Lithium Corp. Of America, Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1985

275 N.L.R.B. 1482 (N.L.R.B. 1985)

1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lithium Corporation of America , Inc. and Local 3-
802, Oil , Chemical and Atomic Workers Inter-
national Union , affiliated with Oil , Chemical
and Atomic Workers International Union,
AFL-CIO. Cases 11-CA-11248 and 11-CA-
11453- - '
22 August 1985 _
:DECISION AND ORDER ,,
-By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 March 1985 Administrative Law' Judge
Lowell Goerlich issued the attached decision. The
Charging ,Party filed exceptions and a supporting
brief, and the Respondent filed 'an answering brief
to the Charging Party's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding - to a three-'
member panel.'
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm- the judge's rulings, findings, i and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative.
law • judge is adopted and .the complaint is dis-
missed.
i In so doing, Chairman Dotson and Member Hunter do not adopt the
judge's comment that the "coincidence of events and the timing of their
occurrence create a strong suspicion that these events [behind the decer-
tification petition ] were machmated " Member Dennis agrees with the
judge that the "coincidence of events and the timing of their occurrence"
were suspicious, but she accepts - the judge 's conclusions that the General
Counsel did not ultimately prove a violation She finds it unnecessary to
pass on the judge's reference to surface bargaining
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The
charge and amended charge in Case 11-CA-11248 were
filed by Local 3-802, Oil, Chemical and Atomic Workers
International Union,.affiliated with, Oil, Chemical and
Atomic Workers International Union, AFL-CIO (the
.Union).on March 1 and, April 11, .1984,; respectively, and
were served on Lithium, Corporation - of America, Inc.
(the. Respondent) on March 1 and April 11, 1984,.,respec-
tively. The charge -in -Case, 11-,CA-l 1453 was filed.,by
.the Union'on September; 19, 19841-'and.was served on the
Respondent on' September, 19;' , 1984.--A complaint and
notice of hearing in Case 11-CA-11248 was issued on
April 12,:1984. An.order consolidating cases,;consolidat-
ed complaint, and notice' of hearing was issued in Cases
11-CA-11248 and_ 11-CA-11453 on October 10, 1984.
The 'consolidated" complaint alleges that the Respondent
has violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act).
The Respondent filed timely answers to the complaint
and consolidated complaint denying that it had engaged
in the unfair labor practices alleged. -
The matter came on for hearing on November 27, 28,
and 29, 1984, at Gastonia, North Carolina Each party
was afforded a full opportunity to be heard, to call, ex-
amine, and cross-examine witnesses, to argue orally on
the record, to submit proposed findings of fact and con-
clusions of law, and to file briefs. All briefs have been
carefully considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make'the fol-
lowing
'FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR i
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and has been at all time mate-
rial herein, a Delaware corporation with a plant located
at,Bessemer City, North Carolina, where it is engaged in
the manufacture of lithium compounds. During the past
12 months, which period is representative 'of all times
material herein, the Respondent received at its Bessemer
City, North Carolina plant goods and raw materials from
points directly outside the State of North Carolina
valued in excess of $50,000. During the past 12 months,
which period is representative of • all times 'material
herein, the Respondent shipped from its plant at Besse-
mer City, North Carolina, directly to points outside the
State of North' Carolina products valued in excess of
$50,000.
The Respondent is now, and has been at all times ma-
terial herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A.-The Facts
First: The Respondent admitted that the unit described
in the consolidated complaint, i.e., "All hourly produc-
tion and maintenance workers employed at the Respond-
ent's,, Bessemer City, North Carolina, facility, excluding
all salaried employees, managers, supervisors, office cler-
ical employees and guards as defined in the Act," consti-
tutes a unit appropriate for the purposes of collective
.bargaining within the meaning of Section 9(b) of the
Act.
The parties stipulated as follows.
1. The Union was originally certified as the col-
lective bargaining representative of Respondent's,
employees in the unit set forth in paragraph 8 of the
Consolidated Complaint on July 31, 1967 in Case
No. 11-RC-2516. -
275 NLRB No. 206
LITHIUM CORP. 1483
2. The last contract between the Union and the
Respondent expired on January 31, 1982
3 The Union and the Respondent engaged in col-
lective bargaining, in a series of. approximately 40
sessions, over the time period from January 5, 1982
until the Respondent withdrew recognition from
the Union on February 12, 1984.1 There were ap-
proximately 22 negotiating- sessions from February
15, 1983 to January 12, 1984.
4. A decertification petition was filed, on Decem-
ber 5, 1983 and was withdrawn on December 22,
1983 in Case No. 11-RD-382. Copies' of the petition
were duly served on all the parties. Following
Board procedures, a count of-the designations sub-
mitted was conducted, and found to be 30 percent
or more of the names in the claimed unit.
The parties further stipulated:
1) On or about February 28, 1984, the Respond-
ent unilaterally granted its employees a' lump sum
payment consisting of an approximately 10.5%
wage increase retroactive to June 5, 1983.
2) On or about February 12, 1983,2 the Respond-
ent unilaterally granted its employees a wage' in-
crease of approximately 8.5%.
3) On or about August 5, 1984, the Respondent'
unilaterally granted its employees a wage increase
of approximately 8%.
Second: As noted, the Respondent withdrew recogni-
tion from the Union on February 7, 1984. Thereafter, it
refused to bargain collectively with the Union as the des-
ignated bargaining agent of its employees in the appro-
priate unit above described and made unilateral changes
in working conditions
Keefer R. Ling, manager of industrial relations, ex-
plained that recognition was withdrawn because the fol-
lowing factors caused him to doubt that the Union con-
tinued to represent a majority of the employees in the
appropriate unit: (1) "there was a letter from Hildreth3
with a copy attested to by a representative of the Na-
tional Labor Relations Board indicating that he had re-
ceived 156 copies of signatures from Lithium' employees
indicating they no longer wished to be represented by
this Union"; (2) "there was another letter later on that
came through that indicated that there was a larger ma-
jority and this was attested to by two independent
people who verified that these were signatures- of em-
ployees that no longer wanted to be represented by this
Union"; and (3) "Charley McKee [Charles F. McKee,
the Respondent's director of industrial relations] also in-
dicated that he verified the authenticity of these cards
themselves "
Prior to the expiration of the certification year Hil-
dreth had solicited from employees cards containing this
language- "I, as an employee of the chemical plant at the
Lithium Corporation of America,"Inc. in Bessemer City,
N.C. no longer wish td be represented by the oil, chemi-
i This date should be February 7, 1984
2 This date should have been 1984
3 Richard Alfred Hildreth was the sponsor of the decertification peti-
tion above mentioned
cal and atomic workers International Union-Local 3-
802" (G C Exh. 4). Hildreth had commenced the decer-
tification campaign in August 1983. and filed a decertifi-
cation petition with the Board on December 5, 1983.
Prior to filing the petition, on December 1, 1983, Hil-
dreth brought the signed decertification cards to Janet
Greene, personnel supervisor (McKee was also present),
seeking to get help "with putting the cards in alphabeti-
cal order," which he said was required by the Labor
Board. Greene and. McKee assisted _Hildreth in alphabet-
izing the decertification cards and compared them to the
Respondent's "cardex file, which is an alphabetical list-
ing, or an alphabetical card on every hourly employee
that we have." Greene listed the names on the cards and
counted them. There were 156 cards,4 all employees in
the appropriate unit . Later, Greene typed a list from the
handwritten listing which she had made. Greene recog-
nized the names and signatures of the signers as the Re-
spondent's employees. Still later a Board agent verified
that he received , 156 cards in support of the decertifica-
tion petition filed on December 5, 1983.
Apparently Hildreth, as a chairman of the decertifica-
tion committee, continued to solicit decertification cards
from employees, for on February 7, 1984, he addressed a
letter to the Respondent in which he demanded that the
Respondent. withdraw recognition from the Union "ef-
fective immediately" in that the Union no longer repre-
sented a majority of the hourly employees. This claim
was supported by two enclosed statements in which the
attesters declared that they had examined the cards given
to: them by Hildreth and verified that there were 214
cards signed 'by the Respondent's employees who stated
that they, no longer wished to be represented by the
Union.5 . - -
On February 7, 1984, the Respondent addressed the
following letter to the Union's representatives:
We have been given a letter by Richard Hildreth
stating that a majority of our employees have
signed a petition stating that they no longer wish to
be represented by your union. This assertion has
been attested to by independent sources. We would
be willing to let you meet with these independent
sources to corroborate this claim.
On the basis of this objective evidence that your
union no longer represents our employees, we must
withdraw recognition from your union.
At the time there were 289 employees in the bargaining
unit.
-Third: As noted above, the Respondent and the Union
had engaged in 22 bargaining sessions from February 15,
1983, to January 12, 1984, and 18 • bargaining sessions
prior to that period. According to Ling, the Union's lack
of strength and its inability to conduct' an effective strike
resulted in the Respondent's taking a 'hard line in bar-
' 4. One card was signed "Woodendick "This name did not appear in
the cardex file This "prank" does not detract from the validity. of the
other cards .
5 Both attesters appeared at the hearing and gave testimony and they
'confirmed the facts set out in their statements
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining . McKee testified, "We stood to our bargaining
position. We bargained 'tough' because there were some
items in that, some language that crept into our contract
language; and that we wanted to get it,' and it looked like
this was an opportune time to get out."e Ling testified
that -"[t]hey were negotiating hard and tough."v The Re-
spondent's last contract offer included the modifications
it wanted, no retroactivity as demanded by the Union,
and a wage offer of 2.8 percent Duration of the contract
had not been settled during the negotiations.
On December 13, 1983, the Union capitulated and in-
formed the Respondent that it was accepting the "com-
pany's- last contract proposal" 'with 2 years' duration' and
a reopener for wages for the second year of the contract.
The Union "respectfully requested'..' a wage increase of
7.8 percent rather than 2.8 percent. The Respondent re-
served its response to the Union's offer until James M.
Miles, its attorney and chief negotiator, could be ad-
dressed.
The next day, December 14, 1983,'Hildreth addressed
a letter to the Respondent. Hildreth pointed out that the
Union was asking for a 2-year contract and that in view
of the fact that' he had filed a decertification petition and
a majority of the employees had supported the petition
he was "demanding that the company not sign a contract
that extends beyond February- 6, 1984." A Board agent's
stateinent that 156 cards had been filed with the decerti-
fication petition was enclosed. -
The parties met again on January 12, 1984. Referring
to Hildreth's December 14, 1983 letter, the Respondent
refused to sign any contract which extended beyond
February 6, 1984, the end of the certification year. Ac-
cording to McKee, Miles said "that we would sign a 2.8
up to February 6th and after February 6th, if they had
an 'election, 'that he would come back in- and sit down
and talk to them about wages-only and the Union would
have the opportunity to come in and open up and talk
about anything they wanted to; non-economic items, et -
cetera." Ling testified that this proposal was made to the
Union: "Basically, when the Union agreed to all' of our
proposals prior to the' decertification, why, we got the
things that we were after in the contract and money was
not particularly a significant factor." Ling also testified
that' the wage proposal was not- increased because there
were "still a lot of things that we needed -to get out of
the way before we were interested in really- getting
down to the various wages increases ." Ling also testified
that the Company's wage offer was not "particularly re-
alistic" because the parties were "a long ways apart."
e'According to Ling, some of these items were " [c]heck -off, no strike
clause wasn ' t strong enough , voluntary overtime provision ,. subcontract-
ing provision
r Ling explained the reason the Respondent took this position
There were several, reasons, one , the economic situation was such
that it was pretty much to our advantage to attempt to negotiate out
of the contract some of the things that , had- crept in that we didn't
particularly like for a period of time and Number Two, to get some
things into the contract that we hadn't been able to get in We felt
that we have the advantage in terms of negotiating strength because
of the economic situation , with the high unemployment , our plant
was on the verge of laying people off, we had high inventories, and
there were relatively few jobs available so that we had a'bargaining
advantage over the Union from an economic standpoint
Wages were still open for negotiations when the Union
capitulated. Ling testified that the Respondent did not
need to make a final offer on wages because the Union
accepted the offer made.
Testifying further, Ling said that the Respondent's
changed position on duration of the contract "came
about as a result of information that we had received
from Rich Hildreth that the Union no longer represented
the majority of employees in the company and he indi-
cated at that time that the Company ' should not sign a
contract extending beyond the expiration date of the
agreement."
Fourth:, As noted above, the Respondent granted a ret-
roactive wage increase and other wage increases to its
employees after the certification year had expired and it
had withdrawn recognition. Ling explained this circum-
stance: "It was there and available for negotiations
during the contract negotiations but the Union finally
settled for a 2.8; we were willing to give more, it wasn't
necessary; when we finally concluded the contract; why,
we figured out what, [we] really ought to give and that is
what we gave."
During the foregoing period the Union was also solic-
iting authorization cards but submitted nothing to the
Respondent to support its strength although it knew the
decertifiers had informed the Respondent that the major-
ity of the employees no longer wanted to be represented
by the Union.
B. Conclusions and Reasons Therefor
First: The resolution of this case hangs on whether the
Respondent ' lawfully insisted on a contract coterminous
with the certification ' year or whether such insistence
constituted bargaining in bad faith . If it were the latter,
the Respondent 's subsequent withdrawal of recognition
would have been unlawful because the presumption of
the Union 's continuing majority status may not be at-
tacked "in -a context of illegal antiunion activities, or
other conduct - by the employer aimed at causing disaffec-
tion from the union ." See Celanese Corp. of America, 95
NLRB 664 , 673.(195 1). -
The credited- facts establish that at the , time the Re-
spondent insisted on a contract coterminous with the cer-
tification year the duration of the contract was still open
for negotiations and had not , yet been resolved. Thus, it
is clear that the Union's acceptance of the Respondent's
proposals on December 13, 1983, without the resolution
of a duration clause did• not result in a binding contract
nor did it foreclose the Respondent from lawfully pro-
posing a duration clause ,8 albeit a clause of limited dura-
tion.
The Board has said in Grace & Hornbrook Mfg. Co,
225 NLRB 15, 17 (1976):
Where an employer proposes a -contract of such
limited duration [2-1/2 weeks], it must appear that
the proposal is not in bad faith or to achieve an ille-
gal purpose [Lloyd A. Fry Roofing Co., 123 NLRB
8 "[T]he term of a contract, like its substantive provisions, is a bargain-
able matter " Hinde & Dauch Paper Co, 104 NLRB 847, 848 (1953)
LITHIUM CORP 1485
647 at 650 (1959)] and it must be based on doubt of
majority status supported by • objective consider-
ations
See also Cresthne Memorial Hospital, 250 NLRB 1439
(1980), in which the Board stated:
[A]n employer may lawfully insist on a contract ter-
minating with the certification year only when it
has a reasonable belief based on' objective consider-
ations that the union no longer possesses majority
support
In the instant case it is clear that the Respondent had a
reasonable belief based on objective considerations and
otherwise had met the criteria allowing it to lawfully
insist on a duration clause coterminous with the certifica-
tion year. Burger Pits, Inc., 273 NLRB 1001 (1984).9
Under the circumstances of this case the Respondent's
insistence that the contract, be coterminous with the cer-
tification year was lawful and did not constitute a viola-
tion of its duty to bargain in good faith.
Second. The Board has said in the case of Terrell Ma-
chine Co., 173 NLRB 1480, 1480-81 (1969):
It is well settled that a certified union, upon expi-
ration of the first year following its certification,,
enjoys a rebuttable presumption that its majority
representative status continues. This presumption is
designed to promote stability in collective-bargain-
ing relationships, without impairing the free choice
of employees. Accordingly, once the presumption is
shown to be operative, a prima facie case is estab-
lished that an employer is obligated to bargain and
that its refusal to do so would be unlawful. The
prima facie case may be rebutted if the employer, af-
firmatively establishes either (1) that at the time*of-
the refusal the union in fact no longer enjoyed ma-
0 In the recent case of Harley-Davidson Transportation Co, 273 NLRB
1531 (1985), the Board viewed a petition signed by a majority of the em-
ployer's employees stating that they did not wish to be represented by
the union The Board opined, among other things
We concluded that the employee petition constituted a sufficient ob-
jective ground to support the Respondent's' good-faith doubt of the
Union's majority status An employer may rely on a petition appar-
ently signed by a majority of its employees as, a basis for good-faith
doubt even though the employer did not authenticate the signatures
jority representative status; or (2) that the employ-
er's refusal was predicated on a good -faith and rea-
sonably grounded doubt of the - union 's continued
majority status As to the second of these, i.e.,
"good faith doubt ," two prerequisites for sustaining
the defense are that the asserted doubt must be
based on objective considerations and it must not
have been advanced for the purpose of gaining time
in which to undermine the union.
See also Burger Pits, Inc., supra , and Celanese Corp. -of
America, supra
The Respondent, having rebutted the presumption that
the Union 's majority status continued beyond the termi-
nation of the certification year and having i satisfied the
criteria , could lawfully withdraw recognition of the
Union . Thus, in withdrawing recognition from the Union
the Respondent committed no unfair labor practice
After the Respondent lawfully withdrew recognition
from the Union it was under no further . duty to bargain
with it and was legally free to make unilateral changes in
wages and working conditions . Thus, the Respondent, by
giving the wage 'raises which it . gave 'to its employees
after the expiration of the certification year , did not vio-
late the Act. Additionally , because the Respondent com-
mitted no unlawful act in granting the wage increases
under the circumstances , of this case , the fact that the
wage increases were given after the expiration of the
certification year may not be related back to sustain a
claim that during the certification year the , Respondent
engaged in surface bargaining.
While the coincidence of events and the timing of
their occurrence, create a strong
_
suspicion that these
events were machinated , the General Counsel has not
proved - that the Respondent's conduct is proscribed by
the Act. Thus, it is recommended that the Board issue
the -following i 0
' ORDER
The consolidated complaint is dismissed.
10 If no exceptions are filed-as provided by Sec 102 46 of the Board's
Rules and Regulations, -the findings , - conclusions , and recommended
Order shall, as provided in Sec 102.48 of. the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses - . I
'. t _. -: .