Kenyon Printing and Office Supply, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1099 (N.L.R.B. 1980)

KENYON PRINTING AND OFFICE SUPPLY., INC.
Kenyon Printing and Office Supply, Inc. and North-
west Typographical Union No. 99 affiliated with
International Typographical Union, AFL-CIO.
Case 19-CA-11552
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEILLO
On July 7, 1980, Administrative Law Judge
Richard J. Boyce issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Kenyon Print-
ing and Office Supply, Inc., Edmonds, Washington,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Seattle, Washington, on
April 3, 1980. The charge was filed on July 6, 1979, by
Northwest Typographical Union No. 99, affiliated with
International Typographical Union, AFL-CIO (Union).
The complaint issued on August 3, 1979, alleging that
Kenyon Printing and Office Supply, Inc. (Respondent),
had committed certain violations of Section 8(a)(5) and
(1) of the National Labor Relations Act (Act).
I. JURIS)IC lION
Respondent is a Washington corporation engaged in
the nonretail sale of printing and office supplies in Ed-
monds. The annual combined value of its purchases from
out-of-state suppliers and instate suppliers who obtained
items directly from out-of-state exceeds $50,000.
Respondent is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. ISSUES
The complaint alleges that Respondent violated Sec-
tion 8(a)(5) and (1) in and since June 1979 by ceasing to
recognize the Union as the representative of certain of its
employees and by concomitantly failing to provide the
Union with requested information concerning bargaining
unit employees.
Respondent contends that its withdrawal of recogni-
tion and its attendant failure to furnish the information
were based on a good-faith doubt of the Union's major-
ity status, and thus were lawful.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On December 30, 1977, following an NLRB election
in Case 19-RC-8655, the Union was certified as the col-
lective-bargaining representative of Respondent's em-
ployees in the following unit:
All full-time and regular part-time employees of the
employer in the classification of typesetters and
paste up; camera and strippers; pressmen; binding
and shipping clerks, excluding confidential employ-
ees, professional employees, guards, and supervisors
as defined in the Act, and other employees. I
The unit consisted of six employees at the time of the
election, and the tally was four to two.
There were 10 bargaining sessions following the certi-
fication, the first on March 1978, and the last on Decem-
ber 8, 1978. Byron Richardson, a consultant in the field
of labor relations, was Respondent's spokesman. Robert
Aulerich, the Union's president, was its principal spokes-
man. A contract was never reached.
At the outset of negotations, the Union sought the
presence of one of the unit employees, Sandra Clare, at
the bargaining sessions. Respondent made the accommo-
dation, and Clare regularly attended until quitting her
job on June 8, 1978. The Union made no effort to obtain
a replacement for her.
During the final bargaining session, on December 8,
Respondent presented a complete contract proposal to
the Union. It embodied a number of matters on which
tentative agreement had been reached, along with other
' It is undisputed that this is an appropriate unit
252 NLRB No. 154
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
features Respondent wanted to have included. The meet-
ing ended in the expectation that the Union would
submit a written counterproposal in due course.
The parties next communicated on March 6, 1979,
when Aulerich telephoned Richardson that he was about
to "drop" the Union's counterproposal in the mail. In ad-
dition, Aulerich suggested that they resume negotiations,
and asked to be provided with the names, dates of hire,
classifications, and wage rates of any new employees.
This was a request made by the Union from time to time
during negotiations, most recently in November 1978,
and Respondent always had complied. Richardson re-
sponded that he would be willing to set a tentative meet-
ing date, and would bring the requested information to
the next session. Later that same day, as promised, Au-
lerich mailed the Union's counterproposal to Respon-
dent.
On April 26, without further communication between
the parties, Respondent filed a petition with the NLRB
requesting an election to determine if the employees still
desired union representation.2 The petition was dismissed
on May 29, the dismissal letter explaining that the peti-
tion "was not accompanied by sufficient objective con-
siderations to warrant processing the matter to an elec-
tion." The dismissal was not appealed.
The next contact between the parties was on June 5.
Aulerich telephoned Richardson, proposing that they
meet to bargain on June 27 and 29, and asking that Rich-
ardson bring the usual information about new employees.
Richardson said he would bring the information when
they next met; and, in a later conversation, gave his
assent to meeting on the June 27. Aulerich called Rich-
ardson again on June 26, reminding him of the meeting
and of the request for information. Richardson replied:
"Fine, we are still on."
On the morning of June 27, however, Richardson in-
formed Aulerich that the meeting was "off," and that a
letter would follow. The letter, dated June 27, stated:
Kenyon Printing & Office Supply, Inc. does not be-
lieve that you represent a majority of its employees
in the bargaining unit . . .. We therefore decline to
meet with you until you can show that you current-
ly represent a majority of the employees in said bar-
gaining unit through a[n] NLRB election and cur-
rent certification.
The final communication between the parties was a
letter from Aulerich to Respondent, dated June 28 and
mailed before receipt of Richardson's June 27 letter, in
which the Union requested "an updated list of present
employees, along with their date of employment, classifi-
cation, and wage rate," and proposed a meeting on July
6, "or any other date agreeable to both parties, for the
purpose of consummating this agreement." Respondent
did not comply with the request for information, nor did
it otherwise respond.
There were five unit employees when Respondent
withdrew recognition on June 27, and when it filed for
an election the preceding April 26. None was on the
payroll at the time of the Union's certification. Kimbal
' Case 19-RM-1571.
Glasgow, vice president in charge of production, testi-
fied that four of the five on the payroll on April 26 pre-
viously had told him of their distaste for the Union.
More specifically, he asserted that Greg Bednarz had
said he was "too young to belong to a union" and that
the employees could get along without one; that Theron
Lindsley had told him "at least three times" that he did
not want "any involvement with the Union"; that Nora
Schultz had said that she did not want to be "unionized";
and that Lea Ann Steele had remarked "an awful lot of
times" that "nobody here wants a union." Glasgow fur-
ther testified that Chris Schaffer, who was on the payroll
briefly either before or after April 26, had said that he
did not "want to pay union dues or] have to go to union
meetings."
Daniel Kenyon, president, testified that Bednarz had
asked him why a union was necessary; that Lindsley had
told him he would quit if Respondent were union; that
Steele had said that she could not understand why a
union was necessary; that Schaffer had declared that he
wanted "no part" of a union; and that Pam Scanlon, who
left the payroll before April 26, had "made it very clear
that she didn't want any part of the Union." It is unclear
from Kenyon's testimony when these comments were to
have been made.
Except for Lindsley, none of the employees to whom
these various remarks were attributed was called to tes-
tify. Lindsley testified that he made "quite a few" re-
marks to both Glasgow and Kenyon that he did not
want union representation and that he would "prefer to
work elsewhere" rather than have it. Lindsley also testi-
fied that he heard Steele tell Glasgow, sometime in the
first half of 1979, that no one wanted a union.
Glasgow, Kenyon, and Lindsley are credited that
Lindslay made antiunion comments before the withdraw-
al of recognition. Otherwise, however, their testimony
concerning the professed antiunion remarks of the sever-
al employees is discredited. Not only was there no cor-
roboration from those employees, but, among the reasons
given by Respondent for doubting the Union's majority,
in support of its April 26 petition, the only employee re-
marks cited were those of Lindsley.3 Moreover, despite
considerable leading by Respondent's counsel, the testi-
mony of Glasgow, Kenyon, and Lindsley in this regard
was vague and generally unconvincing.
At the time it filed its April 26 petition, Respondent
submitted an affidavit signed by Kenyon, in which he
stated that he doubted the Union's majority status be-
cause (a) none of the unit employees at the time of the
election remained on the payroll, (b) as against its desire
to have Sandra Clare present during negotiations, the
Union made no effort to procure the presence of another
employee after Clare quit, (c) the Union had not "shown
any substantial interest in pursuing negotiations," as evi-
denced by the delay until March 6 in countering to Re-
spondent's proposal of December 8, and (d) there had
been "no indication from the employees or the Union
:' Even in the letter of Respondent's attorney to the NLRB during in-
vestigation of the charge herein, dated July 18. 1979, there is not intima-
tion that anyone but Lindsley had expressed antiunion sentiments.
l100
KENYON PRINTING AND OFFICE SUPPLY, INC.
that the Union represents the present complement of em-
ployees."
On May 18, having been informed by the NLRB that
these grounds for doubt would not suffice, Respondent's
attorney, an experienced labor lawyer, submitted a letter
more or less restating Kenyon's affidavit and in addition
citing (a) Lindsley's remarks, (b) the lack of a "long-term
established relationship" between the parties, and (c) the
parties' failure to arrive at a contract.
B. Conclusion
The legality of an employer's withdrawal of recogni-
tion from a union is governed by these rules:
[A] certified union, upon the expiration of the first
year following its certification, enjoys a rebuttable
presumption that its majority representative status
continues.... The presumption may be rebutted,
however, by evidence establishing that the union no
longer enjoys majority representative status. Also,
even without such showing of loss of majority, an
employer may refuse to bargain if he relies on a rea-
sonably based doubt as to the continued majority
status of the union. As to a reasonably based doubt,
two prerequisites for sustaining that defense are that
the asserted doubt must be based on objective con-
siderations and such doubt must be raised in a con-
text free from unfair labor practices.4
In the present case, the majority presumption plainly
was operative. The question, then, is whether Respon-
dent managed to rebut it. It is concluded that it did not.
The antiunion comments of one employee, Lindsley, out
of a unit of five, hardly signified a loss of majority or
warranted a good-faith doubt;5 the fact of total turnover
since certification meant little if anything in light of the
presumption that "new employees . . . support the union
in the same ratio as those whom they have replaced";6
and, while the Union did not pursue negotiations with
singular zeal, it cannot be said that its lassitude was such
as to imply abandonment of the unit or a realization by it
that it no longer enjoyed majority support.7 Respon-
dent's sundry other purported grounds for doubt likewise
are probative of nothing and are rejected.8
It is concluded, therefore, that Respondent violated
Section 8(a)(5) and (1) as alleged by its withdrawal of
recognition and by its attendant refusal to comply with
the Union's request for information concerning those in
the bargaining unit.
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition fom the Union on June 27,
' Guerdon Industries Inc. Armor Mobile Homes Division, 218 NLRB
658, 659 (1975)
S Eg.. Emerson Manufacturing Company. Inc., 200 NLRB 148, 151
(1972)
6 James W} Whitfield, d/h/a Cullen Supermarket, 220 NLRB 507, 509
(1975)
Cf. Aaron Brothers Company. 245 NLRB 29 (1979).
" Respondent's brief makes substantially the same points that were pre-
sented in support of its April 26 petition, except that the brief makes such
of the alleged antiunion remarks of employees other than Lindsley
1979, and by thereafter failing to comply with their dates
of hire, classifications, and rates of pay.
ORDER9
The Respondent, Kenyon Printing and Office Supply,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Northwest Typographical Union No. 99, affiliated with
International Typographical Union, AFL-CIO, concern-
ing the wages, hours, and other terms and conditions of
employment of its employees in the appropriate unit. The
appropriate unit is:
All full-time and regular part-time employess of the
Employer in the classification of typesetters and
paste up; camera and strippers; pressmen; binding
and shipping clerks, excluding confidential employ-
ees, professional employees, guards, and supervisors
as defined in the Act, and other employees.
(b) Refusing to bargain with the Union by failing to
comply with its requests for the names of bargaining unit
employees, together with their dates of hire, classifica-
tions, and rates of pay.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in their exercise of
rights under the Act.
2. Take the following affirmative action:
(a) Bargain on request with the Union as the represen-
tative of its employees in the appropriate unit concerning
wages, hours, and other terms and conditions of employ-
ment; and, if an understanding is reached, embody it in a
signed agreement.
(b) Upon request, promptly provide the Union with
the names of bargaining unit employees, together with
their dates of hire, classifications, and rates of pay.
(c) Post at its place of business in Edmonds, Washing-
ton, the attached notice marked "Appendix."' ° Copies of
the notice, on forms provided by the Regional Director
for Region 19, after being duly signed by Respondent au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
9 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by
Sec 102 46 of the Rules and Regulations of the National Labor Relations
Board. the findings, conclusions, and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.abor Relations Board "
1101
DECISIONS ()F NATI()NAL. .ABO()R REIATIONS HBOARD
APPENDIX
NOTICE TO EMPI.OYE.ES
POSTED BY ORDER OF THE
NArTIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
Wt: Wil. NOT refuse to recognize and bargain
collectively with Northwest Typographical Union
No. 99, affiliated with International Typographical
Union, AFL-CIO, concerning the wages, hours,
and other terms and conditions of employment of
our employees in the appropriate unit. The appro-
priate unit is:
All full-time and regular part-time employees of
the Employer in the classification of typesetters
and paste up; camera and strippers; pressmen;
binding and shipping clerks, excluding confiden-
tial employees, professional employees, guards,
and supervisors as defined in the Act, and other
employees.
WIE WIl I Not- refuse to bargain with the Union
by failing to comply with its requests for the names
of bargaining unit employees, together with their
dates of hire, classifications, and rates of pay.
WE Wit NOT in any like or related manner in-
terfere with, restrain, or coerce employees in their
exercise of rights under the Act.
WE: wil.l bargain on request with the Union as
the representative of our employees in the appropri-
ate unit concerning wages, hours, and other terms
and conditions of employment; and, if an under-
standing is reached, embody it in a signed agree-
ment.
WI: wi.l., upon request, promptly provide the
Union with the names of bargaining unit employees,
together with their dates of hire, classifications, and
rates of pay.
KENYON PRINTING AND OFFICE SUPPI.Y,
INC.
1102