John Oster Service Co.

National Labor Relations Board - Board Decisions

Nov 8, 1968

173 N.L.R.B. 673 (N.L.R.B. 1968)

JOHN OSTER SERVICE CO
John Oster Service Company and Warehouse, Pro-
cessing and Allied Workers , Local 6 , International
Longshoremen 's and Warehousemen ' s Union.
Case 20-CA-4699
November 8, 1968
DECISION AND ORDER
BY CHAIRMAN MC CULLOCH AND MEMBERS FANNING
AND BROWN
On August 6, 1968, Trial Examiner David Karasick
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in
certain unfair labor practices alleged in the complaint,
and recommending that the complaint herein be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and the Respondent filed exceptions to the
Decison together with supporting briefs, and each
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID KARASICK, Trial Examiner This proceeding under
Section 10(c) of the National Labor Relations Act, herein
called the Act, was heard at San Francisco, California, on
March 19 and 20, 1968, pursuant to due notice. The
complaint, dated November 28, 1967, as amended without
objection at the hearing, was based upon a charge filed on
September 26, 1967, by Warehouse, Processing and Allied
Workers, Local 6, International Longshoremen's and Ware-
housemen's Union, herein called the Union, and alleged that
the Respondent had engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
673
On the entire record' in the case, including briefs filed by
the General Counsel and the Respondent and from my
observation of the demeanor of the witnesses , I make the
following
FINDINGS OF FACT
I THE BUSINESS OPERATIONS OF THE RESPONDENT
John Oster Service Company, a subsidiary of Sunbeam
Corporation, is a Delaware corporation which maintains a
place of business in Chicago, Illinois, and branch offices in
various cities throughout the United States, including San
Francisco, California, where it is engaged in the wholesale sale,
servicing and repair of electrical appliances. Only the branch
office located in San Francisco, California, is involved in this
proceeding. During the past year, the Respondent purchased
and received goods valued in excess of $50,000 which were
shipped across State lines directly to the Respondent at its
various locations. It is conceded, and I find, that the
Respondent is, and at all times material herein has been, an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES ALLEGED
A The Issue
The basic issue in this case is whether the Respondent
unlawfully refused to recognize and bargain with the Union on
and after September 15,1967.
B. The Facts
The San Francisco branch of the Respondent, which is
engaged in the sale and repair of electrical appliances, employs
eight persons in addition to Walter Bishop, the manager Of the
eight persons so employed, five are engaged in repair work,
shipping or receiving. Of the remaining three employees, one is
a sales and service clerk, one is a bookkeeper, and one is a
part-time office clerk. On Thursday and Friday, September 14
and 15, 1967,2 four of the five employees engaged in shipping,
receiving, or repair work signed union authorization cards.
At approximately 2 p in. on September 15, Albert Lannon,
Jr , an International representative of the Union, and Keith
Eickman, business agent of the Union, met with Walter Bishop,
branch manager of the Respondent, and William Anderson,
regional service manager of the Respondent, in Bishop's office.
The two union representatives introduced themselves and
handed Bishop their business cards which set forth their
names, union titles, telephone number and addresses . Lannon
stated that the Union represented a majority of the warehouse
I An obvious error in the transcript which appears at page 161, lines
14 and 15, as "expressing our position to the union " is hereby
corrected to read "expressing opposition to the union."
2 All dates hereafter refer to 1967 unless otherwise indicated
173 NLRB No. 106
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and service employees of the Respondent, that four out of five
such employees had signed union authorization cards, that the
Union was asking for recognition, and that it was interested in
proceeding with negotiations at the earliest possible time
Lannon handed Bishop the four union authorization cards.
Bishop examined them and then gave them to Anderson who
also examined them and then passed them back to Lannon.
Lannon asked if there was any question about the fact that the
Union had signed up a majority of the Respondent's em-
ployees and Bishop said that there was no dispute over that
fact and Anderson replied that there was no question that the
Respondent had signed them up Lannon asked Bishop to sign
a recognition agreement3 but Bishop replied that he would
have to consult his home office in Milwaukee and asked that
the Union give him until September 20 or 21 for an answer 4
After Lannon and Eickman departed, Bishop mailed the
following memorandum, dated September 15, to Ralph Egan,
Respondent's vice president in Milwaukee.
Today we had two representatives of the ILWU, local Six
visiting with us. They held the signatures of four (4)
employees
John Veloz
Bill Aragon
Stan Smilee
Earl Brown
They ask [sic] that I sign a Memorandum of Understanding
which I did not.
Attached is Memorandum mentioned above and the cards
of the two men who called on us
I await your advise [sic] on this matter
Best Regards,
Walt
At approximately 6 o'clock that evening, Bishop tele-
phoned Egan in Milwaukee and informed him in substance
what he had stated in the memorandum which he had mailed.
Egan informed Bishop that the latter had no authority to sign
anything and instructed him to do nothing about the matter
until he heard further from the Respondent.
On Saturday, September 16, William Aragon, one of the
employees who had signed a union authorization card, told
Bishop that Aragon did not think that the Union could
represent him in his capacity as a repairman and that he was
going to tell the Union to "forget it" as far as he was
concerned
On Monday morning, September 18, Bishop was told by
Charles Tumelty, one of Respondent's repairmen who had not
signed a union designation card, that employee Earl Brown had
said that the Union did not mean anything to him, that he was
planning to go to school and was going to get another job and
3 The agreement provided that the Respondent would recognize the
Union "as the bargaining agent for employees of the firm employed as
warehousemen covered by the classifications under the jurisdiction of
said union "
4 The foregoing findings are based upon the testimony of Lannon
and Eickman Bishop and Anderson denied that Lannon had requested
recognition for the "warehouse and service " employees and further
denied that either of them had acknowledged that the Union held
signed cards for a majority of the employees in such a unit According
to Bishop , Lannon had stated that the Union represented a majority of
"your people here " while Anderson testified that Lannon had stated
that he represented a majority of "the people " Thus , the Respondent
contends, the Union 's request for recognition at this time was
ambiguous and an uncertainty existed as to whether it was claiming
recognition for all eight of the employees rather than the five to whom
Lannon testified he had referred as warehouse and service employees. If
the Respondent entertained a doubt as to the unit , neither Bishop nor
Anderson expressed it at the time nor did they question the fact that
the four union authorization cards displayed to them would not have
constituted a majority of the total employment complement of eight
Moreover , as noted hereafter , Lannon again called on Bishop on
September 21 to inquire whether Bishop had heard from his home office
and was prepared to sign the recognition agreement On that occasion
Bishop stated that he did not think that a majority of the employees
were interested in the Union and suggested that Lannon seek a Board
election. Lannon declined the suggestion , Bishop testified, on the
ground that "he didn't have to do that because I acknowledged the
cards ." Bishop further testified that, on the following day , he again told
Lannon that he was not sure that the Union represented a majority and
suggested to Lannon that an election be held, but that Lannon replied
"he didn't have to have an election, that I had acknowledged the cards"
and that the Union had a standard unit If Bishop had not acknowl-
edged the Union's majority on September 15, I cannot believe that he
would not have disputed Lannon's statements on September 20 and 21
that he had done so I am convinced and find that , on September 15,
Lannon did request recognition in a unit comprising the service and
warehouse employees of the Respondent , that he stated at that time
that the Union represented four out of five such employees , and that
Bishop and Anderson , after examining the four signed authorization
cards submitted to them , acknowledged the authenticity of such cards.
In the latter regard, the Respondent concedes in its brief the validity of
the cards signed by the four employees in question
5 Aragon testified that he did not recall telling Bishop on Saturday,
September 16, that he was going to get his card back He admitted that
he had talked to Bishop about many things but denied that they had
discussed the Union He further admitted that, about a week after he
had signed the card , he had asked Lannon to withdraw it bacause he did
not feel that the Union , which represented warehousemen , could also
represent Aragon since the latter was an electrician and repairman. John
Veloz, one of the employees who had also signed a union card, testified
that he had been told by Aragon during the week after September 15
that Aragon was not interested in the Union because he felt that it
could not represent him in his capacity as a repairman and that Aragon
had further told Veloz that Aragon had mentioned to Bishop that he
did not want to have anything to do with the Union The General
Counsel contends that the Respondent had no knowledge of Aragon's
doubts about the Union until a week or two after he had signed the
union card . However, Lannon admitted that , on September 21, he was
told by Bishop that one employee had expressed his opposition to the
Union and that he had heard that another was having second thoughts.
It is clear from the record that one of these employees to whom Bishop
referred was Aragon . The evidence shows that Bishop left San Francisco
and went to Milwaukee at midnight on September 19 and did not return
to San Francisco until the evening of September 20. Despite Aragon's
failure of recollection, I believe and find that he made the statements to
Bishop on September 16 in accordance with the latter's testimony as
above set forth I further find that Aragon, who likewise did not recall
this conversation , told Bishop on the morning of September 19 that on
the preceding day Aragon had advised the Union to "forget it "
JOHN OSTER SERVICE CO.
that he had signed a union designation card just to go along
with the other employees 6
Later in the morning on the same day, Bishop spoke to
Arthur Hopkins, the Respondent's vice president for industrial
relations. Bishop reported to Hopkins the events which had
occurred since the prior Friday regarding the Union, including
the information he had with respect to Aragon and Brown
Hopkins told Bishop that the latter had no authority to
negotiate or sign anything with the Union and instructed him
that, if the Union called upon him again, Bishop was to inform
the union representatives that the Respondent did not believe
that the Union represented a majority of the employees
Hopkins also instructed Bishop not to look at anything which
the Union might present to him.
At approximately noon on September 19, Bishop received
another call from the Respondent's home office in which he
was instructed to appear in Milwaukee the following morning
for a meeting. Bishop left San Francisco late that evening and
met with various officials of the Respondent in Milwaukee on
Wednesday, September 20. The matter of the union demand
for recognition was discussed, together with the possibility
that picketing might be instituted. Bishop was again instructed
that, if the union representatives returned, he was to inform
them that he had contacted his home office, that he did not
believe that the Union represented a majority of the em-
ployees, that he could not sign anything, that he was not
authorized to negotiate with the Union and that the Union
could seek a Board election That evening Bishop returned to
San Francisco.
On the following day, Hopkins telephoned Bishop and told
him that Gordon Nichol, a representative of Sunbeam,' was
due to arrive in San Francisco that evening and instructed
Bishop to inform Nichol of anything that happened that
afternoon.
At approximately 3.15 p m. on September 21, Lannon and
Eickman returned to Bishop's office. Lannon asked Bishop if
he had received an answer from Milwaukee. Bishop replied by
stating that he doubted that the Union now represented a
majority of the employees, that one employee had talked to
him and expressed his opposition to the Union and that he had
heard that another was having second thoughts; and that he
was not willing to enter into any further discussions with the
Union at that time.
At the suggestion of Nichol, with whom he had meanwhile
conferred following the visit of Lannon and Eickman, Bishop
telephoned Lannon on September 22. Bishop asked Lannon
what the Union considered to be the unit. Lannon replied that
the Union was interested only in the servicemen and the
shipping clerk. Bishop again stated that he did not think that
the Union represented a majority, that one employee had told
6 Brown, in effect, denied having made such a statement to
Tumelty , although when asked if he had not told the latter employee
that Brown had just gone along with the others in signing the cards but
was going to leave anyway answered that "this wasn't at the time of
signing the cards, no." This response would indicate that he had made
such a statement but not at the time in question. Here, as in the case of
Aragon's statement which has previously been considered, it is
undisputed that the Respondent had been informed by September 21
that there was some question as to Brown's allegiance to the Union. At
the time of the hearing and again in its brief , the General Counsel
objected to the foregoing testimony of Bishop on the ground that it was
hearsay. I do not believe that it may be appropriately characterized as
such since it is my understanding that it was introduced , not for the
purpose of proving the truth of Tumel-y 's statements to Bishop, but
merely for the purpose of showing that the Respondent received
675
him that he was not interested and that he had heard that
another employee had made a similar statement; and he again
suggested that the Union seek a Board election. Lannon
answered that he did not have to have an election; that Bishop
had acknowledged the cards; and that the Union was seeking a
standard unit.
C. Concluding Findings
The Respondent contends that the Union did not clearly
delineate the unit for which it was demanding recognition on
September 15 and further contends that only a unit including
all eight of the employees at its San Francisco branch is
appropriate, rather than that comprising the five employees
sought by the Union. I am unable to agree with either of these
contentions I find that the five employees engaged in repair
work, shipping and receiving constitute an appropriate unit
within the meaning of the Act and, as previously found, that
Lannon had requested recognition for such a unit on behalf of
the Union on September 15.
In summary, the facts in this case show that on September
15 the Union demanded recognition as the bargaining represen-
tative of employees in an appropriate unit, that Bishop
acknowledged that a majority of the employees in such unit
had signed union authorization cards, that he stated he had no
authority to sign the recognition agreement presented to him
by the Union and said that he would have to refer the matter
to the Milwaukee office of the Respondent and would receive
an answer on September 20 or 21, that between September 15
and September 21, the Respondent was told by one of the
employees that he did not believe the Union could represent
him and he was, therefore, going to tell the Union to "forget"
his union authorization card and in addition heard that
another employee who had signed such a card had indicated he
was not interested in the Union, that he planned to leave the
Respondent's employment in the near future and that he had
just signed the card to go along with the other employees, that,
based upon this knowledge, the Respondent decided not to
grant recognition to the Union, and that on September 21 the
Union was informed that the Respondent would not recognize
it because it doubted that it represented a majority of the
employees.
In essence, the issue in this case is whether the Respondent
failed to act in good faith when it declined to recognize the
Union under the foregoing circumstances. The General Counsel
argues that Bishop had authority to grant recognition on
September 15 and that his failure to do so, after acknowl-
edging that the Union had authorization cards signed by a
majority of the employees in the unit, was unjustified. The
record shows that Bishop is in charge of the San Francisco
information which it was entitled to consider in assessing the union's
claim to represent a majority In this posture , I believe that the evidence
was admissible . Nor do I agree with the General Counsel 's contention
that Bishop's testimony in this regard is not to be credited because
Tumelty was not called as a witness to corroborate it Tumelty may
have been called as a witness by the General Counsel as well as by the
Respondent and, while his appearance may have been desirable, I do not
believe that it was essential in arriving at a conclusion that Bishop's
testimony regarding the matter is to be credited On the record as a
whole, I find that Tumelty made the statements to Bishop regarding
Brown on September 19 in accordance with Bishop 's testimony as
above set forth.
7 As previously noted, the Respondent is a subsidiary of Sunbeam
Corporation.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
branch and in that capacity is empowered to hire, discharge,
and discipline employees, settle grievances, represent the
Respondent at State unemployment compensation hearing,
and order repair parts. But these activities fall short of proving
that he had the authority to grant formal recognition to a
union or to negotiate a contract with it. Absent other
evidence, I cannot find that the Respondent's failure to clothe
him with such authority constituted a device for evading the
Act by "division of corporate personnel functions,"8 as the
General Counsel argues.
The mere fact that Bishop acknowledged that the Union
held what would appear to be valid union designation cards of
four of the employees on September 15 would not preclude
the Respondent from exercising its option to insist that the
Union go to an election for the purpose of determining its
majority rather than relying upon the cards, so long as it did
not act in bad faith in taking such a position. "Absent an
affirmative showing of bad faith," the Board has said, "an
employer, presented with a majority card showing and a
bargaining request, will not be held to have violated his
bargaining obligation under the law simply because he refuses
to rely upon cards, rather than an election, as the method for
determining the union's majority "9
The decision to refuse recognition of the Union was made
by Hopkins on September 19 on the basis of information
received from Bishop that Aragon had stated that he doubted
whether the Union could represent him and was going to ask
the Union to withdraw his union designation card and
Tumelty's statement to Bishop that Brown had said he was not
interested in the Union, was planning soon to leave his job and
had signed just to go along with the other employees Neither
the fact that Aragon did not ultimately repudiate the Union
nor the further fact that Tumelty's statement regarding Brown
may have been incorrect indicate that the Respondent was
acting in bad faith. There well may be circumstances where
doubt of a union's majority expressed by an employer is based
upon information of so questionable and tenuous a character
that his reliance upon it may not be regarded as reasonable
and, therefore, may warrant an inference that he was not
acting in good faith. I believe, however, that in this case, the
information in the possession of the Respondent provided a
reasonable basis for questioning the Union's majority. While
the Respondent may have been justified in interrogating its
employees regarding their support of the Union, its failure to
do so does not provide a basis for concluding that it was acting
in bad faith, as the General Counsel contends. While the
information it had might not be enough to prove affirmatively
that the Union did not have a majority, it was enough to raise
a doubt whether the Union's claim that it did represent a
majority was correct. Under such circumstances, I cannot say
that it was unjustified in suggesting that the Union go to an elec-
tion in order to prove its right to represent the employees.' 0
8 Cf. Allegheny Pepsi-Cola Bottling Company v N L R B, 312 F.2d
529 (C.A. 3).
9 Aaron Brothers Company of California, 158 NLRB 1077, 1078
10 Cf. Snow & Sons, 134 NLRB 709, 710-711, where the
Employer entertained no reasonable doubt that the Union represented a
majority and had no valid ground for insisting upon a Board -directed
election.
Nor can I say on the basis of this record that the
Respondent was guilty of undue delay in giving its answer to
the Union on September 21. Bishop's statement on September
15 that he would not receive a reply from his home office to
the Union's request for recognition until September 20 or 21
was not objected to by the Union. And there was no
understanding that Bishop would deliver the Respondent's
answer to the Union rather than that the Union would seek the
Respondent's reply. The fact that Bishop learned of Hopkins'
decision on September 19 but did not notify the Union of it
until September 21 does not seem significant to me in this
connection particularly in view of the fact that, on September
20, Bishop spent the entire day in Milwaukee in discussion
with officials of the Respondent concerning the problems
raised by the Union's demands Nor do I consider the fact that
Bishop admittedly was instructed to give the Union a "pat"
answer that the Respondent doubted it represented a majority
or the fact that Hopkins admitted that the Respondent did not
take the initiative in notifying the Union of its ultimate
decision to refuse recognititon because the Union might never
return again or it might just fade away and disappear as proof
of bad faith. It may be assumed from these admissions that the
Respondent was not eager to have a union represent its
employees but that assumption does not provide a basis for
concluding that the Respondent engaged in undue delay in
providing the Union with an answer or that it otherwise was
acting in bad faith.
I am unable to agree with the General Counsel's contention
that the Serpa case'' is controlling here The General Counsel
would regard as without significance the fact that in Serpa,
unlike this case, the employer promised to telephone the
Union but failed to do so. I cannot agree I believe that this is a
significant basis for distinction. In that case the Employer had
examined the Union's authorization cards and was convinced
that they were valid and that the Union represented a
majority. Although he had promised to telephone the union
representative as soon as he had consulted an attorney, his
failure to keep his promise in this respect, the Court held,
constituted undue delay and "was apparently designed to gain
time for the employees to reconsider their decision to have the
Union as their bargaining representative." The Respondent in
this case made no such promise, however, and there is no basis
for the inference that it delayed answering the Union's request
for recognition for such a purpose.
Nor can I agree with the further argument of the General
Counsel that the present case rests in a stronger posture than
did Serpa "because here the Union did not lose its majority
status, while in Serpa two employees, without assistance from
the employer, effectively withdrew from the Union, thereby
causing the Union to lose its majority." Neither the Board nor
the Court relied upon this fact in coming to its decision. The
Court expressly noted that the employer had testified that the
1 t Retail Clerks Union, etc v . N.L.R B. (John P. Serpa, Inc.), 376
F.2d i86 (C.A. 9) See also John P. Serpa, Inc, 166 NLRB No 66,
where the Board , upon remand, concluded that the Employer had
violated Section 8(a)(5) of the Act in accordance with the court's
decision.
JOHN OSTER SERVICE
alleged repudiations of two of the employees were not a factor
in the employer's decision not to recognize the Union's
majority status and the Board, both in its original decision and
its decision following the remand, found it unnecessary to pass
upon that aspect of the case.
For the foregoing reasons, I find that the Respondent did
not unlawfully refuse to recognize and bargain with the Union
on and after September 15, 1967, as alleged in the complaint.
RECOMMENDED ORDER
677
Upon the basis of the foregoing findings and conclusions
and upon the entire record in the case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, it is
ordered that the complaint issued herein against the Respon-
dent, John Oster Service Company, be, and it hereby is,
dismissed.