Inter Collegiate Press

National Labor Relations Board - Board Decisions

Dec 1, 1971

194 N.L.R.B. 394 (N.L.R.B. 1971)

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inter Collegiate Press, Division Sargeant Welch
Scientific Co. and Lithographers & Photoengravers
International Union, Local 235. Case
17-CA-4229-2
December 1, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 11, 1971, Trial Examiner George L. Powell
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in certain
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Charging Party and Res-
pondent filed exceptions to the Trial Examiner's
Decision and supporting briefs. The Respondent also
filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the, hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
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 Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
i In adopting the Trial Examiner's finding that, based on objective
criteria, Respondent had a good-faith doubt as to the Union's lack of
majority status, we find it unnecessary to determine whether the March 6
strikers were properly discharged as the record contains sufficient other
evidence of a lack of majority support for the Union. In so finding, we
consider as having been legally discharged those employees who
participated in the refusals to work overtime N.L R B v. Kohler Company,
220 F.2d 3, 11 (C.A. 7) As among the remaining employees, there was a
sufficient number who had indicated, by their words and deeds, their
dissatisfaction with their union representation, to create objective criteria
justifying Respondent's good-faith doubt as to continued majority status.
And this is true even if the March 6 strikers are, arguendo, included in the
unit and their replacements not counted for this purpose Accordingly, we
deem it unnecessary to pass on the question of whether the Trial Examiner
properly rejected the Charging Party's offer of proof relating to the Union's
compliance with Section 8(d) in regard to the March 6 strike and the
overtime ban.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
'GEORGE L. POWELL, Trial, Examiner: The issue in this
case is whether Respondent had a good-faith doubt of the
majority status of the Union when it refused to recognize
and bargain with it almost 4 years after certification. Under
the circumstances of this case, I find Respondent rebutted
the presumption of continuing majority and had a good-
faith doubt of majority. I will order the complaint
dismissed.
The case arose upon a charge filed, on March 12, 1970, by
Lithographers & Photoengravers International Union,
Local 235, herein called the Union or LPIU, alleging that
Inter-Collegiate Press, Division Sargeant Welch Scientific
Co., herein called Respondent, has engaged in, and is
engaging in, certain unfair labor practices affecting
commerce as set forth and defined in Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, et seq, herein called the Act. The
Regional Director for Region 17 of the National Labor
Relations Board, herein called the Board, issued a
Complaint and Notice of Hearing on January 28, 1971,
based upon the charge alleging violations only of Sections
8(a)(1), (5) and 2(6) and 2(7) of the Act. In its duly filed
answer, Respondent, while admitting certain allegations of
the complaint, denied the commission of any unfair labor
practice and affirmatively defended on the ground that
after the Union engaged in two separate unlawful activities
in violation of Section 8(d) of the Act, Respondent
discharged all persons engaged in the unlawful activities
causing the Union to lose its majority status and that it
thereafter withdrew recognition from the Union on the
basis of its good-faith doubt of the Union's continuing
majority.
The case was tried before me on March 11 and 12, 1971,
and briefs were received from the General Counsel,
Respondent, and Charging Party on April 12, 1971.
Pursuant to the Complaint and Notice of Hearing, the
parties were present at the trial, were represented by
counsel, were afforded full opportunity to be heard, were
permitted to call, examine , and cross-examine witnesses,
present oral argument, and file briefs.
Upon consideration of the entire record, including the
briefs filed with me and my observation of the witnesses as
they testified before me, I find, for the reasons hereinafter
set forth, that the General Counsel has failed to establish by
a preponderance of the evidence that Respondent violated
Section 8(a)(1) and (5) of the Act as set forth in the
Complaint, because the presumption of continuing majori-
ty has been rebutted.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER
Respondent admitted, and I find, that it is engaged in the
printing, binding, and distribution of school yearbooks and
related publications at its plant at 6015 Travis Lane,
194 NLRB No. 60
INTER COLLEGIATE PRESS 395
Mission, Kansas. In the course and conduct of its business,
Respondent annually purchases goods or services valued in
excess of $50,000 directly from suppliers located outside of
the State of Kansas, and it annually sells and distributes
products, the gross value of which exceeds $500,000.
Respondent is now, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is now, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The theory of the complaint is that under the presump-
tion of continuing majority following the first year of Board
certification of representatives, Respondent interfered with,
coerced, and restrained its employees under Section 8(a)(1)
and refused to bargain in good faith under Section 8(a)(5)
of the Act when it withdrew recognition of the Union on
March 16, 1970, almost 4 years after it had been certified on
May 12, 1966.
At the outset, although Respondent has dealt with four
different unions since 1963, it has a record of never being
guilty of an unfair labor practice. Based upon a stipulation
of the parties (Joint Exh. 15) and credited testimony of
witnesses for Respondent (General Counsel rested his case
after Joint Exh. 15 had been introduced into evidence and
had no witnesses other than one rebuttal witness), the labor
relations history of Respondent is as follows:
On May 1, 1963, District 50, United Mine Workers of
America filed a representation petition in Case
17-RC-4163 claiming to represent a majority of the
Company's production and maintenance employees. The
parties were not able to agree on the unit placement of the
Company's temporary seasonal employees and a hearing
was held to resolve this dispute. On October 25, 1963, the
National Labor Relations Board in Washington upheld the
Company's contention that the temporary seasonal em-
ployees should be excluded from the bargaining unit. An
NLRB secret ballot election was held on November 15,
1963. On November 20, 1963, District 50 filed objections to
the election and on February 11, 1964, the Regional
Director set aside the election and ordered a second
election. The second election was held on March 4, 1964,
and on March 12, 1964, the Kansas City Regional Office
certified that District 50 lost -that election by a vote of 117
to 89.
On December 13, 1965, LPIU filed a representation
petition with the Board in Case 17-RC-4942 seeking to
represent the Company's Lithographic Production employ-
ees. Again, a representation hearing was held because the
parties could not resolve the unit placement of the
Company's temporary seasonal employees working in the
lithographic production areas. On April 15, 1966, the Board
ruled that temporary seasonal employees should be
excluded from the bargaining unit. A secret NLRB election
was held, and on May 12, 1966, LPIU was certified as the
bargaining representative for the Company's lithographic
production employees, as described in paragraph 4 of the
complaint.
On December 12, 1966, Kansas City Printing Pressmen
and Assistants Union, Local 16, filed a representation
petition in Case 17-RC-5264, seeking to represent the
Company's letter pressmen, steel die pressmen, and
assistants , but excluding temporary seasonal employees. On
the same day, Bookbinders Union Local No. 60 also filed a
representation petition in Case 17-RC-5263 seeking to
represent the Company's bindery employees, but excluding
temporary seasonal employees. Consent elections were held
in each of these cases on February 23, 1967; the Unions
won both elections and were thereafter certified.
After LPIU was certified to represent the Lithographic
Production employees, the Company and the Union
negotiated a 32-month agreement covering these employ-
ees. The agreement was effective from January 26, 1967,
through September 30, 1969. The Company also negotiated
collective-bargaining agreements with the Bookbinders
Union and the Printing Pressmen . The Bookbinder
agreement expired on August 30, 1970, and the Printing
Pressmen agreement will expire on June 30, 1971.
On July 28, 1969, LPIU notified the Company by letter of
its intention to reopen and modify the existing contract.
Negotiations for a new bargaining agreement started in
September, 1969. Twenty-five formal bargaining meetings
were held between the Company and LPIU. The first
bargaining meeting with LPIU was held on September 9,
1969. Thomas Barr, personnel manager, was the company
spokesman. At this meeting, Harold Larson, LPIU's
spokesmen stated that he wanted the contract to cover the
Company's temporary seasonal Lithographic Production
employees. The Company refused to make this change. At
the meeting on September 15, 1969, Harold Larson, LPIU
representative, asked that LPIU be recognized as bargain-
ing agent for the temporary seasonal lithographic prod-
uction employees, stating that he was prepared to prove
LPIU's majority with authorization cards. Thomas Barr
said that LPIU should use the services of the NLRB to
settle the recognition claim.
A number of bargaining meetings were held with LPIU
between September 15, 1969, and February 11, 1970. At the
February 11, 1970, bargaining meeting with LPIU, Earl
Engle was the chief spokesman for the Company and
Larson was the LPIU spokesman. Larson said that the
LPIU committee had discussed the Company's last offer
with the employees, that the offer was rejected and that the
committee had authorized an overtime ban, if necessary, to
bring the negotiations to a conclusion. Larson then said
that a majority of the temporary seasonal employees
working in the lithographic production unit had designated
LPIU as their representative and he asked the Company to
recognize the LPIU as bargaining agent for these people.
Engle replied that the Company had a good-faith doubt
that LPIU represented for collective-bargaining purposes
an uncoerced majority of the temporary seasonal employ-
ees in any unit appropriate for collective bargaining.
Larson held up some LPIU authorization cards and said
that LPIU was willing to submit the authorization cards to
a third party for verification. Engle said that the company
was not interested in a card check, that authorization cards
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are notoriously unreliable, that checking cards would not
solve the problem since the Company would not know the
circumstances under which the cards were signed, and that
the Company believed the Union was seeking an inappro-
priate unit. He suggested that LPIU use the services of the
NLRB to solve the problem. Engle told Tyler what
transpired at this bargaining meeting.
On February 13, 1970, the LPIU filed a representation
petition in Case 17-RC-6314 seeking to represent the
Company's 54 temporary seasonal lithographic production
employees. On June 24, 1970, the Regional Director
dismissed the petition because the unit of employees for
which LPIU sought to act as the bargaining agent was
inappropriate for collective-bargaining purposes and "Me
Employees here directly involved cannot, as suggested by
the Petitioner as an alternative, be considered a voting
group which might be added, after election, to the collective
bargaining unit established in Case No. 17-RC-4942."
LPIU did not appeal the Regional Director's Decision.
The next bargaining meeting with the LPIU was on
February 17, 1970. Engle, on behalf of the Company, made
a proposal which was unacceptable to the LPIU. The next
meeting was on February 25, 1970. After making a proposal
to the Company, Larson said that the employees wanted an
immediate settlement, that they were willing to make some
sacrifices, and that an overtime ban would go into effect the
following Friday at 3:30 p.m., if the Company and the
LPIU had not reached agreement. Engle told Larson that
an overtime ban was an "unprotected and unlawful
activity," that the Company had the right to discharge
people who engaged in that kind of activity and that the
Company was putting the LPIU on notice. An Internation-
al Union representative said that LPIU normally did not
give notice of an overtime ban, but it was giving notice in
this case to let Respondent know that it would have to settle
with the Union. That ended the meeting. Under date of
February 26, 1970, LPIU distributed to the lithographic
production employees a letter announcing a fine of $100 for
each violation of the overtime ban.
At the next meeting on February 26, 1970, the Company
made a proposal which was rejected by the LPIU and LPIU
made a counterproposal which the Company stated it
would consider. The next meeting was on February 27,
1970, and the Company rejected the Union's last proposal.
At this meeting, Engle told Larson that if the overtime ban
went into effect at 3:30 p.m. the Company would discharge
those persons who engaged in it. At 3:30 p.m. on Friday,
February 27, 1970, the overtime ban went into effect.
Seventeen persons represented by the LPIU obeyed the
overtime ban by refusing to work scheduled overtime. On
February 27 these 17 persons were sent a telegram notifying
them that they were discharged. [In Case 17-CA-4229, on
December 28, 1970, the General Counsel, on appeal from a
refusal to issue complaint by the Regional Director, found
that the refusal of the 17 employees to perform scheduled
overtime work on February 27, 1970, was a "work stoppage
in violation of Section 8(d)(3) of the Act and of the no-
strike provision of the collective bargaining agreement
1 Section 8(d), in pertinent part, provides that "Any employee who
engages in a strike within the 60-day period specified in this subsection [as
these employees did] shall lose his status as an employee of the employer
between" LPIU and Respondent. Thus, by operation of
statute, the General Counsel found that the 17 persons lost
their status as employees when they refused to work
overtime.]'
On March 3, 1970, the Company filed an unfair labor
practice charge, designated as Case 17-CB-758, alleging
that the LPIU interfered with employees' rights guaranteed
by the Act by threatening to fine employees for violation of
the Union's overtime ban. The Regional Director found
merit to the Company's charge and accepted a unilateral
settlement agreement from LPIU.
The parties met for further negotiations on March 4,
1970. Larson stated that the Company acted in a hasty
manner when it discharged the people who refused to work
the overtime and he demanded that the Company reinstate
these people. Engle told Larson that these people were
discharged for engaging in a concerted refusal to work
overtime in accordance with the LPIU overtime ban, that
the Company told LPIU and the employees that they would
be discharged, and that the Company did not intend to
reinstate these people. Larson did not reply. Larson then
made a proposal for a 2-year contract effective from
January 1, 1970, to December 31, 1971. A condition of the
LPIU's proposal was the immediate reinstatement, without
loss of seniority, vacation benefits, or any other benefits, of
all employees discharged for their concerted refusal to work
overtime. The Company rejected this proposal.
On March 6, 1970, LPIU filed an unfair labor practice
charge against the Company in Case 17-CA-4229, supra
alleging the Company violated Section 8(a)(1), (3), and (5)
of the Act. The 8(a)(3) charge involved the alleged unlawful
discharge of the 17 persons who engaged in the LPIU
overtime ban, and the 8(a)(5) charge involved an allegation
of surface bargaining. On March 6, at 3:30 p.m., LPIU
struck the Company and commenced picketing the plant.
The pickets carried signs that read, "Inter-Collegiate Press
Unfair-On Strike-Supporting 15 [sic] Fired
Employees-Local 235, LPIU, AFL-CIO, CLC."
Engle was at the Company's plant when the strike started
and immediately called his office to see if he had any
telephone calls. He received word that Bill Eisler, the
Union's attorney, had called him. At approximately 3:45
p.m. Engle returned Eisler's telephone call. Eisler stated
that he had tried to reach Engle earlier but had not been
able to do so and he wanted Engle to know that the Union
had filed three charges with the NLRB against the
Company.-Eisler said that LPIU had just gone on strike and
Engle said he was aware of this, fact. Eisler said he was sorry
things did not work out at the last bargaining meeting, as he
was hopeful the Company and the Union would reach
agreement at that meeting. Engle said he also had expected
agreement at the last meeting, but apparently the Union
was not willing to give up some demands the Company
would not grant. Eisler said he was still hopeful that the
Company and the Union would reach agreement on a
contract and that the strike would be settled on a
reasonable basis. He said, if he could be of any assistance in
helping the Company and Union reach agreement, Engle
engaged in the particular labor dispute, for the purposes of Sections 8, 9
and 10, of this Act, as amended, but such loss of status for such employee
shall terminate if and when he is reemployed by such employer."
INTER COLLEGIATE PRESS 397
should call him. That ended the conversation. On March 6
at approximately 4:30 p.m. Engle telephoned Eisler and
asked what the Union demanded to settle the whole matter.
Engle said that he and Tom Barr wanted to talk to Larson
to get this information, but would not call Larson unless
they had Eisler's permission. Eisler said that since he had
not been active in the negotiations he did not know the
Union's demands, but he would immediately notify Larson
to expect a call from the Company on this matter. Five
minutes later, Eisler called Engle and stated that he had
talked to Larson and that Larson was in a meeting with the
Company's employees and was not in a position to talk to
Barr or Engle. Eisler said he asked Larson about the
Union's demands for ending the strike and that Larson
wanted the same contract settlement that he proposed at
the March 4 meetmg-that the Union's present demands
were everything the Union demanded on March 4, but that
it might take a little more to get the people back to work in
view of the strike situation. Eisler stated that if the strike
continued for any length of time he was sure that the Union
would increase its demands. Engle told Eisler that he would
report the situation to the Company and determine if it was
possible to reach settlement. That ended the conversation.
On March 6, 1970, Respondent did not check off LPIU
dues for any employees. No employees complained about
the Company's failure to check off Union dues, even
though it had been company practice to check off Union
dues on a weekly basis.
On March 7, 1970, at 10:15 a.m., Barr had a telephone
conversation with Larson. Barr asked what the Union
wanted to get the people back to work, that the Company
was interested in knowing exactly what it would take.
Larson said that the Union had to have something more
than the nonunion areas,, even ever so small, and that the
proposal the Union made to the Company at the March 4
meeting could be sold to the people. Larson said that it was
up to the Company to make the next move, that the Union
had made its rock-bottom offer and that if the Company
wanted to discuss this matter further it should contact the
Federal Mediator for a meeting. Larson ended the
conversation by saying that the Company would have to
accept what was offered on March 4 and maybe more.
The next bargaining meeting was held on March 9, 1970.
The meeting opened with Larson saying that LPIU was on
strike because the Company fired 16 [sic] people and LPIU
would not take any more chances of the Company firing
people who refused to work overtime. Larson also said that
LPIU would not change its position from the proposal
made at the March 4 meeting. Engle asked for a list of
LPIU's strike demands. Larson said the Company would
have to meet LPIU's proposal of March 4 and, if the strike
continued, the demands would increase. Engle said he took
Larson's statement to mean that the LPIU would continue
to strike if the Company did not agree to the Union's
proposal of March 4 and that the Union's demands would
increase if the strike continued. Larson said this was
correct. Engle told Larson the Company had no further
proposals. The Company's final proposal included a 6.7
percent wage increase and a 37 1/2 hour work week, with
overtime after 8 hours per day.) The Company's final
proposal was not acceptable to the Union.
At 8:30 p.m. on March 9, the Company sent a telegram to
the LPIU unit employees who were on strike, notifying
them that they were discharged for engaging in an unlawful
strike. The Union later on charged this to be an 8(a)(3)
discriminatory discharge under the Act, in Case
17-CA-4229-2, but the General Counsel, in refusing to
issue a complaint, found that the strike on March 6, 1970,
was illegal and in violation of Section 8(d)(3), and in
violation of the no-strike clause of the parties' collective-
bargaining agreement, since the Union failed to give notice
of contract modification to the Kansas State Mediation
Service. "Consequently, [the General Counsel found that]
those unit employees who participated in the strike lost
their status as employees and were subject to discharge by
virtue of Section 8(d) [of the Act]."
On March 9 at 8:30 p.m., the Company sent a telegram to
Larson notifying him of the discharges and stating that the
Company no longer recognized LPIU as the bargaining
agent for the lithographic employees. General Manager
Tyler made the decision to withdraw recognition from
LPIU on March 9, 1970. Respondent had discharged 60 of
68 persons in the bargaining unit. Of the eight remaining
employees, one was on a leave of absence, one was on
layoff, and six worked through the overtime ban and strike,
crossing the Union's picket line. On the basis of these facts,
Tyler concluded that LPIU did not represent a majority of
the employees in the bargaining unit. At approximately 11
p.m. on March 10, the LPIU ceased picketing the plant.
On March 10, 1970, at approximately 1:30 p.m., Ken
McCue, general foreman, met with discharged pressman,
Bob Haddock, an LPIU union steward and member of the
union negotiating committee , at James Michael 's home.
Present at the meeting were Michael, Haddock, and
McCue. Haddock opened the meeting by saying, "Let's get
to the point." McCue said, "What is the point?" Haddock
replied that he was unhappy with the Union and he called
Harold Larson, the union president, a son-of-a-bitch.
Haddock said he wanted to return to work. McCue asked if
other discharged pressmen desired to return to work and
Haddock said that three others, Claude Manchester, Sam
Stabler, and Bob Locklear, wished to return to work.
McCue said that if at least seven of the discharged
pressmen wished to return to work, he would talk to
management about their reinstatement. Arrangements were
made for Haddock to telephone McCue at the plant after
he (Haddock) talked to the pressmen.
After McCue left Michael's home, he went to the plant.
At approximately 6:30 p.m. on March 10, McCue received
a telephone call from Haddock. Haddock stated that he
had not met with the pressmen, that a union meeting was
scheduled that night, and that he wanted to wait until after
the union meeting before making further commitments to
McCue. McCue agreed to wait at the plant for Haddock to
call him with respect to the pressmen returning to work.
Haddock did not call by 1:30 a.m. on March 11, so McCue
left the plant to go home. As McCue was driving away from
the plant, he saw four or five cars and some pressmen' in
front of the plant and he drove up to them. Approximately
10 of the pressmen who had been discharged for engaging
in the unlawful strike were in these automobiles. At that
time, McCue had another conversation with Haddock.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Haddock said that the union meeting was over, that
nothing much. had., changed, that the men had met at the
plant in order to decide where to have their meeting about
returning to work, and that they had decided to go to Glenn
Ledom's home. Haddock asked McCue if Earl Engle,
attorney for Respondent, would represent him in a suit
against that son-of-a-bitch, Harold Larson. McCue replied
that he did not know.
McCue agreed to return to the plant and wait for
Haddock to call him after the pressmen meeting. At
approximately 2:30 a.m. on March 11, Haddock called
McCue and stated that 10 men wanted to return to work.
McCue agreed,to contact management with respect to
reinstating the 10 men and stated that he would telephone
Haddock at Glenn Ledom's home when he had some
information. At approximately 4:30 a.m., McCue called
Haddock and stated that the Company would reemploy the
pressmen, but the Company would no longer recognize
LPIU as their bargaining representative. Haddock said that
sounded fine to him. McCue reported his conversations
with Haddock to Don Tyler, general manager , and Elroy
Wildhaber, plant manager.
On Wednesday morning, March 11, 1970, Eisler called
Engle at Respondent's plant and stated the picket line was
down, he hoped. Engle said that the picket line was down
and that the printing pressmen and the bookbinders were at
work. Eisler asked if the Company would make a proposal
to LPIU and Engle said, "No," that the Company no longer
recognized LPIU. Eisler then asked if the Company would
consider a union proposal to end the strike. Engle replied
that the Company no longer recognized LPIU as the
bargaining agent for any of its employees, but that if he
(Eisler) had something to say, that he (Engle) would listen.
On behalf of LPIU, Eisler proposed a 6.9 percent increase
effective January 1, 1970; a health and welfare plan as
proposed by the Company, effective no longer than April 1,
1970; press helper classification and advancement language
as proposed by the Company; 37.5 hours per week without
reduction in hourly pay effective March 9, 1970; time and
one-half after 8 hours per day; and additional vacations
and shift differential. For the second year, Eisler proposed
a 5.1 percent increase; double time on Sunday; time and
one-half after 7.5 hours per day; one additional holiday;
one percent early retirement with a signed letter bringing it
to 3 percent in the future. As a condition of settlement,
Eisler proposed immediate reinstatement of all discharged
employees without loss of seniority or other benefits;
mutual withdrawal of all unfair labor practice charges, not
including the LPIU petition to represent the temporary
seasonal employees; release from all liability for the
Printing Pressmen, Bookbinders and LPIU; and no
discipline for employees in any unit. Eisler stated that the
Company could accept this LPIU proposal with the
understanding that the Company did not recognize LPIU
as representative of any of the employees in the plant. Engle
told Eisler that he would communicate this proposal to the
Company, and promised to call him that afternoon.
On the morning of March 11, Thomas *Barr, personnel
manager, offered permanent seasonal lithographic prod-
uction jobs to a number of temporary seasonal employees
who were working in the plant. Barr told these employees
that Respondent was hiring replacements for persons who
.had been, discharged for, engaging in the LPIU activity.
Thirty-four temporary seasonal employees accepted perma-
nent seasonal jobs in the lithographic production unit.
On March 11 , Barr had a telephone conversation with
Bob Locklear, one of the discharged lithographic pressmen.
Locklear asked Barr if Respondent intended to bargain
with LPIU. Barr said, "No," that Respondent did not
recognize the Union as the bargaining agent for any of the
employees. Locklear then asked if Respondent would ever
bargain with LPIU again and Barr said, "Yes," if the Union
became the legal bargaining agent for the employees.
Locklear asked if Respondent would reinstate any of the
pressmen, stating that he and two other pressmen were
interested in returning to work that day. Barr replied that
Respondent wanted the pressmen to return to work. Barr
reported this telephone conversation to Tyler.
At 4 p.m. on March 11, 1970, Engle called Eisler. Engle
stated that the Company did not recognize LPIU as
bargaining representative for its lithographic employees,
that the Company would not bargain with LPIU unless it
was recertified as the representative for the Lithographic
Production employees and that the LPIU proposal made
earlier in the day was not acceptable to the Company.
Eisler' asked if anything would be acceptable to the
Company and Engle said, "No".
On the afternoon of March 11, 1970, the Company sent
identical telegrams to 32 persons discharged for engaging in
the overtime ban or strike and offered them unconditional
reinstatement to their prior positions. On March 12, 1970,
the Company sent these persons a letter setting forth the
conditions under which reinstatement was offered. Also on
March 12, LPIU filed unfair labor practice charges against
the Company in Case 17-CA-4229-2, supra, alleging,
among other things, that the Company unlawfully dis-
charged 45 persons for engaging in the LPIU strike. (This is
the part of the case the General Counsel refused to issue
complaint, as noted above.)
Barr testified that on the morning of March 12, 1970, he
and Wildhaber, at the request of the Lithographic
Pressmen, went to Wally Noble's home. Noble had been,
discharged for engaging in the LPIU strike. Barr and
Wildhaber arrived at Noble's home at about midmorning.
(There is a controversy on time, at this point. Harold
Larson, president of LPIU, testified that a union meeting
was held from 10 a.m. to 11:30 a.m. on March 12, and that
some 55 discharged pressmen attended this union meeting.
If the pressmen were at a union meeting on March 12 from
10 am. to 11:30 a.m. they could not have been present at
the meeting with Barr and Wildhaber. Perhaps Barr is
mistaken with respect to the time of his meeting, perhaps
Larson is mistaken with respect to the time of the union
meeting, or perhaps both Barr and Larson are mistaken
with respect to the times of their respective meetings. In any
event, there is no evidence in the record to refute Barr's
testimony with respect to what occurred at Noble's home,
and it is unnecessary to resolve the conflict in time.) All of
the pressmen, except Frank Bristow and Robert Muse were
present at Noble's home when Barr and Wildhaber arrived.
Haddock acted as spokesman for the pressmen.
Haddock opened the meeting by asking the conditions
INTER COLLEGIATE PRESS
under which the pressmen would be reinstated. After Barr
stated the conditions, Haddock asked if the reinstatements
would be permanent. Barr said that Respondent had no
malice towards the men, that it wanted them to return to
work, that it needed them, and that they would be
employed so long as Respondent hadwork to employ them
and they performed their jobs satisfactorily. At that point,
Locklear asked if Earl Engle, attorney for Respondent,
would be interested in representing the pressmen in a
misrepresentation suit against LPIU and Larson. There was
also discussion with respect to whether Respondent would
be interested in the pressmen forming a company union.
Specifically, Locklear said that "he was tired of the union,
didn't want anything else to do with it and would
[Respondent] be interested in . . . [a] company union.
... " Barr said that the pressmen would have to form such
a union on their own. One of the pressmen asked Barr if
Respondent intended to continue deducting union dues,
and he replied "No." Glenn Ledom said, "I'm glad for
that." On March 12, Barr told Tyler what transpired at the
meeting.
On March 16, Marion Quigley was permanently
transferred to a job outside of the LPIU unit. Thereafter, on
March 25, 1970, Marion Quigley quit her employment with
the Company. Then on May 12, 1970, Mrs. Quigley filed a
charge against the Company in Case 17-CA-4294 alleging
that she was constructively discharged by the Company by
her permanent transfer on or about March 12. By letter
dated June 22, 1970, the Acting Regional Director refused
to issue a complaint in this matter. There was no appeal.
By March 13, 1970, all of the female employees who were
offered reinstatement in the lithographic production unit
had returned to work. Immediately after these women
reported to work, Respondent's supervisors (Marie Welch,
Oleta Maples , Violet Evatt, LoAnn Hahner, and Edna
Brown) were told by 10 of them (Marcella McClanahan,
Melba Gordon, Ruthe Smith, Margaret Trebbe, Thelma
Smith, Diana Stockman, Charlotte Stockman, Thelma
O'Neal, Ilena Hedlund, and "Tiny" Beaty) that they were
through with the Union and were going to drop out of it;
that they wouldn't join a union under any circumstances;
that they had been sold down the river and that they were
going to drop out of the Union; that Harold Larson,
president of the Union, gave them a dirty deal; that they
were angry at the Union and Larson; and that they were
glad it was over and they would never join another union
(all statements set forth above are not applicable to each
employee). The five supervisors involved told Ken McCue,
general foreman, of the conversations they had with the
reinstated lithographic production employees, and McCue
told General Manager Tyler of the conversations he had
with the five supervisors.
On March 13, 1970, the 32 persons offered reinstatement
commenced returning to work, and by March 16, 1970, all
of them had returned to work. On the morning of March 16,
1970, there were 73 employees in the lithographic
production unit . Of this number, three original unit
2 The figure of 23 is arrived at as follows:
During the strike, 10 were willing to work even though Respondent
would not recognize the Union; 3 more (Locklear, Noble, and Ledom)
expressed antiumon sentiments ; and 10 additional women had
399
employees had worked through the overtime ban and
strike; one original unit employee was on layoff; 2'32 of 32
reinstated employees had indicated to Respondent they no
longer wished LPIU to be their bargaining representative,
or had uttered antiunion sentiments to the same end; and
37 employees hired in the bargaining unit between March 2
and March 11, to replace those persons who were
discharged, had worked through the Union's overtime ban
and strike (See Joint Exh. 16). Thus, 63 out of the 73
employees on March 16, 1970, had worked through the
overtime ban and strike or had expressed antiunion
sentiments.
On March 14, 1970, Engle received two letters, both
dated March 13, 1970, from Eisler. One letter (Joint Exh. 8)
demanded that the Company bargain with respect to
subcontracting any work that had been a part of the
lithographic process performed by persons in the LPIU
unit. The second letter (Joint Exh. 9) made a continuous
demand for the Company to reinstate all persons who had
been discharged and for the Company to recognize and
bargain with the Union (Joint Exh. 15).
By letter dated March 16, 1970 (Joint Exh. 10), Engle
answered Eisler's March 13 letters, stating the Company
had a good-faith doubt that the Union represented an
uncoerced majority of the Company's employees in any
unit appropriate for collective bargaining . Engle suggested
that the Union use the statutory procedures of the NLRB to
determine the representation desires of the Company's
employees (Joint Exh. 15).
Before writing Joint Exhibit 10, Engle telephoned Tyler
and they had a long conversation with respect to the
representation desires of the employees in the lithographic
production unit . Specifically, Engle and Tyler talked about
supervisor reports that a number of the reinstated female
employees were unhappy with the Union and intended to
drop out of it; that the reinstated pressmen entered into
direct negotiations with Respondent concerning their
reinstatement ; that one of the reinstated pressmen, who
was a union steward and a member of the Union's
bargaining committee, stated "that he no longer wanted the
Union to represent them" and that Larson was a son-of-a-
bitch; that the reinstated pressmen were pleased that the
Company was no longer checking off union dues; that
some of the reinstated pressmen were tired of paying the
dues; that the reinstated pressmen were interested in
forming their own union; and that the reinstated pressmen
were talking about suing the Union and Larson. Engle and
Tyler also talked about the unit complement on March 16;
that the 32 reinstated employees did not represent a
majority of the employees in the bargaining unit and that
the 37 replacements, who did represent a majority of the
unit, were told that they were replacing discharged union
people. Tyler testified he then concluded that the
replacements were not sympathetic to the Union. With
respect to the possibility that some of the replacements
signed union authorization cards before they were em-
ployed in the unit, Engle told Tyler that, in his-opinion,
expressed annumon sentiments. Respondent 's count, in its brief, is 24
rather than 23 because it counts Phillis Wheeler with the 10 women
identified above. I have been unable to locate Philhs Wheeler being
identified.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization cards are notoriously unreliable and that in
1963 the Mine Workers attempted to organize Respon-
dent's employees on the basis of cards, but lost a
representation election. Engle and Tyler also talked about
the fact that some of the replacements may not have
understood that they were signing union cards, since some
authorization cards were given to supervisors to return to
the personnel office.
Engle and Tyler also talked about the fact that the
Union's attorney, Mr. Eisler, stated Respondent could
accept an LPIU contract proposal, which included
reinstatement of all the discharged employees, with the
understanding that Respondent did not recognize LPIU as
the bargaining agent for any of the employees in the plant.
(Tyler did not think Eisler would make such a proposal if
the Union represented a majority of the employees in the
lithographic production unit.) In addition, Engle and Tyler
talked about the fact that 40 employees in the unit worked
during the union overtime ban and crossed the Union's
picket line to report to work. It was Tyler's conclusion that
these 40 employees, since they crossed the picket line, were
not sympathetic to the Union.
After discussing the matters set forth above, Engle told
Tyler, he doubted that LPIU represented a majority of the
employees. On the basis of Engle's opinion, and the facts
set forth above, Tyler concluded that on March 16, 1970,
LPIU did not represent a majority of the lithographic
production employees, and he directed Engle to write Joint
Exhibit 10. It was Tyler's decision.
On March 19, 1970, Larson wrote a letter (Joint Exh. 11)
to T. M. Mints, Jr., president of Respondent. In this letter,
Larson complained about the fact that Respondent did not
reinstate all of the discharged employees. On March 26,
1970, Mints, by letter (Joint Exh. 12), replied to Larson's
letter (Joint Exh. 15).
About April 3, 1970, Engle received a letter (Joint Exh.
13) from Eisler, questioning the basis of the Company's
good-faith doubt of the Union of the majority and
suggesting that the Company was not acting in good faith.
By letter dated April 6 (Joint Exh. 14), Engle wrote Eisler
acknowledging receipt of his letter, again stating the
Company had a good-faith doubt that the Union
represented for purposes of collective bargaining an
uncoerced majority of the Company's employees in any
unit appropriate for collective bargaining. Before writing
Joint Exhibit 14, Engle telephoned Tyler. At that time, they
reviewed the topics discussed during their telephone
conversation of March 16. In addition, they talked about
information Tyler received from his supervisors with
respect to the Union's unsuccessful attempt to reorganize
the employees and the report that some reinstated female
employees signed letters resigning from the Union. On the
basis of this conversation, Tyler instructed Engle to write
Joint Exhibit 14.
There was no evidence of any violations of Section 8(ax1)
of the Act alleged or adduced, independent of the refusal to
recognize and bargain with the Union as set out above.
Discussion and Conclusions
The General Counsel correctly defines the problem by
stating in his brief:
The principal issue involved in this proceeding was
squarely faced by the Board in its decision in Laystrom
Manufacturing Co., 151 NLRB 1482. In resolving the
issue, the Board stated the controlling principles as
follows. Absent unusual circumstances, there is an
irrebutable presumption that the majority status of a
certified.union continues for one year from the date of
certification. After the first year the certificate still
creates a presumption of majority status, but the
presumption is normally rebuttable by an affirmative
showing that the union no longer commands a majority.
Moreover, where the certificate is a year or more old an
employer may withhold further bargaining without
violating the Act and insist that the union re-establish
its statutory representative status if, but only if, he in
good faith has a reasonable doubt of the union's
continuing majority. A showing of such doubt,
however, requires more than an employer's mere
assertion of it and more than proof of the employer's
subjective frame of mind. The assertion must be
supported by objective considerations. The applicable
test, as defined in the Celanese case, is whether or not
the objective facts furnish a "reasonable basis" for the
asserted doubt, or, put another way, whether or not
there are "some reasonable grounds" for believing the
union has lost its majority status since its certification.
[Citation onutted.]
Accordingly, the issue to be resolved in this case is
the same as it was for the Board in Laystrom, i.e.,
whether the Respondent's claimed good faith doubt
that the Union represented a majority of the unit
employees and its consequent refusal to recognize and
bargain were based upon objective facts which
furnished a reasonable basis for the asserted doubt. In
addition to this specific requirement, the Board, in
Celanese Corporation of America, 95 NLRB 664, at
672-673, stated that:
"a majority issue must not have been raised by the
employer in a context of illegal anti-union
activities, or other conduct by the employer aimed
at causing disaffection from the union or
indicating that in raising the majority issue the
employer was merely seeking to gain time in
which to undermine the union." [Emphasis
supplied.]
Thus, it would seem to be not enough for an employer
merely to show certain facts which, standing alone,
might perhaps form a reasonable basis for a good faith
doubt of the union's continuing majority when it can
also be shown that certain conduct on the part of the
employer, whether illegal or not in itself, actually
created the facts upon which the employer is basing its
doubt. As the Board stated in Celanese, the issue can
only be resolved in the light of the totality of all the
circumstances involved in the particular case.
Surely the circumstances of this case are sufficient for a
reasonably prudent employer to come to the conclusion
that the Union had no majority. Also there is no other
conduct of Respondent. I find from the uncontroverted
facts of this case that there was reasonable cause for
Respondent to believe the Union no longer represented a
INTER COLLEGIATE PRESS 401
majority of the employees in the unit and accordingly that
the presumption of continuing majority was successfully
rebutted. Throughout all the testimony I was impressed by
the fact that there was no evidence whatsoever nor any
feeling in the air in the courtroom tending to show any
antiunion malice or desire not to bargain in good faith
under the policies of the Act. The stipulated facts likewise
show that the Union engaged in unlawful activities but
Respondent acted with restraint and reason based upon
objective criteria and that it did in fact have a good-faith
doubt of the Union's majority status based upon objective
considerations and criteria.
The strikers lost their status as employees upon engaging
in their unlawful activities, and they were thereafter
discharged.
A summary of the following facts should prove my
conclusion. As of March 16, 1970, the controlling date in
the case, there were 73 employees. At least 63 were not in
favor of the Union. Forty of these worked during the
overtime ban and strike and 23 specific employees did not
favor the Union as noted above. On March 12, 1970,
Respondent told all the employees (except Bristow and
Muse) at a meeting that there would be no more union dues
check-offs and the only comment was Ledom's, "I'm glad
for that." The employees at the meeting were also
expressing their dissatisfaction with the Union and its
leadership by discussing the formation of another union
and possibly suing Larson. No union dues had been
checked off since March 6, 1970, and there had been no
complaints. Finally on March 11, 1970, Eisler virtually
admitted the Union lacked a majority by suggesting a strike
settlement without recognizing the Union. Also before
withdrawing recognition of the Union on March 16, Engle
and Tyler had discussed all the facts. Thus, the objective
criteria was discussed and relied upon before taking action
on March 16, 1970. Thus a withdrawal of recognition on
March 16, 1970, comports with the policies of the Act.
The General Counsel argues in his brief that Respondent
cannot successfully contend that all of the 37 temporary
seasonals hired into the unit did not wish to have the Union
represent them just because they worked during the strike,
arguing that at least 30 percent of 27 of them belonged to
the group the Union petitioned for, supra, because it takes
30 percent before the Board processes a representation
petition. However, the Respondent has continually main-
tained that cards are unreliable, so too does the Board itself,
and the General Counsel cannot assume that at least 30
percent of the group of 27 would vote for the Union in an
election. Even a loss of 8 (30 percent of 27) from 63 would
give Respondent 55 out of 73.
The General Counsel also argues in his brief that I have a
"reasonable basis for doubting the exactitude of the
witnesses' entire testimony" respecting the antiunion
statements they made when rehired. This suggestion is an
effort to throw a cloud of suspicion on Respondent's
conduct which up to that time had been beyond suspicion.
It is true these witnesses could not remember the day of the
month or week when the returning employees told them
their antiunion statements but they could and did
remember it was the first day of employment which turned
out to be March 13. It is also noted that during this time
Respondent was operating its own intelligence set-up
requiring supervisors to report to their superiors what
employees were telling them about the Union. I reject the
argument of General Counsel and I credit the testimony of
these supervisors.
Finally, General Counsel questions that certain employ-
ees made the antiunion statements attributed to them by
supervisors because they continued to attend union
meetings and some had reaffirmed their allegiance by
signing union cards during this time, as testified to by
Union President Larson. But this too is not sound, as the
history of Board cases establishes the fact that employees
say different things to Unions than to the employers with
the true test of their resentment being an election. This does
not mean that the employer cannot count on the statement
made to him or the Board cannot count on authorization
cards of 30 percent of the employees, or the Union cannot
count on statements made to it. Employers , as well as the
others, are permitted to count on all objective considera-
tions available . Under all the circumstances of this case I
am of the opinion that this employer had a good-faith
doubt of the Union's majority in the fourth year of the
certification of representatives and that this doubt was
based upon a prudent evaluation of the objective circum-
stances.
The Union's brief points out the Respondent has not filed
for an election to get a definitive decision. Under the
circumstances of this case I do not believe the filing of a
petition for certification by the Respondent or the absence
of filing by the Respondent adds or subtracts anything.
Respondent did tell the Union to use the Board's
procedures to determine majority. Actually, the failure by
the Union here to file a petition for an election under these
facts, might even count against its own belief that it
represented a majority.
The brief of the Charging Party has an additional point in
that under Franks Bros. Co. v. N.L R.B., 321 U.S. 702
(1944), Respondent was under an obligation to bargain for
a reasonable period in which the bargaining relationship
can be given a fair chance to succeed and that its refusal to
bargain and its request not to have to bargain with the
Union until after an election is in fact a request to' be
rewarded for its failure to bargain. From the record in this
case this position of the Union must fail.
Respondent , in its brief , does present an argument that as
a matter of law, the Respondent had no duty to bargain
with the union because: "A. The Company Was Entitled to
Refuse to Bargain With The Union As a Penalty For Its
Violations Of The Act"; "B. The Company Had No Duty
to Bargain With LPIU So Long As The Union Demanded
Reinstatement of All Discharged Employees As A
Condition Precedent to Contract Settlement ;" and "C. The
Company Had No Duty to Bargain With LPIU So Long As
The Union Was Demanding Dismissal Of All Unfair Labor
Practice Charges As a Condition Precedent to Contract
Settlement."
These arguments have been considered but I feel it is
unnecessary for the disposition of this case to pass
judgment on them as I have already found the rebuttable
presumption of continuing majority has been successfully
rebutted by objective evidence and criteria and that
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's withdrawing recognition of the Union on
March 16, 1970, follows the policies of the Act in that an
Employer knowingly should not bargain collectively with a
minority union as the majority representative of its
employees.3
Also, under my finding that Respondent had a good-faith
doubt of majority, there is no need to consider Respon-
dent's other position that "IV Under No Circumstances
Should Respondent Be Ordered to Bargain With The
Union," and I therefore do not take a position on this
proposition.
The 8(a)(l) violations alleged fall for the same reasons.
THE REMEDY
Having found that the presumption of majority created in
1966 with Board certification had been successfully
rebutted in that in 1970 there was ample evidence to
support, Respondent's good-faith doubt of majority, I find
the General Counsel has not sustained his burden of proof
that Respondent refused to bargain in good faith within the
meaning of Section 8(a)(5) of the Act, nor did he sustain his
burden of proof that Respondent violated Section 8(a)(1) of
the Act, all because Respondent successfully rebutted the
presumption of continuing majority, I shall recommend
that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
3 Cases supporting good-faith doubt are, among others, S & M Mfg
Co., 172 NLRB No. 104; Dietz Forge of Tenn., 173 NLRB No. 5; Convair
of Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The unit appropriate for collective bargaining since
the Union was certified by the Board on May 12, 1966, is:
All permanent and permanent seasonal Lithographic
preparatory and production employees of the Respon-
dent and its Mission, Kansas, plant including all
employees in the camera department (including the
offset plate room), and the lithographic pressroom but
excluding temporary seasonal employees, homework-
ers, office clerical employees, all other employees, and
guards and supervisors as defined in the Act constitute
a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the
Act.
4. The General Counsel has not established by a
preponderance of, the evidence that Respondent has
violated the Act as set out in the complaint.
Upon the foregoing findings of fact and conclusions of
law, and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
Div., 169 NLRB No. 26; and Firestone Synthetic Rubber & Latex Co., 173
NLRB No. 179.