Kentucky News, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 777 (N.L.R.B. 1967)

KENTUCKY NEWS
Kentucky News, Incorporated and General
Drivers, Warehousemen and Helpers Local
No. 89, affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
Case 9-CA-4105
June 22, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On April 5, 1967, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Decision and a supporting
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 the brief,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Kentucky News,
Incorporated, Louisville, Kentucky, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified herein.
1. Substitute the following for paragraph 1(b) of
the Recommended Order:
"(b) In any manner interfering with the efforts of
the Union to bargain collectively with the
Respondent."
2. Substitute the following for the last indented
paragraph of the Appendix:
WE WILL NOT in any manner interfere with
the efforts of the Union to bargain collectively
with us.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
777
JOSEPH I. NACHMAN, Trial Examiner: This proceeding
heard at Louisville, Kentucky, on February 6, 1967, is
predicated on a complaint' pursuant to Section 10(b) of
the National Labor Relations Act, as amended, herein
called the Act, which alleges that at all times after
October 27, Kentucky News, Incorporated (herein called
Respondent or the Company), refused, on demand, to
bargain with General Drivers, Warehousemen and Helpers
Local Union No. 89, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called the Union or Local
89), the certified bargaining representative of the
employees involved, in violation of Section 8(a)(5) and (1) of
the Act. No independent 8(a)(1) violations are alleged.
Respondent by answer admitted certain allegations of the
complaint, including the demand for, and its refusal to
bargain with, the Union, but denied the commission of any
unfair labor practices. Basically, the issue is whether on
the facts, which are in the main stipulated, Respondent
when it refused to bargain had a good-faith doubt that the
Union, which had been certified by the Board October 6,
1965, enjoyed majority status. For reasons hereafter
stated, I find and conclude that Respondent did not have a
good-faith doubt of the Union's continued majority, and
that its admitted refusal to bargain was violative of Section
8(a)(5) and (1) of the Act.
At the hearing, all parties were represented by counsel,
and were permitted to introduce testimony, to examine
and cross-examine witnesses, and to argue orally on the
record. Oral argument by Respondent is included in the
transcript. Briefs submitted by the parties, as well as the
oral argument, have been duly considered.
Upon the entire record, I make the following:
FINDINGS OF FACT2
An election pursuant to consent agreement having been
conducted on September 28, 1965, and a majority of the
employees having voted in favor of the Union,3 the Board
on October 6, 1965, certified the Union as the
representative of Respondent's employees. Between the
issuance of the certification and following March 3, the
parties met in eight bargaining sessions but no agreement
was reached. There is no contention that any unlawful
refusal to bargain occurred to this point. In fact it is
conceded that the negotiations resulted in a good-faith
impasse. At the final meeting on March 3, the Union stated
that the inability to reach agreement would require it to
take strike action. Admittedly, no strike occurred." Ap-
' Issued December 29, on a charge filed November 16. This
and all dates hereafter mentioned are 1966, unless otherwise
stated.
2 No issue of commerce, labor organization, or appropriate unit
is presented The facts bearing thereon are alleged in the
complaint and admitted by the answer. I find these facts to be as
pleaded
3 The tally of ballots show that of approximately 29 eligible
voters, 17 votes were cast for the Union, 5 against, and 7 ballots
were challenged. The basis for such challenges are not shown by
the record.
Union Agent Riggs testified that the employees voted to
strike, but such action was not taken because the character of
Respondent's business was such that a strike against it would be
ineffective.
165 NLRB No. 119
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proximately a week after the March 3 bargaining session,
the Union telephoned Respondent's counsel and chief
negotiator, suggesting further meetings. Counsel replied
that further meetings would serve no purpose because on
the economic issues Respondent had gone as far as it
could. Following this telephone conversation, the Union
did not again communicate with Respondent until
October 27, when it wrote the Company requesting that
the latter bargain further with the Union as the certified
representative of the employees involved. On November 7,
counsel for Respondent replied to the Union's letter,
stating in part:
Please be advised that the Company will not meet
with you as requested.
In view of the events which have transpired since
your Union's certification, we do not believe that
Kentucky News Company has any further obligation
to engage in collective bargaining with your Union.
Before discussing what Respondent relies on as the
"events which have transpired since your Union's
certification," it is necessary to discuss a prior Board
proceeding against Respondent. On June 20, 1966, the
Board issued its Decision and Order in Kentucky News,
Incorporated, 159 NLRB 707, adopting, with exceptions
not here material, the findings, conclusions, and
recommendations of Trial Examiner Martin, finding that
Respondent, while the Union was engaged in its
organizational campaign, interfered with, restrained, and
coerced its employees by various acts there more fully
detailed, discharged five employees because of their
activities on behalf of the Union, and on September 28,
within minutes after the results of the consent election
held that day became known, "locked out the employees
for a couple of hours." The Board ordered Respondent to
offer reinstatement to four of the five discriminatees,5
make whole each of the discriminatees, and post
appropriate notices. Counsel stipulated that in September
or October, Respondent complied with said Order .6
The past certification "events" relied on by Respond-
ent to support its asserted doubt of the Union's continued
majority, are the following:
1. Of the 34 persons employed by Respondent on
October 27, only 15 of these were in Respondent's employ
at the time of the election on September 28, 1965, which
the Union won by a vote of 17 to 2; the remaining 19 being
14 replacements for employees who had quit, and 5 new
hires. The replacements and new hires, Respondent
argues, must be regarded as opposed to the Union because
if they were prounion, the latter could have made good on
its strike threat.
2. That some employees had told Company President
Murphy that "the union had done nothing for them"; or
that they were not "deriving any benefits from it."7 Mrs.
5 The fifth discriminatee (Moore), had been reinstated or
rehired by Respondent prior to the hearing in that case
b Just how compliance was effected does not appear
Respondent states in its brief that the right of six union adherents
to vote in the election was challenged (presumably by
Respondent), because they had been discharged, and that these
six employees subsequently (presumably at the compliance stage)
refused reemployment when offered by Respondent There is no
testimony in the record to support this assertion.
' Mrs Murphy first stated that such statements had been made
to her by 3 employees, later she stated that it was 10 Although I
am inclined to believe that Mrs Murphy's estimate of 10 was
somewhat "puffed," I find it unnecessary, for reasons hereafter
stated, to decide which, if either, figure is correct
Murphy admitted that no employee had discussed with her
the possibility of "getting rid of the Union]."
3. The fact that the Union made no demands on
Respondent from about March 10 until the current
demand on October 27, a period of almost 8 months.
4. At the final bargaining session on March 3, and in the
telephone conversation about a week later , the Union
threatened strike action , but never called such a strike.
From this fact Respondent infers that the Union lacked the
employee support necessary to effectuate the strike
threat.
Concluding Findings
To determine whether the Union had the status of
majority representative when it made its bargaining
demand on October 27, one must start with the premise
that having been certified by the Board on October 6,
1965, such status, absent unusual circumstances, is
conclusive presumed to continue for the period of 1 year.
N.L.R.B. v. Ray Brooks, 348 U.S. 96. After expiration of
the certification year, continued majority status of the
certified union is presumed, but an employer may rebut
the presumption "by an affirmative showing that the union
no longer commands a majority ..." Quaker Tool & Die,
Inc., 162 NLRB 1307, 1308. However, such "an affirmative
showing" is made only if the employer presents "objective
facts that it has a reasonable basis for believing that the
Union has lost its majority status since its certification."
United States Gypsum Company, 157 NLRB 652, 655. See
also J. C. Penney Company, 162 NLRB 1553, and the cases
there cited.
Applying the foregoing principles to the facts disclosed
by this record, I must and do find and conclude that
Respondent has failed to establish that on October 27, it
had, within the meaning of the Board's holding announced
in United States Gypsum Company, supra, and reaffirmed
in J. C. Penney Company, supra, "a reasonable basis for
believing that the Union lost its majority status since its
certification." The factors stressed by Respondent,
neither individually nor collectively add up to the showing
Respondent is required to make.
Respondent's principal reliance is on what it calls the
"high turnover" of employment after the certification.
However, employee turnover, while a factor to be
considered along with the remaining circumstances of the
case, does not itself establish that the Union lost its
majority after the September 1965 election. As the Board
said in Laystrom Manufacturing Co., 151 NLRB 1482,
1484: ". . . new employees will be presumed to support a
union in the same ratio as those whom they have
replaced."
The fact that some employees told Mrs. Murphy that the
Union had done nothing for them, or that they were
" I am aware that the Board's decision in Laystrom , supra, was
denied enforcement by the court N L R B. v Laystrom
Manufacturing Co , 359 F 2d 799 (C.A 7) The court stressed the
absence of a prior history of union difficulties, the 4 - year period of
harmonious bargaining relationship prior to the events there
involved , and the fact that nothing in the record supported an
inference that the employer was motivated by bad faith The
contrast between the facts in Laystrom and the instant case is
obvious However, assuming , arguendo , that the cases are
indistinguishable, it is my duty to follow the pronouncement of
the Board until such times as they are overruled by the Board, or
the Supreme Court holds to the contrary Insurance Agents'
International Union , 119 NLRB 768 , 773, Iowa Beef Packers,
Inc, 144 NLRB 615,616
KENTUCKY NEWS
deriving no benefits from it, does not indicate that they no
longer supported the Union, or that they did not wish the
Union to represent them. Conceivably these could have
been mere statements of fact, but that the employees were
hopeful and still waiting for the Union to produce the
benefits they sought. It should be noted also that at most
only 10 employees made such statements. As the unit
never had less than 29 employees, this was plainly
insufficient to show a reasonable basis for believing that
the Union no longer enjoyed majority support. Finally,
assuming that the statements did constitute expressions of
intention not be represented by the Union, and that such
statements were made by as many as 10 employees, the
record does not show whether such statements were made
before or after the employee turnover, or whether they
were made by employees who had theretofore supported
or opposed the Union. If the 10 who spoke to Mrs. Murphy
were composed of 5 who had voted against the Union and 5
who voted for the Union in the election, the Union still had
a majority of 12 to 10 among the employees whose votes
were counted. Under the facts of this case, I must , and do,
find and conclude that the employee statements to
management were insufficient to show a reasonable basis
for a good-faith doubt of the Union's continued majority.
Vanette Hosiery Mills, 114 NLRB 1107; M.F.A. Oil
Company, etc., 162 NLRB 1071.
The fact that Respondent did not hear from the Union
between the final bargaining session on March 3, when the
impasse in bargaining was reached, and the current
demand on October 27, did not, under the facts, relieve
Respondent of its duty to honor the last-mentioned
bargaining demand. As stated above, even after the end of
the certification year, the continued majority of the Union
is presumed, and the Employer's duty to bargain on
request continues until such time as the requisite showing
is made of a good-faith doubt that the Union's majority
status continues to exist. However long an interval
between the Union's demands (and here the new demand
was only about 8 months after the impasse, and only 22
days after the expiration of the certification year), the
Employer's duty to bargain remains unless and until it
demonstrates the existence of a basis for a good-faith
doubt of the Union's continued majority status. The
Union' s reasons for not demanding bargaining during the
approximately 8-month period, may have been varied and
many; its reasons are not disclosed by the record.
Assuming, as Respondent apparently does, that such
inaction indicates that the Union had lost interest in the
matter , or that it was not properly representing the
employees, such facts constitute no defense to
Respondent's admitted refusal to bargain with the Union
pursuant to the latter's October 27 demand, absent a
showing of good-faith doubt of the Union's majority. Cf.
Ken's Building Supplies, 142 NLRB 235, 236, 238.
Likewise, under the facts of this case, the Union's
failure to implement its strike threat affords no basis for
the conclusion, which Respondent draws, that such failure
' The General Counsel argues that Respondent's conduct in
this proceeding must be viewed in the light of its extensive and
grievous unfair labor practices found in the prior case (159 NLRB
707) all of which occurred prior to the certification, but which
remained unremedied until shortly before the current bargaining
demand, and remained fresh in the minds of all concerned during
the entire period. Such facts, the General Counsel argues,
demonstrate Respondent 's bad faith and rejection of the principles
of collective bargaining Although not so explicated, presumably
the General Counsel is arguing that under the circumstances, this
is an appropriate case for "extension" of the certification year for
779
was occasioned by lack of employee support. Although the
Union's stated reason for withholding strike action is
somewhat unclear (supra fn. 4), the evidence is
uncontradicted that the employees authorized strike
action, but that a strike was not in fact called for what the
Union, correctly or incorrectly, regarded as a valid reason.
Upon consideration of the entire record, I find and
conclude that the Respondent has failed to establish by a
showing of objective facts that it had a reasonable basis for
believing that the Union had lost it majority status
following the certification. Accordingly, its admitted
failure to bargain with the Union pursuant to the latter's
October 27 demand was violative of Section 8(a)(5) and
(1) of the Act. I so find and conclude.`
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All routemen and laborers employed by Respondent
at its place of business located at 1034 East Oak Street,
Louisville, Kentucky, but excluding all office clerical
employees, guards, and all professional employees and all
supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times since October 6, 1965, the Union has
been the duly certified and exclusive collective-bargaining
representative of the employees in the aforesaid
appropriate unit, for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union as the
exclusive bargaining representative of the employees in
the aforesaid unit, pursuant to the Union's request of
April 27, Respondent has engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(5) and (1)
of the Act.
6. By its aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced, and is interfering
with, restraining, and coercing, its employees in the
exercise of the rights guaranteed to them by Section 7 of
the Act, and has thereby engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices proscribed by Section 8(a)(5) and (1) of the
the period that Respondent 's unfair labor practices remained
unremedied On the authority of Dixie Gas, Inc , 151 NLRB 1257,
1259, I must reject the General Counsel ' s argument In that case
the Board held that its "extension " rule is applied only when the
unfair labor practices " occurred during the certification year and
have directly served to deprive the union of the fruits of its
certification [emphasis supplied] " Here, not only did all the
unfair labor practices occur prior to the certification , but there is
no showing that they played any part in the bargaining
negotiations which followed, and which admittedly resulted in a
good-faith impasse
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, it will be recommended that it be required to cease (c) Notify said Regional Director, in writing, within 20
and desist therefrom and take certain affirmative action days from the receipt of this Decision, what steps have
designed and found necessary to effectuate the policies of been taken to comply herewith."
the Act.
Having found that Respondent unlawfully refused to
bargain with the Union, it will be recommended that it do,
upon request, and if agreement is reached, embody same
in a signed contract.
Because of the nature and character of the violations
found, it will be recommended that Respondent be
required to cease and desist from in any manner
interfering with, restraining, or coercing its employees in
the exercise of rights guaranteed them by Section 7 of the
Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that Kentucky News,
Incorporated, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing or refusing to bargain collectively concerning
rates of pay, wages, hours of employment, or other terms
and conditions of employment with General Drivers,
Warehousemen and Helpers Local No. 89, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
representative of its employees in the following
appropriate unit:
All routemen and laborers employed by Respondent
at its place of business located at 1034 East Oak
Street, Louisville, Kentucky, but excluding all office
clerical employees, guards, and all professional
employees and supervisors as defined in the Act.
(b) In any manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent permitted by Section 8(a)(3) of said
Act.
2. Take the following affirmative action found
necessary to effecutate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative
of the employees in the above-described appropriate unit
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in
a written signed agreement.
(b) Post at its plant in Louisville, Kentucky, copies of
the attached notice marked "Appendix."10 Copies of said
notice to be furnished by the Regional Director for
Region 9, after being duly signed by its authorized
representative, shall be posted by it 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 it to insure that said
notices are not altered, defaced, or covered by any other
material.
iU In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
'i In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, on request, recognize and bargain with
General Drivers, Warehousemen and Helpers, Local
89, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, which has been certified by the Board as
the exclusive bargaining representative of our
employees in an appropriate unit composed of:
All routemen and laborers employed by us at
our place of business located 1034 East Oak
Street, Louisville, Kentucky, but excluding all
office clerical employees, guards, and all
professional employees and supervisors as
defined in the Act;
and, if an understanding is reached, embody such
understanding in a written signed agreement.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
General Drivers, Warehousemen and Helpers, Local
89, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other union, to bargain through
representatives of their own choice and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to
refrain from any and all such activities except to the
extent permitted by Section 8(a)(3) of the Act.
KENTUCKY NEWS,
INCORPORATED
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati,
Ohio, Telephone 684-3686.