Jefferson Smurfit Corp.

National Labor Relations Board - Board Decisions

Jul 21, 2000

331 N.L.R.B. 809 (N.L.R.B. 2000)

JEFFERSON SMURFIT CORP. 809
Jefferson Smurfit Corporation, Fernandina Mill Divi-
sion and International Brotherhood of Electrical
Workers, Local Union No. 177, AFL–CIO. Case
12–CA–18685
July 21, 2000
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On October 14, 1997, Administrative Law Judge William
N. Cates issued the attached decision. The Respondent filed
exceptions and a supporting brief and the General Counsel
filed an answering brief.
The National Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the decision and record in light
of the exceptions and briefs and has decided to adopt the
judge’s rulings, findings, and conclusions only to the extent
consistent with this Decision and Order.
On March 14, 1997, the Union met with the Respondent
and presented a letter stating that the Union had a card ma-
jority and requesting recognition for a residual unit. The
letter stated that if the Respondent had any doubt about ma-
jority status, the Union was prepared to offer the cards
“now” for the Respondent’s inspection. These statements
were reiterated orally at the meeting. The Respondent’s
employee relations manager read the letter, examined the
cards and made copies of them. He then told the Union that
he would have to consult with counsel. Later that day the
Respondent refused to recognize the Union for the re-
quested unit.
The judge found that this conduct violated Section 8(a)(5)
of the Act. We disagree. As discussed below, an employer
has no obligation to accept a card count as proof of majority
status, absent a clear agreement to do so.
In Linden Lumber, 190 NLRB 718, 721 (1971), the
Board, in a decision upheld by the Supreme Court (418 U.S.
301 (1974)), held that an employer “should not be found
guilty of a violation of Section 8(a)(5) solely upon the basis
of its refusal to accept evidence of majority status other than
the results of a Board election.” The Board further stated
that, “We repeat for emphasis our reliance here upon the
additional fact that the Respondent and the Union never
voluntarily agreed upon any mutually acceptable and le-
gally permissible means, other than a Board-conducted elec-
tion, for resolving the issue of union majority status.” (Em-
phasis added.)1 Here, the Respondent did not expressly
consent to permit determination of majority status by a
means other than a Board election. The General Counsel
argues that the necessary assent is to be inferred from the
Respondent’s conduct in reading the Union’s letter and in-
specting the cards proffered. Similarly, the dissent finds that
the Respondent representative’s act of taking in hand and
copying the cards proffered by the Union constituted an
agreement to forgo an election.

1 See also Wilder Mfg. Co., 198 NLRB 998, 999 (1972), reversing on
remand 185 NLRB 175 (1970).
The decisions of the Board and the Supreme Court do not
support these arguments. As noted above, an employer has
a right to a Board election to resolve the issue of majority
status. Absent a clear agreement to forgo that right, the
employer does not violate Section 8(a)(5) by insisting upon
an election.2 In the instant case, Respondent surely did not
agree to recognize the Union on the basis of cards. To the
contrary, Respondent said that it wished to consult with
counsel. Further, in the absence of an affirmative showing
as to what examination of the cards would signify, the evi-
dence is insufficient to establish that the Respondent agreed
to forgo an election.
Our position is supported by, inter alia, Nantucket Fish
Co., 309 NLRB 794 (1992). In that case, the evidence of
agreement was stronger than that in the instant case. And
yet the Board found no clear agreement. The union there
presented the employer with a petition signed by the em-
ployer’s employees and a letter demanding recognition.
After the employer had read this material, and was in the
presence of counsel, the union expressed its wish to set up
dates and bargain about the issues, and asked if the em-
ployer “had any problem with that.” The employer
representative responded, “fine, we’ll meet with you, . . .
and we’ll call you later this afternoon.” The employer later
declined to recognize the union and expressed doubt as to
the union’s majority status. The Board, dismissing the com-
plaint, found that the respondent’s initial response to the
union was too ambiguous to characterize as an agreement to
recognize the union. It stated that it would not impose a
bargaining relationship on the parties in the absence of a
clear, express, and unequivocal statement of agreement to
recognize.
We disagree with our dissenting colleague’s assertion that
Sullivan Electric Co., 199 NLRB 809 (1972), enfd. 479
F.2d 1270 (6th Cir.1973), requires a different result. Rather,
the Board reiterated in that case “that an employer does not
run afoul of the Act solely by refusing to accept evidence of
majority status other than the results of a Board election,
unless the parties had previously agreed upon a mutually
acceptable and legally permissible alternative means of as-
certaining such status” (at fn. 1). The Board went on to find
such an agreement, but on facts markedly different from
those herein. In that case, the employer, after examining the
cards, interrogated its employees as to whether they had
signed authorization cards. In that manner, it learned that the
union did indeed represent a majority of the employees. No
such activity is present in this case.3
Similarly, Gregory Chevrolet, 258 NLRB 233 (1981), is
distinguishable. In that case, the employer interrogated the
2 Nantucket Fish Co., 309 NLRB 794 (1992).
3 Since Sullivan is distinguishable on its facts, Members Hurtgen and
Brame do not pass on the validity of that case.
331 NLRB No. 80
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810
employees about their choosing the union and then unlaw-
fully tried to get them to change their minds.4
In sum, we find that there was no agreement by the Re-
spondent to recognize the Union, and we will dismiss the
complaint.5
ORDER
The complaint is dismissed.

MEMBER FOX, dissenting.
For the following reasons, I would adopt the administra-
tive law judge’s finding that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to recognize the
Union after accepting the Union’s invitation to examine the
authorization cards signed by a majority of the unit employ-
ees.1
In Linden Lumber, 190 NLRB 718, 721 (1971), the
Board, in a decision upheld by the Supreme Court,2 held
that an employer “should not be found guilty of a violation
of Section 8(a)(5) solely upon the basis of its refusal to ac-
cept evidence of majority status other than the results of a
Board election.” In other words, an employer faced by a
union demanding recognition on the basis of union authori-
zation cards assertedly signed by a majority of the unit the
union was seeking to represent, could lawfully refuse to
consider that evidence and assert that it would recognize the
union only on the basis of a majority established through a
valid Board election. Not long thereafter, however, in Sulli-
van Electric Co., 199 NLRB 809 (1972), enfd. 479 F.2d
1270 (6th Cir. 1973), the Board made it clear that an em-
ployer seeking to avail itself of its right under Linden Lum-
ber, to insist on a Board election may not at the same time
pursue other means of determining majority support. In
Sullivan, after being presented with the union’s demand, the
employer questioned employees about whether they had

4 The cases cited by the Acting General Counsel in support of the
claim that the Respondent agreed to recognize the Union are likewise
inapposite. See, e.g., Research Management Corp., 302 NLRB 627
(1991) (evidence employer made statements consenting to recognition
by card check; employer agreed to card check by neutral third party);
Idaho Pacific Steel Warehouse, 227 NLRB 326 (1976) (employer
agreed to card check by state department of labor which certified ma-
jority); Harding Glass Industries, 216 NLRB 331 fn. 2 (1975) (em-
ployer initiated card check conducted by impartial observer).
5 The Respondent has excepted to the judge’s conclusions that the
requested unit was appropriate, to the failure to employ an expanded
eligibility formula, and to the failure to find a contract bar. In view of
our decision today, it is unnecessary to consider these issues.
1 I agree with the judge that the unit in which majority support was
demonstrated consists of 39 temporary employees called in during shut-
downs for maintenance, who meet the standard articulated in Davison-
Paxon Co., 185 NLRB 21 (1970), i.e., who worked, on average, at least
4 hours per week during the 3 months immediately preceding the date
on which the Union requested recognition and the Respondent exam-
ined its evidence of majority support. As the judge found, the unit is
appropriate as a residual unit since, as shown by the clause excluding
the temporary employees from the contract covering permanent em-
ployees, the union representing the latter does not seek to represent
these temporary employees. Fleming Foods, 313 NLRB 948 fn. 1
(1994).
2 418 U.S. 301 (1974).
signed cards, and learned that at least 11 out of 16 employ-
ees had in fact done so. The Board found the employer’s
subsequent refusal to recognize the union unlawful because
“where an employer undertakes a determination which he
could have insisted be made by the Board, he may not
thereafter repudiate the route that he himself has selected.”
Id. at 810. Accord: Research Management Corp., 302
NLRB 627, 638–639 (1991); Gregory Chevrolet, 258
NLRB 233, 239–240 (1981).3
In the present case, it is undisputed that Lance House, the
Respondent’s Employee Relations Manager, upon being
presented with the Union’s recognitional demand and being
offered the cards to prove it, accepted the cards and exam-
ined and made copies of them before returning the originals
to the Union. The Union did not offer the cards for any
reason other than to prove majority support, and there was
no legitimate reason for House to accept and examine the
cards except to determine if they in fact demonstrated such
support. Having undertaken “a determination which [it]
could have insisted be made by the Board,” the Respondent
may not, under the holding of Sullivan Electric, now law-
fully refuse to recognize the Union. As the Board stated in
Linden Lumber, an employer does not run afoul of the Act
solely by “refus[ing] to accept evidence of majority status
other than the results of a Board election.” 190 NLRB at
721 (emphasis added). Once, however, as here, an em-
ployer has accepted and examined the cards proffered in
support of the Union’s recognition demand, it has bound
itself to recognize the Union without the necessity of a
Board election, if the Union’s majority was demonstrated by
the offered means. The record shows that the cards did in
fact demonstrate the Union’s majority status, and I would
find that the Respondent violated Section 8(a)(5) and (1) of
the Act by subsequently refusing to recognize and bargain
with the Union.
I therefore dissent from my colleague’s dismissal of the
complaint.

Peter J. Salm, Esq., for the General Counsel.
Thomas M. Hanna, Esq., for the Respondent.
John F. Kattman, Esq., for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is a re-
fusal to recognize and bargain with case. At the close of a 2-day
trial on September 25, 1997, I rendered a Bench Decision in favor
of the General Counsel (Government) thereby finding a violation
3 Nantucket Fish Co., 309 NLRB 794 (1992), in which the Board de-
clined to find that an employer had a recognitional obligation after
examining a union-proffered petition with signatures from a majority of
the unit employees, is arguably inconsistent with my analysis. I note,
however, that the petition there was given to the employer’s trustee in
bankruptcy at a hearing in the bankruptcy case, and she read it while
sitting at the hearing. This is less easily characterized as embarking on
a procedure to determine union majority than what occurred in the
present case—the examination and copying of the authorization cards.
In any event, to the extent Nantucket Fish is inconsistent with my
analysis, I would overrule it.
JEFFERSON SMURFIT CORP. 811
of 29 U.S.C. 158(a)(5) and (1). This certification of that Bench
Decision, along with the Order which appears below, triggers the
time period for filing an appeal (“Exceptions”) to the National
Labor Relations Board (Board). I rendered the bench decision
pursuant to Section 102.35(a)(10) of the Board’s Rules and Regula-
tions.
For the reasons stated by me on the record at the close of the
trial, I concluded that the following employees of Jefferson Smurfit
Corporation, Fernandina Mill Division (Company) constitute an
appropriate unit for collective bargaining within the meaning of
Section 9(b) of the National Labor Relations Act, as amended:

All on call employees, sometimes referred to as temporary
employees, employed by the Company in the E & I depart-
ment at its Fernandina Beach, Florida facility; excluding all
other employees, guards and supervisors as defined in the
Act.

I concluded the above unit is appropriate as a homogeneous
separately identifiable group of employees that no other labor or-
ganization seeks to represent and is the only unrepresented em-
ployees of the Company. Accordingly, I concluded the above unit
is an appropriate residual unit. See, e.g., S. D. Warren Co., 114
NLRB 410 (1955), and Eastern Container Corp., 275 NLRB 1537
(1985).
I also concluded that a majority (23) of the unit employees on
March 14, 1997, designated and selected International Brotherhood
of Electrical Workers, Local Union No. 177, AFL–CIO (Union), as
their representative for the purposes of collective bargaining with
the Company. I concluded there were 39 eligible unit employees
for consideration of majority status on that date. I concluded eligi-
bility by applying either of the Board’s formula for eligibility out-
lined in Davison-Paxon Co., 185 NLRB 21 (1970),1 and Marquette
General Hospital, 218 NLRB 713 (1975).2 Some employees on
the Company’s more expansive (approximately 60+) on-call list
did not meet the requirements of either formula.
It is undisputed the Union on March 14, 1997, requested (both
by letter and in person) the Company recognize it as the exclusive
bargaining representative of the unit employees and bargain with
the Union as their representative. I concluded the Company, by the
totality of its actions on March 14, 1997, agreed to recognize the
Union if the Union demonstrated by card count it represented a
majority of the employees in the unit. I found the Union demon-
strated its majority status to Employee Relations Manager Lance
House. I found the Company’s admitted failure and refusal to
thereafter (from March 14, 1997) recognize and bargain with the
Union as the exclusive collective-bargaining representative of the
unit employees violated and continues to violate Section 8(a)(5)
and (1) of the Act.
I certify the accuracy of the portion of the transcript, as cor-
rected,3 pages 263 to 275 inclusive, containing my decision, and I

1 The Board in Davison-Paxon Co. held that any temporary (or on-
call) employee “who averages 4 hours or more per week for the last
quarter prior to the eligibility date [March 14, 1997 herein] has a suffi-
cient community of interest for inclusion in the unit.” The Board con-
tinues to utilize the Davison-Paxon Co. formula. See, e.g., Five Hospi-
tal Homebound Elderly Program, 323 NLRB 441 (1997).
2 The Board in Marquette General Hospital, held “employees who
have worked a minimum of 120 hours in either of the two 3-month
periods immediately preceding the date shall be eligible.”
3 I have corrected the transcript by making physical inserts, cross-
outs, and other obvious devices to conform to my intended words,
without regard to what I may have actually said in the passages in ques-
tion.
attach a copy of that portion of the transcript, as corrected, as “Ap-
pendix A.”
CONCLUSION OF LAW
Based on the record, I find the Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act; that it violated the Act in the particulars and for the
reasons stated at the trial and summarized above; and that its viola-
tions have affected and, unless permanently enjoined, will continue
to affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found the Company has engaged in certain unfair labor
practices, I find that it must be ordered to cease and desist and to
take certain affirmative action designed to effectuate the policies of
the Act.
Having found the Company unlawfully failed and refused to
recognize and bargain with the Union as the exclusive representa-
tive of the employees in the unit described elsewhere in this Bench
Decision, I recommend the Company be ordered to recognize and
bargain with the Union as the exclusive representative of the em-
ployees in the described unit. I also recommend the Company be
ordered, within 14 days after service by the Region, to post an
appropriate notice to employees, copies of which are attached
hereto as “Appendix B” for a period of 60 consecutive days in
order that employees may be apprised of their rights under the Act
and the Company’s obligation to remedy its unfair labor practices.
[Recommended Order omitted from publication.]
APPENDIX A
BENCH DECISION
[Errors in the transcript have been noted and corrected.]
263
Judge Cates: One is that I invite the parries during this 20 minute
time that I’m using to outline my decision to see if there’s any
common ground that you could settle this matter on because you
can obviously settle after I’ve rendered the decision. But it perhaps
fixes the parties’ positions a little more than it would be now.
And, secondly, let me state that it has been genuinely a pleasure
to hear this case. That all counsel have done on outstanding job,
and I appreciate that. And the winners or the losers are not based
on the quality and caliber of counsel. It’s perhaps one of those
cases where someone prevails, and someone doesn’t. And that
happens quite often, I guess, in life.
So with that, we’ll take about a 20 minute recess and be back
here. Off the record.
(Whereupon, a brief recess was taken.) Judge Cates: Back on the
record.
Before I took a recess to outline some notes for rendering the
decision herein, I invited the parties to again to attempt to resolve
this matter short of a decision. Has there been any fruit in that di-
rection?
Mr. Kattman: No, Your Honor.
Judge Cates: Very well. This is my decision: the charge underly-
ing this proceeding was filed by the Union on March 20, 1997 and
thereafter served on the Company. At all
264
times material herein the Company has been and is a Delaware
corporation with an office and place of business located in Fernan-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812
dina Beach, Florida, where it is engaged in the manufacture and
non-retail sale of craft paper.
During the past year, the Company, in conducting its business
operations, sold and shipped from its Fernandina Beach, Florida
facility goods valued in excess of $50,000 directly to points outside
the State of Florida. The evidence indicates the parties admit—and
I find—that the company is an employer engaged in commerce
within the meaning of Section (2)(2) (6) and (7) of the Act.
I find that the International Brotherhood of Electrical Workers,
Local Union No. 177, AFL–CIO is a labor organization within the
meaning of section 2(5) of the Act. I find that Warren Flennikin,
spelled F-l-e-n-n-i-k-i-n, is the general manager and Lance House,
spelled H-o-u-s-e, is the employee relations manager of the com-
pany. And that both are supervisors and agents of the company
within the meaning of section 2(11) and 2(13) of the Act.
As to whether or not the unit alleged in paragraph five of the
complaint, which reads as follows:
All on-call employees, sometimes referred to as temporary em-
ployees, employed by respondent in the E and I department at its
Fernandina Beach, Florida facility excluding all other employees,
guards and supervisors as defined in the Act
265
constitutes an appropriate unit.
First I shall look at what the temporary employees are utilized
for.
It appears that based on the testimony of employee rela-
tions-manager House that the temporary employees are utilized
during maintenance shutdown periods, which happens approxi-
mately 10 to 14 days per year and sometimes maybe happening
twice during a year.
The temporary employees are also utilized when permanent em-
ployees in the E and I department are away from work for work-
man’s comp, situations, sicknesses, safety projects, projects that
need to be done rapidly and matters closely related thereto.
It appears that the temporary employees have a community of
interest common to each other—that is the temporary employees
are performing tasks of a like nature when they are working for the
company. Are they, as contended by the General Counsel, separate
appropriate residual unit? I find they are. They are a homogeneous
unit that is separate from any other unit.
I note in that respect that the Company has approximately 300
employees that are represented by the United Paperworkers Union.
I believe it is Local 415. But be that as it may, the Company has
about 100 machinists that are represented by the machinist union.
They have about 42 power employees who are
266
represented by IBEW Local 201A and then IBEW Local 1924
represents, without question, the electrical and instrument perma-
nent employees, which number approximately 55.
The Company also employs a group of individuals as managers,
environmental employees, office clerical employees, process con-
trol employees, engineers, vibration analysis employees and others.
That management group and support thereto are not represented by
a union.
And there are no hourly employees of a permanent and regular
basis, as I understand it, that are not represented by a union. So the
unit that the government contends appropriate in paragraph 5 ap-
pears, as contended by counsel for the General Counsel, to be an
appropriate residual unit.
Furthermore, there’s no evidence in this record that any other la-
bor organization seeks to represent this group of employees.
Therefore, I conclude and find that the unit that I have described
into the record and that is set forth at paragraph five of the com-
plaint is an appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9(b) of 21 the Act.
Did a majority of the employees in that unit designate and select
the union as their collective bargaining representative on or about
March 14, 1997? One has to decide what constitutes the list or
number of employees composing that unit before you
267
can ascertain if a majority of the individuals selected the union as
their designated bargaining representative. I note that on the date in
question, which is March 14, 1997, that there were 29 temporary
employees employed in the E and I department. And I believe that
came in by way of stipulation in the record.
At least of the 29 that were on that day, 23 of them signed valid
union signature cards. Now when I say valid union signature cards,
there’s been no issue made in this proceeding, no evidence pre-
sented, that any of the cards where in any way invalid or not for the
purpose reflected on the card. That is, to designate the union as
their collective bargaining representative.
What constitutes the unit or the list of employees from which I
must ascertain if a majority has been arrived at. Is it the 61 or so
contended by the Company, or the 38 or 39 contended by the gov-
ernment? I am persuaded the law is pretty clear on this issue. And
using the least expansive holding, to be part of the list of employees
from which it would be determined whether or not the union had a
majority, I find the total number is approximately 39.
And based on the less expansive guideline an individual, to be
considered among those on the list must have worked an average of
four hours or more per week during the three months immediately
preceding the date in question. And the date in question in this
particular case is March 14, 1997.
268
If I applied—one of the other formulas of the Board where I
looked back for employees that work 120 hours for two quarters,
the list would still be approximately 39. Those 39 individuals that,
in my opinion, compose the—or comprise—the list which it must
be determined if a majority selected the Union were Debra C. Barr,
B-a-r-r; William F. Brooks, B-r-o-o-k-s; Randall V. Carter,
C-a-r-t-e-r, John Z. Cooper, C-o-o-p-e-r; Charles M. Cunningham,
C-u-n-n-i-n-g-h-a-m; John E. Currin, C-u-r-r-i-n; Charles B. Fresh,
F-r-e-s-h; Jack M. Fugate, F-u-g-a-t-e, Jr.; James L. Fugate,
F-u-g-a-t-e; Darrell Y. Gamble, G-a-m-b-l-e; James L. Goforth,
G-o-f-o-r-t-h; Charles L. Gregory, G-r-e-g-o-r-y, Jr.; Charles P.
Hogg, H-o-g-g; Carl E. Lee, L-e-e; William A. Manning,
M-a-n-n-i-n-g; George C. Mazoch, M-a-z-o-c-h; Allison B. Nung-
ester, N-u-n-g-e-s-t-e-r; Russell W. Orr, O-r-r; James A. Peeples,
P-e-e-p-l-e-s; Barry R. Powell, P-o-w-e-l-l; C.V. Rupert,
R-u-p-e-r-t; Edward W. Senkus; S-e-n-k-u-s; Robert W. Siegler,
S-i-e-g-l-e-r; Brenda J. Silva, S-i-l-v-a; John A. Simone,
S-i-m-o-n-e; Robert Tesori, T-e-s-o-r-i Jr.; Jerry D. Thomas,
T-h-o-m-a-s; Thomas W. Townsend, T-o-w-n-s-e-n-d; James L.
Tucker, T-u-c-k-e-r; David L. West, W-e-s-t; Camell, C-a-m-e-l-l,
D. Williams; James Fugate, F-u-g-a-t-e; James Hurley, H-u-r-l-e-y;
Fred Milheim, M-i-1-h-e-i-m; J. Bellinger, B-e-l-l-i-n-g-e-r; M.
Harrison, H-a-r-r-i-s-o-n; G. Liddy, L-i-b-b-y—that should be
Libby, L-i-b-b-y—Steve Ray, R-a-y; and Charles White, W-h-i-t-e.
269
You may note that I have included Mr. James L. Fugate, F-u-g-
a-t-e, in that list without being absolutely clear that he met the most
JEFFERSON SMURFIT CORP. 813
restrictive requirements for being eligible to be included in the
number of those that, I would consider whether the Union had a
majority or not. It is harmless to include him because the union, I
find, had a majority of those individuals on March 14, 1997, with
or without James L. Fugate.
The majority was composed of James L. Goforth, Debra Barr,
William Brooks, Randy Caster, John Cooper, John Currin, Darrell
Gamble, Charles Hogg, Carl Lee, W.A. Manning, George Mazoch,
Russell Orr, Barry Howell, Edward S-e-n-k-u-s—
I think is the correct spelling—Robert Siegler, John Simone,
Bob Tesori, Thomas Townsend, James Tucker, Camell Williams,
Mitchell Cunningham, C.V. Rupert, and David West.
Did the union request representation by the Company for the
employees in this unit? The answer is yes. Local 177 business
agent and financial secretary Robert Williams testified that on
March 14 when the union met with Mr. Flennikin and Mr. House
the union demanded recognition.
Assistant business agent Eddie Dedmon testified that the union
asked would they recognize the union. A letter was also presented
to the Company at that time, which the testimony indicates Mr.—
correction—employer relations House received.
The letter in pertinent part, which is General Counsel’s
270
Exhibit 3, asked for recognition, which is set forth at paragraph two
of that letter, “We are requesting immediate recognition of the local
union as the collective bargaining agent of your employees for the
purposes of negotiating an agreement for wages, hours and work-
ing conditions.” So I find that a demand was made for recognition.
Did the Company agree by its actions or otherwise to recognize
the union as the representative of the employees in question? I’m
persuaded the answer to that question is yes. It is undisputed that
the union representatives met with the management officials and
that the union’s individuals informed the Company that they had a
majority of the employees signed up. They presented the Com-
pany with a demand letter. The demand letter, among other things
reads: “In the event you have any doubt as to whether the IBEW
represents a majority of your temporary E and I employees, we’re
willing to present the authorization cards to you now for your in-
spection.”
The evidence is clear that Mr. House took the cards and exam-
ined the cards, made copies of the cards and then returned the origi-
nals to the union.
IBEW local union 177 assistant business agent Dedmon, D-e-d-
m-o-n, testified that Mr. House, upon being presented the cards,
examined the cards. I am persuaded there is no other conclusion
that can be drawn from the record evidence other than that the
Company through employee relation’s manager House upon
271
being faced with a demand—examining the cards, copying the
cards—by his actions, we agreed, on behalf of the Company, to
recognize the union as collective bargaining representative of the
employees in the unit that I have made reference to.
Does the collective bargaining agreement between Local union
1924 cover the temporary employees and act as a bar to the unfair
labor practice allegations herein? That is, if the employees are
already covered by a collective bargaining agreement, the unfair
labor practice herein would fail. I find there is no contract bar. And
I base that on a number of factors.
Number one, there is no mention in the recognition clause of the
agreement between the Company and Local 1924 as to the tempo-
rary call-in employees.
Secondly, according to the credited testimony of president and
business manager—or business agent—Chandler of Local 1924,
the Company has taken the position that the temporary employees
are not part of the collective bargaining agreement covered be-
tween the Company and Local 1924.
Further, the only mention of applicability of temporary employ-
ees in the contract between the Company and Local 1924, which is
General Counsel’s Exhibit 2, appears on page 38 of the agreement
where they are excluded. And I shall read that exclusion into the
record, quote, “This overtime agreement does not apply to proba-
tionary or temporary employees. “I find there
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is no contract bar.
Next I find it necessary to address certain other of the defenses
that the Company has raised. The Company contends that if they
are ordered to bargain with Local 177 on behalf of the temporary
employees, that such has the potential of creating unrest or instabil-
ity in the workplace and among the work force. I find such an
invalid defense when weighed against the right of the employees in
the group of temporary employees to self-determination as to
whether they wish to be represented by a union for collective bar-
gaining purposes regarding wages, hours and other terms and con-
ditions of employment. So I find that defense to be without merit.
The Company raises another, but somewhat related defense, in
that if it is ordered to bargain with Local 177 on behalf of the tem-
porary employees, it may then be put in the position of negotiating
with one local of the IBEW for terms and conditions that would be
detrimental to the other local and vice versa. Such I find is the
reality of the workplace and labor relations. The mere fact that one
local may be negotiating on behalf of employees to their benefit
and another unit’s detriment is just the reality of the workplace. So
I find that defense to be without merit.
The Company also contends that local union 1924 has, whether
included in the contract or not, been representing the temporary
employees. In that it has filed grievances—some of
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which are presented in the record both by the General Counsel and
by the Company—where the union is contending that these tempo-
rary employees have worked sufficient elements of time to be
made permanent employees.
My view of those grievances is that local union 1924 is simply
pursuing the grievances on behalf of individuals that it contends
has met the requirements to be included in the unit that it repre-
sents. That is, they have passed from the temporary status to the
status of permanent employees.
And, therefore, would be in the unit that Local 1924 represents
and as such, the Union is not representing the temporary employees
when it advances these grievances, but rather is representing poten-
tial members of the unit that it is recognized to bargain on behalf.
So I find that defense of the Company is without merit.
Finally, I note that no party contends that this is an accretion
type case, nor has an accretion issue been litigated before me. In
summary, I find that a majority of the employees in the unit that
I’ve earlier described on or about
March 14, 1997 designated and selected the union as their col-
lective bargaining representative and that the urn on made a de-
mand of the Company that the Company recognize them; that the
Company by its actions did recognize the Union; and that the
Company, thereafter, in violation of section 8(a)(5) and 1 of the
Act, refused and continues to refuse to recognize and bargain with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 814
274
the Union.
I, therefore, order that the Company recognize Local Union 177
of the IBEW as the collective bargaining representative of the em-
ployees in the group that I have read into the record and that is
described at paragraph five of the complaint. And that upon de-
mand, it bargain in good faith with the Union regarding the wages,
hours and working conditions of the unit employees. And if any
agreement is arrived at, reduce same to writing and execute it.
Now when I receive the transcript of this proceeding, I will cer-
tify the pages of the transcript that constitute my decision to the
Board and will serve it not only on the Board, but on the parties.
And I will set forth a more detailed remedy—I will set forth the
notice that will need be posted. And it is my understanding that the
appeals period for taking exceptions to my decisions runs from the
certification of the decision—that is from when I issue my decision
certifying the transcript pages as my decision. That is my under-
standing as to when the appeals period commences.
Please do not, however, rely on my understanding. Consult the
Board’s rules and regulations. The court reporter normally pro-
vides the transcript to me within 10 working days of the conclusion
of the trial. And then absent my being on the road trying other
cases, I make an effort to certify the decision as soon thereafter as I
can.
275
Let me state in conclusion that it has been a pleasure to be in
Jacksonville, Florida and this hearing is closed.
Off the record.
(Whereupon, the hearing was adjourned at 12:40 p.m.)