International Medication Systems, LTD.

National Labor Relations Board - Board Decisions

Dec 18, 1980

253 N.L.R.B. 863 (N.L.R.B. 1980)

INTERNATIONAL MEDICATION SYSTEMS, LTD
International Medication Systems, Ltd. and Califor-
nia Teamsters Public, Professional and Medical
Employees Local Union 911, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 21-
CA-18518
December 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND ZIMMERMAN
On August 14, 1980, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, t and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, International
Medication Systems, Ltd., South El Monte, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
I The Administrative Law Judge found that the Union's failure to
present Respondent's final offer to the unit employees was not evidence
supportive of Respondent's asserted good-faith doubt of the Union's ma-
jority status We agree. However, we do not rely, as it appears the Ad-
ministrative Law Judge did, on the fact that the final offer was not re-
duced to writing. Rather. we note that any inference which we might
draw from the mere failure to present the offer to the employees would
require us to engage in an exercise in pure speculation.
The Administrative Law Judge found that "[n]o RM petition was ever
filed by the employees." The record indicates that no RM petition was
filed by Respondent and that no RD petition was filed by the employees.
a The Administrative Law Judge concluded that the panies were not
at impasse as of October 16, 1979. Contrary to the Administrative Law
Judge, we find it unnecessary to reach this issue We have long held that,
while an impasse may suspend bargaining for a time, it "does not relieve
an employer from the continuing duty to take no action .. . which
amounts to a withdrawal of recognition of the Union's representative
status." Central Metallic Casket Co., 91 NLRB 572, 574 (1950). Thus,
whether the panies arrived at an impasse is irrelevant to an evaluation of
Respondent's asserted good-faith and reasonably grounded doubt of the
Union's majority status
253 NLRB No. 120
DECISION
STATEMENT OF THE CASE
RUSSFI I. L. STEVENS, Administrative Law Judge: This
case was heard in Los Angeles, California, on May 29
and 30, 1980.' The complaint, issued on January 31,
1980, is based upon a charge filed on December 21 by
California Teamsters Public, Professional and Medical
Employees Local Union 911, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union). The complaint alleges that Interna-
tional Medication Systems, Ltd. (Respondent), violated
Section 8(a)(5) and (1) of the National Labor Relations
Act, as amended (the Act).
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 and Respondent.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, a Delaware
corporation, has been engaged in the manufacture of
pharmaceuticals, and has operated a facility located in
South El Monte, California. In the normal course and
conduct of its business operations, Respondent annually
purchases and receives goods and products valued in
excess of $50,000 directly from suppliers located outside
the State of California.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
California Teamsters Public, Professional and Medical
Employees Local Union 911, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background2
Following an election on July 6, 1978, the Union was
certified on September 7, 1978, as the exclusive collec-
tive-bargaining representative of Respondent's employees
in the following unit:
All productioniemployees in buildings 1, 3, 4, 6, and
7 and shipping and receiving employees; excluding
All dates hereinafter are in 1979 unless stated to be otherwise
2 This background summary is based upon credited testimony and evi-
dence that is not in dispute
DECISIONS OF NA'I1ONAL LABOR RELATIONS BOARD
all sales, purchasing, laboratory and quality assur-
ance employees, toolmakers, maintenance mechan-
ics, engineer and office clerical employees. profes-
sional employees, guards and supervisors as defined
in the Act.
Dick Sierra3 of the Union organized Respondent's em-
ployees, and was the Union's business representative at
that time. Sierra left the Union soon after the organiza-
tion, and was succeeded early in March by Alex Esco-
boza, who held some preliminary discussions with Re-
spondent's representatives, as did the Union's Russ
Thomas. Soon thereafter, Arlene Mordasini became the
Union's business agent in charge of negotiations with Re-
spondent.
The first contract negotiation session was held by Re-
spondent and the Union on March 30. Mordasini repre-
sented the Union and Norman Jones, 4 a labor consultant,
represented Respondent. Also in attendance were Fran-
ces Lavendera, who then was one of Respondent's em-
ployees and a member of the Union's negotiating team,
but who later was discharged by Respondent, and two
other employees who also were on the Union's negotiat-
ing team. The Union's proposals, which had been given
to Jones by Mordasini's predecessor, were reviewed by
the parties.5 Some of the Union's proposals were agreed
to by Jones, and some were put "on hold" for later dis-
cussion. The parties agreed to put on hold most econom-
ic items. However, Jones indicated that employees soon
would be receiving merit increases, and that, further, the
minimum wage soon would be increased. In order not to
interfere with, or delay, those increases, the parties ex-
ecuted a brief agreement. 6 Mordasini requested from
Jones information concerning all of Respondent's wages
and benefits for employees. Jones gave her a copy of a
pamphlet describing Respondent's insurance and health
and welfare benefits, and at a later meeting gave Morda-
sini Respondent's wage structure and a list of benefits.
Jones asked Mordasini about the trust fund and, since she
did not know the answers to the questions Jones asked,
she said she would ask a trust fund representative to
attend the next meeting. 7
The second meeting was held on April 16 with the
same five people in attendance. Also present was
McCusker, who attended because of Jones' request to
Mordasini on March 30 for information relative to the
trust fund. The parties discussed some of the Union's
proposals and, with McCusker, discussed the trust fund.
Jones gave Mordasini a list of vacation and other bene-
fits effective as of April 10, 1979, as a part of the infor-
mation Mordasini had requested at the meeting of March
30.1
: Employees are referred t herein by their last names.
4 Counsel stipulated that Jones was an agent of Respondent withn the
meaning of the Act at all times relevant herein
5 The proposal, with Jones' notes thereon, is G C Exh 3 and Resp.
Exh. 2 Mordasini denied ever seeing G.C. Exh. 3 prior to the hearing.
G C. Exh. 4.
Mordasini testified that the trust fund representative. olne McCusker,
was present at the March 30 meeting. However Mordasini appeared to
be a confused witness with an unreliable memory Jones' testimony on
this point is credited.
" Resp. Exh. 4.
The third meeting was held on April 24. Mordasini,
Jones, and Lavendera were present, but the two other
employee neogtiating committee members were not
there. Jones called Respondent's office, and learned that
the employees did not have transportation. It was agreed
that Respondent would provide transportation, and the
two employees appeared soon thereafter. Jones gave
Mordasini Respondent's pay schedule and classifications
that Mordasini had requested on March 30, and also
gave Mordasini a copy of Respondent's proposals for
contract negotiation.9 Jones also gave Mordasini a copy
of Respondent's insurance booklet.'o
The fourth meeting was held on May II. " Jones,
Mordasini, and Lavendera were in attendance. Mordasini
told Jones at the meeting that she had forgotten to
inform the two other employee committee members of
the meeting. t 2 After discussing proposals, Jones and
Mordasini agreed to meet on May 30. That date later
was noticed to be a holiday, and the two agreed on June
21 for the next meeting. On June 4, Jones sent Mordasini
a copy of Respondent's work rules in accordance with
Mordasini's request.
The fifth meeting was held on June 21. In attendance
were Jones and Mordasini. Mordasini informed Jones
that Lavenderal 3 had secured a part-time job, and fur-
ther stated that the two employee committee members
had been notified of the meeting. Jones called Respond-
ent on the telephone, and was advised that the two had
told their foreman that they were not interested in
coming to any more meetings. Jones reported that fact to
Mordasini, who did not reply. Jones and Mordasini then
discussed proposals and counterproposals and Respond-
ent's work rules. 4 Jones gave Mordasini Respondent's
then-current wage scale. 's The next meeting was sched-
uled for July 12, but Jones was unable to attend because
of the delay of an airplane he was on in Denver or Salt
Lake City. Jones called Mordasini on the telephone, but
she was not in, 6 and Jones advised Mordasini's secre-
tary that he could meet with Mordasini on July 13. Jones
went to Mordasini's office on July 13, but Mordasini was
not in. An arrangement later was made to meet on July
20.
9 Resp. Exh. I.
'o G.C Exh. 6.
II Mordasini testified that the parties agreed on April 24 to meet on
May 1i and that she and Lavendera appeared on May I and waited 40 or
45 minutes, but that Jones did not appear. Jones denied that a meeting
was scheduled for May I As noted supra, Mordasini's memory seemed
poor, and she appeared confused and uncertain throughout her testimony.
She acknowledged that she had difficulty remembering the dates of
events Jones' version on this point is credited as is his recitation of
events at the May It meeting.
12 Lavendera was discharged by Respondent soon after the meeting of
May II, and did not thereafter attend any meetings with Jones and Mor-
dasini.
':' avendera by then had been discharged by Respondent.
4 Mordasini's testimony that Lavendera and she "believed" an em-
ployee committee member (she later said she was sure) attended the
meeting was confused and uncertain and is given no credence.
15 G.C. Exh. 17.
' Mordasini testified that she is out of her office much of the time,
and spends approximately 20 or 25 hours each week in her office When
she is out, she relies upon a secretarial staff to take telephone calls and to
assist in scheduling meetings.
864
INTERNATIONAL MEDICATION SYSTEMS. LTD.
The sixth meeting was held on July 20 with only
Jones and Mordasini in attendance. Noneconomic items
were discussed, and there was agreement on some of
them. Mordasini gave Jones the Union's economic pro-
posals,' 7 which was the first instance of such presenta-
tion because the parties had agreed early in negotiations
to defer economic matters. Prior to this date, Mordasini
had received Respondent's existing wage structure. Jones
said he would present the Union's economic proposals to
Respondent. The parties discussed a union-security pro-
vision, as they had in earlier meetings, but were unable
to reach agreement.
A meeting was scheduled for August 3, but Morda-
sini's secretary called on the telephone to advise that
Mordasini was going to be late, and Jones replied that
his schedule precluded a later meeting. The parties did
not meet on August 3.'1
The next meeting was scheduled for September 6, but
was not held. Jones testified that his great uncle became
gravely ill and died just prior to the scheduled date, and
he went to Massachusetts on an emergency trip. Jones
said he and his great uncle were in business together, and
that he was his executor of the estate. Jones said he was
in Massachusetts only 2 days, made one unsuccessful
telephone call to the Union on September 6, and the next
day was successful in reaching someone in the union
office. He said he asked that person to advise Mordasini
about the problem. Mordasini later, on September 20,
wrote to Jones, as follows:
Dear Mr. Jones,
I have tried several times to reach you regarding
International Medication Systems Limited contract
negotiations.
I had confirmed by letter to you a meeting on
Thursday, September 6, 1979, at I p.m. in our
office. Neither you or anyone from the Company
was present for that meeting. It was not canceled
by you or the Company.
My question is, do you intend to resume negotia-
tions and, if you do, please contact me as soon as
possible regarding dates. Or, is it the Company's po-
sition not to negotiate at all?
Please advise me of your intentions regarding this
matter as soon as possible.
The eighth meeting was held on September 24 with
Jones and Mordasini in attendance.' 9 Mordasini gave
Jones a typed version of the contract language the two
had agreed to as of that date. 20
On October 2 Jones left a message with Mordasini's
secretary, stating that he could meet with her on Octo-
ber 9 or 10. By letter dated October 2, Mordasini con-
firmed the meeting date of October 10. Jones did not
'7 G.C. Exh. 7. These proposals originally were prepared for presenta-
tion at the July 12 meeting, which vas canceled
18 Mordasini testified that she believed Jones canceled this meeting he-
cause of a delay he experienced in Russia, but the Russian matter, dis-
cussed infra, did not arise until late September
1S Mordasini testified that she did not see Jones after September 6. but
that testimony is not credited The lack of credit is due to Mohdasini's
poor memory: her veracity is not in question
10 Resp. Exh. 5
arrive for the meeting, and Mordasini testified that she
never was told why. She said she tried several times,
without success, to reach Jones b telephone. Jones testi-
fied that he left for Russia on September 25 or 26, and
that his return was delayed until October II. He said he
telephoned his brother from Russia, and asked him to
call Mordasini on the telephone and explain the delay.
This discrepancy is given no weight, since it is possible
that both Jones and Mordasini gave accurate testimony.
Jones testified that he and Mordasini met on October
16 and discussed the proposals Mordasini had submitted
in September, but Mordasini denied that there was a
meeting on October 16. Jones testified that Mordasini ap-
peared very upset during the meeting because of her sis-
ter's illness. Her sister died shortly thereafter on October
29. Mordasini's testimony relative to this subject was
particularly confused. Initially, she stated on cross-exami-
nation that there were no meetings in October. then she
testified that Jones talked with her about meeting in Oc-
tober, but that she did not remember meeting in that
month. Finally, she testified that it is "possible" that she
and Jones met in October for approximately 30 minutes,
and that, at that time, Jones had not yet been able to talk
with Respondent about money issues. Mordasini's pre-
trial affidavit, which shows changes made by a National
Labor Relations Board agent at Mordasini's request, was
as confusing as her testimony, and her attempt to explain
the confusion was not reliable. Jones testified that he and
Mordasini discussed many subjects on October 16, and
that he gave Mordasini at that time Respondent's final
proposal on economic as well as noneconomic items.
Mordasini denied that Jones ever gave her a counterpro-
posal to the Union's economic proposals, and denied that
she ever received a final offer from Jones. Jones testified
that he made notes of the October 16 meeting on a let-
terhead form he obtained in the union office where they
met. Those notes, and testimony relative thereto, state: 2
THE WITNESS: Okay. "Very upset and seemed
way out; never like this before." That refers to
when I talked to her that she was quite upset.
JUDGE STEVENS: Well, just read it. We can see
that.
THE WITNESS:Okay. "Very upset and seemed way
out; never like this before." That refers to when I
talked to her that she was quite upset.
Q. (By Mr. Paterson) Mr. Jones, I'm going to ask
you to just read it first, and then we'll come back.
A. Okay. "Discussed proposals on economics.
Union still wanted union shop and/or maintenance
and membership." "Also Union offer 50 cents."
JUDGE STEVENS: IS that also a check-off?
THE WITNESS: Check-off, yes. Also check-off.
"Fifty cents offer on health and welfare. Want to
check with Company president," so that's when I
went and made a phone call.
Q. (By Mr. Paterson) On Line 6 at the far right
side, what are the little words over there?
JuDrE STEVENS: It's something about pension;
isn't it?
21 Resp F xh 7 This exhibit i, on uion ccirhead paper
865S
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS: It looks like plus pension, "p-e-n."
Q. (By Mr. Paterson) Line 7.
A. "She went out to talk to someone." Eight,
"new offer, 25 cents, union shop and wants-or
maintenance and membership and other union plans.
I said 'no."'
Ms. ACEVEDO: Excuse me, Your Honor. Could
he read it directly as it is written on here? I don't
want his explanations.
JUDGE STEVENS: All right. Just read it, please.
THE WITNESS: Okay. It says "no," and there's
something that's crossed out, whatever it is. "She
said counter offer 25 cents, maintenance and mem-
bership. Agree to all company language and drop
request for union health and welfare pension. Call
Company and talk to Bob and controller, as presi-
dent not in. Told only to go to Federal minimum
and all new hires, et cetera, but keep the spread ex-
ample. Everyone go up same as legal minimum to
keep spread. Told final offer of Company and get
back with Union answer with employees' vote."
JUDGE STEVENS: What's that last one? Told
what?
THE WITNESS: "Told final offer of Company and
get back with union answer with employees' vote."
It is found that Jones and Mordasini met on October 16,
and that the foregoing notes then were made by Jones.
Jones' version of the meeting is credited.
On November 8, Jones wrote a letter to Mordasini,
reading as follows: 22
Dear Mrs. Mordasini:
This is in regard to the above subject matter and
our several meetings over the past months.
After our fifth meeting, wherein the company
employees on your bargaining committee refused to
attend the meeting, it appeared that the employees
at the plant had no further interest in the Union to
continue to represent them.
However, the parties continued to meet off and
on, but no agreement was ever reached.
The union rejected the Company's final offer,
twice, because they felt the Union needed more se-
curity plus the economic items as offered to the
Union were not acceptable and a legal impasse was
reached between the parties.
With the turn over of employees, the lack of em-
ployee interest in the Union, and/or the parties
unable to reach agreement, it is very apparent that
the Union does not in fact represent the majority of
the employees in the bargaining unit.
Therefore, we would suggest you show proof of
the Union's continued interest by use of the
N.L.R.B. if you wish to represent the employees at
the Company.
Very truly yours,
Norman Jones
22 Mordasini denied receiving this letter until March 3. when she re-
ceived a copy of it attached to Jones' March 3 letter That testimony is
not credited.
Mordasini attempted on several occasions to reach
Jones by telephone in December, but was not successful.
On those occasions she left messages on Jone's answering
recorder. On December 3, Mordasini wrote to Jones as
follows:
Dear Mr. Jones:
As per the message I left on your answering ma-
chine on Friday, I would like to follow up with this
written request.
I would like to schedule a meeting with you for
IMS negotiations as soon as possible. Dates on
which I am available are December 13, 14, 17, 19,
20 and 21. Please let me know which of these dates
you can confirm for a meeting.
Thanking you for a speedy reply,
Jones called Mordasini on the telephone and they agreed
to meet on January 5, 1980. That meeting was not held,
and Jones testified that the reason was his being snow-
bound in Denver. Jones said he called his brother on the
telephone, and asked him to cancel the meeting with
Mordasini.
On February 7, 1980, Mordasini wrote to Jones as fol-
lows:
Dear Mr. Jones
Since it is impossible to reach you by phone
other than your phone recording, I respectfully re-
quest that we schedule mutually agreeable times and
dates for the purpose of collective bargaining.
I feel that with some effort the contract negotia-
tions between IMS and Teamsters Local 911 could
be concluded.
For your convenience, I submit the following
dates for negotiations:
February 13, 1980, at 1 p.m., all afternoon
February 15, 1980 at 10 a.m., or at I p.m.
February 21, 1980, at I p.m.
February 22, 1980, all day availability
Please confirm any or all of the above dates that
are available for you to meet with me.
On March 3, 1980, Jones replied to Mordasini as fol-
lows:
Dear Ms. Mordasini:
This is in answer to your letter of February 7,
1980, on the above subject matter.
As indicated in our letter of November 8, 1979,
we are of the belief that the Union does not repre-
sent a majority of the employees in the unit at the
Company.
Therefore, the Company has no desire to meet
with the Union until the Union can show proper
proof by way of an N.L.R.B. election that it repre-
sents a majority of the employees.
866
INTERNATIONAl. MEDICATION SYSTEMS, ITD
B. Contentions of the Parties
The General Counsel contends that Respondent violat-
ed Section 8(a)(5) of the Act by failing and refusing to
meet with the Union for the purpose of collective bar-
gaining and by withdrawing its recognition of the Union.
Respondent denies that it failed and refused to meet
and bargain, and contends that it had reasonable, obJec-
tive reasons to withdraw recognition of the Union.
C. Alleged Dilatory Tactics by Respondent
The General Counsel argues that Respondent inten-
tionally frustrated bargaining by engaging in dilatory tac-
tics such as delaying and canceling meetings.
Several facts are not in dispute, or clearly are estab-
lished by the record. First, Jones, who was Respondent's
sole negotiator, was not argumentative or demeaning or
difficult to deal with. Mordasini stated that she consid-
ered Jones "very professional person and very easy to
talk to." Second, the complaint alleges no unfair labor
practice prior to June 21, and bargaining until at least
that date followed a normal course free of any notewor-
thy problems. Third, both Jones and Mordasini were
away from their offices approximately 50 percent of the
time, and in Jones' case probably more. During absences,
Jones depended upon a recording device to accept tele-
phone calls, and Mordasini depended upon a clerical
staff. Fourth, Mordasini's credibility as a witness serious-
ly was impaired by her poor memory. Fifth, Jones gave
Mordasini all the information she requested for her assist-
ance in negotiations.
The meeting scheduled for July 12 was not held, be-
cause of Jones' unexpected absence from the State. Jones
credibly testified, and Mordasini did not deny, that Jones
telephoned Mordasini's office, and later, on July 13, went
to her office to arrange a meeting. The two negotiators
met on July 20, which was a delay of 8 days. It is clear
from such circumstances that Jones did not intentionally
delay the meeting scheduled for July 12, and that he was
reasonably diligent in arranging a substitute date.
Jones' credited testimony, not denied or challenged by
Mordasini, makes it clear that the meeting scheduled for
August 3 was not missed because of Jones' fault or be-
cause of intentional delay by Jones. Mordasini was de-
layed, and Jones was unable to meet later than the
scheduled time. The next meeting was held a week later.
A death in Jones' family precluded his meeting as
scheduled on September 6, and there is no indication that
Jones used that circumstance as an excuse not to meet
Mordasini on September 6. Jones was absent from the
State only 2 days, and made an effort during that ab-
sence to get in touch with Mordasini. Mordasini wrote a
letter to Jones, dated September 20, and they met 4 days
later on September 24.
It is clear from Jones' credited testimony that his fail-
ure to meet as scheduled on October 10 was not a delay-
ing tactic. He was delayed in Russia, and made an at-
tempt to get in touch with Mordasini. The next meeting,
6 days later on October 16, is in dispute, as discussed
herein.
Discussion
Mordasini credibly testified thet she experienced much
difficulty in getting in touch with Jones. She implied in
her testimony that Jones gave her the runaround, and
dodged her efforts to meet and negotiate. She further
testified that she went to Respondent's office sometime
during the summer and inquired about scheduling meet-
ings, but that she was referred back to Jones. However,
Jones testified that Mordasini also was difficult to reach
by telephone, and he denied (indirectly by his testimony)
that he was guilty of intentional delaying tactics.
It is clear that both Jones and Mordasini were some-
what less than diligent in their attempts to negotiate.
Both were out of their offices as much, or almost as
much, as they were in. Jones was preoccupied with
other interests and, usually, only sprang to life, so far as
negotiations are concerned, when he was goaded by
Mordasini. On the other hand, Mordasini was "soft sell"
throughout the negotiations, and was not as aggressive as
would be expected. She did not inquire when Jones
missed meetings as to the reasons therefor. She contends
that Jones was dilatory, yet she testified that he was easy
to work with, and that he was a capable "professional."
Her poor memory, and uncertainty, surely exacerbated
the problem created by Jones' frequent jaunts out of the
state. Under such circumstances, it would be unjust to
lay the cause for delayed negotiations solely at Jones'
feet. It is found that, as of October 16, Jones had not de-
layed negotiations as alleged in the complaint.
The question then arises as to whether or not Jones
and Mordasini met on October 16 Jones testified in a
firm and convincing manner that they did meet. He testi-
fied in detail relative to their discussion of many matters
at that meeting. Mordasini did not deny those discus-
sions, and confirmed a discussion concerning the necessi-
ty for the employees to ratify any proposed contract.
Jones fixed the date of the discussions as October 16, and
Mordasini did not fix any other date for them. The se-
quence of events supports Jones' testimony; his conten-
tion of impasse, and of the Union's loss of employee sup-
port, closely followed, on November 8, the meeting of
October 16. Finally, Jones' testimony concerning his
notes of the meeting, made during the meeting and oin
the Union's stationery, was persuasive. Mordasini's
equivocal denial of the meeting, and her uncertainty,
strongly militates against a conclusion that no meeting
was held on October 16. Clearly, the meeting was held.
D. The Impasse Question
Prior to October 16, the parties were not at impasse.
They had agreed to most noneconomic items, but nearly
all economic items were still in dispute. Mordasini con-
tends that Jones never presented any economic propos-
als, but that contention is not credited, as discussed
above. As of October 16 the parties were still meeting
and negotiating. Jones contends that events of October
16, and thereafter, show that an impasse was reached on
October 10, since he then made a final offer to Mordasini
which was refused. Concerning the final offer, Jones tes-
tified:
867
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And, at that time, I had the-she wanted to
know how we could finalize everything. And so I
gave her a complete package. I told her--she
wanted X number of cents per hour in the union
shop and the check-off. And I said, no, that we
wouldn't do that. We'd give them X number of
cents. And so she then went into the office. I think
the secretary-treasurer of the Local was there or
somebody. I think I saw him that day. And she was
called to the phone-one time going out the room,
or maybe twice; once I remembered. She talked
about that she had the authority to make a deal and
I said, "Well, according to my understanding, you
have to take it back to the members involved." So
then I went out and made a phone call to the presi-
dent of the Company because she had given me a
proposal on economics. She was willing to drop
some of her demands. And then we talked a little
bit more and then I went and made another phone
call to the president. I think his son-in-law was also
on the phone, a three-way conversation. So they
said that, because the wage and hour was going up
starting January Ist for the thing, that we would go
to the $3.15, which we are required by law, and we
would also go the same amount to all the other
people in the classifications to keep the spread the
same. That was my proposal to give to her econom-
ics. The last proposal that we would not agree to a
union shop or an agency shop or a maintenance and
membership or a check-off. And that that was the
Company's final proposal and that-then she left
the room and came back a few minutes later and
said, no, that she still felt that she should have at
least the maintenance and membership and that she
needed more money because the people were being
paid starve wages or whatever, those types of
things. It was left that that was our last proposal
and that was it.
So then I got out-that meeting lasted about two
hours, I think, two and a half hours.
Q. Did you tell her it was your final proposal?
A. Yes.
Q. Did you ask her to take it for a vote of the
members?
A. I don't think I asked her to take it. I told her
that I knew that Teamsters' locals had to have a
vote of the membership.
The foregoing testimony by Jones is credited. The Gen-
eral Counsel argues that the testimony should not be
credited because, among other reasons, it was customary
for the parties to submit proposals in writing, and that an
alleged oral proposal is unlikely. However, it is apparent
that, by October 16, Mordasini was anxious to have a
contract, and the parties were down to arguing only a
few remaining items, all of which were of an economic
nature. Jones' testimony on this point was logical and
consistent with other events. However, Jones never re-
duced Respondent's final offer to writing, and Morda-
sini's expectation of a written proposal was in accord
with the past practice of the parties, albeit that practice
was limited, and was in accord with good business prac-
tice. An oral presentation to employees of a final offer
would be fraught with the possibility of error. Mordasini
and Jones understood what they said to each other, and,
possibly, they may have suspected that they were at an
impasse, but an impasse cannot be found under such cir-
cumstances, since only the employees could, under the
Union's constitution, agree to a contract, and Mordasini
reasonably could not be expected to present only an oral
proposal to them. It would be an injustice to permit Re-
spondent, under such circumstances, to have the right to
any advantage it may contend could flow from an im-
passe. It is found that, as of October 16, the parties were
not at impasse.
E. Respondent i Withdrawal of Recognition
Jones' letter of November 8, as confirmed March 3,
1980, was Respondent's withdrawal of recognition be-
cause of Respondent's alleged belief that the Union no
longer represented a majority of the unit employees.
In explaining his reasons for doubting the Union's ma-
jority status, Jones testified:
Well [it] appeared that at least there was no more
meetings with the employees, no more bulletins
coming out saying they were having meetings. The
three people who were on the original union com-
mittee were not-did not come any longer nor were
there any replacements. The Union had rejected the
Company's offers because they wanted the union
shop or at least a maintenance and membership and
check-off, plus X number of cents per hour. There
was quite a large turnover of employees in the bar-
gaining unit. And, from all indications, it did feel
like nobody was interested any further.
So, after talking with the Company about this,
we decided that they didn't want to accept our last
offer; that was it. And, if they didn't want it, that
was fine, one way or another. So the letter was
sent.
No RM petition was ever filed by employees. Morda-
sini credibly testified that she met with employees on
three occasions, in April and prior thereto, and that, at
one of the meetings, 50 to 80 of the 125 unit employees
attended. She said no employee indicated a desire that
the Union not represent them. Jones acknowledged that
no employee ever told him that employees no longer
wanted the Union to represent them. Respondent did not
establish by proof its allegation that the employees were
dissatisfied with the Union. Only general conclusions
were stated by Jones. It may well be, as argued by Re-
spondent, that the members of the employees negotiating
committee became disinterested in further participation
in negotiations, but that fact, alone, would not establish
general employee disinterest in being represented by the
Union. 23
2:' White Castle Systems, Inc., 224 NLRH 1089 1976), cited by Re-
spondent, is not controlling since there the objective evidence, other than
the factor of the bargaining committee makeup, was overwhelming in
support of the respondent's contentions The Administrative Law Judge
Ihere recognized that fact, and cited the bargaining committee matter as
Contin ued
868
INTERNATIONAL MEDICATION SYSTEMS. l_ [)
So far as an alleged high turnover of employees is con-
cerned, such a factor does not per se justify withdrawal
of recognition. New employees are presumed to support
the Union in the same ratio as employees they replace. 24
In any event, Respondent introduced no evidence to es-
tablish a high rate of employee turnover.
Respondent argues that the "most telling" evidence of
the Union's lack of support was the fact that Mordasini
did not take the Union's final offer to the membership as
required by the Union's constitution. However, as dis-
cussed above, Respondent never reduced its final offer to
writing. Failure to make such a presentation to employ-
ees is not evidence of lack of union support.
The Board consistently has applied the test it set forth
in Terrell Machine Company, supra, in determining
whether or not a respondent legally is justified in with-
drawing recognition from a union that has been certified
as the bargaining representative of the respondent's em-
ployees. The Board stated in Terrell at 1480-81:
It is well settled that a certified union, upon expi-
ration of the first year following its certification.
enjoys a rebuttable presumption that its majority
representative status continues. This presumption is
designed to promote stability in collective-bargain-
ing relationships, without impairing the free choice
of employees. Accordingly, once the presumption is
shown to be operative, a prima facie case is estab-
lished that an employer is obligated to bargain and
that its refusal to do so would be unlawful. The
prima facie case may be rebutted if the employer af-
firmatively establishes either (1) that at the time of
the refusal the union in fact no longer enjoyed ma-
jority representative status, or (2) that the employ-
er's refusal was predicated on a good-faith and rea-
sonably grounded doubt of the union's continued
majority status. As to the second of these, i.e.,
"good-faith doubt," two prerequisites for sustaining
the defense are that the asserted doubt must be
based on objective considerations and it must not
have been advanced for the purpose of gaining time
in which to undermine the union. [This second
point means, in effect, that the assertion of doubt
must be raised "in a context free of unfair labor
practices."]
Here, it was Respondent's burden to establish that it had
doubt of the Union's majority status based upon the fact
of lack of such status or upon objective considerations
advanced in good faith. Respondent did not meet its
burden. The fact of lack of majority support for the
Union was not shown, and the objective considerations
alleged as supportive of its doubt clearly are inadequate
to meet its burden. The record does not establish justifi-
cation for Respondent's withdrawal of its recognition of
one hat was only "entitled to some eighi B Rurns Inlternational .SclriOv
Services, Inc. sN I.R B.. 57 1: 2d 945 (10th Cir 1
97
71. denyling enforce-
ment of 225 NIRII 271 (1
9
76). is of n suppor for Respondent's argu-
ment for he same reasons
24 Gregory'i. Inc, 242 NRB 644 (1979) Jume, 1'rhirtield. d bhiu
Cutten Supermarket. 220 NLRB 507 (1975); lerr.ll Machin (ompaun.
173 NLRB 1480 (1969)
the Union as the representative of Respondent's unit em-
ployees.
Although there was some contact between Mordasini
and Jones after November 8, there was no further nego-
tiation, and Respondent has continued its refusal to rec-
ognize and bargain with the Union in violation of Sec-
tion 8(a)(5) and (1) of the Act.
IV. 111 I Ic (I 01 TI [ L NF AIR I RBOR PRACTICFIS
UrPON COMNtI:RCE
The activities of Respondent set forth in section 111.
above, occurring in connection with its operations de-
scribed in section , above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of conlmnerce.
V. lI REN1EI)'
Having found that Respondent has engaged in certain
unfair labor practices. I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact, and
the entire record. I make the following:
CONCI ISIONS Ol: LAW
1. International Medication Systems, Ltd.., is, 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.
'2. California Teamsters Public, Professional and Medi-
cal Employees Local Union 911, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is, and at all times material herein
has been. a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The following unit is appropriate for purposes of
collective bargaining for Respondent's employees:
All production employees in buildings 1, 3, 4, 6, and
7 and shipping and receiving employees; excluding
all sales, purchasing, laboratory and quality assur-
ance employees, toolmakers, maintenance mechan-
ics, engineer and office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act.
4. The Union is, and at all times material herein has
been, the exclusive bargaining representative for all em-
ployees in the unit described above.
5. Respondent violated Section 8(a)(5) and (1) of the
Act by withdrawing recognition from, and refusing to
bargain with, the Union as the exclusive bargaining rep-
resentative of Respondent's employees in the appropriate
unit described above.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
I)ECISIONS OF NA'lIONAI. I.ABOR RELATIONS BOARD
Section 10(c) of the Act, I hereby issue the following
recommended:
O()RDER 2
The Respondent, International Medication Systems,
Ltd., South El Monte, California, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Violating Section 8(a)(5) and (I) of the Act by
withdrawing recognition from, and refusing to bargain
with, California Teamsters Public, Professional and
Medical Employees Local Union 911, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive collective-bar-
gaining representative of Respondent's employees in the
following appropriate unit:
All production employees in buildings 1, 3, 4, 6, and
7 and shipping and receiving employees, excluding
all sales, purchasing, laboratory and quality assur-
ance employees, toolmakers, maintenance mechan-
ics, engineer and office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with California Teamsters Public, Professional and Medi-
cal Employees Local Union 911, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining repre-
sentative of all employees in the appropriate unit de-
scribed above, with regard to pay, hours of employment,
and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in
a signed agreement.
(b) Post at its South El Monte, California, facility
copies of the attached notice marked "Appendix." 2 6
1" In the event no exceptions are filed as provided by Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as pro,ided
in Sec 102 4 of the Rules and Regulations, be adopted by the Board and
beconie its findings, conclusions, and Order, and all objections thereto
shall he deemed waived for all purposes
zn In the event that this ()rder is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Lalx)r Relations Board' shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals E.ntircing an
Order of the National Labor Relations Board."
Copies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by its au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
Nolicil To EMPI OYIIES
POSIED) BY ORDI R 01 IHE
NATIONAl. LABOR RIl A IIONS BOARD
An Agency of the United States Government
WE WILl. NOt refuse to recognize or bargain
with California Teamsters Public, Professional and
Medical Employees Local Union 911, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive bar-
gaining representative of employees of International
Medication Systems, Ltd., in the following appro-
priate bargaining unit:
All production employees in buildings 1, 3, 4, 6,
and 7 and shipping and receiving employees; ex-
cluding all sales, purchasing, laboratory and qual-
ity assurance employees, toolmakers, maintenance
mechanics, engineer and office clerical employ-
ees, professional employees, guards and supervi-
sors as defined in the Act
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
Wi WILL. recognize and, upon request, bargain
collectively with the aforesaid Union as the exclu-
sive bargaining representative of all employees in
the above-described appropriate unit, with respect
to pay, hours of employment, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
IN IERNATIONAL MEDICATION SYSTEMS,
LTD.
870