Lilliston Implement Co.

National Labor Relations Board - Board Decisions

May 3, 1968

171 N.L.R.B. 221 (N.L.R.B. 1968)

LILLISTON IMPLEMENT COMPANY
Lilliston Implement Company and International
Union of District 50, United Mine Workers of
America . Case 10-CA-6732
May 3, 1968
DECISION AND ORDER
On October 19, 1967, Trial Examiner Harold X.
Summers issued his Decision in the above -entitled
proceeding , finding that the Respondent had not
engaged in certain unfair labor practices and
recommending that the complaint be dismissed in
its entirety. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision, and a
supporting brief . Respondent filled a brief in
answer to the General Counsel 's exceptions.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed. The Board has considered the
Trial Examiner 's Decision , the exceptions and
briefs, and the entire record in the case , and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
HAROLD X . SUMMERS, Trial Examiner : In this
proceeding, the General Counsel of the National
Labor Relations Board, herein called the Board, is-
sued a complaint' alleging that Lilliston Implement
Company, herein called Respondent, had engaged
in and was engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act, herein called the Act.
Respondent's answer to the complaint admitted
some of its allegations , denied others , and pleaded
affirmative defenses; in effect, it denied the com-
mission of any unfair labor practices.
On March 8, 1967, all parties hereto executed a
stipulation to the Trial Examiner , in which they
agreed to submit the matter for the issuance of a
Trial Examiner 's Decision without the holding of a
hearing ; in the stipulation, among other things, they
stipulated to the truth of certain facts and agreed
upon what certain individuals , if called as witnesses,
would testify. Thereafter, the hearing which had
been scheduled to be held upon the allegations of
221
the complaint was postponed indefinitely, and, in
accordance with the stipulation, the parties were af-
forded the opportunity to submit briefs.
Upon the entire record in the case-the charge,
the complaint and notice of hearing, the stipulation
to Trial Examiner, and the order indefinitely post-
poning hearing-and upon full consideration of the
briefs filed, I make the following:
FINDINGS OF FACT2
I. COMMERCE
Respondent is a Georgia corporation engaged, at
Albany , Georgia , in the manufacture and sale of
farm implements . During the 12 months preceding
the issuance of the instant complaint , which period
is representative of all times material herein,
Respondent sold and directly shipped finished
products valued at in excess of $50,000 to custom-
ers outside the State of Georgia.
Respondent admits, and I find , that it is an em-
ployer engaged in commerce within the meaning of
the Act.
II. THE UNION
The Charging Party, International Union of Dis-
trict 50, United Mine Workers of America, herein
called the Union, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background, Setting, and Chronology of Events
On July 28, 1965, in an election by secret ballot
conducted under the supervision of the Regional
Director for Region 10 of the Board, a majority of
the employees of Respondent in a unit consisting of
All production and maintenance employees,
including assembly, welding, yard paint and
bundling, sheet metal, shipping and receiving,
fabricating, machine shop, storeroom, T & D,
parts, janitors, and all other employees of the
Respondent's operation at its Albany, Georgia
plant, excluding office clerical employees, su-
pervisors and foremen, technical employees,
guards and watchmen and all other employees
as excluded by the Act,
designated and selected the Union as their
representative for the purposes of collective bar-
gaining with Respondent with respect to their rates
of pay, wages, hours of employment, and other
' The complaint was issued on February 3, 1967 The charge initiating
the proceeding was filed on October 21, 1966
Y The facts found herein are based upon express stipulations of the
parties and upon testimony which, the parties agree, would be given if a
hearing were held
171 NLRB No. 19
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms and conditions of employment.' On August 5,
1965, the Regional Director certified the Union as
the exclusive representative of all the employees in
this unit.
On March 23, 1966, Respondent and the Union
entered into a collective-bargaining agreement
covering the work conditions of the employees in
the above unit, which agreement, by its terms, was
to be effective from January 1, 1966, to January 3,
1967.
Late in the summer of 1966, Respondent "was
made aware of employee dissatisfaction" with the
Union's representation by a number of circum-
stances;
(1) Statements made by Respondent's em-
ployees to their departmental foremen.'
(2) The fact that all but a few of Respondent's
employees discontinued wearing union buttons.'
(3) The fact that the Union ceased to collect
dues in the plant, although provision therefor was
contained in the collective-bargaining contract.'
(4) The fact that the president of the involved
local of the Union voluntarily terminated his em-
ployment with Respondent on or about August 1,
1966, and Respondent was not informed of any
successor to the presidency.'
(5) The fact that, subsequent to the voluntary
termination of employment just referred to, no new
grievances were initiated or processed.'
On the basis of these factors, particularly the
statements made by employees to foremen, and
after consulting counsel, Respondent decided to
conduct a poll of its employees "to verify [their]
dissatisfaction ... ; to determine to the greatest
certainty possible the lack of majority status of the
Union; and to obtain the `objective evidence'
necessary to establish a good-faith doubt" in the
event Respondent should thereafter petition the
Board to conduct a representation-question elec-
tion.
On October 7, 1966, without prior notice to its
foremen, Respondent, through its supervisor and
agent, Vice President and Plant Manager Charles S.
Johnson, instructed the foreman of all its depart-
ments to have their employees report to a point
near the plant entrance, between 40 and 50 feet
from the plant conference room.' All employees
working that day were assembled there, being sum-
' In Case 10-RC-6369 The tally showed 197 eligible to vote, 98 votes
cast for representation by the Union, 82 votes against such representation,
3 void ballots, and I I challenged ballots
' 1 find that , to an increasing extent during the 6 months ending October
1, 1966, a substantial number of employees in the bargaining unit informed
foremen ( or informed fellow employees , who in turn passed the informa-
tion to foremen) that they were unhappy with the collective-bargaining
contract covering their working conditions , they were dissatisfied with the
representation the Union was giving them , and/or they were desirous of
ending the bargaining relationship, and that this information came to the
attention of top management prior to October 7, 1966.
Testimony to this effect would be given , and I would credit it
" Article 34 of the collective -bargaining contract permitted the monthly
collection of dues on company property. After July 1966, for reasons not
moned by their respective foremen on a depart-
mental basis.
Each employee entered the conference room
alone, to find himself in the presence of Respon-
dent's Personnel Administrator William T.
Zacharias and the Honorable Hudson P. Malone,
Judge of the Juvenile Court in Albany, Georgia.
With respect to every employee, the same
procedure was followed. Zacharias read the follow-
ing from a writing before him:
A number of the Company's employees have
told us that the Union does not represent a
majority of the employees here at the plant. In
order for the Company to determine whether
or not it should continue to recognize the
Union as the bargaining representative, we
need to know if the Union does or does not
represent a majority. Therefore, we are asking
each employee whether or not they want the
Union to continue to represent them. Feel free
not to answer or to answer any way you want
to, and no reprisals of any sort will be taken
against you regardless of your answer.
Do you want the Union to continue to
represent you here at the plant?
Then, employees were allowed to ask any questions
they wished. (If any of the employees displayed any
discomfort regarding the presence of Judge
Malone-who was not introduced to incoming em-
ployees-the Judge was identified by Zacharias as
"an impartial observer to see that I [do] not
threaten or attempt to coerce [you] in any
manner.") The answer to Zacharias' question given
by each employee was tallied in one of three
categories: (1) yes; (2) no; (3) declined to answer.
At the conclusion of the series of meetings, ap-
proximately 5:30 p.m., the running tally kept by
Zacharias showed that 26 employees had answered
"Yes"; 167 had answered "No"; and 13 had
"Declined to answer." He and Judge Malone cer-
tified to the accuracy of the count.
Before the day ended, a series of correspondence
bearing on the bargaining relationship between
Respondent and the Union was launched.
The first item was a letter from Respondent to
the Union, dated October 7. Advising that, pur-
suant to the provisions of the collective- bargaining
specified , the Union ceased to avail itself of the privilege.
' According to testimony which would be given ( and credited), the
Union 's local president resigned his employment with Respondent in the
middle of August , and, on or about October 15, the name of another in-
dividual , an employee of Respondent on sick leave, appeared on a union
notice as its local president.
"The last grievance meeting was held August 12, 1966 . At least one
grievance procedure , that involving employee Ernest Miller , was pending
on October 7
"The conference room is located in the Plant Office Building, which
connects directly to the plant, and which is approximately 200 feet from
the general offices of Respondent. It was customary , prior to October 7,
1966, to call employees into the conference room for plant and employee
meetings
LILLISTON IMPLEMENT COMPANY
agreement , Respondent desired to terminate the
agreement as of its expiration date on January 3,
1967, the letter continued:
This will further advise you that an overwhelm-
ing majority of our employees have informed
us that they no longer desire the Union to
represent them . Accordingly, we believe it
would be unlawful for this company to con-
tinue to recognize the Union as the exclusive
bargaining representative of our employees
when it does not in fact represent them.
Because of the above we will no longer recog-
nize the Union as the representative of our em-
ployees.
Next day, Respondent informed the employees of
its action by posting on the bulletin board,
customarily used for posting notices to its em-
ployees, the following:
TO ALL EMPLOYEES
By vote of 167 to 26, you have shown that you
do not want the Union to continue as the bar-
gaining agent for Lilliston employees.
Accordingly, the company has today written a
union that the company will no longer deal
with or recognize the union as your bargaining
representative.
We believe that it would be improper for the
company to continue to deal with the union
when it does not in fact represent a majority of
you.
/s/ John T. Phillips, Jr.
John T. Phillips, Jr.
President
By letter dated October 11 , the Union informed
Respondent that "... we do not agree with your
letter of October 7, 1966, in which you informed us
that you would no longer recognize this Union as
Representative of your employees .... We take this
letter to be in complete disagreement with the con-
tract signed by you." In reply, Respondent's pres-
ident, 2 days later, notified District 50 that ". . . I
want to assure you that our company intends to and
will live up to its obligations under our Collective-
Bargaining Agreement . While we certainly intend
to live up to our contractual commitments, this
does not affect in any way or change our position
with respect to the majority status of the union, as
explained to you in our letter of October 7, 1966."
The next step was taken on October 18, when the
Union sent Respondent a telegram stating that it
was filing unfair labor practice charges because of
Respondent 's ". . . illegal acts in discrimination
against employees by interrogating them by infring-
ing on their rights .. ." On the same day,
acknowledging receipt of the telegram , Respondent
223
denied that it had engaged in any illegal acts or
conduct: "... All actions taken by this company
have been in full compliance with both the letter
and spirit of the National Labor Relations Acts."
(As noted earlier, the instant charge was filed on
October 21. )
By registered letter dated November 2, the Union
notified Respondent of a desire for a conference,
offering to meet and confer for the purpose of
negotiating modifications in the existing contract.
.. You are further notified, that if said proposed
negotiation conferences fail to result in the execu-
tion of a satisfactory contract by the termination
date of the existing contract or sixty ( 60) days after
receipt of this notice, whichever date last occurs,
the existing contract and any practices or customs
thereunder, I hereby declare to be terminated and
of no further force or affect as of such latter date
. ." Respondent, by letter of the same date, call-
ed attention to its October 7 advice that a majority
of its employees no longer desired representation
by the Union and that Respondent would no longer
recognize the Union to negotiate a new agreement
as the employees ' bargaining representative. ". .
Accordingly, we feel that it would be unlawful for
this company to meet with you and recognize you
as the collective -bargaining representative of our
employees when you do not in fact represent a
majority of them. We must, therefore, respectfully
decline to meet with you for the purposes outlined
in your letter of November 2, 1966."
On November 8, 1966, counsel for Respondent
dispatched a letter to the Union:
In order that there is no misunderstanding
concerning the status of your union until the
expiration of the collective bargaining agree-
ment, we wish to advise that the Company will,
of course, deal with the union in connection
with the administration or handling of any
problems which arise under our existing con-
tract.
Because of your lack of continued majority
status, however, we will not meet for the pur-
pose of negotiating a new collective bargaining
agreement to follow the expiration of the exist-
ing contract, which we have previously in-
dicated we wish to terminate as of January 3,
1967, on its expiration date.
In his reply the next day, a representative of the
Union labeled this advice as coming "a little late,"
calling attention to the last paragraph of Respon-
dent's letter of October 7 and to the wording on the
notice to employees posted on October 8.
The subject was revived on November 25. The
Union, by letter, again requested a meeting for the
purpose of negotiating a new contract covering
Respondent's employees. In answer on November
30, Respondent1' once again explained that it did
not believe that the Union represented a majority
"'Having meanwhile notified the Federal Mediation and Conciliation
Service of the existence of a dispute.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its employees. "... If, however, you desire to
prove that you represent a majority of the em-
ployees either by proper authorization card or by a
Board-conducted election in which a majority of
the employees vote in favor of continued represen-
tation by your Union, we will be glad to meet with
you. . . . At such time as your majority status is
established by any appropriate method or proof, we
will then meet to negotiate." In rebuttal, on
December 2, the Union reminded Respondent that
the Board had established the majority status of the
Union in an election held on July 28, 1965.
During the period in which this exchange was
taking place, the same parties were in communica-
tion with each other along a different, but related,
line.
On October 7, 1966-the same day it notified the
Union of its desire to terminate the pending collec-
tive-bargaining agreement on its expiration date
and of its determination no longer to recognize the
Union as its employees' representative-Respon-
dent advised the Union, "[I]n accordance with the
provision of our Agreement," of the granting of
merit wage increases to eight named employees.
On October 11, replying to a union letter con-
cerning a grievance, Respondent, "[ W ]ithout waiv-
ing the position of the Company with respect to the
Union's majority status, as set forth in the Com-
pany's letter of October 8 [sic]," agreed either to
proceed to arbitration or to wait until the grievant's
health improved, at District 50's option. In reply,
" [ W ] ithout waiving any rights under the contract,"
the Union expressed its willingness to await further
developments.
On October 12 and 18, November 7 and 14,
December 7 and 12, respectively, Respondent
notified the Union of the granting of merit in-
creases to a total of 30 employees.
By telegram on December 9, Respondent notified
the Union of its desire to give its employees Christ-
mas gifts of from $10 to $50, depending on length
of service, and it invited any objection or questions.
One week later, it advised the Union of the names
of the 202 employees who would be given Christ-
mas checks, with the amount to be given to each.
These were the most recent contacts between the
parties, insofar as is disclosed by this record. The
complaint herein was issued on February 3, 1967,
and the stipulation under which the matter is sub-
mitted to me was executed on March 8, 1967.
B. Discussion -Conclusions
The pleadings, as amplified by arguments in the
parties' briefs, pinpoint the issues:
1. Under the circumstances, did Respondent's
conduct of the poll of October 7, 1966, interfere
with, restrain, or coerce its employees in the exer-
cise of their self-organizational rights'
2. Under the circumstances, did Respondent un-
lawfully refuse to bargain with the Union on and
after October 7, 1966?
3. Under the circumstances, did Respondent un-
lawfully refuse to bargain with the Union at any
time subsequent to October 7, 1966?
In order to appraise the poll in terms of legal
precedents, it becomes pertinent to note first that
there is no allegation, or evidence, of any other acts
of independent employee interference, restraint, or
coercion on the part of Respondent, nor, indeed, of
any union animus on the part of Respondent during
any of the period relevant hereto.
It is also pertinent , if only to lend cogency to ar-
guments made by the parties herein, to note that,
when the poll took place, the applicable law was
epitomized by the Board majority's opinion in Blue
Flash Express, Inc." as amplified in subsequent
cases in respects not pertinent here. That law, in
brief, permitted an employer to poll his employees
as to their union predilections under certain cir-
cumstances: noting that the question of whether a
polling interfered with, restrained, or coerced em-
ployees must be determined "in the record as a
whole," the Board permitted polling if (I) the em-
ployer's sole purpose was to ascertain whether a
union demanding recognition actually represented
a majority of the employees, (2) the employees
were so informed, (3) assurances were given them
against reprisal, and (4) the question occurred in a
background free from employer hostility to union
organization.
As I understand it, the General Counsel, in ef-
fect, contends that Respondent's interrogation (i.e.,
the polling) had the natural effect of interfering
with, coercing , and restraining its employees in the
exercise of their self-organizational rights and that
the interrogation was not "protected by Blue
Flash" because that principle was confined to an
employer 's testing of a labor organization 's claim,
based on signed authorization cards, to represent a
majority of a unit of employees, not of a presump-
tion of majority founded on the continued existence
of a collective-bargaining agreement. Moreover-
the General Counsel continues-the poll was
tainted because the question was "loaded."
Respondent, on the other hand, urges that, hav-
ing received information casting doubt on the
Union's majority status, it concluded that a con-
tinued recognition of the Union after the current
contract expired would be violative of the Act; that,
at the very least, a testing of the Union's majority
by a Board-conducted election would be called for;
that, upon advice of counsel, prior to informing the
Union of a withdrawal of recognition or to the filing
with the Board of a petition for the investigation of
the representation question, it decided to verify its
doubt as to the Union's majority status; and that,
pursuant to this decision, it conducted the poll in
" I09NLRB 59I
LILLISTON IMPLEMENT COMPANY 225
question, carefully adhering to each condition laid
down in Blue Flash"
I am not persuaded by the General Counsel's ar-
guments . While Blue Flash concerned itself with
the testing of a majority-representation claim by an
outside union, the rationale as set forth in the
Board's majority opinion is equally applicable to
the continued claims of incumbent unions. I do
hold that the Blue Flash principles were applicable
to the instant situation and that Respondent, in
every respect, adhered to each of them. Moreover,
the available evidence is insufficient to support the
General Counsel's contention that the form of the
question put to the employees was so "loaded" as
to dictate one answer rather than another.
Finally, we come to the General Counsel's argu-
ment that the manner in which the poll was taken
rendered it violative of the Act. He notes particu-
larly the fact that employees were questioned in-
dividually in Respondent's conference room by a
high company official. I take this to be an attack on
the lack of secrecy in the conduct of the poll, the
mounting of which called for a bit of foresight by
the General Counsel. For, on June 26, 1967, the
Board, in Struksnes Construction Co., Inc., 165
NLRB 1062, made an addition to the conditions
(enumerated supra), which had been laid down in
Blue Flash; it held that:
Absent unusual circumstances ... an employer
will be violative of Section 8(a)(1) of the Act
unless the following safeguards are observed:
(1) the purpose of the poll is to determine the
truth of a union's claim of majority, (2) this
purpose is communicated to the employees,
(3) assurances against reprisal are given, (4)
the employees are polled by secret ballot, and
(5) the employer has not engaged in unfair
labor practices or otherwise created a coercive
atmosphere. [Emphasis supplied. ]
On its face, we have here a violation of the rule
against nonsecret ballots. But here (as in
Struksnes), the poll was conducted in accordance
with the Blue Flash rule, which was in effect at the
time it took place. In the absence of any circum-
stances dictating a contrary course, I shall recom-
mend (a course followed by the Board in
Struksnes) that effectuation of the Act does not
require a remedial order under the circumstances. 13
Thus, there is no support for a finding of unlaw-
ful refusal to bargain, at any time, since Respon-
dent's refusal was unaccompanied by contem-
poraneous unfair labor practices or other circum-
stances demonstrating a desire to avoid collective-
bargaining obligations,"' and since (I find) Respon-
dent, independent of the poll, had reasonable
grounds upon which to base a good-faith doubt of
the Union's majority status.15 Assuming, without
finding, a continuing majority status on the part of
the Union, Respondent has not violated the Act by
refusing to bargain under the circumstances. 16 I
shall recommend dismissal of the complaint.17
Upon the foregoing findings and conclusions, I
come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce 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. Respondent has not engaged in any unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, I recommend that the com-
plaint be dismissed in its entirety.
'r In further explanation of its taking of the poll , Respondent ( in its brief)
cited United States Gypsum Cimipany, 157 NLRB 652, wherein the Board
laid down , as a condition of an employer 's raising the question with respect
to the status of an incumbent union -agent in a Board representation case,
the requirement that the employer -petitioner demonstrate by objective
considerations that it has some reasonable grounds for believing that the
union has lost its majority status since its certification, one reason it con-
ducted the poll, it contended , was to satisfy this requirement.
11 See Oleson 's Foods, etc, 167 NLRB 543, and cf. The Lorben Corpora-
tion, 146 NLRB 1507, enforcement denied 345 F 2d 346 (C A 2), and
Johnnie's Poultry Co., 146 NLRB 770, enforcement denied 344 F 2d 617
(C.A 8)
14 See Joy Silk Mills v N L R B, 185 F.2d 732 (C A.D C ), cert denied
341 U S 914, 95 L Ed 1350. And, even assuming that the poll constituted
at least a "technical " unfair labor practice here, I could not find that the
poll has made impossible the holding of an uncoerced election, a finding
which I believe essential to finding a "Jo) Silk" refusal to bargain
"This was in effect conceded by the General Counsel at p 2 of his brief
See Celanese Corporation, 95 NLRB 664, 673
" Even were I to find an unlawful refusal , it would date from January 3,
1967, not October 7, 1966 Respondent's actions during the last 3 months
of the contract period spoke more loudly than its words