Jack L. Williams, D.D.S.

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 845 (N.L.R.B. 1977)

JACK L. WILLIAMS, D.D.S.
Jack L. Williams, D.D.S. and Terry Eggleston,
Petitioner, and Dental Technicians Union of
Northern California, Local 99, International Jewel-
ry Workers Union, AFL-CIO. Case 20-RD-1141
August 30, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On March 23, 1977, the Regional Director for
Region 20 issued her Decision and Order in the
above-entitled proceeding, finding that the Employer
had voluntarily recognized the Union as the bargain-
ing agent for the Employer's lab employees, and that
the two parties had not been afforded a reasonable
time to bargain, citing Keller Plastics Eastern, Inc.,
157 NLRB 583 (1966). Accordingly, the Regional
Director dismissed the instant petition as untimely
filed. Thereafter, in accordance with Section 102.67
of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
filed a timely request for review of the Regional
Director's decision on the grounds, inter alia, that in
applying Keller Plastics, she departed from Board
precedent.
By telegraphic order dated April 29,1977, the
National Labor Relations Board granted the Em-
ployer's request for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case' with respect to the issues under review and
makes the following findings:
On March 1, 1973, the Union was certified as the
bargaining representative for the Employer's lab
technicians located at the Employer's Santa Rosa,
California, facility. Bargaining commenced and
continued until March 30, 1973, when the Employer
contracted out its lab work and terminated the lab
technicians. On April 12, 1973, the Union filed unfair
labor practice charges alleging that the Employer
violated Section 8(a)(l), (3), and (5) of the Act.
Subsequently, the Employer reopened its lab on
October 15, 1973, and by July 1974 had hired a full
complement of new employees.
' No briefs were filed after review was granted. However, the Board has
considered the briefs submitted to the Regional Director.
' 211 NLRB 860 (1974). The facts relating to the closing of the lab and
the subsequent unfair labor practice litigation are fully set forth in that
decision. and official notice of that case is taken for purposes of deciding the
instant case.
In Jack L Williams, D.D.S., d/b/a Empire Dental
Co.,2 the Board affirmed an Administrative Law
Judge's findings that the Employer had violated the
Act by making certain statements, dismissing certain
employees, and closing the lab without bargaining
with the Union regarding the effects of that closing.
However, the Board specifically found that the
closing of the lab was economically motivated.
Therefore, the Board modified the Administrative
Law Judge's proposed remedial order which would
have required the Employer to (1) offer full reinstate-
ment and backpay to discharged employees; (2)
engage in collective bargaining with respect to wages,
hours, and other conditions of employment; and (3)
restore the laboratory operation. In view of the
Employer's financial situation and the poor quality
of the technicians' work, which prompted the
Employer to contract out the lab work, the Board's
order was limited to requiring the Employer to
bargain concerning the effects of the contracting out
of the lab work and was accompanied by a limited
backpay requirement to restore losses suffered by the
discharged employees, and "to recreate in some
practicable measure a situation in which the parties'
bargaining position is not entirely devoid of econom-
ic consequence for [the Employer ]." 3
Thereafter, on January 30, 1976, the Ninth Circuit
Court of Appeals enforced the Board's order direct-
ing backpay and requiring the Employer to bargain
over the effects of the contracting out of the lab
work. The Employer was not required to reopen the
lab or reinstate the terminated employees.
As required by the order and pursuant to a demand
by the Union, the Employer met with the Union on
February 26, 1976. It appears that at that meeting the
parties agreed to refer the issue of backpay to the
compliance division of the Regional Office. The
parties further agreed to bargain over substantive
contract terms affecting the unit of lab technicians.
Six bargaining sessions 4 were held between February
26 and April 22, 1976, when the parties learned that
the instant petition had been filed. There was one
further meeting between the parties on June 10, 1976,
under the aegis of a California state conciliator.
As indicated, the Regional Director found that on
February 26, 1976, the date the parties met pursuant
to the Union's demand, the Employer voluntarily
recognized the Union as the bargaining representa-
tive for the lab technicians. The Regional Director
invoked the principle of Keller Plastics, supra; which
requires that an employer and a union must bargain
3 211 NLRB at 861.
I The negotiating team for the Union included several of the discharged
employees.
231 NLRB No. 144
845
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a reasonable period of time when the employer
voluntarily extends recognition to the union. The
Employer contends that it did not validly extend
recognition to the Union and the petition should not
be dismissed. We find merit in the Employer's
argument.
The issue involved in Keller Plastics, an unfair
labor practice case, was whether a bargaining
relationship established by an employer's voluntary
recognition of a union representing a majority of its
employees can be disrupted by the union's subse-
quent loss of majority status prior to the execution of
a contract. Later cases have explicated the criteria
required to invoke the Keller Plastics principle in
representation proceedings. 5 These cases indicate
that there must be a clear and positive demonstration
by the union to the employer that the union
represents a majority of the employees employed by
the employer. Conversely, the employer must extend
recognition to the union in good faith, on the basis of
this demonstrated showing of majority, at a time
when only the union is organizing employees.6
In the instant case, the Employer has recognized a
previously certified union as the bargaining represen-
tative of certain lab technicians. The issue raised
relates to the propriety of that recognition in the
attendant circumstances. When analyzed against the
applicable criteria, the record in the instant case does
not reveal such a clear, good-faith extension of
recognition by the Employer based on a majority
showing by the Union. Although, as the Regional
Director noted, the Employer stated in its brief to the
Region that its recognition was "purely voluntary,"
the application of Keller Plastics requires more than a
statement unaccompanied by record proof of a valid
recognition.7 Indeed, the Employer at the hearing
attempted to question the Union's business agent on
the issue of whether the Union had contacted the
present complement of employees after April 26,
1976, the date the Employer sent a copy of a letter to
the business agent which included the names and
addresses of the current lab employees. The business
agent admitted that he had not contacted these
employees after that date. The Employer then
inquired if the business agent, after commencement
: See. e.g.. Josephine Furniture Company, Inc., 172 NLRB 404 (1968). and
Sound Contractors Association, 162 NLRB 364 (1966).
fi See fn. 5, supra,' Dales Super Valu, Inc., 181 NLRB 698 (1970). The
mere filing of an RD petition does not serve as evidence on the issue of
whether or not the union represented a valid majority at the time
recognition was extended. See, e.g., Paramount Metal & Finishing Co., Inc.
,and Paramount Plating Co.. Inc., 223 NLRB 1337 (1976).
7 Josephine Furniture Company. Inc., supra. That case involved an RM
petition. The employer sent a letter to the union stating that "the Company
has no doubt that you represent a majority" of the employees and thus
granted recognition to the union. An examination of the record revealed no
evidence that cards or other indications of majority status were checked.
The Board thus found that the employer's petition was timely filed and a
question concerning representation was raised. Compare Montgomery Ward
& Co., Incorporated, 162 NLRB 369 (1966).
of negotiations on February 26, 1976, had attempted
to contact the present employees.8 Objections were
made, and the Hearing Officer sustained these
objections stating:
It is my understanding that after the 9th Circuit
Decision that there is a presumption of continu-
ing union majority at the plant, and the question
of whether or not they [i.e., the Union] really
made an attempt to reach any additional employ-
ees, I think, would be irrelevant.
It seems likely that in fact the Union never contacted
the present employees. Aside from the aforemen-
tioned colloquy, the record discloses that the names
and addresses of the current employees were appar-
ently not formally sent to the Union until April 26,
1976, after negotiations ceased. Further, the business
agent testified that the Employer had agreed to a
union-shop provision, but that it retracted on the
issue "because they weren't sure about the employees
who are presently employed there." In any event,
since no party has attempted to establish, and the
record does not reflect, that recognition was extend-
ed in good faith'based on a demonstrated showing of
majority, we do not find the petition barred by the
Keller Plastics principle.
There remains the issue of whether Mar-Jac Poultry
Company, Inc.,9 is applicable in the instant case. In
Mar-Jac, the Board held that, where an employer,
because of its refusal to bargain with the union, takes
from the union a substantial part of its 1-year
certification period, it should not be permitted to
take advantage of its failure to perform its statutory
duty. In the instant case, the Union asserts that it has
not had the benefit of its certification for I year. It
maintains that, because of the pendency of its unfair
labor practice charge and the enforcement proceed-
ings, the Union has been limited to at most 3 months
of bargaining under its certification.' 0 The Employer
contends that the Mar-Jac rule should not apply here
because the Board and the court did not require the
Employer to reopen its lab or bargain with the Union
except with respect to the effects of the closing of the
lab and backpay.
8It appears that the parties were concerned with the continued
presumption of majority status of the Union, and that the issue of whether
Keller Plastics was applicable to the case was first raised by the Regional
Director's decision. See infra, fn. 9.
9 136 NLRB 785 (1962). Although the Regional Director did not
confront this issue, deciding that the application of Keller Plastics obviated
the need to consider Mar-Jac, the parties were concerned with only that
issue at hearing and addressed it in their bnefs to the Region. which we have
carefully considered. In these circumstances, we believe that the facts with
respect to this issue have been adequately presented and developed, and the
issue should now be decided.
'O There were two bargaining sessions in March 1973 and six sessions in
February-April 1976.
846
JACK L. WILLIAMS, D.D.S.
We believe that, in the circumstances of this case,
extension of the certification year is not warranted.
As noted, the Board previously found that the
closing of the lab was economically motivated. Thus,
much of the hiatus in bargaining since 1973 did not
result from the Employer's unfair labor practice
conduct, but rather stemmed from the fact that the
Employer, for valid economic reasons, closed the lab
and terminated the employees. Moreover, the Em-
ployer did not reopen the lab for appoximately 6
months after the closing, and the hiring of a full
complement of new employees was not completed
until about a year later. It does not appear that the
Union attempted to bargain with the Employer after
the lab was opened and the new employees hired,
during the pendency of the unfair labor practice
litigation. In these rather unusual circumstances,
particularly the long period of time which has
"I Compare Southern Manufacturing Company, 144 NLRB 784 (1963).
12 Compare Down River Forest Products. Inc., 205 NLRB 14 (1973).
There remains the issue of which individuals are in the unit. Petitioner urges
that the former lab employees should be permitted to vote and alleges that
the Employer, during negotiations, told the terminated employees that they
could consider reemployment with the Employer after the collective-
bargaining agreement was reached. The Employer denies that it made such
promises. or in the alternative that it may have made such an offer to only
three former employees. The record shows that the Employer, in March
1976. sent registered letters to all former employees unconditionally offering
elapsed since the Employer closed down for econom-
ic reasons, we do not think that the certification year
is properly tolled.1 Rather, the present employees
are entitled to determine whether they wish to be
represented for the purposes of collective bargain-
ing.12
We therefore find that the following unit of
employees constitute an appropriate unit for collec-
tive-bargaining purposes within the meaning of
Section 9(b) of the Act:
All lab technicians employed by the Employer,
excluding all other employees, professional em-
ployees, guards and supervisors as defined in the
Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
them their former jobs. However, only one discharged employee responded
to that letter, indicating that he would accept a job. That employee
apparently never responded to a subsequent letter from the Employer. The
record also shows that several of the discharged employees have secured
employment elsewhere. Arguably. former employees who await the result of
contract negotiations before accepting explicit offers of reemployment are
most accurately described as prospective employees. In any event, if there
remains an issue as to any particular employee, he or she may cast a
challenged ballot.
847