Longview Fibre Co.

National Labor Relations Board - Board Decisions

Jul 28, 1975

219 N.L.R.B. 569 (N.L.R.B. 1975)

GENERAL FIBRE BOX CO. 569
General Fibre Box Company , Division of Longview
Fibre Company and Richard McNamara
Local 757, International Printing and Graphic Com-
munications Union, AFL-CIO and Edward New-
port. Cases 3-CA-5720 and 3-CB-2372
July 28, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On November 21, 1974, Administrative Law Judge
George L. Powell issued the attached Decision in this
proceeding. Thereafter, General Counsel and Charg-
ing Party McNamara filed exceptions and a support-
ing brief, and Respondent Company and Respon-
dent Union filed briefs in response to the exceptions
and in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record I and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order 2 as modified herein.
We agree with the Administrative Law Judge, for
the reasons set forth in his Decision, that Respondent
did not violate the Act in concluding their negotia-
tions for a new collective-bargaining agreement not-
withstanding the fact that a very substantial majority
of the unit employees had signed a petition, a copy of
which was sent to Respondent Employer, indicating
that they no longer wished to be represented by Re-
spondent Union.
The General Counsel has taken exception to the
Administrative Law Judge's recommended findings
and conclusions contending that the decisions in
Hart Motor Express, Inc., 164 NLRB 382 (1967), and
Pepsi Cola Bottling Company, 187 NLRB 15 (1970),
dictate a contrary result.
We have carefully considered this contention and
the entire record in this proceeding and believe that
the instant situation is distinguishable from the situa-
tions involved in those cases in a significant respect.
Here, Kwiatkowski, a leader in all antiunion activity
and expressions of opposition, although vice presi-
dent of the Respondent Union, participated in the
negotiations and helped present some 30 proposals
based on the desires of the employees. Moreover,
Kwiatkowski continued to serve on the negotiating
committee after the petition was sent to Respondent
Employer and after the trusteeship was imposed. He
did not deny that the negotiating group as then com-
posed represented the bargaining unit when Respon-
dent Employer so inquired; nor did he object when
Lynch said it did. This is quite different from the
situation in Hart Motor Express where the union's
shop steward, at a negotiation meeting with the
employer's labor relations consultant, had interjected
that it was "utterly ridiculous to . . . try to negotiate
a contract" with Hilliker (the union' s business man-
ager who had answered in the affirmative the
employer's question whether he had authority to ne-
gotiate a contract) when the employees did not want
Hilliker as a representative. In Pepsi Cola Bottling,
the employer had been informed unambiguously that
the employees no longer wished to be represented by
the union. The employees who were selected by the
union to attend a contract negotiation meeting had
not been elected to the "negotiating committee" by
their fellow union members, nor were they ade-
quately informed that the meeting was for the pur-
pose of negotiating a contract, and the employer and
the union had no rational basis for believing that the
clear and unequivocal expression of opposition to
continued representation by the union had in any
way been altered by subsequent events. In the instant
case , the later actions of the employees, particularly
as manifested by Kwiatkowski, a known leader of the
dissident faction, were patently inconsistent with the
assertion in their petition that they no longer wished
to be represented by the Respondent Union. There-
fore, we find that the actions of the employees in this
case are readily distinguishable from the actions of
the employees in Pepsi Cola and Hart Motor, where
the desire of those employees that the union be shorn
of its authority was, to the knowledge of the Compa-
ny and union, unmistakable, unalterable, and unam-
biguously maintained. Accordingly, we shall dismiss
the complaint in its entirety.
1 The General Counsel 's motion to correct the record is not opposed;
accordingly, it is hereby granted.
2 The Charging Party has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951 ). We have carefully
examined the record and find no basis for reversing his findings.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
orders that the consolidated complaint be, and it
hereby is dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
GEORGE L . POWELL , Administrative Law Judge : The issue
in this case is whether it is legal , under the circumstances of
this case , for the Respondent Company and Respondent
Union, a certified bargaining representative, to bargain
collectively and enter into an agreement when there is in
existence a petition signed by a majority of the employees
that they did not wish to be represented by the Respondent
Union . Involved are Section 8(a)(1) and (2) and 8(b)(1)(a)
and (2) of the National Labor Relations Act, as amended,
herein called the Act (29 U.S .C. 151, et seq.). For the rea-
sons hereinafter set forth , I find that General Counsel has
not established by a preponderance of the evidence that
Respondent Company and Respondent Union violated the
Act as alleged in the complaint , and I will dismiss the com-
plaint in its entirety , because under the circumstances of
this case the petition in itself does not rebut the presump-
tion of majority representation held by Respondent Union.
Charging Party McNamara filed a charge against the
Respondent Company in Case 3-CA-5720 on June 24,
1974, and Charging Party Newport filed a charge against
Respondent Union in Case 3-CB-2372 on July 30, 1974.
Based on these charges, the General Counsel of the Na-
tional Labor Relations Board , herein called the Board, by
the Regional Director for Region 3, issued an order consol-
idating cases, amended consolidated complaint and notice
of hearing , on August 21, 1974, alleging violations of the
Act as set out above.
Respondent Company and Respondent Union denied
the essential allegations in the complaint . With counsel
representing General Counsel , Respondent Company, Re-
spondent Union , and Charging Party Newport , the case
was heard before me in Albany , New York, on September
25 and 26 , 1974. At the conclusion of the hearing, oral
argument was made by all counsel and they were advised
that briefs were unnecessary, although they were given un-
til October 17, 1974, in which to file should they desire to
do so . Briefs were timely filed by the General Counsel and
Respondent Company.
Upon the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the oral argument made at the conclusion of the hearing
and the briefs filed thereafter , I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The parties admit that General Fibre Box Company, Di-
vision of Longview Fibre Company , herein called Respon-
dent Company , is a Delaware corporation maintaining its
principal office and place of business in the city of Amster-
dam, New York , and is engaged in the manufacture, sale,
and distribution of corrogated fibre boxes and related
products. The Respondent Company's Amsterdam plant is
the only facility involved in this proceeding . Respondent
Company annually , in the course and conduct of its busi-
ness operations , manufactures , sells, and distributes at said
Amsterdam plant , products valued in excess of $50,000,
which are shipped from said plant directly to States of the
United States other than the State of New York.
I find, as admitted by the parties , Respondent Company
to be an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
I find , as admitted , that Local 757, International Print-
ing and Graphic Communications Union , AFL-CIO, here-
in called Respondent Union , is a labor organization within
the meaning of Section 2(5) of the Act.
There is no issue concerning jurisdiction.
11. THE ALLEGED UNFAIR PRACTICES
As this case revolves around a petition signed by a ma-
jority of employees in the unit and what went on before it
and what took place thereafter , a chronology of events is a
clear way to give meaning to the petition , and to see the
problem involved.
1967
Respondent Union was certified by the Board in a pro-
duction and maintenance unit in 1967 . The parties have a
history of bargaining with each other in this unit with the
second collective-bargaining contract between Respondent
Union and Respondent Company expiring on June 10,
1974.
March 15, 1974
Respondent Union , by its local president, sent a letter on
March 15, 1974, to Respondent Company advising of the
upcoming termination date of the contract and requesting
it meet with the negotiating committee of the employees
for an exchange of proposals . Letter was received March
18, 1974.
March 18, 1974
Teamsters Local 294 filed a petition , on March 18, 1974,
with the Board for a unit of employees in the shipping
department . Charging Parties Richard McNamara and Ed-
ward Newport , together with Respondent Union Vice
President Gary Kwiatkowski and four other employees,
Ralph Sasso , Phil Bellen , Lloyd Bronson , and Gilbert del
Valle,' had gone to see the president of Teamsters Union,
Local 294 , Nick Robilotto , for the purpose , according to
Gary Kwiatkowski, of seeking advice on how to get out of
the Respondent Union because of its "poor representa-
tion." 2
1 The parties were unsure of the spelling of this name, and the record
reports it as "DeValley," but the petition introduced into evidence as G.C.
Exh. 3 has the signature of a "Gil del Valle," and G.C. Exh. 4 has a "Gilbert
R. del Valle." I find they are the same man and correct the record accord-
mgly.
Of the six witnesses in the whole case, the only employee who testified
was Gary Kwiatkowski. He testified, "we asked [Robilotto] for advice how
GENERAL FIBRE BOX CO. 571
Following this meeting with the president of the Team-
sters Local 294, about 67 of 72 employees signed Teamsters
cards (solicited by Gary Kwiatkowski , among others) and
the Teamsters filed a petition with the Board on March 18,
1974, for the shipping department.
April 3, 1974
Teamsters petition was amended on April 3, 1974, to
include employees in the production and maintenance
unit.
April 22, 1974
Teamsters petition was withdrawn on April 22, 1974.
The first bargaining session was held on April 22, 1974,
between Respondent Company and the negotiating com-
mittee of Respondent Union wherein the committee made
some 30 proposals. Just ahead of this bargaining session,
the Local Union had meetings of employees to get the de-
sires of the employees and draft proposals embodying such
desires to be submitted at the bargaining session, and at
the bargaining meeting of April 22, 1974, the union com-
mittee made it clear that these proposals represented the
desires of the employees. Important in the employee's bar-
gaining committee was Gary Kwiatkowski.3 Active in Re-
spondent Union, Gary Kwiatkowski was shop steward for
"about a year and a half," chief shop steward for "about 2
years" and vice president thereafter until the trustee re-
moved all officers, as will be set out below.
On the same day of April 22, 1974, but following the
above bargaining session, eight employees formed a com-
mittee to get employees to sign a petition that they did not
want Respondent Union to represent them. This is the
same day that the Teamsters Local withdrew its petition on
file with the Board, but it is not known whether this com-
mittee of eight was formed before or after the Teamsters
withdrew its petition. It is known, however, that the peti-
tion the committee of eight circulated for signatures had
been prepared by Mike Robilotto, a business representa-
tive and son of Teamsters Local 294's president. This com-
mittee of eight employees included Gary Kwiatkowski, the
two charging parties, and Ralph Sasso, Gilbert del Valle,
Lloyd Bronson, Phillip Bellen , and Shop Steward Gino
Caprara [record corrected].
April 23 and 24, 1974
The petition was circulated on April 23 and 24, 1974, by
these eight people, and was signed by 67 out of 72 employ-
ees. It was headed as follows:
TO: THE NATIONAL LABOR RELATIONS BOARD AND GENERAL
FIBRE BOX COMPANY, AMSTERDAM, NEW YORK
We, the employees of General Fibre Box Co. at Am-
sterdam, New York, no longer wish to be represented
by Paper Specialities and Paper Products Unions No.
757, AFL-CIO, International Union of Printing Press-
men, as our collective-bargaining representative with
our Employer, General Fibre Box Co. We wish to
withdraw any authorization that the Printing Speciali-
ties and Paper Products Union No. 757, AFL-CIO,
International Union of Printing Pressmen has to rep-
resent us in negotiations and collective bargaining
with our employer, General Fibre Box Co.
Printing Specialities and Paper Products Union No.
757, AFL-CIO, International Union of Printing
Pressmen is no longer our collective-bargaining repre-
sentative and if it is necessary, we want a decertifica-
tion election conducted by the National Labor Rela-
tions Board.
The second name on the petition was that of Gary Kwiat-
kowski.
Sometime between April 23 and May 23, 1974, a decerti-
fication petition, prepared by the same business agent of
Teamsters Local 294, was attempted to be filed by the em-
ployees with the Board. The above employees' petition was
used as support therefor. The decertification petition was
rejected by the Board as untimely.
May 2, 1974
The employees' petition above, which had been signed
on April 23 and 24, was sent by Gary Kwiatkowski and
received on May 2, 1974 by Respondent Company with a
covering letter dated April 29, 1974, signed by the eight
employees headed by Gary Kwiatkowski. The two-para-
graph letter reads:
I am enclosing a petition signed by 67 employees
showing that we no longer wish to be represented by
Local 757, Printing Pressmen Union. [Emphasis sup-
plied.]
We want to advise you that Local 757 no longer are
[sic] collective bargaining representative and we in-
tend to file decertification petition with the National
Labor Relations Board as soon as our contract runs
out in June.
we could get out of the present Local that we're in...:' "Plus, we kept
telling him we had poor representation on the Union part , International."
Specific complaints he testified to were , "we haven ' t seen a representative in
about 7 years . . . we don ' t even have a union card to say what Union we
belong to," and no grievance forms were available to them although they
have a contract with a grievance clause in it.
J Representing Respondent Company was Plant Manager Carl Schmidt
Members of the negotiating committee representing Respondent Union
where International Representative Al Daly (record corrected ), Local Presi-
dent Vic Liccardi, Secretary-Treasurer Ed Kwiatkowski , Vice President
Gary Kwiatkowski , and employee Benny Miseikis (record corrected). The
name "Gary Kwiatkowski " will be italicized hereafter to eliminate confu-
sion
May 9, 1974
International Representative John Lynch of Respondent
Union posted a notice, on May 9, 1974, on Respondent
Company's bulletin board notifying the employees that he
had been appointed by the International president "to in-
vestigate and resolve the problems" in the plant. He said it
would be necessary to talk to as many members of the
Local as possible and asked them to stop by his hotel "to
discuss the situation."
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the same day he got permission from Schmidt to
have the Local president take him around and introduce
him to union members in the plant . He spoke to all who
were present that day. None of the employees told him
they did not want to be represented by Respondent Union
or that they did not want Respondent Union to negotiate a
new contract . Although Lynch had been advised by
Schmidt that the antiunion petition had been signed by the
employees, he was not given a copy of the petition and did
not see a copy until the hearing of this case.
May 18, 1974
Notice of a meeting of union members , scheduled for
May 18 , 1974, was posted on Respondent's bulletin board,
by International Representative Jack Lynch. Purpose of
the meeting was "to discuss the possibility of merger with
the members of Amsterdam Local 757."
May 23, 1974
The second collective-bargaining session between the ne-
gotiating committee of the employees and Respondent
Company took place on May 23, 1974. The employee
members of the Respondent Union bargaining committee
were all present and took an active part in bargaining for
the employees in the unit . The committee consisted of Vice
President Gary Kwiatkowski, President Liccardi , Secretary
Ed Kwiatkowski, and International Representatives Lynch
and Daly . Representing Respondent Company in the bar-
gaining were Plant Manager Carl Schmidt , Director of In-
dustrial Relations Robert B. Arkell (coming to this meeting
from the State of Washington "to attempt to make a deter-
mination as to whether the certified Union represented the
people") and Attorney E. L. Wilkinson.
Some six contract provisions were discussed in the fore-
noon of May 23, 1974. After the lunchbreak, the first mat-
ter discussed was the representative status of Respondent
Union . The notes of this discussion , as taken by Schmidt,
entered into evidence , and read into the record , are as fol-
lows:
Arkell explained that he was here for the beginning of
negotiations because of the interest of . . . [Longview
Fibre Company] . . . in the apparent problems that
the local . . . [union] . . . having and LFCO and .. .
[Respondent Company] . . . are interested in good
faith bargaining with the organization representing the
P & M employees and asked if this negotiating group
truly represented the bargaining unit and if these pro-
posals were prepared by and were the requests of the
employees . Lynch acknowledged "some internal prob-
lems with some of the members" and they had indi-
cated "problems with the local officers ." He said that
he had spoken directly and by phone with the mem-
bers and "this group does represent the people and
these are their proposals ." He also said that the "union
will handle their own internal problems and we don't
want any - help from the company."
The parties then continued negotiating and covered
some 26 more items before adjourning at 7:40 p.m. The
next meeting was set for May 31 , 1974, at 10 a.m.
Respondent Union International President Sol Fishko
sent a telegram on this same day of May 23, 1974, to Local
President Liccardi and Local Secretary Edmund Kwiat-
kowski advising them that he had appointed Lynch trustee
over the Local Union, suspending all officers of the Local
and directing that the affairs of the Local were now in the
hands of Lynch until further notice. This telegram followed
the investigation report Lynch had made to Fishko that
Vice President Gary Kwiatkowski and the shop steward
.,were involved in a secessionist movement and had backed
the Teamsters petition for an election." Lynch, himself,
told Gary Kwiatkowski of the trusteeship.
May 30, 1974
On May 30, 1974, Lynch posted a notice from himself on
the bulletin board of Respondent Company, addressed
"To the members of Amsterdam Local 757." This notice
called attention to the trusteeship of the Local Union, to
the fact that the officers of the Local had been relieved of
all authority and duties, and to the fact that Lynch had
assumed all authority. It continued as follows:
In accordance with this authority, I have appointed
the following members of your Local to the contract
negotiating committee, Edmund Kwiatkowski, Gary
Kwiatkowski and Victor Liccardi. All of these men
have agreed to serve.4
Once your contract is settled [sic] it is my intention to
conduct training sessions for shop stewards and local
officers in order that your local officers may more ef-
fectively represent you. When this is accomplished I
will recommend to the International Board of Direc-
tors that your Local Union be granted a hearing in
order to remove the trusteeship from your Local. I
would like to accomplish this as soon as possible.
Once the trusteeship is removed it will be necessary to
conduct nominations and an election for Local Union
officers.
P.S. Your Local Union's Constitution and By-laws
will need revision as well.
June 5, 1974
Contract negotiations again took place on June 5, 1974,
between Respondent Company and Respondent Union.
Robinson , Schmidt, and Wilkinson represented the Re-
spondent Company and Lynch, Daly, E. Kwiatkowski,
Gary Kwiatkowski, and Liccardi represented Respondent
Union . The parties discussed some 11 items in the session
lasting almost 5 hours . They agreed to meet the next day to
settle "language issues" and discuss economic items.
Lynch testified that he appointed these men to serve because "they had
started this negotiating round as the representatives of the people and I
thought they should continue on " No word was received from anyone that
this appointed committee was not agreeable to the membership.
June 6, 1974
GENERAL FIBRE BOX CO.
Contract negotiations again took place on June 6, 1974,
in a 13-1/2-hour session, with time off for lunch, supper
and caucuses . The same persons were present in their same
representative capacities as at the June 5, 1974, meeting.
After agreeing on some eight language issues the parties
took up the Respondent Company's first offer on wages
and fringe benefits , the Respondent Union's first counter-
proposal of same, the Respondent Company's second pro-
posal, the Respondent Union's second counterproposal,
the Respondent Company's third proposal, the Respon-
dent Union's third counterproposal, and Respondent's
Company's fourth proposal. The employees' bargaining
committee was unanimous in the approval of all fringe
benefits , and after Robinson made a final wage proposal,
"the committee was unanimous in its approval of the nego-
tiated language, fringe and economic changes." When
agreement was reached everyone there shook hands on it.
But just before they reached agreement on the contract,
Lynch specifically asked each member of the negotiating
committee, in turn, what he thought of the contract. In
reply, "everyone of them told me they thought it was a
good contract." Lynch then asked them "did they think it
was good enough to recommend to their membership?"
Liccardi answered in the affirmative and Gary Kwiatkowski
"hemmed and hawed." No statement was made by Lynch
that the contract would have to be ratified nor does the
International constitution call for ratification . However,
the expiring contract had been ratified by the membership.
June 7, 1974
The agreed -upon contract was signed on June 7, 1974,
by Lynch for Respondent Union and by Robinson for Re-
spondent Company, and Lynch sent a letter to the mem-
bership calling attention to contract language changes,
terms of contract , the 1st, 2d and 3d year increases in wag-
es and the negotiated wage increase.
Thereafter, Respondent Company and Respondent
Union have been honoring the contract.
Gary Kwiatkowski testified that during the negotiations
he never told Respondent Company that the Respondent
Union did not represent the employees and that they did
not want to be represented by it, but he did testify that he
privately told Lynch that the Respondent Union did not
represent the employees and that they did not want to be
represented by the Union. Lynch denied that Gary Kwiat-
kowski so told him and I credit Lynch. I credit Lynch for
two separate reasons ; i.e., his demeanor and because of the
inherent probabilities in the case . As to the latter point, no
mention of this was made when Respondent Company, at
the May 23, 1974, bargaining session, specifically asked if
the Respondent Union "truly represented" the employees
in the bargaining unit. When Gary Kwiatkowski remained
silent at that time, I cannot believe he ever told the con-
trary to Lynch in a private conversation.
June 24, 1974
Employee McNamara filed the charge herein against
Respondent Company on June 24, 1974.
July 30, 1974
573
Employee Newport filed the charge herein against Re-
spondent Union on July 30, 1974.
Concluding Facts
To the extent that good faith may be involved and to the
extent of the reliability of the petition as a true expression
of the desires of the employees it should be stated : (1) that
Schmidt credibly testified he "talked to the National Labor
Relations Board . . . and asked what to do . . . [and] they
could give me no advice," (2) the supervisors of Respon-
dent Company were alerted to pick up anything they could
about the sentiment of the employees for the Respondent
Union, short of direct questions, and they were not able to
report back that there was such talk in the shop.
Analysis and Conclusions
The gravamen of the case presented by the General
Counsel is contained in the following short statement ap-
pearing in his brief:
Thus when Schmidt received . . . [ the petition signed
by the employees with the covering letter signed by
the committee of eight] . . . this established knowl-
edge by Respondent [Company] that its employees no
longer wanted Respondent Union to represent them
for any purpose and that they wished this question
concerning representation resolved through an NLRB
election. Sometime between the end of April and the
beginning of May, certain of Respondent [Company's]
employees attempted to file a decertification petition
with the NLRB and were told it was untimely.
On May 2, 1974, when Respondent Company received
this petition, it would seem that the rebuttable presumption
of continuing majority, which attaches to a certified collec-
tive-bargaining agent after the year of certification, had
been rebutted. But, is this petition, in and of itself, not
subject to interpretation by later events? I find and con-
clude that later events in this case so watered down the
strength of the petition as to make it ineffective to rebut the
presumption of continuing majority. I base this on the fol-
lowing reasons, bearing in mind the overriding consider-
ation of stability in the collective-bargaining relationship.
For example, once the employees have selected an exclu-
sive representative to bargain for them, the employer
should be entitled for a reasonable length of time to engage
in bargaining with that representative, and, if terms are
agreed to, reduce the agreement to writing and execute it.
The evil is when an employer bargains with a minority
representative of the unit.
In the instant case, the Respondent Union was the ma-
jority representative of the employees in the P & M unit on
April 22, 1974, when it presented the employees'-approved
30 proposals to Respondent Company. The petition filed
by the Teamsters on March 18, 1972, raised a question
concerning representation in the P & M unit as of April 3,
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1974, but this question disappeared when the petition was
withdrawn on April 22, 1974. Indeed, the employees had
met and decided to let its agent make these 30 proposals
just before Respondent Union met with Respondent Com-
pany. Surprisingly, and inconsistent with any theory of sta-
bility of collective-bargaining relationships, on that very
day after the first proposals were made, Vice President
Gary Kwiatkowski (who had been in the Respondent
Union's bargaining committee) and seven others formed a
committee which circulated a petition signifying that the
employees did not want Respondent Union to represent
them. So within a matter of a little over 1 month, i.e., from
March 18, 1972, to April 24, 1974, a majority of the em-
ployees, with leadership from Gary Kwiatkowski and six or
seven others, had signified a desire to be represented by the
Teamsters and then a desire to be represented by no one.
(With the Teamsters petition withdrawn and in its place a
petition rejecting Respondent Union , the conclusion is that
the employees now desired no representation.) (Whether or
not Respondent Company knew of this is immaterial be-
cause what we are talking about now is the fact of majority
representation in light of the presumption of continuing
majority. Respondent Company acquired knowledge of
this situation on May 2, 1974.) Petitions, like union author-
ization cards , are not reliable.
I find that the employees were dissatisfied with the Local
officers and the way they were not being responsive to the
needs of the employees as their majority representative.
(This finding is based upon Gary Kwiatkowski's testimony
as to why he went to visit the president of the Teamsters
Local.) Now when Lynch arrives on the scene , talks to
those employees who are interested, and tells them the offi-
cers have been removed from office , that the Local will be
more effective , and that he had appointed the same com-
mittee to represent them in bargaining that they had before
and gets back no adverse comment even from Gary Kwiat-
kowski (the one who had been involved in leading the em-
ployees), the silence amounts to consent and I find the
employees no longer are dissatisfied-the petition no lon-
ger speaks for them. This conclusion is strengthened by the
fact that more and more open bargaining takes place with
the employee's bargaining committee which leads to a con-
tract. The question of majority status is even raised in bar-
gaining, and, when answered in the affirmative, Gary
Kwiatkowski (an instigator of all antiunion sentiment) nev-
er said a word to the contrary. Accordingly, I find that the
employees ' petition signed on April 23 and 24, 1974, is
insufficient to rebut the presumption of continuing majori-
ty held by the certified Respondent Union. The action of
the employees in engaging in bargaining speaks louder
than their words in the petition. That being the case, the
General Counsel has failed to prove by a preponderance of
the evidence that Respondent Company and Respondent
Union violated the Act as alleged. Accordingly, I shall rec-
ommend the consolidated complaint be dismissed.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The consolidated complaint is dismissed in its entirety.
5 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.