hansen told
Lanning that he and some others were interested in
trying to decertify the Union . Lanning replied that he
could not talk to Hansen about that and that -Hansen
could call the NLRB. Hansen said that the employees
9 Though 7 employees who had worked before the strike were re-
placed, those 7 are counted in the bargaining unit along with the 7 re-
placements to total the 35. Cantor Bros, 203 NLRB 774, 779 (1973), enfd
86 LRRM 2572 (9th Cir. 1974)
to Hansen, as well as the other employees discussed below, were in the
bargaining unit.
were not getting representation and they wanted to
know how to decertify the Union.
Also on February 25 Lanning had a conversation with
employees Val Orta, Raul Dominguez, Bill Smith, and
Rick Benavidez. Orta said that the Union was-not giving
them representation. Benavidez said that there had been
a meeting arranged with the bargaining unit employees
on February 21 but that the Union had not shown up.
On February 27 Lanning had a telephone conversation
with employee Andy Madrid. After discussing the Com-
pany's proposals and the Union's reactions to them,
Madrid said that he felt like telling the Union "to go to
hell." He also said' that employee Paul Hernandez
walked out of the union meeting, saying that the Union
was failing to represent the employees.
On February 27 Plant Superintendent Jerry Dees
spoke to employee Rick Benavidez. Benavidez told Dees
that he thought the Union was "jacking" people around.
Dees reported that conversation to Lanning. -
The strike and picketing began on March 1. About
5:30. that ` morning Lanning spoke to Harland Hansen
who was picketing the plant. Hansen said that a group of
employees were trying to decertify the Union and Lan-
ning replied that he could not enter into that type of dis-
cussion and that Hansen could call the Board. Hansen re-
plied that he had already done do. Later that morning
when Lanning was handing out copies of the Company's
proposal to employees in the parking lot, he was 'told
that the employees were trying to go about decertifying
the Union. However Lanning did not recall who told
him that. He averred that he thought it was Raul Padilla.
About 4:30 p.m. on March 1 Harland Hansen called
dispatcher Merle Harris on the phone. Hansen told
Harris that there were several -employees who wanted to
decertify the Union but that he did not want to mention
any names. Harris reported that conversation to Lanning.
On March 2 Jerry Dees-had a conversation with Har-
land Hansen in which Hansen asked Dees'if there was
any way to get rid on the Union. Dees told Hansen that
the Board could solve his problem or answer his ques-
tion. About half an hour later Dees spoke to Parl Her-
nandez who was with a number of employees around the
gate. Hernandez asked what their rights were and how
they could eliminate the Union'. Dees told Hernandez
that the Board could solve his problems. Dees reported
both those conversations to Lanning.
On March 2 Hansen told Lanning that he had been un-
successful `in trying to get the Union to discuss the Com-
pany's' proposal. Employee Garcia was there but Hansen
did the talking.
The petition for an election was filed on March 2 and
the strike ended on the same day.
At 6 a.m. on March 3 Lanning held a meeting in the
lunchroom of the plant for employees in the bargaining
unit. The seven replacements, as well as all of the pres-
trike employees who had not been replaced, were
present. Lanning went over the Company's firm and
final proposal item by item. Harland Hansen then asked
what could be done to decertify the Union. Lanning re-
plied that on March 1 the Company had started the
process and had filed on their behalf an election petition
HYDRO CONDUIT CORP. 1135
to decide whether the Union represented a majority of
the employees . Rick Benavidez said that they wanted
representation but not with that Union. Lanning saw
Raul Padilla, Val Orta, Rick Benavidez , Harland Hansen,
and Andy Madrid moving their heads in what he
thought was an affirmative way. He averred that he felt
there was general enthusiasm among the employees and
that there was a feeling of a pep rally.
About 7:30 that morning General Foreman Jim Castle
11 spoke to Lanning. Castle told Lanning that several of
the employees were trying to get an attorney to go
against the Union for failing to represent them.
3. Analysis and conclusion
A contract, which is lawful in itself, raises a presump-
tion that the contracting union was the majority repre-
sentative , both during and after the life of the contract.
Nevada Lodge, 227 NLRB 368, 373 (1976), enfd. 584
F.2d 293 (9th Cir. 1978). In the instant case ' there is a
presumption of continued majority status based on the
recently expired contract. t 2
The controlling law was summarized in Cutten Super-
market, 220 NLRB 507, 508 (1975),13 where the Board
held:
It is well settled that Section 8 (a)(5) and Section
8(d) of the Act require an employer to recognize
and bargain in good faith with the bargaining repre-
sentative selected by a majority of its employees.
That recognition establishes a presumption of ma-
jority status which , in circumstances such as this,
may be rebutted. The employer may lawfully refuse
to bargain with the union if it rebuts the presump-
tion by affirmatively establishing that the union has
in fact lost its majority status, or shows that it has
sufficient objective bases for reasonably doubting
the union 's continued majority status . To establish
sufficient objective bases, however, requires more
than the mere assertion thereof based upon the em-
ployer's subjective frame of mind. Furthermore, the
employer must not have engaged in any conduct
tending to encourage employee disaffection from
the union.
In the instant case the Company does not contend nor
has it offered to prove that the Union in fact lost its ma-
jority status . It did present evidence in support of the
contention that it had an objective basis for reasonably
doubting the Union 's continued majority status . Though
such a good-faith defense can be sustained only where
the doubt is raised in a context free of unfair labor prac-
tices, there is no indication that the Company engaged in
any unfair labor practices prior to the time it filed the
petition for an election . 14 However the Company has a
11 Though Castle had the title of general foreman , the parties appear
to take the position that he was an employee in the bargaining unit.
There was no testimony concerning his duties.
12 In an apparent effort to bolster that presumption , the General Coun-
sel produced evidence to establish that the union records indicated that a
majority of the employees were union members.
19 See also Dresser Industries, 264 NLRB 1088 (1982).
14 See IT Corp., 263 NLRB 1183, 1184 ( 1982).
difficult burden in rebutting the presumption of the
Union 's continued majority . As the Board held in
Pennco, Inc., 250 NLRB 716, 717 (1980), enfd . 684 F.2d
340 (6th Cir. 1982): "the employers ' burden is a heavy
one. Thus, 'it is insufficient . . . that the employer
merely intuits nonsupport ,' and good faith doubt 'may
not depend solely on unfounded speculation or subjec-
tive state of mind." '
With regard to ascertaining the total number of em-
ployees to determine the question of majority support,
both the new and the old employees must be counted.
Cantor Bros., supra . Strike replacements are presumed to
support an incumbent union in the same ratio as the em-
ployees they replaced . Though that presumption is rebut-
table, it cannot be -rebutted merely by showing that the
strike replacements crossed the picket line . Pennco, Inc.,
supra at 717 . Cf. IT Corp. supra . Thus there were 28 em-
ployees in the bargaining unit on February 28 immediate-
ly before the strike and 35 in the unit on March 2 when
the Company filed the petition for an election . We start
with the presumption , based on the recently expired con-
tract, that the Union continued to represent a majority
on both dates.
In its brief, counsel for the Company correctly points
out that the question of an employer's good -faith doubt
cannot be resolved by resort to a simple formula and that
the totality of the circumstances must be considered.
Sofro. Inc., 268 NLRB 159 (1983). He also correctly
points out that the Board has found that an employer
had a good-faith doubt even where less than a majority
of employees told the employer that they did not desire
union representation . Pick-Mt. Laurel Corp., 259 NLRB
302 (1981). However the basic law set out in Thomas In-
dustries, 255 NLRB 646, 647 (1981), enfd. as modified
687 F.2d 863 (6th Cir . 1982), still applies . In that case the
Board held:
Rejection and/or criticism of the bargaining repre-
sentative by a minority of the unit employees is in-
sufficient to support a reasonable doubt of the
union's continued majority status.
It is true that in the Pick-Mt. Laurel Corp . case, supra,
the Board found a good-faith doubt even where less than
a majority of the employees indicated that they did not
want union representation. However, in that case the
Board also found that there had been an illegal practice
of requiring employees to join the union and to sign
checkoffs on their first day of work. The "totality of cir-
cumstances" in the instant case is far different. Plant
Manager Lanning 's generalized belief that the Union was
not representing the employees adequately and that the
employees should have a chance to vote on whether
they wanted the Union was purely a subjective matter.
The fact that the employees first voted to strike and then
voted to return to work could not give rise to an infer-
ence- that the employees did not want representation.
They took both actions through their Union. Nor is
there any inference that the employees did not want
union representation that can be derived from the fact
that there were very few checkoffs . Thomas Industries,
supra at 647; Petroleum Contractors, 250 NLRB 604, 607
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1980), enfd. 671 F.2d 496 (3d Cir. 1980). Particularly in
a right-to-work State such as Arizona there may be em-
ployees who want a union but do not want to pay for -it.
Lanning was the one who made the decision to file the
petition for an election. He personally spoke to a number
of employees. In addition, there was testimony that two
supervisors spoke to employees and reported the conver-
sations to Lanning . Such statements by employees are
"objective, identifiable acts" on which an employer may
rely in forming a basis for a reasonable doubt as a
union's majority. Sofro, Inc., supra. See also IT Corp.,
supra.
In the instant case , the critical date for determining
whether the Company had a good-faith doubt about the
Union's majority was March 2,_ the date the petition was
filed. As found above, the petition on its face stated that
the Company declined recognition to the Union. That
statement was confirmed by the Company's actions. It
took a "wait-and-see" position at the March 3 meeting
with the Union and did not engage in any real bargain-
ing. It refused to allow union representatives onto its
premises and at the March 25 hearing on the representa-
tion case, it freely admitted that it declined to recognize
the Union as the collective-bargaining representative of
any of its employees. The finding is warranted that the
Company-did refuse to bargain with the Union on and
after the date the petition was filed. The question of its
good-faith doubt therefore `must be keyed to that date. If
it did not have a good-faith doubt concerning the
Union's majority on that date, the refusal to bargain
would have been a violation of the Act. Any information
the Company obtained after that date could not go
toward its good-faith doubt on March 2. If any employ-
ees defected from the Union after the Company violated
the Act, such defections could not be raised as a viable
defense by the wrongdoer. A good-faith doubt can be
raised only in the context of the absence of unfair labor
practices by an employer.
As of March 2 Lanning had received very little infor-
mation from employees or supervisors. On February 25
he spoke to employee Hansen who said that he and some
others were interested in trying to decertify the Union.
At that point Lanning could have had a reasonable doubt
that Hansen wanted union representation. Hansen's refer-
ence to unnamed other , employees could not give Lan-
ning much to rely on.
Also on February 25 Lanning spoke to employees
Orta and Benavidez. Orta said that the Union was not
giving them representation and Benavidez complained
that a union representative had not shown up at a meet-
ing. Both of those remarks seemed to be "gripes" rather
than clear statements that the employees did not want
the Union to represent them. However, we may assume
for the sake of argument that Lanning could have a rea-
sonably based doubt with regard to both those employ-
ees. Employees Dominguez and Smith were present
during that conversation but there was no evidence, that
they said anything. Under the circumstances, no infer-
ence is warranted that they were agreeing with Orta or
Benavidez. Silence could easily have meant that the em-
ployees did not want to commit themselves.
On February 27 employee Madrid told Lanning that
he felt like telling the Union "to go to hell" and that em-
ployee Hernandez had walked out of a union meeting
saying that the Union was failing to represent them. Ma-
drid's remarks indicated that both he and Hernandez had
some antagonism toward their representative. They fell
short of indicating that those employees did not want the
Union to represent them. However we will assume for
the purpose of argument that there was a basis for the
Company to doubt whether Madrid and Hernandez
wanted the Union to represent them.
On February 27 Supervisor Dees told Lanning that
Benavidez said that he thought the Union was "jacking"
the people around. Lanning had spoken directly to Bena-
videz on February 25 and Benavidez has already been
counted as one of those who might have not wanted
union representation.
On March 2 Dees told Lanning that Hansen had asked
about getting rid of the Union. Lanning had spoken di-
rectly to Hansen and he has been counted as a possible
basis for doubt. On the same day Dees spoke to Lanning
about Hernandez who had asked how they could elimi-
nate the Union. Hernandez also has already been counted
as one on whom the Company could base a doubt, based
on Madrid's February 27 conversation with Lanning.
Other employees were with Hernandez during his con-
versation with Dees but their silence cannot be used as a
basis for any inference.
On March 1 dispatcher Harris told Lanning that he
had a conversation with Hansen, in which Hansen spoke
against the Union. Hansen has already been counted.
On March 1 Lanning spoke directly to Hansen again.
On the same day an' individual told Lanning that the em-
ployees were trying to decertify the Union. Giving the
benefit of the doubt to Lanning's somewhat vague belief
that the person was Raul Padilla, we will add Padilla's
name to the ones that the Company can rely on.
On March 2 Lanning once again spoke to Hansen.
Garcia was present during that conversation' but it was
Hansen who did the talking and Garcia's silence cannot
be used to infer' anything.
Giving the Company the benefit of a number of doubts
relating to the distinction between a solid renunciation of
the Union and mere, "griping," the Company, at the time
the petition was filed, had a basis for doubting that 6 out
of its 35 employees desired representation by the, Union.
Those were Hansen, Orta, Benavidez,' Madrid, Hernan-
dez, and Padilla . That fell far short of the type of good-
faith doubt that would have given the Company a viable
defense.
Even if the events that occurred after March 2 are
considered with regard to the Company's good-faith
doubt, the defense still must fail. The only evidence that
could help the Company would be with regard to certain
conversations on March 3.
As set forth more fully above, Lanning held a meeting
with most of the bargaining unit employees in the lunch-
room on that date. Hansen asked what could be done to
decertify the Union and Benavidez said they wanted rep-
resentation but they did not want that Union.' Both
Hansen and Benavidez have already been counted in
HYDRO CONDUIT CORP
adding up those on whom the Company could base a
doubt . Lanning testified that he saw Padilla, Orta, Bena-
videz , Hansen , and Madrid moving their heads in an af-
firmative way. All those employees have already been
counted . Lanning testified that he did not hear anyone
saying no and there was the enthusiasm of a pep rally in
the room . Neither the silence nor Lanning's feelings with
regard to the mood in the room can be used to find an
objectively based doubt concerning union majority.
Also on March 3 Castle told Lanning that several of
the employees were trying to get an attorney to go
against the Union for failing to represent them . Even if
that statement did not relate to anonymous individuals, it
would have little meaning . Union members may well
seek an attorney to correct internal union problems and
still not want to reject union representation . In sum, Lan-
ning knew very little more on March 3 than he did on
March 2 and on neither date did he have sufficient ob-
jective evidence to form a good -faith belief that a majori-
ty of employees no longer wanted representation by the
Union.
In sum , I find that, on the basis of the recently expired
contract , the Union is presumed to have represented a
majority of the employees; that the Company has failed
to rebut that presumption by a showing that it had an
objectively based , good -faith doubt that the Union repre-
sented a majority of the employees; and that the Compa-
1137
ny refused to bargain with the Union on and after March
2, 1983 . I also find that on March 25 the Company re-
ceived notice that the Union had accepted the Compa-
ny's firm and final offer as modified ; that as of that date,
the parties had reached an agreement on the terms and
conditions of the contract ; and that on that date and
thereafter , the Company has failed and refused to exe-
cute a written document embodying that agreement. If it
were not for the interrelation between the representation
case and the unfair labor practice case, I would find that
the Company violated Section 8(a)(5) of the Act as indi-
cated above . However, as is fully set forth in section A,
above, I believe that I am foreclosed from making such a
finding by the final decision of the Regional Director in
Case 28-RM-415, which was tantamount to a Board de-
cision in the absence of an appeal . I shall therefore rec-
ommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The complaint must be dismissed because of the
findings made in Case 28-RM-415.
[Recommended Order for dismissal omitted from pub-
lication.]