Leigh Lumber Co.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 675 (N.L.R.B. 1978)

LEHIGH LUMBER COMPANY
Lehigh Lumber Company, Brown-Borhek Company,
Ritter and Smith Company, and the Lehigh Valley
Lumbermen's Association and Local 773, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 4 CA-
8887
September 29. 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MiMB.IRS PENI.I.()
AND TRUESI)AI .
On May 9, 1978, Administrative Law Judge Ber-
nard Ries issued the attached Decision in this pro-
ceeding. Thereafter, Respondents Lehigh Lumber
Company, Brown-Borhek Company. and Ritter and
Smith Company individually filed exceptions, briefs.
and Motions for Summary Judgment, rehearing, and
oral argument. The General Counsel filed a brief in
answer to the Respondents' exceptions and motions
and also filed limited exceptions and a memorandum
in support thereof. The Charging Party filed its own
memorandum in opposition to the Respondents' ex-
ceptions. Finally, the aforementioned Respondents
individually filed briefs in answer to the General
Counsel's exceptions and memorandum.
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 attached Decision in
light of te exceptions.' briefs. memoranda, and mo-
tions 2 and has decided to affirm the rulings, findings,
'On August 21. 1978. Respondent Brown-Borhek filed an additional ex-
ception The General Counsel thereafter filed a motion to strike this excep-
tion on the ground that it was untimels filed over 2 months after exceptions
were due before the Board Brown-Borhek then tiled a memorandum In
opposition to the Genera;l ('ounsel's motion. We find merit In the General
C'ounsel's argument and we therefore grant his motion to strike Respondent
Brown-Borhek's exception 33 from the record
2 Respondents' motions for oral argument are hereby denied. since the
record, briefs, and memoranda adequatels present all issues and the posl-
lions of the parties. Respondents' Motions for Summars Judgment and re-
hearing are also denied as lacking in merit.
The Administrative Law Judge erroneously found that Respondent Le-
high Lumber "apparently complied" with the Board's Order in l.ehigh Lurn-
her and Brown-BoirhekA Conpau'n. 230 NILRB 1122 11977). In response taI the
General Counsel's exception to this finding. we correct the record by noting
that Lehigh Lumber's petition for review of' the order in that case was denied
and the Board's cross-petition for enforcement was granted in a per curiam
order issued on May 16. 1978, b5 the United States ('ourt itt Appeals for the
Third C(ircuit.
The Respondents have excepted to certain credibilty findings made bs the
Administrative Law Judge It is the Board's established policy not to oser-
rule an Administrative Law Judge's resolutions with respect io credibility
unless the clear preponderance of all of the relevant esidence convinces us
that the resolutions are incorrect. Slaldrd Dr n Wlall Prolducr. Inc.. 91
NLRB 544 (1950), enfd. 188 F.2d 362 tC.A 3. 1951). We have carelully
examined the record and find no basis for reversing his findings
The Respondents halve also alleged that the Adminiistraitlse aw Jludge's
resolutlilns of credlbilits, findings of fact. and conclusions of liw are the
result of bias. and that the Administrative Law Judge engaged In an Im-
and conclusions of the Administrative Law Judge and
to adopt his recommended Order.4
ORDER
Pursuant to Section 1O(c) of the National Labor
Relations Act, as amended. the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondents. Lehigh Lumber Company.
Allentown, Pennsylvania. Brown-Borhek Company.
Bethlehem, Pennsylvania, Ritter and Smith Com-
pany,. Allentown. Pennsylvania, and the Lehigh Val-
ley Lumbermen's Association. their officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
proper post-hearing discussion of this case with the counsel for the General
(Counsel. After careful examination of the record. we are satisfied that this
allegation is without merit Ihere is no basis bor finding that bias and partial-
it) existed merely because the Administrative l.aw Judge resolved important
factua.l conflicts in favor of the General Counsel's witnesses As the Supreme
Court stated in V L.RB. s. Pittsburgh Steamahip ('ompani. 337 U.S. 656,
659(1940). "ITlotal rejection of an opposed view cannot of itself impugn the
integrit) or competence of a Iner of fact."
4 The General Counsel has excepted to the Administrative Law Judge's
lailure to include Respondent Lehigh Valley Lumbermen's Association in
the recommended bargaining order. The General Counsel's Motion for Sum-
mar) Judgment against this Respondent was granted at the hearing. Al-
though the Association may be defunct and although the obligation of the
individual corporate Respondents to bargain on a multiemployer basis exists
regardless of the Association's survival as their bargaining agent. we shall
add the name of the Lehigh Valle) L.umbermen's Association toe the names
of its constituents in the Order herein adopted
The Administrative L.aw Judge also inadvertently failed to conform his
noticc with his recommended Order We shall correct his notice accordingly.
APPENDIX
No li(I To EMPI.()YELS
PosHi:I) BY ORDER OF IlEF
NAITONAI. LABOR RELArIONS BOARI)
An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and
has ordered us to post this notice.
WE WIIL. NOI unlawfully withdraw recogni-
tion from Local 773, International Brotherhood
of Teamsters. Chauffeurs, Warehousemen and
Helpers of America, and WEr wt.it bargain in
good faith with that Union as the exclusive col-
lective-bargaining representative of all our em-
ployees in the following single apropriate bar-
gaining unit:
All truckdrivers. mobile lumber-handling
equipment operators. helpers, and yardmen,
but not supervisors, employed by Lehigh
238 NLRB No. 83
675
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lumber Company. Brown-Borhek Company,
and Ritter and Smith Company.
WE Wll.l NOT in any like or related manner
interfere with, restrain. or coerce our employees
in the exercise of their rights under Section 7 of
the Act.
WE WktIL upon request, bargain with the
above-mentioned, Union as the exclusive collec-
tive-bargaining representative of the employees
in the bargaining unit described above, with re-
spect to wages, hours, and other terms and con-
ditions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement.
LEHIGH LUMBER COMPANY
BROWN-BORHEK COMPANY
RITTER AND SMI I I COMPANY
LEHIGH VAI. iEY LUMBERMEN'S Asso I-
ATION
DECISION
SIA1EMEN1 o)1 rlt: CASE
BERNARD RIES, Administrative Law Judge: This matter
was heard in Allentown. Pennsylvania, on January 30,
1978. The complaint alleges that the Charging Party repre-
sented certain employees of the three corporate Respon-
dents' in a multiemployer association bargaining unit and
that, on or about Mav 10. 1977. "Respondents unilaterally
and without the consent of the Union dissolved the Associ-
ation." The conduct is asserted to be violative of Section
8(a)(5) of the Act.
All parties have filed briefs. which have been carefully
considered. On the basis of those briefs, the entire record,'
and my observation of the witnesses as they testified. I
make the following findings of fact and conclusions of law.
I. JURISDI( 'I IN
The three corporate Respondents are Pennsylvania firms
engaged in the wholesale and retail sale of lumber and
building supplies. Lehigh Lumber Company (hereafter re-
ferred to as Lehigh) engages in business in Allentown.
Pennsylvania. as does Ritter and Smith Company (hereafter
referred to as Ritter). Brown-Borhek Company (hereafter
referred to as Brown-Borhek) is located in Bethlehem.
Pennsylvania. During the year preceding issuance of the
complaint, the three firms had gross revenues in excess of
$500,000 and each purchased in excess of $50,000 worth of
goods directly from firms located outside the Common-
wealth of Pennsylvania. The answer admits. and I find, that
the corporate Respondents are employers engaged in com-
1 While the record leads me to believe that the name o1 the Association is
the "Lehigh Valley Lumbermen's Association,." and that "Ritler and Smith
Company" may be "Ritter & Smith Company." I shall not, in the absence ol
a motion, amend the names of the Respondents.
2 Errors in the transcript have been noted and corrected.
merce within the meaning of Section 2(2). (6), and (7) of the
Act.'
II. iIEF SIAIl'S Oi- itE LABOR OR(iANIZAIION
Although Respondents would not so stipulate at the
hearing, it is clear from the record that the Charging Party,
Local 773. International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (hereafter
referred to as the lnion., is a labor organization within the
meaning of Section 2(S) of the Act, and I so find.
I1i. ilil RELEVANT EVli)IN(CI-
It appears that the three corporate Respondents indepen-
dently recognized the Union for a number of years as the
bargaining representative of their respective truckdrivers
and related employees, although evidently without benefit
of the election process. It further appears that in or around
June 1972 the three Respondents and one other company,
Merritt lumber Company,. Inc., formed a multiemployer
association, called the Lehigh Valley Lumbermen's Associ-
ation, for the purpose of bargaining with the Union. The
record is unclear as to whether a contract was entered into
at that time.4 However, the record shows that on May 31.
1973, the parties concluded an agreement which remained
in effect until May 1, 1976.
Bargaining for a new multiemployer agreement began in
April 1976. with attorney Louis M. Busch representing the
emploNers. At some point after negotiations had begun,
Merritt Lumber Company asked permission of the Union
to withdraw from the Association bargaining because Mer-
ritt was going into receivership, and the Union granted per-
mission. Bargaining nonetheless continued, with Busch rep-
resenting the other three employer corporations, and 9 or
10 bargaining sessions. all told, were held between April
and Jul 3 31.
No bargaining agreement was reached. On August 9,
1976, the Union filed charges with the Board alleging that
Lehigh and Brown-Borhek had violated the Act. A com-
plaint issued. and, on April 26, 1977, Administrative Law
Judge Irwin Kaplan issued a Decision in which he found
that between April 29 and August 3. 1976, Lehigh had en-
gaged in violative conduct, including denigration of the
Union by Lehigh's president. Ferretti. threats against em-
ployees in the event of rejection of an emplover proposal,
an attempt to bargain separately with employees, threats
against employees for engaging in a strike, promises of
benefits designed to induce employees to abandon the
Union, and threats that employees who continued to strike
would not be reemloyed and that Lehigh would not have a
contract with the Union. Administrative l aw Judge Kap-
3No answer was filed by "Lehigh Valley L.umbermen's Association."
named as a separate Respondent. and I granted General Counsel's motion
Ibr summary judgment as to that Respondent at the hearing. Since the Asso-
ciation has apparently been dissolved. I see no need to require that it be
specifically resurrected: it is. after all, onls a name. The bargaining order to
be entered, requiring the three companies toi bargain on a mulitiemplover
basis. should suffice. whatever name they may choose to give to their associ-
ation.
4 The testimony of Bruce Ferreiii. president of L.ehigh. suggests that there
might have been such an agreement before he came to I.ehigh.
676
I FIiUf I MBI R (COMPANY
lan also made findings against Brown-Borhek, primarily in-
volving efforts by its president. (Carl Lel Nero. to promote a
decertification petition. IThe Board adopted Administrative
Law Judge Kaplan's decision on Jul' 25, 1977. lthitgh
Lumber Company ati/ Brown-Borhek, Companre. 230 NL RB
1112.'
Franklin C. Caskie was the business representative of the
Union who had negotiated with the I.umbermen's Associ-
ation in 1976. On April 29. 1977. 3 datys after Administra-
live Law Judge Kaplan issued his l)ecision. Caskie wrote
attorney Busch. noting the Order recommended hb Judge
Kaplan that Lehigh and Brou n-Borhek cease and desist
from "refusing to bargain in good faith with the Union."
and made a "request that the Companies meet with the
Local Union to collectively bargain." On May 10. Busch
replied by letter. stating in part:
I. As 'ou are aware. the Lehigh Valles Lumber-
man's Association dissolved on August 1, 1976, after
the negotiations impasse and concurrent unfair labor
practices committed b,, yourself and members of 'our
Union on July 31, 1976. I continue to represent the
individual companies hut now do not any longer repre-
sent Ritter & Smith Company.
2. Numerous errors in fact and law are to be found
in the Intermediate Report of' the Administrative L aw
.ludge. Moreover, your Union does not represent a ma-
jority of' the employees at L ehigh Lumber Coompans.
Your demnand to bargain. therefore, is premature as
you ha e not made any demand for recognition hereto-
fore.
3. Brown-Borhek ('ompans has indicated an inter-
est in negotiating a one-year labor agreement with L o-
cal -773 based upotn economic terms offered b, the
Association and proposed originally for the second ef-
tective year of' the agreement. If that is acceptable to
you. please let me know by return mail and I shall
begin drafting a labor agreement for signatures.
(Caskie testified. and Respondents' witnesses hb their ad-
mission or silence support his testimony. that this Ma! I(
letter was the first overt indication to him that the Associ-
ation had ever 'dissolved."
The theory of the complaint here is that the dissolution of
the Association wias, in the words of (General Counsel.
"nothing more than collective withdrawal of all members
from the Association; accordingly, Board law with respect
to withdrawal from multiemploy er associations is appli-
cable." That body of' law, as summarized by the Board in
Retail Ass.ocialtc. Inc.. 120 NI.RB 388. 395 (1958). pro-
vides:
We would accordingly refuse to permit the withdrawal
ofian emlloter or a union from a duly established mul-
tiemploer bargaining unit. except upon adequate
wAritten notice given prior to the date set by the con-
tract for modification. or to the agreed-upon date to
begin the nmulitemployer negotiations. Where actual
bargaining negotiations based on the existing inultienm-
ployer unit have begun. we would not permit, except
otn mutual consent. an abandonment of the unit upon
I.ehigh app.lrenils cormplied Ihe Worder ;as to Brtun-HHorhek wafs cn-
lorced h, the (Court o1 Appeals tor the I'hird (ircuit oan Novenlber 8. 1977
which each side has committed itself to the other. ab-
sent unusual circumstances.
The evidence demonstrating that after bargaining had
begun the Respondents never expressly notified the Union
of their intent to dissolve. and this withdraw from, the As-
sociation seems clearly to call into play the doctrine of Re-
tadil A.i.ociates. Among their several defenses. however. Re-
spondents contend that the Union was in fact aware of the
dissolution promptlb after it allegedly occurred in August
1976. did not protest. and thereby condoned and impliedls
consented to such action. Furthermore. Respondents assert,
the charge filed by the Union after May 1977 was, in view
of such knowledge. a stale claim under Section 10(h) of the
Act.
I he record makes it abundantly clear that the Union had
no such prior knowledge and that no such condonation ever
occurred. It is my conclusion, in fact, that there was no
dissolution of the Association in August 1976: but even it
there had been, Respondents' conduct after that date so
plainls implied the continued vitalitys Af the Association
that it is difficult to see how the contention can be soherly
advanced that the Union should have thought otherwise.
Respondents' witnesses gave most unconvincing and
brief testimony about having "got together and dissolved
our association" on August 1. 1976. Not one of them testi-
fied that the Union was informed of the alleged dissolution
at that time, or at any time prior to Ma;, 10. 1977. On
August 9. 1976. in a letter to the Regional Director fbr
Region 4, referring to an RD petition, Attorney Busch
stated:
It is our position that the appropriate bargaining unit
is composed of the Yardmen. Drivers, Forklift Opera-
tors and Working Foremen of Lehigh Lumber Com-
pansy. Ritter & Smith Company. Brown-Borhek Com-
pans'. T hese employees are approximately 13 in
number. Excluded from this bargaining unit are all Su-
pervisors. ()ffice Clerical Employees. Sales. Temporary
Employees and C(arpenters.
(Considering that the dissolution had assertedly occurred
just 8 days before this letter was written, and taking into
account that Attorney Busch had been representing the Re-
spondents in the preceding negotiations, and continued to
represent them thereafter, it is difficult to believe that Attor-
ney Busch would have so characterized the appropriate unit
had a dissolution actually been effected.
On August 26. 1976. 25 days after the purported dissolu-
tion of the Association. Attorney Busch filed a charge
against the Union with the Board alleging, among other
things, that "Since on or about April 1, 1976, and at all
times thereafter, the above-named Union by its officers.
agents. and representatives, has failed and refused to bar-
gain collectively and in good faith with Ritter and Smith
Cornmpan. Brown-Borhek Company, and Lehigh l timber
Company, a group of employers associated for the purposes
of collective-bargaining, with respect to rates of pay. wages.
hours of employment. and other conditions of employ-
ment.
On Noember 19, 1976, 3-1 2 months after the alleged
dissolution. the Region issued the complaint in the case pre-
viously discussed which alleged. inter alia. that I.ehigh and
677
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown-Borhek had, 'at all times material herein . . . been
members of the Lehigh Valley' Lumbermen's Association, a
multiemployer association....' 'The answer filed by Attor-
nev Busch on November 29 contained the following prefa-
tory paragraph:
Now Comes the Respondents, Lehigh Lumber Com-
pany, a corporation and Brown-Borhek Company, a
coporation, members of the Lehigh Valley Lumber-
men's Association, a multiemployer association, by
Louis M. Busch, their attorney, for answer to the com-
plaint herein, says: . . .
The signature block of the answer read:
Lehigh Lumber Company and
Brown-Borhek Company.
members of the Lehigh Valley Lumbermen's Associ-
ation
by s/ Louis M. Busch
Attorney for Respondents
On November 15, 1976, Attorney Busch filed an RM
petition, listing in the "Name of Employer" blank on the
form "Lehigh Lumber Company, Ritter & Smith Co.,
Brown-Borhek Co." The "Number Of Employees In Unit"
was given as "14."
On November 23, 1976, in a letter to a Board field exam-
iner. attorney Busch confirmed "our position concerning
the appropriate bargaining unit" stated in the August 9 let-
ter to the Regional Director.
On November 3, November 19. and December 9, 1976,
Caskie wrote letters to Busch seeking to arrange negotiating
meetings between the Union and the three employers.
Busch answered the first letter by a letter of November 8
which is not in evidence; he did not reply to the other two
letters. It is quite obvious, however, that his November 8
reply to Caskie made no reference to the fact that the re-
quested "negotiation meeting . .. between Ritter & Smith
Company, Lehigh Lumber Company, Brown-Borhek ('om-
pany and Teamsters Local Union No. 773" could not ap-
propriately be held because of a dissolution of the Associ-
ation through which those three employers had formerly
bargained.
In my opinion, the foregoing evidence clearly establishes
that there had been no dissolution of the Association in
1976. Because I so believe, it follows that I must reject Re-
spondents' contention that the charge filed by the Union on
August 30, 1977, was a claim precluded by Section 10(b) of
the Act. Furthermore, even if the Respondentemployers
had dissolved the Association and opted for individual bar-
gaining on August 1, 1976, a highly unlikely proposition.
that fact was not only totally concealed from the Union,h
but the contrary impression was fostered by Respondents,
as indicated above.' Where there is fraudulent concealment
of operative conduct, Section 10(b) is tolled. Ilnternational
61 reject Respondents' invitation to give weight to the Iact that ('askie
filed charges against the individual employers, without naming the Associ-
ation; such conduct was appropriate in the circumstances.
7 The record shows that in Jul) 1976, while the Association bargaining was
ongoing, Caskie spoke to two of the employers about engaging In individual
bargaining, and was rebuffed by both. Not only does this not, as Respon-
dents contend, suggest that Caskie later knew that the Association had been
dissolved, but it suggests that he would have thought exactly the opposite
Ladies' Garment Workers Union, AFL-CIO [McLoughlin
lanufieturirrg Corporation. et al.] v. N.I..R.B.. 463 F.2d
907, 922 (C.A.D.C., 1972).
Respondents advance other arguments to defeat the en-
try of a bargaining order in this case. One contention is that
the Union is not entitled to a presumption of majority sta-
tus among the unit employees because of the inclusion of an
invalid union-security clause in the 1973-76 bargaining
agreement.
The agreement contained a "Union Membership" provi-
sion which appears to exceed, by 23 days, the authority
granted by the first proviso to Section 8(a)(3) of the Act
allowing an employer and a union "to require as a condi-
tion of employment membership therein on or after the
thirtieth day following the beginning of such employment
or the effective date of such agreement, whichever is the
later. .. "
Arguing from Zanetmi Riverton Bus Lines, 128 NLRB
1389 (1960), and Paragon Products Corporation, 134 NLRB
662 (1961), Respondents assert that the 1973 contract, con-
taining the unlawful union-security provision, "resulted in a
void ah initio labor agreement" which "raised the presump-
tion of non majority status thereby."
The cited cases hold that a union-shop clause which
clearly transgresses Section 8(a)(3) will remove the contract
as a bar to an election petition. The cases do not hold that
the inclusion of a facially invalid clause destroys the rebut-
table presumption of union majority support to which a
bargaining agreement gives rise.
Where, as here, recognition is voluntary, and not based
on an election, the presumption of majority status which a
collective agreement implies is based on the sensible notion
that the parties acted lawfully in entering into that agree-
ment. In the present case. there had been recognition ex-
tended to the Union by at least some of the individual Re-
spondents long before the 1973 Association agreement was
entered into; Vice President Billman. of Ritter, testified that
his firm had bargained with the Union for at least the 15-
year period of his personal association with the Company.
The Association was apparently formed in June 1972, al-
though, as noted above, the record does not disclose
whether a multiemployer agreement was entered into at
that time.
Usually, the Board speaks of the presumption of majority
status as arising from a "prior contract lawful on its face,"
see Eastern Washington Distributing Companv', Inc., 216
NLRB 1149. 1153 (1975)., Sahara-Tathoe Corporation d/b/a
S.ahara-Tahoe Hotel, 229 NLRB 1094 (1977). Whatever the
kinds of irregular contracts which the foregoing phrase may
intend to exclude, it seems evident that not all legal defi-
'The article in the 1973 agreement prosides:
I. It is agreed that a;ll employees included in this Agreement, who on
the effective date lof this Agreement aire members of the Utnion, shall,
during the term of this Agreement, remain members in good standing in
the Union.
2. Any person hired by an ILmpl(ser for work in any of the job
classifications included in this Agreement, prior to or subsequent to the
effective date of' this Agreement. shall be hired as a temporary em-
ployee, and in the event that such person is continued in employment
seven 17) days after the date otf his employment. he shall be required as
a condition of continued employment, to become ,and remain a member
in g*ood standing in the LUnion.
678
L EIIGHf I. lMBER COMPANY
ciencies appearing in the contract would sap the vitality of
the presumption.'
The question is whether the lfailure to extend the full
statutory 30-dav membership grace period to new employ-
ees aflects the dual presumptions that the Union was the
majority representative at the time of execution of the con-
tract and at its expiration. There is no logical basis for con-
cluding that a foreshortened grace period in the contract in
any way indicates that the recognition extended prior to the
execution of' the contract was less than proper. and, simi-
larly, there is no reason to believe that requiring new em-
ployees to begin paying dues 7 daxs. instead of 30. after the
beginning of' employxment somehow vitiated the presump-
tion which would otherwise obtain. Thus, in hI1o t. Denham
and Geraldine ,4. Dentnha, dtl/a The Drenhamc Comp,,,,,p 187
NLRB 434, 438. 444-445 (1970). where the employer had
for 10 vears maintained a practice of requiring new emplo\-
ees to sign union membership applications and checkoff' au-
thorizations on the first day of employment. and to join the
union in less than 30 days. the Board held that while such
practices may have violated the Act, "they were not of such
a nature as to taint the basic underlying relationship be-
tween Swift and the Union." See also Zidell E\plorationi,
Ine., 175 NI.RB 887, 888 (1969). cited in nDenham Compai'.
Furthermore, Respondents' contention faces a 10(b) ob-
stacle. On review of the Denham case. \.L.R. B. . Ir II.
Denhamr and (eraldine .4 Deniham llc b/a The Denhiam
Conpatnv, 469 F.2d 239. 245 (C.A. 9. 1972). the court olf
appeals noted that. assuming the possibility of finding a
"coerced majority" in that situation, the burden would be
on the employer to establish that. within the 6-mionth pe-
riod preceding the tiling of the charge. a majority of em-
ployees in the unit were affected b' the practice described.
In the present case, even if we were to look to the 6-month
period antedating the filing of the first charge (August 9.
1976) in the case decided by Administrative lIaw Judge
Kaplan. the record does not disclose that a maijoritx of Re-
spondents' employees were hired within the 6 months prior
thereto.
Indeed. such evidence as there is on the subject indicates
the contrary. such as the statement bx Billman. of Ritter.
that his employees were "long term employees" who had
been employed by him for "several years," and the testi-
mony of' Del Nero, of Browun-Borhek. that the three em-
ployees he had in April 1976 had been with him for "se,-
eral years." There is, in fact. no evidence that the 7-day
union securit' clause was ever enforced: the only testimony
about enforcement of the contract, either in this particular
or in general, was given by Ferretti, of I ehigh l.umber.
who, when asked if' his firm had complied with the 1973-76
agreement. answered. "I would sai, in some respects, 'es."
Accordingl, I reject Respondents' contentions predi-
cated on the effect of the apparentl, illegal union-security
provision. and find that the Union was entitled. in Max
1976 and thereafter, to the usual presumption of' miajorit 3
stat us.
I hius. lot example. uhile the Iatc that an aIgreelent conains a pity pro-
isiin onlltri.r\ I, the rcqmliremelnts of the ailr I.lhor St.ndardi Acl mlight
mean that She a.gri cniien is no l"a;f l on irs fice," ii t Iould hardJk serke to
desiros the ecttfic.necs e' 1the presunlphion
Respondents also argue that "unusual circumstances,"
within the meaning of' Retail lssociates, Ifn.. supra, existed
here. thereby permitting them to escape the Association
without securing union consent. The "unusual circum-
stance" relied upon is an alleged impasse reached by the
negotiators on July 31, 1976. The Board does not recognize
a bargaining impasse as qualifying "unusual circum-
stances," although courts have disagreed. See Bill Cook
Buick, Inc., 224 NL RB 1094 (1976)., and cases cited at 1096.
tn. 2. thereof.
It is plain. however. that no impasse was reached here.
The record shows that after several bargaining sessions be-
tween April and July 1976. the parties had very nearly
come to an agreement. and on July 31 Union Representa-
tive Caskie, relying on a message communicated by a Fed-
eral mediator that the Associations's laist offer was its "fi-
nal" one. made a written acceptance of that ofier. At that
point, according to Caskie's uncontradicted and credited
testimony, he asked Attorney Busch to sign Caskie's draft
of the Respondents' proposal: Busch "[alt that time said no.
that they still had some language to talk about. some union
security language inasmuch as all the people have been re-
placed." Caskie pointed out to Busch that never before in
their 9 or 10 meetings had the union-security provision been
mentioned as a subject for negotiation. Saying, "I accept
your final ofler." Caskie angrily left the room.
In view of the fact that at the eleventh hour of bargain-
ing, the Association suddenly introduced a wholly fresh
bargaining topic which it wanted "to talk about."' it is
frivolous to argue that the parties had at the same time
reached a genuine impasse. i.e., a posture where "good faith
negotiations have exhausted the prospects of concluding an
agreement.' Tali Broadcasting Co.. 163 NI RB 475, 478
(1967). ' This conclusion is especially true in light of the
position taken by Respondents' counsel at the hearing that
what 'Caskie understood to be Respondents' final offer was
in flct not that.
Respondents seem to be further contending that they are
relieved of a bargaining obligation to the Uinion because
they have sufficiently established the presence of objective
considerations giving rise to a well-founded doubt that the
Union did not represent a majority of employees in the
appropriate unit.
The applicable law is usually stated in terms akin to the
tfollowing passage from Sahara-Tahoe Hotel, 229 NLRB
1094:
To withdraw recognition lawfully. either this presump-
tion [of majority status] must be overcome by compe-
tent evidence that the Union in fact did not represent a
majority at the time of the withdrawal. or the Em-
plo er must establish on the basis of objective facts
that it had a reasonable doubt as to the Union's con-
tinuing majority status.
When, if ever. there was a "time of' the withdrawal" of
recognition in the present case is a debatable question. As
discussed above, it is Respondents' (rejected) contention
' F-or all ( askie v, ould have known Ireom Busch's statement. the Ass.ci-
anion was seeking to .inmpletels eliminate the union-securits provisioin. Pre-
cisel) ihat the Ass:ci.iatlon Intended 'as not clarified at the hearing.
n Although there is some basis otr inlerring here that Respondents "ere
bargainiig in hald taith hi the described conduct. the crnplaint cont;ins noi
allegation to that efect
679
I)1 (CISIONS OF NAT'ItONAI. L.AB( OR RFI.AHOI() NS BOARDI)
that the Association dissolved on August 1. 1976. and that
thereafter the three corporate Respondents, at least ah-
stractly. were assuming a posture of independent relation-
ships. or perhaps lack thereof, with the Union. But al-
though Respondents are now asserting such a dissolution.
followed by separate relationships. Respondents L ehigh
and Brown-Borhek did not do so in the case heard hb Ad-
ministrative Law Judge Kaplan on January 19 20, 1977. At
that time, almost 6 months after the purported dissolution.
those two Respondents were not contesting. betore Admin-
istrative Law Judge Kaplan, the complaint allegations that
then were members of the Association and that the appro-
priate unit consisted of certain emploNee s of those Respon-
dents in a single bargaining unit.
As stated above, it is not clear wlhen the Respondents
claim to have withdrawn recognition. Not one of the em-
plover witnesses testified that he had ever conveNed such a
message to the Union, nor did any of them attempt to tes-
tifv as to when the asserted withdrawals had occurred
While attorne? Busch wrote a letter to the Union on MaN
10. 1977. 2 weeks after Judge Kaplan issued his l)ecision.
stating, inter ualia. "Brown-Borhek ('onmpany has indicated
an interest in negotiating a -y ear lahbor agireement wXith
local = 773 based upon economic terms otlered bh the As-
sociation and proposed originally tor the second eft'ective
year of the agreement," Judge Kaplan's Decision savs that
both Brown-Borhek and LIehigh had. at some unspecitied
time alter July 31. 1976. refused to baigain Lurtuher with the
Union "on the basis that the linion has lost its rnajorixt
status," 23(0 NI RB at 1123.
Answering this given detense .\dmnilsirative l.aw Judge
Kaplan carefully analyzed the applicable law, and con-
eluded that evidence of disenchantment among the employ-
ees of Lehigh and Brow n-Borhek arose in a climate of mis-
conduct by those two employers. and therefore could not
serve as a basis for doubting the Union's majority status.
Obviously having heard nothing from those Respondents
about an asserted dissolution of the Association, he held
that the two Respondents before him were "under a con-
tinuing duty to meet and bargain with the Union and their
refusal to do so was violative of Section 8(a )(5)." 230 N I.RB
at 1128. In his Conclusions of ILaw. Administrative lI.a
Judge Kaplan concluded that the two Respondents had vio-
lated Section 8(a)(5) by "withdrawing recognition from the
Union," and he ordered them to bargain with the Utnion in
a described unit, found to be appropriate, of emlployees
"employed by members of Lehigh Valle3 I Lumbermen's As-
sociation."
On the foregoing sequence of' esvents. it is clear that the
right of Respondents Lehigh and Brown-Borhek, as mem-
bers of the Association, to withdraw recognition from the
Union has been squarely adjudicated, and the adoption bh
the Board and the court of appeals of' Administrative l.aw
Judge Kaplan's determinations makes the doctrine o' rt/'
juedicato applicable to those two Respondents, insofar as
they are now again individually attempting to litigate their
right to withdraw recognition on the basis of events predat-
ing the hearing conducted by Administrative L aw Judge
Kaplan.'" Since Ritter, however, was not parts to the prior
I2 Although General ounsetl has not urged that raei bdir l'aa oir collateral
estolppel apply, I may, sua sponte, so conclude. Ita \. I/,llan,i 235 I .2d
183 (( A . 1956)
litigation, it wtould not. under ordinari principles, be fioe-
losed bh the earlier adjiudicitio n.
This seems to present the possibilits that w hile Respon-
dents lIehigh and Brow n-Borhek niax be bound to the prior
order requiring thenm to recognize and deal w ith the ; ion
ais paLt of a multieCliploy er bargaining unit, Respondent
Ritter is free to assert tha;t there was a privileged w ith-
dralwal by it at some time atter Jul 31. 1976. (eneral
('ounsel argues that "no good faith douhbt can be raised
hb the emnployers in anl assticiation-wside unit against a
hackground of untlfair labo(r practices comlmitted bh two-
thirds of its m embers." No author it in point is cited fitr
this proposition. I am not aAware of' aln, case in which the
Board has held tliit tha e coMnlil ssiOnl of unfair laho- prac-
tices bh somil menllbers of' ani associaltion automaticrally
talits the renaininrig imembers antd dletats their right to
w ithdras,, recognition fromn the incumbent unioni. I need not
reach that question, however, for there are other serious
difficulties ith the claiim ad;laIlnced bs Ritter.
Ani asserthion bx ar eniplo er that it w ithdrex, recotnition
because of' a reasonabhlx bhsed doubt of continued miiiaoritN
status Imust be considered v ithin fixed diln l nilnsins. .iSt.
ihecre the unit In issue is nIlltitellrloCerwide. the relevlant
niajIo l it f'or purposes oif testing the proprliet! of s i thdrasal
ot recognitolln is a majorlit ot' the cirploNiees in the entire
unit. Sherida' n C(r'l'tllitlt, Il ., 148 NI RB13 150)3 1505 1506
1196)5. enid. 37 F.2d 245. 248 (('A. 2 196),: lIo,r Pi'-
Ats. 171 NI RB 116. 117 1968): labhot' Nqggel, Inc. d/b/a
Jlon A'/ull 'v lillot' ;'igt'c. 227 NI RBI 357, 358 359. fn. 6.
(1976). In order tot Ritter to previl tl on this colintentliion,
therelore, it must establish that at the time ofw ithidrawal of'
recoginititon. it entertaiined a reasonable doubt, based on ob-
jective considerations. that the i tnion represented I per-
cent of the employees in the three-emploxer unit.
The record. how ever, is strikingly devoid of solid evi-
dence as to ainy of the salient facts. There is no indication as
to when (if ese r) Ritter withdrew recognition a fact which
mtust necessar-il? be kliinw i it order to e;aluate the claim of
a reasolnable doubt oft niialorit statiusI. 1x el assul ig i cwe
knewk that tf;ct. there is no firm il cidence in the record as to
the precise iullilber ill the total unit Comilpelelent at iall
given time nmetioned in the record: such inftorration
would similarly be a prerequisite to an analsis of w hether.
at the time of wtithdra 2al. Ritter had a reasonable dolubt ot'
the I nion's "majority status."
lhe record and Administrative Law Judge Kaplan's DI)e-
cision contain only bits and pieces of' information. not all of
them reliable, as to the composition t)f the multiemployer
unit at different times. Administratisve I as Judge Kaplan's
Decision. notes that. as of' the end of' April 1976. the L ehigh
unit consisted of five employees and that, as of August 2,
"'i]t appears that [fnour namned] indliiduals were the only
Brow n-Borhek emploxees emploi ed at that time." John
Billman. oif Ritter, testified that on or about July 28. 1976.
an emploree gave him a cops of a letter of resignation.
signed hy his four etmploiees and addressed to the Ulnion:
the letter is in evidelnce. Assuming that this total of' 13 em-
plotees Was aIccurLate arld also constanlt during the 3-month
period referred to. and that withdrawal occurred during this
period or sometime thereafter when the unit figure re-
nainiled the sanile Ritter would have had to demonstrate
680
I E+it(itl I.t HABER ( )ONPANY
that il had a reasonable basis lin diubhting the union alle-
giance of' see en employ ees.ec
Billman. however. testified onl\ to his aswareness of the
resignations tendered bh his four employees, Ihe record
shows that Ferretti. president of I ehigh. received, in
around Aullust 1976. a copS ot an apparentls unliled Board
petition sicned hb seveen striker replalcellents then wocrrking
for him. stiting that the! did not A ish to he represented hN
the lUnion. Not onlx is this petition suspect. Juldge Kaplan
hai inig lound I errelli guliltIt? around the same tilie o corm-
inittilg unlt'ir labor practices amiong his original cnplos-
ees. who went on strike. but there is n[o testinonn hb Ritter
that he had ian kniowuledge of the petition or reached atn,
oIncl uIsiton as to its etlect on tIhe relevnant m;iajorit staItus of
Ihe l nion. A sInli' lain[ Lt attaches tou In Aul \Ilt 2. 1970.
letter ot resignation troml the [Union signed hx Ihree Brokn n-
Boihek cniploneces. foiunll hb .JILte Kaplan to hc the oh-
jects of cocrcikSe conduct ail nltl the Same ll iack iot shl, ling ot
an) ItliniliaritN hs Ritter .kith Ihe Brosn-Borhek re.sgina-
tions. or his collnCitlsi1ns pertainiig thereto, .als obtailns.I
Accordiing'is it seeLn to nite tha;i Ritter his ft iled :;t the
threshold in its etirit to assert a; doubt (of niajorit\ status i
the multielmphloer unit. ,, en assuming, furthiermore. that
l.elhii and BrFoi-in-Borhek , ere iree in this plroceedilng to
once morle litigate that same issue. their attempt to erect
such detienses sOulul also till ti,- the same reasons.
I find. in cniclusion, that h ;l atiempting to) dissolse the
Association in their letter of \l.rs IO) 1977. to tile I nion.
and th retulsinl to haigain kitlh the I nion oln ;1 multiem-
ploer hbasis therLealter. Respondents nolalted annd are con-
tinLinL' tO \lolat. Section 8(a)(T ) anid tI ) Oe the Act In soi
findirig. I reject all dcl'cinss cxpliciitl or iimplicitl' raised hN
respondents on brief '
On suiglt 9) 19
7
fi. Itornnc Bt, chi uroic a letter ti the Boa.lrdl Istini
ih;it lhe nuilibel f epl,oce\ , in the nmultiticmphler unit ;,sa 'aplpr mitlt.leJe
thirteen " Int in RM petitilon he filed .in NoNcmher 15, 197h, he sh.vued tilhe
numher oi unit cmplooees as "14-
L In iddltiion Ihc exislence at aarious tilies ot strikers and replacements.
hoth .tf hlch ,.alegories i, ould he cournted Iovi ard the toal comllplement.
maiking thul tigure po-.sibl n 2( or more. complic;les the probhlem and high
lighis the necessts it knobsing al i hat time anmd auh. Rmter pirporledll,
ithdtreu recognllion
i in Juls 1977 .and .I)iauars 197, tIle t Iln mtet ,ith sitorne5 Busch
actinsg on hetill A- BrolTI-BOrhek I lie ls l neetinlg a.rilne ibouit as i reslti
ot' Busch, .' M i 1I. 1977 letter suggestlng separate h;lrgaiinng w ilh Bros it
Borhek: In agrecitg to mteet, ('askie satedi. in a letter to Busch of Juntie 9
1977, thai the I lon , ua ",uilling Io discuss nwith .ou. on .Ir indilidual hasis
ior Brou, n-B lrhek ( omplan,, the poslbhilN iot entering inio ia oilleciic hear
gaining griemenirnt wuih Ithat cncern."' nioting .t the samne ime that the letter
;1as "heing sent tIo onu wl thoul prejudice toe I.ocal t nion's polsitllon concernl-
ing Ihe dlis!,lutl-on ot the l.ehigh alle' t.lumbermen's As ,i..litllon .nd more
spefiicalls. nuhether Br-oun-Borhek ( onrmpaln hal the right Ito unil;ltera;l!
sithdlrau; frini thie A%,oci/lion tinder the clirCimMstMniC present herein " I he
second11 niceling. i .aIll rl;ir 1 7X. resulted Irnom a letter Irim the nlion
referring ito he c itrN oi ludgmenl hs the ( ouril eit Aple;a lo tir the Ihird
(lrL uit In tile prior La. C lind reqllieCilig Brosr n-Borhek to "meel and hbargainl
In geod lalith Ii th the Local t nion as part it the imultietriploner halrgalliing
unit t high V;sllen Ii.unherman's Assocl;llion" (tien this context. it
emphatic;lls c ilnrlot he said that the I nimln hal (ondoned the ,ithdrassal Ait
Brimon-Borhck Irn the A.\socialt ion
I or the reasons glcini h\ the ( ourt p A pe.als tor the I hird ( irietit in
: I R B n Be A[ I ,[:grre I m.repaits 5,22 1
2
d 475 482 (197t. I concliude
that lneither th te eItt .L *ilhidru;a oit [Merritt tlurnher ( ontip;lns fr-om
the ,oLs ILition n-or th I snltn
'
s elecive strike lililsil t'ed to ulitis'lt'ic l
grolint tr l t P npon ideri,'l t lteralt it ithvdr/ ,al
('() tI t sl siNS (I[ I A,'
I. I.ehigh l.umber Cornompan . Bro\n-Borhek ('onmpan,
and Ritter and Smith CompanM are emplo\ers engaged in
commerce within the nmeaning of Section 2(2). (6), and (7)
oft the Act.
2. .ocal 773. Internattinal Brotherhood of lJearoisters.
('haUflleurs, WarehoLusee n andI tilelpers f. Anmerica. is a
lalbor organiation ithin the nmeaninllg l' Sectiorn 2(5) of the
\ct.
3. Bs purpl timg to d ssolv e thile I.ehigh \Valle I.urnber-
imell's \ssiociatinl on r about NMa, 1(. 1977, and b retfus-
ing to barga;in \ith the L nion thereafter in the appropriate
imulliepllo'er hargaining unit. Respondents ha; e . iolalted
Section 8t(a)(51 of the Act.
4. 1he atfresaid untair labhor practices ;ire ulnlair lahbor
practices atlecting contmmltrce \sithin the 1neall;llg of Section
2I(6) and t71 )it tle A\ct
Ri St Ii
I o retned, the unfitir labor practices t)untd. I shall ree-
Omlilelnd entr', of the customlnars order an ld a requirement
that Respondents post the tra;ditional notices to erplosees.
I ]pun the basis oft the t'oregiing fitidigs oft tact. conclu-
sintllS o)f las. and the entire record in this case, I hereb!
Issue the illio\\ ing reconlmmliended:
()RDI R
1 hc Respondents. l.ehish I.ulnhber (ornpanii. illelnt.m n.
Penlns'l\ niai. Bro\ n-liorhek ('onlmp;tln. Bethlehem. Penn-
s\;lnaa.. anid Ritter and Smith ( omrpano, Allentow-n. Penn-
s\! I ania. their otfieers, agents. successors. and assigns. shall:
I. ('ease and desist trom:
(a) l nl;aiw ull' withdra\ ing recognition troiii and ret us-
ing to bargain in good taiilh on a inultiemlployer basis ,a ith.
I.ocal 773. International Brotherhood oft Teamsters. (hauf-
teurs. ;Warehousemen and Helpers of America. as the exclu-
sive collective-harlgaining representa;tive tf the emplo' ees i
the tollI, u ig appropriate unit:
All truelkdrl ers. mobile lumber handling equipment
operators. helpers. andl ardmen. excluding supern soirs
ais detinedl in the Act. emiplo!ed bhs all three Respon-
dents.
(h) In an' like or related manner interfering with, re-
straining. or coercing enmployees in the exercise of rights
guaralnteed hb Section 7 of the Act.
2. Take the follo(ingi affirmative action designed to ef-
fectuate the policies of the Act:
(a) Ilpon request, bargain A ith the above-mentioned
U nion as the exclusiv-e collective-hargaining representati e
oft the emploees in the bargaining unit described above.
with respect to v ages. hours, and other terms and condl-
' In the event n,) exceptlins are tiled as, proided bhN Sec 102 46 of the
Ruiles and Regula.tios of the National I ahor Relations B.oard. the titdrangs.
conclusions . rand recommended ()rder heretil shll. Ia proiided ii Sec 11102 4
AsI Ihe Rules .and Regulitins, he adlslptel hs Ihe BHsoalrd .n hecmne its
linditgs, c.nclusins. and Order. and all ohjectosen, thereio shill he dteetred
,uiledt tslr all purpolses
681
DF.('ISIONS OF NATIONAL. LABOR REIL.AlHONS BOARD
tions of employment. and if an understanding is reached.
embody such understanding in a signed agreement.
(b) Post at their respective places of business copies of'
the attached notice marked "Appendix."'" Copies of said
notice, on forms provided by the Regional Director for Re-
gion 4. after being duly signed by Respondents' representa-
18 In the event that this Order is enfirced by a judgment olf the U nited
States Court of Appeals. the words in the notice reading "Posted hs Order {If
the National L abor Relations Board" shall read "Posted Pursuant to a judg-
ment of the United States Court oft Appeals Enfiorcing an Order of the Na-
tional I.abor Relations Board."
tives. shall be posted by Respondents immediately upon
receipt thereof'. and he maintained by them for 60 consecu-
tive days thereafter, in conspicuous places. including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to insure
that said notices are not altered. defaced. or covered by any
other material.
(c) Notift the Regional I)irector for Region 4. in writing.
within 20 days from the date of this Order. what steps have
been taken to comply herewith.
682