Massey-Ferguson, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1970

184 N.L.R.B. 640 (N.L.R.B. 1970)

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Massey-Ferguson, Inc. and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW). Case
7-CA-7418
July 28, 1970
DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN, AND JENKINS
On January 16, 1970, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer 's Decision . Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, the Charging Party and the
General Counsel filed cross-exceptions to the Trial
Examiner's Decision and briefs in support thereof,
and the Respondent filed an answering brief to the
cross-exceptions.
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
powers in connection with this case to a three-
member panel.
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 and the entire record in
this case, including the exceptions, cross-excep-
tions, and briefs, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer to the extent they are consistent herewith.
As found by the Trial Examiner, on November 4,
1968, the Respondent granted certain cost-of-living
wage increases to nonbargaining unit employees,
and on December 9, 1968, granted those same em-
ployees a 3 percent wage increase. The Union im-
mediately thereafter requested the same benefits
for employees within the bargaining unit and sought
such benefits retroactive to their effective date for
nonunit employees. The Respondent never offered
such benefits to the Union and its steadfast refusal
to make any wage increases granted retroactive was
evidenced in its only written offer to the Union on
March 27, 1969, and in its answers to specific
' During the course of the hearing, the Trial Examiner repeatedly refused
to permit the Respondent to adduce evidence as to employee dissatisfac-
tion and lowering morale . For the reasons set forth , infra, we find that the
questions respecting retroactivity on that date.
Nevertheless, on May 7, 1969, the Respondent uni-
laterally granted the bargaining unit employees
cost-of-living and 3 percent wage increases retroac-
tive to December 9, 1968.
1. Although alleged as a violation in the com-
plaint, the Trial Examiner made no finding as to
whether or not Respondent's unilateral granting of
wage increases on May 7, 1969, constituted a viola-
tion of Section 8(a)(5) of the Act. He concluded
that he did not have to resolve this issue as he
otherwise found Respondent in violation of Section
8(a)(5), recommended a bargaining order requir-
ing Respondent to bargain in good faith, and
deemed no more was required to effectuate the pol-
icies of the Act. We do not agree.
It is now well settled that a unilateral change in
conditions of employment is a circumvention of the
duty to negotiate which frustrates the objectives of
Section 8(a)(5) much as does a flat refusal. The
Supreme Court, in finding that the unilateral grant-
ing of more generous wage increases than offered
to the union violated Section 8(a)(5), said:'
Such action conclusively manifested bad faith
in the negotiations and so would have violated
Section 8(a)(5) ... though no additional
evidence of bad faith appeared. An employer is
not required to lead with his best offer; he is
free to bargain. But even after an impasse is
reached he has no license to grant wage in-
creases greater than any he has ever offered
the union at the bargaining table, for such ac-
tion is necessarily inconsistent with a sincere
desire to conclude an agreement with the
union [citations omitted].
The Respondent here contends that the May 7
wage increases were granted because the inequity
occasioned by the previously granted increases for
nonunit employees was causing employee
dissatisfaction and a high turnover of unit em-
ployees. However, even an increase so motivated
must be negotiated with the collective-bargaining
representative of its employees. Respondent claims,
however, that the increases granted had all been
discussed with the Union, that the Union had
agreed to them, and that in any event the Union
acquiesced in the changes by continuing to bargain
thereafter.
This contention is plainly without merit. The
Respondent's only wage offer to the Union was
made on March 27, 1969, in which it clearly stated
that any wage increases would be effective as of the
date of the agreement, which in turn meant agree-
Trial Examiner 's rulings were correct
' N L R.B. v Benne Katz , etc , d/b/a Williamsburg Steel Products Co., 36S
U S 736, 745
184 NLRB No. 69
MASSEY-FERGUSON, INC.
ment on all matters-economic and noneconomic.
The record reveals that when specifically asked
about retroactivity, Respondent pointed to the writ-
ten offer and the language concerning the effective
date of wage increases as dispositive of its position.
If Respondent's position was not adamant, as it now
claims, it was certainly unequivocal. It is abun-
dantly clear that such a wage increase, without
retroactivity, was the only proposal presented by
the Respondent and it was never accepted by the
Union.3
The gravity of the offense thus becomes ap-
parent. The Respondent not only granted unilateral
wage increases to bargaining unit employees
without prior notice to, and consultation with, the
Union, but also it granted such wage increases in
amounts greater than any offered the Union-to
wit: retroactive to December 9, 1968. The Respon-
dent thus violated Section 8(a)(5) of the Act.
2. We agree with the Trial Examiner's conclu-
sion that the Respondent violated Section 8(a)(5)
by refusing to bargain with the Union on and after
July 3, 1969.4 However, we do not adopt his ra-
tionale in this respect and so find for the following
reasons.
It is well settled that a certified union, upon ex-
piration of the first year following its certification,
enjoys a rebuttable presumption that its majority
representative status continues.5 That rebuttable
presumption is sufficient to establish prima facie a
continuing obligation to bargain ." That prima facie
showing, however, is overcome if the employer
either rebuts the presumption by affirmatively
establishing that the union has in fact lost its
majority status or is able to demonstrate that at the
time of its refusal to bargain it had a good faith and
reasonably grounded doubt of the union continued
majority status. In order to sustain the defense of a
good-faith doubt an employer must show that the
asserted doubt was based on objective considera-
tions, and that it was not advanced for the purpose
of gaining time in which to undermine the Union.'
The Respondent predicates its refusal to bargain
' We also consider without merit Respondent's contention that the
Union acquiesced in the change by continuing to bargain only about other
matters after May 7 , 1969 See J. H Bonck Company, Inc., 170 NLRB
1471, 1477.
° The Trial Examiner 's finding , in the last paragraph of his section enti-
tled "Conclusions ," that the Respondent 's refusal to bargain dated from
July 23 is obviously an inadvertent typographical error , as his Conclusion
of Law I clearly dates such refusal from July 3.
' Celanese Corporation ofAmerica, 95 NLRB 664 ,671-672
6 N.L R B v Rish Equipment Company, 407 F 2d 1098 (C A 4), enfg
169 NLRB 847, Terrell Machine Company, 173 NLRB 1480, enfd 427
F 2d 1088 (C A 4), cert denied 398 U S 929
r N L R.B v Gulfmont Hotel Company, 362 F 2d 588 (C A 5), enfg. 147
N LRB 997, Terrell Machine Company, 173 N LRB 1480, 1484
° Industrial Motor Sales , Inc., 177 NLRB 270, 273, and cases cited in fn
16.
° Cf Industrial Motor Sales , Inc., supra
641
since July 3, 1969, on its purported good-faith
doubt as to the Union's continued majority status.
The alleged good-faith doubt in turn is rested upon
the Union's narrow victory which led to its certifi-
cation; the decertification petition filed on June 24,
1969; high turnover and reduced size of the unit;
and supervisors' reports of discontent among unit
employees. However, it is patent that none of these
assertions, either separately or collectively, sup-
ports the showing that the Respondent is required
to make. The "close vote" in the election is not in
itself significant," the critical question being
whether Respondent in good faith believed that a
majority of the employees, of their own volition,
had decided since the election to discontinue
representation by the Union." The decertification
petition filed shortly before the end of the certifica-
tion year does not serve as a basis for questioning
continued majority status absent evidence (not
proffered herein) that the petition was supported
by a majority of the employees.10 High employee
turnover within the unit and reduced size thereof
are equally of no significance ," unless it is shown
that a substantial number of employees have de-
fected from the Union.12 And, finally, supervisory
reports of employee discontent do not support the
Respondent's assertion; to be of any significance,
the evidence of dissatisfaction13 with a validly
recognized incumbent union must come from the
employees themselves, not from the employer on
their behalf. 14
We conclude that the Respondent has not met its
burden of establishing that it possessed a good-faith
doubt of the Union's continued majority status.
Furthermore, any loss of majority would have been
attributable to the Respondent's unfair labor prac-
tices and may not be relied on as a defense.'5 Ac-
cordingly, we find that the Respondent violated
Section 8(a)(5) of the Act by refusing to bargain
with the Union on and after July 3, 1969.16
ORDER
Pursuant to Section 10(c) of the National Labor
'0 Wabana , Inc., 146 NLRB 1162, 1 171
" Printers Service, Inc, Photo-Composition Service, Inc, 175 NLRB 809,
812, Quaker Tool & Die, Inc, 162 NLRB 1307, affd 403 F 2d 1021
(C A 6)
" The Little Rock Downtowner, Inc , 168 NLRB 107, affd 414 F 2d 1084
(C.A 8)
" As noted in fn I above, the Trial Examiner refused to permit certain
evidence on the record concerning alleged employee dissatisfaction It is
clear from the evidence received , from the rejected exhibits duly reevalu-
ated, from the Respondent 's offers of proof, and from the Trial Examiner's
rulings themselves that the evidence which the Respondent was attempting
to adduce and which the Trial Examiner rejected was evidence of em-
ployee dissatisfaction with wages and not their dissatisfaction with their
bargaining representative
" Terrell Machine Company, supra, 1485
" Franks Bros. Company v NLRB , 321 U S 702
1° Beghnger-Massie Oldsmobile-Cadillac, Inc , 177 NLRB 161, 165-166.
642 DECISIONS OF NATIONAL
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein , and orders that the Respondent,
Massey-Ferguson, Inc., Detroit , Michigan , its of-
ficers, agents , successors , and assigns , shall take the
action set forth in the Trial Examiner 's Recom-
mended Order , as modified herein:
1. Add the following paragraph entitled 1(a):
"Unilaterally announcing and granting unilateral
wage increases and other benefits , without prior
notice to, and consultation with , the labor organiza-
tion representing its employees."
2. Renumber present paragraph 1(a) as para-
graph 1(b).
3. Substitute the attached notice for the Trial
Examiner 's notice.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, meet with and bar-
gain collectively in good faith with the Interna-
tional Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica (UAW ), as the exclusive collective-bar-
gaining representative of all our employees in
the appropriate unit and, if understanding is
reached , embody such understanding in a writ-
ten agreement . The appropriate unit is:
All employees in the Engineering De-
partment including technical and clerical
employees , employed at the Employer's
Engineering Department located at 12601
Southfield, Detroit , Michigan, BUT
EXCLUDING all engineering trainees for
professional, supervisory and managerial
positions , chauffeurs and truckdrivers,
confidential employees , professional em-
ployees, guards and supervisors as defined
in the Act.
WE WILL NOT unilaterally announce or grant
wage increases or other benefits without prior
notice to and consultation with the labor or-
ganization representing our employees.
MASSEY-FERGUSON, INC.
(Employer)
LABOR RELATIONS BOARD
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, 500 Book Building , 1249 Washing-
ton Boulevard , Detroit , Michigan 48226,
Telephone 313-226-3200.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE , Trial Examiner : Upon a charge
and an amended charge filed July 9 and July 16,
1969, respectively , by International Union, United
Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW), herein the
UAW, against Massey-Ferguson , Inc., herein the
Respondent , the General Counsel issued complaint
alleging Respondent violated Section 8(a)(5) and
(1) of the Act.
The answer of Respondent denied the commis-
sion of any unfair labor practices.
This proceeding , with all parties represented, was
heard by me at Detroit , Michigan , on October 8
and 9, 1969 , and at the conclusion of the hearing
the parties were granted leave to file briefs . Briefs
were received on December 10.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Maryland corporation main-
taining an office and place of business in Detroit,
Michigan, where it is engaged in the manufacture,
sale and distribution of farm machinery and equip-
ment. The Detroit plant is the only one involved in
this proceeding. During a representative 12-month
period Respondent purchases and causes to be
delivered to its Detroit plant goods and materials
valued in excess of $50,000, which goods and
materials are delivered from points outside the
State of Michigan.
Respondent is engaged in commerce within the
meaning of the Act.
MASSEY-FERGUSON, INC. 643
II. LABOR ORGANIZATION INVOLVED
The UAW is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
On June 28, 1968, the Regional Director for Re-
gion 7 certified , following a Board -conducted elec-
tion , the UAW as the exclusive bargaining agent for
the employees of Respondent at its Detroit plant in
a unit described as:
All employees of the Engineering Department,
including technical and clerical employees,
employed at the Employer 's Engineering De-
partment located at 12601 Southfield , Detroit,
Michigan 48228, BUT EXCLUDING all engineer-
ing trainees for professional , supervisory and
managerial positions, field test technical and
professional employees, chauffeurs and truck-
drivers, confidential employees, professional
employees, guards and supervisors as defined
by the Act and all other employees.'
On or about May 7, 1969, Respondent instituted
a group of economic changes affecting employees
in the unit found appropriate herein.2
The complaint further alleges that on or about
June 24 , 1969, and July 3, 1969, Respondent
refused to meet and bargain with the UAW.
The issues presented are whether Respondent, by
effecting unilateral changes in working conditions
on May 7 and by refusing to bargain on June 24
and July 3, violated Section 8(a)(5) and (1) of the
Act.
B. The Evidence
The testimony and the documentary evidence
which I consider generally relevant to the issues are
not substantially in dispute.
The first formal bargaining meeting between the
parties following the certification of the UAW took
place on September 5, 1968 . The chief negotiators
for the UAW were Elmer W. Silaghi, senior design
engineer and chairman of the negotiating commit-
tee, Alex McIntyre, international representative of
the UAW, and Donald Swenson, personnel industri-
al relations manager for the Detroit operations of
Respondent, succeeded on April 1, 1969, by Willard
Russell in that position . At this first meeting the
UAW submitted its general ' economic and
noneconomic proposals ( General Counsel's Exh.
2). The economic proposals included a 4 percent
wage increase rejected by Respondent as un-
realistic . On December 9 Respondent put into ef-
fect a 3 percent increase for all nonbargaining unit
employees . It had previously , on November 4,
granted a 8-cent-an-hour cost-of-living adjustment
for nonunit salaried employees earning less than
$10,000 per year and on December 9 a cost -of-liv-
ing adjustment of $6.40 was given nonunit em-
ployees earning in excess of $10,000 per year. (The
distinction between salaried employees followed
past practice.)
On March 27, 1969 , Respondent submitted its
first economic proposal ( General Counsel's Exh.
4), and on April 1 the UAW submitted a counter-
proposal ( General Counsel 's Exh. 5).3
Respondent 's proposal was for a 3 percent in-
crease contingent upon a satisfactory resolution of
all noneconomic matters and to become effective
on the date of signing of the contract." No complete
agreement was reached on this proposal nor on the
UAW proposal of April 1 , although the UAW did
agree to certain of Respondent 's proposals , includ-
ing the 3 percent wage increase ( Appendix C).
On April 1 Willard Russell replaced Swenson as
Respondent 's chief negotiator and the April
meetings were generally concerned with familiariz-
ing him with the state of negotiations . On May 6
Russell notified the UAW representatives that it
was putting into effect certain economic changes
for unit employees as set forth in Appendix D. No
prior notice had been given the UAW of this docu-
ment and when the union representatives asked for
time to study the "proposal " they were told it was
not a proposal , it was what Respondent intended to
do. McIntyre 's reply was that he thought Respon-
dent was violating the law . The next day Respon-
dent put into effect the changes , retroactive to
December 9.
Meetings continued on the noneconomic issues
during May and June. On June 24 Russell notified
McIntyre that Respondent had received a copy of
decertification petition filed by the employees and
wished to check with Respondent 's attorney before
any further meetings would be held. On July 3
McIntyre called Russell , told him the petition had
been dismissed and asked for a meeting . Russell
told him Respondent doubted that the UAW
represented a majority and that Respondent was fil-
ing its own petition . Respondent has refused to
meet with the UAW since that date.
Respondent offered testimony that there were
compelling business reasons for granting the uni-
lateral benefits conferred on May 7 . Thus Swenson
testified that on March 11 a meeting was called by
the head of Respondent 's engineering in Detroit,
Mr. King, and that he and King were informed by
managerial personnel of employee dissatisfaction
with the failure of Respondent to provide the same
economic adjustmeit for unit employees as had
' Respondent admits and I find that the unit described is appropriate for respectively
the purposes of collective bargaining ' Throughout negotiations Respondent was adamant in its stand that
' General Counsel 's Exh . 8, attached hereto and hereafter referred to as retroactivity would not be applied to economic matters It was equally ada-
Appendix D mant that agreement must be reached on all issues and could not be
' These proposals have been attached hereto as Appendixes B and C , reached piecemeal.
427-835 0 - 74 - 42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been granted nonunit employees on December 9.
On March 25 Swenson went to Des Moines to con-
sult with Mr . Jaeger, director of technical services
for machinery operations in North America, to ex-
plain the turnover and morale problem at Detroit in
the engineering department . Jaeger was informed
that the only way to correct the problem was to
grant the nonunit benefits of December 9 to the
unit employees . Receiving Jaeger 's approval, the
same benefits were offered the UAW on March 27,
but as part of an entire package, including
noneconomic issues . This was rejected in part, and
prompted the UAW proposal of April 1 . On May 5
Respondent 's managers at Detroit held another
meeting to discuss increased turnover ( eight unit
employees in two months ) and decided that the
only way to correct a pejorative situation was to
grant the December benefits to the unit employees.
This testimony5 constituted the chief grounds of
defense asserted by Respondent to the complaint.
Respondent also contended that the UAW
acquiesced in the unilateral action by continuing
bargaining negotiations after May 7.
As previously stated , Respondent refused to meet
with the UAW on June 24, on the ground that a
decertification petition had been filed, and on July
3, on the ground that it doubted the UAW 's majori-
ty and was filing its own petition for an election.
C. Conclusions
Because I believe Respondent 's refusal to con-
tinue bargaining negotiations after July 3 con-
stituted a violation of Section 8(a)(5)6 I find it un-
necessary to resolve this issue with respect to the
unilateral changes effected by Respondent in unit
working conditions on May 7 . The remedial order
recommended requires Respondent to bargain in
good faith and no more need be required of
Respondent to effectuate the policies of the Act.7
Before passing to the second issue it should be
noted that the "unilateral" issue has been well and
exhaustively briefed by the parties and if the Board
desires to make abundantly clear its position on this
issue, particularly with respect to the consultation
and negotiation required before such action is
taken, this case provides an appropriate vehicle.
The lead case, as all parties seem to recognize, is -
N.L.R.B . v. Katz, 369 U.S. 736 . 8 The only difficulty
presented by Katz is that the Court , in footnote 12,
stated that the case bore no resemblance to one
wherein an employer , after notice and consultation,
unilaterally instituted a wage increase which the
As Respondent 's counsel stated in his brief, the Trial Examiner ex-
cluded a great amount of testimony and documentary evidence offered by
Respondent in support of its "economic necessity" theory on the grounds
of irrelevancy . This ruling will be discussed further under "Conclusions."
1 do not find that Respondent 's refusal on June 24 constituted a viola-
tion. At this time Respondent had been informed that a decertification
petition had been filed and asked for time to consult with its attorney as to
the effect of such a petition upon its obligation to bargain This request for
delay I find reasonable.
I In B,erl Supply Company, 179 NLRB 741, the Board found the uni-
union had rejected as too low and also cited with
approval N.L.R.B . v. Bradley Washfountain Co.,
192 F.2d 144 ( C.A. 7), reversing the Board on its
finding that an impasse had not been reached, an
averment not alleged in the complaint . The Court
went further and held that the Board had not
established that the employer acted in bad faith (an
issue now immaterial under Katz ) and that the ac-
tion taken was not unilateral . This digression is only
for the purpose of showing that the issue, at least to
this Examiner , does not appear crystal clear. The
language used by the Board in Bierl, supra, 741,
742, might make it seem that the Board does not
share any such doubt.
As to the Respondent 's refusal to bargain on July
3, 1 share no doubt that this refusal , under present
Board law , violated Section 8(a)(5) of the Act. In
Laystrom Manufacturing Co., 151 NLRB 1482,
enforcement denied 359 F.2d 799 (C.A. 7), the
Board stated the principles which apply with equal
force to the instant case , pages 1484-85:
Measuring Respondent 's claimed doubt of
majority status by the standards set out above,
however , we must disagree with the Trial Ex-
aminer 's ultimate conclusion . The Respondent
in our opinion did not show reasonable
grounds for believing that the Union had lost
its majority prior to March 16 , 1964. It showed
only that the tally in the prior election was 17
to 13 and that of the employees eligible to vote
16 had terminated their employment and 8
were newly hired since the last election. As
proof of its good faith in entertaining such
doubt Respondent points to the fact that it had
filed a petition for and was willing to abide by
a Board election ; that there was no history of
union animosity on its part; and that on May
22, 1964 , more than 2 months after the refusal
to bargain , it offered to negotiate a contract
which would be subject to new proof of the
Union 's majority.
Employee turnover standing alone does not
provide a reasonable basis for believing that
the Union had lost its majority since the prior
election . The Board has long held that new em-
ployees will be presumed to support a union in
the same ratio as those whom they have
replaced . There is no rebuttal of that presump-
tion here , and no independent evidence from
which the inference may be drawn that the
new group of employees replaced union ad-
herents or that they supported the Union less
strongly than the old group. Indeed, the
lateral actions of the employer constituted a violation of Section 8(a)(5)
but confined its order to the usual bargaining directive without specifically
issuing a cease -and-desist order against further unilateral action. The
Board 's restraint will be followed here
s At least two of the contentions advanced by Respondent were rejected
in Katz ; ( I) that Respondent acted in good faith and did not seek to un-
dermine the union and (2) unrest on the part of the employees and the
quitting of valued employees impaired the efficiency of the employer's
operations , thereby justifying the action
MASSEY-FERGUSON, INC.
Respondent educed no competent and proba-
tive evidence to establish that any employees,
new or old, no longer wished to be represented
by the Union . Nor do the other factors
presented by Respondent aid its case on this
point . The absence of union animosity or of in-
dependent unfair labor practices , although
consistent with a subjective good -faith belief
that the Union had lost its majority , does not
establish that the Respondent had a "reasona-
ble basis " or "reasonable grounds" for so be-
lieving . As for Respondent 's actions in filing a
petition for an election, and its willingness-
first expressed 2 months after its refusal to
bargain-to meet with the Union for the
limited purpose of trying to seek a conditional
contract contingent on the outcome of the
election , it need only be noted that these are
self-serving assertions which do not provide
any objective basis for doubting the Union's
continuing majority.
The present circumstances differ `substan-
tially from the situation in the recent Frito-
Lay, Inc ., case (151 NLRB 28), and we find, in
sum, that Respondent has not met the test for
establishing a good -faith doubt which is suffi-
cient to override its statutory bargaining
obligation . We therefore conclude, contrary to
the Trial Examiner, that : The certified Union
continued to represent a majority of the em-
ployees in the appropriate unit ; Respondent, in
March 1964 , had no reasonable basis for be-
lieving otherwise ; and Respondent therefore
violated Section 8 ( a)(5) and ( 1) by refusing to
bargain with the Union . [ Footnotes omitted.]
In United States Gypsum Company, 157 NLRB
652, the Board reversed its policy of granting an
employer an election based on an expressed doubt
of the incumbent union's majority status alone. It
stated, pages 656-657:
The earliest statements interpreting Section
9(c)(1)(B) rested on the view that the legisla-
tive history did not support any qualification
on the absolute right of an employer to
question the majority status of an incumbent
union . However, although the statute does not
specifically grant the Board discretion to
dismiss a petition where continued majority
status is not validly challenged , neither does it
prohibit the Board from doing so. Further, the
legislative history states clearly that Section
9(c)(1 )(B) was designed to give relief to those
employers who have "reasonable grounds for
believing " that a union making a claim is not
really the choice of the majority . There is no
indication that Congress in enacting that sec-
tion contemplated the creation of a device by
which an employer acting without a good-faith
'Cf. McCulloch Corporation, 132 NLRB 201, 211, where the Board
found that an employer confronted with decertification cards , signed by a
majority of its employees and checked against his payroll , did not violate
the statute by requiring that any contract signed be confined to the certifi-
645
doubt of the union 's status could disrupt col-
lective bargaining and frustrate the policy of
the Act favoring stable relations.
In light of the above , we are of the view that
we should no longer adhere to the former in-
terpretation of Section 9(c)(1)(B). We there-
fore now hold that in petitioning the Board for
an election to question the continued majority
of a previously certified incumbent union, an
employer , in addition to showing the union's
claim for continued recognition , must demon-
strate by objective considerations that it has
some reasonable ground for believing that the
union has lost its majority status since its cer-
tification. To the extent that Whitney's and
similar cases conflict with this holding , they are
hereby overruled [ footnotes omitted].
In H. P . Wasson & Company, 170 NLRB 293,
Respondent , having received reports from its super-
visors that some of its employees were dissatisfied
with the union , retained an independent research
firm to poll the employees . The poll showed that 7
employees were for the union , 27 against and 5 un-
decided. Reversing the Trial Examiner , the Board
held that the poll was conducted in a manner which
would necessarily produce a coercive impact upon
employees . While the Board 's statement is to some
extent conclusionary it is dispositive of the issue.
If an , employer is at a loss to understand what
evidence he may educe to support a good-faith
doubt of an incumbent union's majority status, and
which will support a testing of that status , his per-
plexity is understandable . Neither expressions of
discontent nor a turnover in employment following
a close election will justify a refusal to bargain or
support a petition for an election .9 And it would ap-
pear that if he actively seeks "objective " evidence
to support his doubt , his actions must be attended
by all the safeguards and secrecy of a papel elec-
tion . The decision of the Seventh Circuit in Lays-
trom , supra, may indicate that resort to the courts is
his best redress.10
Under the state of Board law as I find it Respon-
dent violated Section 8(a)(5) of the Act by its
refusal to bargain with the UAW on July 23 and
thereafter.
IV. THE REMEDY
Having found the Respondent engaged in and is
engaging in certain unfair labor practices it shall be
recommended that it cease and desist therefrom
and take certain affirmative action necessary to ef-
fectuate the policies of the Act.
Counsel for the Charging Party has asked that
the Respondent be directed to bargain with the
UAW for a reasonable time after compliance with
this Recommended Order. Since this requirement is
cation year
10 H P Wasson, supra, pending before the Seventh Circuit [set aside 422
F 2d 558].
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
implied in all bargaining orders the Recommended
Order will contain no such express direction.
Upon the foregoing finding I make the following:
I CONCLUSIONS OF LAW
1. By refusing , on July 3 and thereafter to bar-
gain with the UAW, Respondent violated Section
8(a)(5) and (1) of the Act.
2. The appropriate unit is:
All employees in the Engineering Department,
including technical and clerical employees,
employed at the Employer's Engineering De-
partment located at 12601 Southfield , Detroit,
Michigan , BUT EXCLUDING all engineering
trainees for professional , supervisory and
managerial positions, field test technical and
professional employees, chauffeurs and
truckdrivers , confidential employees , profes-
sional employees , guards and supervisors as
defined in the Act.
3. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
It is hereby recommended that Respondent, Mas-
sey-Ferguson , Inc., its officers , agents, successors,
and assigns , shall:
1. Cease and desist from refusing to bargain col-
lectively concerning wages, hours, and other terms
and conditions of employment with the UAW as
the exclusive representative of its employees in the
appropriate unit.
2. Take the following affirmative action necessa-
ry to effectuate the policies of the Act:
(a) Upon request , bargain collectively with the
UAW as the exclusive bargaining representative of
all employees in the appropriate unit with respect
to rates of pay, wages , hours, and other terms and
conditions of employment , and, if an understanding
is reached , embody such understanding in a signed
agreement . The appropriate bargaining unit is:
All employees of the Engineering Department,
including technical and clerical employees,
employed at the Employer 's Engineering De-
partment located at 12601 Southfield, Detroit,
Michigan , BUT EXCLUDING all engineering
trainees for professional, supervisory and
managerial positions, field test technical and
professional employees, chauffeurs and
truckdrivers, confidential employees , profes-
sional employees , guards and supervisors as
defined in the Act.
(b) Post at its plant at 12601 Southfield, Detroit
Michigan , copies of the attached notice marked
Appendix A.11 Copies of said notice , on forms pro-
vided by the Regional Director for Region 7, after
being signed by a duly authorized representa-
tive of the Respondent , shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter , in con-
spicuous places, including all places where notices
to employees are customarily posted . Reasonable
steps shall be taken by the Respondent to insure
that said notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the receipt of this
Decision , what steps Respondent has taken to
comply herewith.12
11 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . " Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX B
DETROIT ENGINEERING DEPARTMENT
CLERICAL/TECHNICAL BARGAINING UNIT
The company makes the following proposals con-
tingent upon satisfactory resolution of all outstand-
ing non-economic contractual matters:
WAGES AND COST OF LIVING
1. An economic adjustment of 3 percent will be
added to the current rate for each employee.
2. Current cost of living allowance for eligible
employees ( those earning less than $385 bi-weekly)
will be increased by $6.40 bi-weekly for a new total
of $10.50 by-weekly.
3. For those employees currently earning $385
bi-weekly or more, .640 will be added to the in-
dividual's base rate in addition to the 3 percent ad-
justment.
4. Appendix "A" (B-1] attached provides
ranges for each of the proposed classifications.
5. Performance increases will be granted to em-
ployees in such amounts and at such times as deter-
mined proper by management . Matters related to
performance increases will not be subject to the
grievance procedure.
GROUP INSURANCE PLAN
The proposed group insurance protection is as
described in the booklet attached . The plan is the
one currently provided for clerical/technical em-
ployees with improvements related to:
MASSEY-FERGUSON, INC.
1. Reasonable and customary payment for cer-
tain medical services.
2. The $6 .00 (office) and $10 .00 (home) pay-
ment for doctors ' visits.
3. Change in major medical deductible to $25
( individual ), $ 50 (family ) and 80 percent of excess.
PENSION
The company proposes continuation of the cur-
rent pension plan for the clerical /technical person-
nel without change.
HOLIDAYS
New Year's Day
Good Friday
Memorial Day
July 4th
Labor Day
Thanksgiving Day
Christmas Day
6 Extra at Holidays
TOTAL- 13
VACATIONS
Service as of December 31: 3-11 months-One
day for each full month worked-up to 10 days; 1
but less than 3 yrs .-2 weeks' pay; 3 but less than
10 yrs.- 3 weeks' pay; 10 but less than 20 yrs.-4
weeks' pay; 20 and more years-5 weeks' pay.
1969-$100 Vacation Bonus
Note : An employee with one or more years of
seniority may use up to 5 days of his total vacation
entitlement for illness or other personal business-
provided the request for such consideration is ap-
proved by the supervisor.
This provision constitutes "salary continuance"
as described on page 20 of the Group Insurance
booklet.
NOTICE OF LAYOFF
In case of a layoff, the employee will be advised
at least one week in advance or will be provided
with up to a week's pay if notice is less than one
week.
SEPARATION PAY
Separation pay provisions will be those which
apply currently for employees who are terminated
by the company for reasons beyond the employee's
control and who have no recall rights.
TRAVEL PAY
Travel pay provisions will be those which apply
currently to employees of the unit.
TUITION PAY
647
The tuition and policy will be the one which is
currently available to certain U.S. employees of the
company.
PERIOD OF THE CONTRACT
Wage increases and all other provisions which
call for additions to current working terms and con-
ditions will be effective as of the date of signing of
the agreement.
The contract will be in effect for 12 months fol-
lowing date of signing.
Massey-Ferguson Inc.
3/27/69
APPENDIX B-1
WAQ RANGES
Previous
Classification Proposed Classification Bi-Meekly Rames
Sr. Design Engineer
Design Engineer Product Designer 460 515 574
Engineering Checker
Product Designer I
Product Designer 11 Product Layout Draftsman 350 400 450
Engrg . Change Checker
Detail Designer
Detail Draftsmen Draftesan 260 300 340
Trainee Draftsman 212 236 260
Engrg . Standards Spec. 399 459 519
Industrial illustrator 350 400 450
Records and Eel. Writer I 309 366 423
Records & Rel. Writer
II )
Records & Rel. Writer ) Records 6 Rel. Writer II 271 311 351
III
Drawing Change Coord. 309 366 423
Secretary 271 311 351
Secretary Librarian 242 275 308
Secretary-Stenographer
Stenographer Secretary-Stenographer 242 275 308
Clerk Typist I Clerk Typist 226 254 282
Micro-Fila Operator I Machine Operator-Clerk I 231 262 293
Clerk Typist II
Drawing File Clerk
Whiteprint Mach. Oper. I ) Machine Operator-Clerk II 212 236 260
Whiteprint Mach. Oper. II)
3-27-69
APPENDIX C
THE UAW AND ITS LOCAL 412
UNIT 33
April 1, 1969
In recognition of the proposal made by the Com-
pany on March 27, 1969, the Union'makes the fol-
lowing proposals:
ARTICLE I
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Recognition.
ARTICLE II
2. Union Security & Check-off.
ARTICLE III
3. Unit Chairman & Stewards ' Compensation.
ARTICLE V
4. Cost of Arbitration.
ARTICLE VII
5. Seniority
7.09 Seniority of stewards and unit chairmen
ARTICLE XI
6 (A) 11.02 Cost-of-Living.
All employees presently receiving $4.00 bi-
weekly cost -of-living shall receive $6 . 40 cost-
of-living, retroactive to December 9, 1968.
Effective March 31, 1969, all employees of
the Unit shall receive a cost-of-living allowance
of $10.40 in addition to the base rate.
6 (B) 11 . 05 Establish new classifications.
12 (A) Bereavement Pay
12 (B) Jury Duty Pay
12 (C) Short -Term Military Duty Pay. We will
accept Company policy.
ARTICLE XVI
13. Bulletin Boards
ARTICLE XVII
14. Relocation
17.04 (A ) Transfer of Operations.
17.05 (B) Relocation Allowance. We will
accept Company policy.
17.06 (C) Bargaining Unit Work and As-
signment of work.
17.07 (D) Car allowance. We will accept
Company policy.
17.08 (E ) Stock Savings Plan.
17.09 (F) Tuition Aid . We accept-March
27, 1969.
17.10 (G) and 17. 11 (I) Personal Leave
Day and Salary Continuation.
We will accept Company policy as stated
6-17-68.
ARTICLE XIX
15. Group Insurance Plan. We will accept
Company offer of March 27, 1969, providing
bills incurred by employees since November 1,
1968 are paid as provided thereunder.
7. 11.03 Rest period . We will accept present
Company policy.
ARTICLE XII
8. Holidays. We will accept Company offer of
March 27, 1969 with letter of 4 - 17-68.
ARTICLE XIII
9. Vacations . We will accept offer of March
27, 1969 providing the entitlement is for the
current year and letter of eligibility is accepta-
ble and note : is eliminated.
ARTICLE XIV
10. Separation Pay.
11. Annual Employees' Evaluation Review
ARTICLE XV
ARTICLE XIX
16. Pension . We will accept Company offer of
March 27, 1969.
ARTICLE XXII
17. Duration .-October 31, 1970.
Employees who have not had a merit increase in
the past 3 years , shall be granted one on signing of
the Agreement.
Each employee in the Bargaining Unit is to
receive a minimum of three percent (3%) salary in-
crease.
Each employee who, when three percent (3%) is
added to his present rate, falls between the steps of
progression in the salary schedule, shall be placed
on the next higher step of progression.
APPENDIX C--1
MASSEY-FERGUSON, INC. 649
PROPOSED SALAR 6 P800âESSI08 SCSXDULZ4
lta 6 U U a M a In
Prod. 0u . 460 473 486 499 512 525 538 585
Prod.
Layout
Draftsman 350 363 376 389 402 415 428 475
Trainee
Dft.me. 212 220 228 236 244 252 260 260
Eng'r.
Std. Spl 399 411 423 435 447 460 473 519
Ind. Illast. 367 378 389 400 411 422 433 472
Eec &
Rel. V . 1 323 334 345 356 367 378 387 423
Bee &
Ee1. V . II 291 300 309 318 327 336 345 368
Dag. Chg.
Co-ord. 333 344 355 366 377 388 399 440
Secretary 271 280 289 298 307 316 325 358
Secretary
Librarian 242 251 260 269 278 287 2% 314
Secretary-
Steno. 242 251 260 269 278 287 296 314
Clerk Typist 242 251 260 269 278 287 296 314
Machine Opr.I 231 240 249 258 267 276 285 298
Mach. Opt. II 212 222 232 252 252 262 272 282
Effective December 9. 1969 , each employee shall receive a three percent
(3Z) Annual Improvement Factor and the Annual Improvement Factor shall
also be added to salary schedule and to all steps of progression.
APPENDIX D
May 7, 1969
TO:
ENGINEERING TECHNICAL & CLERICAL
BARGAINING UNIT PERSONNEL
On April 9, I reported to you on the progress of
the negotiations with the U.A.W. and your Bargain-
ing Committee representatives. Since that time lit-
tle progress has been made and there are many im-
portant issues that remain unresolved. As a result of
the continuing lack of an Agreement, many of you
have asked about eligibility for the vacation bonus
and about wage adjustments that have been granted
to other salaried employees within the last six
months.
As you know, on March 27, 1969, we made an
offer that would have provided you with wage ad-
justments and benefit improvements consistent with
those put into effect for other salaried Engineering
employees last November and December. The
Company's offer was not accepted by your
representatives at the bargaining table.
From the beginning of the negotiations the Com-
pany has consistently maintained the position that
wages, benefits, and working conditions should be
related to those enjoyed by other employees of our
company and by employees of other companies in
the Detroit area.
Because of employee concern and the status of
the continuing negotiations , we have informed your
bargaining representatives that the wage and benefit
improvements contained in our offer of March 27,
will be put into effect. This action is being taken
even though an Agreement has not been reached.
In addition, we are making the wage and cost-of-liv-.
ing adjustments retroaction to hours worked since
December 9, 1968. This was the date that the same
economic adjustments were extended to other
salaried employees.
Because of the requirements of Federal regula-
tions governing collective bargaining, it was neces-
sary that this action be discussed with the union
and this has been done.
The effects of this decision by the Company are
as follows:
1. The salaries of individual employees ef-
fected will be increased by 3 percent, effective
December 9, 1968.
2. The cost-of-living allowance for employees,
currently earning less than $385 bi-weekly, will
be increased to $10.40 bi-weekly, effective
December 9, 1968.
3. For employees currently earning more than
$34 weekly, $6.40 will be added to individual
bi-weekly salaries, in addition to the 3 percent
adjustment effective December 9, 1968.
4. For employees currently earning between
$374 and $384 bi-weekly, $10.40 representing
cost-of-living will be added to individual bi-
weekly salaries in addition to the 3 percent ad-
justment effective December 9, 1968. Salary
and cost-of-living adjustments will be rounded
off to the nearest dollar.
5. The group insurance protection applicable
to you will be as currently provided for other
clerical-technical employees, effective im-
mediately. This plan provides improvements
related to:
-reasonable and customary payments for
certain medical services;
-$6.00 office and $10.00 home payments
for doctor's visits;
-major medical deductible changes to
$25.00 for individuals and $50.00 for families,
with 80 percent payment of the excess over the
deductibles.
6. The $100 vacation bonus will apply with
the same eligibility requirements that apply to
other clerical-technical employees.
7. Vacation entitlement and eligibility for
1969 vacations will be on the same basis as ap-
plies to other clerical-technical employees.
The salary and cost-of-living adjustments described
above will be reflected in paychecks received on
May 23. The Company will endeavor to have
checks prepared covering the retroactivity as soon
as possible.
We believe that the decision to put these adjust-
ments into effect now, without waiting for an
Agreement, indicates the concern of the Company
that employee compensation and benefits fully
reflect the current economic situation.
R W K/sv
R. W. King