Master Slack Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1984

271 N.L.R.B. 78 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Master Slack Corporation and Amalgamated Cloth-
ing and Textile Workers Union, AFL-CIO.
Case 26-CA-9900
29 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 25 July 1983 Administrative Law Judge
Richard J. Linton issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and the Respondent
filed an answering brief.
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,' 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 adopting the judge's findings that the Respondent was privileged
to withdraw recognition from the Union on the basis of a petition signed
by a majority of unit employees indicating they no longer wanted to be
represented by the Union, we note particularly that the Respondent's
commission of unfair labor practices in Master Slack Corp., 230 NLRB
1054 (1977), occurred many years before the petition's circulation, and
that the Respondent has complied with the ordered remedies in many sig-
nificant respects well before the petition's circulation. Thus, the Respond-
ent had bargained in good faith and, indeed, had executed a collective-
bargaining agreement with the Union, had offered reinstatement to all eli-
gible discriminatees, and had posted a notice to employees agreeing to
take the action ordered by the Board. In this context, we find no basis to
disturb the judge's reliance on the unambiguous testimony of the peti-
tion's signers that the matters raised in the prior and pending Board liti-
gation had no impact whatsoever on their signing of the petition. Ac-
cordingly, in these circumstances, and notwithstanding that the Respond-
ent has continued to litigate the scope of its backpay liability before the
Board, we find, in agreement with the judge, that the petition was not
tainted by the unfair labor practices and that, on the date recognition was
withdrawn, the Union did not in fact enjoy majority support.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This
case was tried before me in Bolivar, Tennessee, on
March I and April 5 and 6, 1983, pursuant to the No-
vember 2, 1982 complaint, subsequently amended, issued
by the General Counsel of the National Labor Relations
Board through the Regional Director for Region 26 of
the Board. The complaint is based on a charge, later
amended, filed September 30, 1982, by Amalgamated
Clothing and Textile Workers Union, AFL-CIO (the
Union or Charging Party) against Master Slack Corpora-
tion (Respondent or Master Slack).'
In the complaint the General Counsel alleges that Re-
spondent violated Section 8(a)(1) of the Act on Septem-
ber 10 and 22, 1982, by announcing to its Bolivar, Ten-
nessee employees that it was withdrawing recognition of
the Union and promising such employees that they
would soon receive improved benefits, and Section
8(a)(1) and (5) of the Act by various acts between
August 16, 1982, and January 1, 1983, in which it noti-
fied the Union that it was refusing to meet and bargain
and thereafter so refusing, by withdrawing recognition of
the Union, and by unilaterally increasing the wages of
unit employees.
By its answer Respondent admits certain factual mat-
ters but denies violating the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, Respondent, and the
Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Master Slack Corporation, a corporation with an office
and place of business in Bolivar, Tennessee, manufactures
textile products. During the past 12 months Respondent
sold and shipped from its Bolivar, Tennessee facility,
goods and materials valued in excess of $50,000 directly
to points outside the State of Tennessee. Respondent
admits, and I find, that it is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Amalgamated
Clothing and Textile Workers Union, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
1. Nature of the case
This is one of those refusal-to-bargain cases in which
the Employer, Master Slack here, has withdrawn recog-
nition from Union on the asserted basis it reasonably be-
lieved that the Union no longer enjoyed majority sup-
port. In the case before us a petition was submitted to
Master Slack on August 16, 1982. The petition was
signed by a majority of unit employees. Over their signa-
tures they asserted that they did not want to be repre-
sented by the Union. Master Slack suspended bargaining
on August 16 and withdrew recognition on September
10.2
' All dates are for 1982 unless otherwise indicated. Although the
charge and complaint use the abbreviation "Corp." in Respondent's
name, I have spelled out the word so as to conform with the spelling
appearing in other exhibits.
2 1 reject the General Counsel's contention that the August 16 suspen-
sion amounted to a withdrawal of recognition.
271 NLRB No. 15
78
MASTER SLACK CORP.
The General Counsel and the Charging Party do not
contend that a majority of unit employees did not sign
the petition. 3 Their common position is that Respondent
was not free to withdraw recognition because certain un-
remedied violations from an earlier unfair labor practice
case tainted the atmosphere as a matter of law, thereby
rendering the withdrawal, as well as associated conduct,
unlawful. The earlier case is reported as Master Slack
Corp., 230 NLRB 1054 (1977).
Going further, the Union argues that Master Slack was
precluded from withdrawing recognition, whether in
August or September 1982, because on July 28, 1982, the
Board affirmed the Regional Director's June 24 decision
to hold in abeyance the petition filed June 4 in Case 26-
RD-552 because of the "blocking charge" rule. In effect
the Union is asserting that the Board's ruling in Case 26-
RD-552 is res judicata on the crucial issue in the instant
proceeding.
2. Evidentiary ruling
At trial Respondent announced that it intended to call
all of the nearly 90 employees who signed the petition
(Tr. 322, 412), and argued that under certain case law it
was entitled, even required, to elicit their testimony con-
cerning whether they subjectively felt that any conduct,
past or contemporaneous, of Respondent had any impact
on their decision to sign (Tr. 434, 436, and 574).4
Citing NLRB v. Gulfmont Hotel Co., 362 F.2d 588 (5th
Cir. 1966), the General Counsel objected to any such
subjective evidence by the employee signers on the basis
that it would be irrelevant in the absence of evidence
that Respondent had become aware of that subjective
opinion at the time it withdrew recognition (Tr. 432, 433,
and 435). I overruled the General Counsel's objection,
granted a continuing objection to the entire line of ques-
tioning (Tr. 436, 438), and permitted Respondent to elicit
from some 20 signers the reasons they signed and wheth-
er they believed that the unremedied allegations (relat-
ing, as we shall see, to reinstatement and backpay from
the earlier case), had any impact on their decision to
sign. Having earlier indicated my intention to foreclose
such testimony after a representative number of wit-
nesses testified along this line (Tr. 411, 426-427), I finally
ruled, over objection, that Respondent would not be per-
mitted to call any additional witnesses in pursuit of that
line of inquiry (Tr. 574-576). Respondent made an offer
of proof that the other 65 or so signers, if permitted to
testify, would testify similarly to the others (Tr. 578-
581). I denied Respondent's motion to call the additional
witnesses (Tr. 581, 604). As I expressed at the hearing,
even if case law did permit or require an employer to
call enough signers to show that a majority of the unit
did not want the recognized union to represent them, a
representative number of witnesses would have to be ac-
ceptable. Were it otherwise, a trial would be almost end-
' The General Counsel affirmatively conceded at trial that he makes
no contention that the petition was not signed by a majority of the unit
employees (Tr. 317).
4 Respondent's citations include Pittsburgh 4 New England Trucking
Co. v. NLRB, 643 F.2d 175 (4th Cir. 1981), and Automated Business Sys-
tems v. VLRB, 497 F.2d 262 (6th Cir. 1974).
less if the plant employed 1000 employees, 2000 employ-
ees, or even more (Tr. 576).
Because I indicated that I might infer that the addi-
tional 65 signers would testify as the other 20 witnesses
(Tr. 577), the General Counsel, asserting that such an in-
ference would deny him the right to cross-examine the
remaining signers, objected to my not permitting Re-
spondent to proceed with the other witnesess (Tr. 532).
That objection, the General Counsel made clear, was
subject to his primary objection that the entire matter
was irrelevant as a matter of law (Tr. 583).
B. Background
1. Respondent's operation in Bolivar, Tennessee
Respondent's Bolivar, Tennessee plant is basically a
sewing machine operation with related functions. The
operators sew men's and boy's slacks as described in the
underlying case, 230 NLRB at 1062.
As established in the previous litigation, the appropri-
ate bargaining unit consisted of some 400 employees at
the time of the July 1983 election, won by the Union.5
Respondent closed its plant in October 1974 and re-
opened it in November 1975. There was never any alle-
gation that the closing was unlawful. Approximately 80
laid-off employees were recalled when the plant re-
opened in November 1975.
As stipulated by the parties, Respondent posted the re-
medial notice, ordered by the Board in the earlier case,
from July 25, 1980, until September 29, 1980 (Tr. 253).
Collective-bargaining negotiations, begun January 8,
1981 (Tr. 253), resulted in a contract effective from
August 26, 1981, through August 25, 1982 (Jt. Exh. 9).
General Manager Hulon Stringer testified that the bar-
gaining unit contained 161 employees on August 16, 1982
(Tr. 284). The unit description, admitted in the pleadings
herein, and basically the same as that specified in earlier
case and in the collective-bargaining contract, is:
All production and maintenance employees, includ-
ing shipping and receiving employees, employed by
Master Slack Corporation at its Bolivar, Tennessee
facility excluding all office clerical employees,
guards, and supervisors as defined in the Act.
2. The earlier unfair labor practice case
In Master Slack Corp., 230 NLRB 1054 (1977), enfd.
618 F.2d 6 (6th Cir. 1980), the Board found that Re-
spondent committed serious and flagrant violations of
Section 8(a)(1), (3), and (5) of the Act in various re-
spects." The violations included interrogations, threats to
move or close the plant, threats of discharge, and dis-
charges of 28 employees during the period, basically, of
1973-1974. Among other provisions, Respondent was or-
dered to offer reinstatement to 20 of the 28 discharged
employees and make all 28 whole.
s It was not until January 4, 1974, that the Union was certified (Tr
251).
6 Trial on the allegations had been held before Administrative Law
Judge Thomas A. Ricci in Bolivar, Tennessee, on various dates in Febru-
ary through March 197h.
79
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The backpay proceeding
Because the parties were unable to agree on the
amount of backpay due under the terms of the Board's
Order,7 a backpay proceeding was held in June 1981
before Administrative Law Judge Philip P. McLeod. His
supplemental decision, issued March 4, 1982, is pending
before the Board on exceptions by the parties. Judge
McLeod ordered Respondent to pay backpay totaling
$382,327. For the limited purpose of summarizing the
background and better understanding the issues in the in-
stant case, I take official notice of the supplemental deci-
sion, the pleadings, briefs, and exceptions.8
4. Contentions of the parties
As briefly referred to earlier, the General Counsel and
the Union contend here that certain unremedied unfair
labor practices tainted the atmosphere in which the em-
ployee petition circulated with the result being that Re-
spondent cannot rely on that petition.
As the parties stipulated (Tr. 252), on June 23, 1980,
Master Slack made offers of reinstatement to the discri-
minatees as ordered by the Board. The General Counsel
contends that the issues raised in the proceeding before
Judge McLeod include whether Respondent, in recalling
employees in 1975, improperly caused the discrimina-
tees9 to lose seniority in relation to nondiscriminatees
who had been laid off when the plant was closed, and
whether the discriminatees should be accorded seniority
superior to that of nondiscriminatees.
Under the policy apparently described in Respondent's
employee handbook, all employees laid off for more than
6 months lose all seniority. When Respondent recalled 80
employees on November 1975, it granted equal job clas-
sification seniority to all 80, discriminatees and nondiscri-
minatees alike. The General Counsel's position in the
backpay proceeding appears to be that because the dis-
criminatees were ordered reinstated without loss of their
seniority, and because Master Slack, through its hand-
book policy, should have recalled the nondiscriminatees
as new employees for seniority purposes, Respondent has
continued to discriminate against the dischargees. This is
so because there are employees among the nondiscrimin-
atees who, if the handbook policy is not applied, have
greater seniority than the discriminatees. It is unclear to
me why the discriminatees, who would have been laid
off with everyone else when the plant closed in 1974,
should be accorded superseniority.
Finally, Respondent's counsel represented on the
record that Master Slack had not made any payments of
backpay because that is a contested matter in the back-
pay proceeding (Tr. 292).
In sum, the General Counsel argues that until there
has been full compliance with the Board's earlier order,
including payment of backpay, the withdrawal of recog-
7 As we shall see, a controversy existed over certain reinstatement
matters as well. The backpay specification (Jt. Exh. Ir) issued January 7,
1981 (Tr. 253).
' Although most of these documents were placed in the rejected exhib-
its file, I indicated at the hearing that in all likelihood I would take offi-
cial notice of them for this limited purpose (Tr. 255, 258).
a Based on colloquy of counsel before me, it appears that the dispute
pertains to six of the discriminatees (Tr. 291-294).
nition did not occur in a "context free of unfair labor
practices" as required by Board law. Pointing to undis-
puted evidence that at least some unit employees were
aware of some of the unresolved issues, particularly the
backpay matter, the General Counsel argues that the un-
remedied violations, particularly in light of the back-
ground, are of such a character as to taint the August 16
employee petition as a matter of law.
Respondent argues that the background is stale, and
that it cannot be penalized for pursuing its right to liti-
gate these residual matters in a backpay proceeding.
Countering that, the General Counsel contends that there
is no restriction on Respondent's right to litigate in the
backpay proceeding, but simply that Respondent cannot
have in both ways-the right to litigate the unremedied
unfair labor practices, and also the right to withdraw
recognition. Respondent observes, in effect, that it is the
right of the employees to say whether they wish to be
represented by the Union, and that Respondent has
merely complied with the will expressed by the majority
of the bargaining unit.
C. The Complaint Allegations
As amended at trial,' ° paragraph II of the complaint
contains four allegations. It is there alleged that Re-
spondent violated Section 8(a)(1) and (5) by:
11.
(a) On or about August 16, 1982, by letter, Re-
spondent notified the Union that it was refusing to
meet and bargain with the Union as the exclusive
collective-bargaining representative of the employ-
ees in the unit described above in paragraph 7.
(b) On or about September 10, 1982, Respondent,
by letter, withdrew its recognition of the Union as
the exclusive collective-bargaining representative of
the employees in the unit described in paragraph 7.
(c) Since on or about August 16, 1982, Respond-
ent failed to and refused to recognize and bargain
with the Union as the exclusive collective-bargain-
ing representative of the employees in the unit de-
scribed above in paragraph 7.
(d) On or about August 16, 1982, Respondent
withdrew its recognition of the Union as the exclu-
sive collective-bargaining representative of the em-
ployees in the unit described above in paragraph 7.
By paragraph 12, in conjunction with paragraph 14, it
is alleged that Respondent violated Section 8(a)(1) of the
Act when:
On or about September 10, 1982, and on again
about September 22, 1982, Respondent, acting
through Hulon Stringer, at its Bolivar, Tennessee,
facility, announced to its employees that it was
withdrawing its recongition of the Union and prom-
ised its employees that they would soon receive im-
proved benefits.
'0 Par. Il(d) was added at trial (Tr. 100, 110, and 241). Respondent
admits par. I (b) and denies the others.
80
MASTER SLACK CORP.
In its answer Respondent admits that on September 10
Stringer announced to the Bolivar employees that Re-
spondent was withdrawing recognition from the Union,
but it denies the remainder of the allegation.
Respondent admits the factual allegations in paragraph
13 that "On or about October 4, 1982, and again on or
about January 1, 1983, Respondent" increased the wages
of its Bolivar employees and that it did so "without prior
notice to the Union and without having afforded the
Union an opportunity to negotiate and bargain" which
respect to such conduct and "the effects of such acts and
conduct." By paragraph 15 of the complaint the General
Counsel alleges that the conduct described in paragraphs
1 and 13 violate Section 8(a)(5) and (derivatively) Sec-
tion 8(a)(1) of the Act.
One quickly sees that the allegations of paragraph 13,
pertaining to the wage increases, depend entirely on a
resolution of the allegations in paragraph 11. If Respond-
ent lawfully withdrew recognition, then, of course, it
lawfully granted the pay increases. The reverse also is
true.
It should be noted that all allegations are based on the
suspension of bargaining and withdrawal of recognition.
There are no allegations that Respondent violated the
statute by interrogations, threats, discriminatory dis-
charges, or any of the types of conduct it committed
during the 1973-1974 period. Nor is there any allegation
that the petition submitted on August 16 was tainted by
any improper solicitation, suggestion, assistance, or other
conduct by Master Slack.
D. Respondent Suspends Bargaining and Withdraws
Recognition
1. Introduction
On June 4, 1982, Wayne Morris (Curtis Wayne
Morris) filed a decertification petition in Case 26-RD-
552 (Jt. Exh. 17). The parties stipulated that although
there was an adequate showing of interest of at least 30
percent, the Regional Director determined that the
showing of interest was less than a majority of the bar-
gaining unit (Tr. 248, 585).
In a mailgram of June 11, 1982, the Union argued that
because of unremedied unfair labor practices pertaining
to reinstatement, Respondent had not yet complied with
the Board's order at 230 NLRB 1057 and the petition
should therefore be dismissed or held in abeyance (Jt.
Exh. 18). Master Slack vigorously opposed the Union's
motion in a 15-page brief (Jt. Exh. 19) expressing several
points, including its assertion that the parties had enjoyed
"an amicable bargaining relationship" for the past 18
months as evidenced by a contract executed on August
26, 1981, and that the alleged unremedied unfair labor
practices were stale. It further argued that since bargain-
ing negotiations had begun, the Union had not made
even one allegation of misconduct by Master Slack; that
of a current work force of approximately 160 employees,
only 5, or some 3 percent, "were involved in the events
which predicated the unfair labor practice charges," and
of the remaining employees, approximately 70, or nearly
50 percent, "were not employed by the company at that
time." By letter dated June 24, 1982, Regional Director
Gerard P. Fleischut notified the parties that he had de-
cided not to dismiss the petition but "because of the
pendency of the unfair labor practice charges which are
in part unresolved, the petition herein should be held in
abeyance pending the Board's decision on the supple-
mental proceeding which is presently before the Board."
(Jt. Exh. 20.) Master Slack's 17-page request for review,
dated July 6, 1982 (Jt. Exh. 21), was denied by the Board
by telegraphic order dated July 28, 1982 (Jt. Exh. 22).
By letter dated September 20, 1982, the Regional Direc-
tor notified Master Slack's attorney that "I have ap-
proved the petitioner's request to withdraw the petition"
in Case 26-RD-552 (G.C. Exh. 3).
In the meantime, the Union's New York office sent a
letter, dated June 11, 1982, in which it notified Stringer
that it desired to meet for the purpose of modifying the
contract (Jt. Exh. 10). This was followed by a letter of
July 28 from Kenneth G. Wray, assistant southern direc-
tor for the union, to Stringer suggesting meeting dates
beginning August 11 (Jt. Exh. 11). Stringer replied by
letter dated July 30 that the Union's meeting request had
been forwarded to Respondent's attorney Stuart
Newman for reply (Jt. Exh. 12). The August 16 reply by
Newman is as follows (Jt. Exh. 13):
Dear Mr. Wray:
This is in response to your letter of July 27, 1982,
to Mr. Hulon Stringer in which you proposed cer-
tain dates for us to meet and negotiate modifications
in the terms and provisions of the current collective
bargaining agreement. We must decline your re-
quest to meet and bargain at this time.
As you are aware, a petition to decertify your
union, supported by an adequate showing of inter-
est, was timely filed with the National Labor Rela-
tions Board in Memphis by a bargaining unit em-
ployee on June 4, 1982. On June 14, your union
moved to dismiss the decertification petition. On
June 24, the Regional Director denied that motion
and decided to hold the petition in abeyance pend-
ing final resolution of certain compliance issues cur-
rently on appeal before the Board.
In addition, the Company has received another
petition signed by a majority of unit employees dis-
avowing their interest in continued representation
by your union.
Accordingly, based on significant questions raised
by all of the foregoing, it is the company's position
that collective bargaining at this time would be in-
appropriate.
Clearly, the quickest and most reliable way to
answer the pending, unresolved question concerning
representation is through the Board's election pro-
cedures. However, the unit employees' attempt to
invoke the Board's electoral processes was preclud-
ed by the union's motion to dismiss their petition.
The Company believes that a swift resolution of the
union's current status is in the best interest of all
parties concerned. Accordingly, the Company calls
upon the union to assist in bringing this issue to a
close by waiving its opposition to processing of the
81
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election petition by the Board as soon as possible,
thus allowing unit employees to voice their prefer-
ence through an orderly election process. The com-
pany is willing to abide by the decision of its em-
ployees, whatever that decision may be, and will be
pleased to cooperate fully with the Board in making
the necessary election arrangements.
We look forward to hearing the union's response
to this proposal. Should you have any questions
about the company's position on this matter please
contact me.
Very truly yours,
Jackson, Lewis, Schnitzler & Krupman
Stuart Newman
2. The speech of August 16, 1982
General Manager Hulon Stringer credibly testified that
on August 16, 1982, he read, word-for-word, a prepared
speech to assembled employees (Tr. 595-596). As the
General Counsel acknowledged at the hearing, the com-
plaint does not allege that the contents of this speech
violate Section 8(a)(l) of the Act in any manner (Tr.
601). The text of the speech, with footnotes added by
me, reads (R. Exh. 1):
I decided to get everybody together for a few
minutes today so that I could review some very im-
portant developments which have taken place re-
garding the Union here in Bolivar. First, let me
spend a couple of minutes giving you some back-
ground information.
A little over two months ago, one of our employ-
ees filed a petition with the Labor Board in Mem-
phis asking that the Labor Board conduct an elec-
tion at our plant to see whether our employees still
wanted to be represented by this Union.
The union did not want to see this kind of elec-
tion take place. So, they filed papers with the Labor
Board in which they claimed that the election
should be blocked because of some legal technicali-
ties. (The Union's objections to the election was
based on conduct which occurred almost 10 years
agol) We did not think that this was right, and op-
posed the Union's request all the way to the Nation-
al Labor Relations Board in Washington, DC. Un-
fortunately the Labor Board decided that we could
not have an election at this time.
That's the way things stood until this morning. I
was given a petition this morning by several of our
employees which was signed by a majority of all
the employees in the plant. I One of the employees
Ii The "petition" is a collection of several sheets bearing the caption,
"We no longer want to be represented by Amalgamated Clothing and
Textile Workers Union, AFL-CIO, CLC." On each sheet is a column
heading for the signer's name and one for the date. The document was
received in evidence as G.C. Exh. 4, and it consists of 12 pages. Stringer
testified that he received the first eight pages on August 16, 1982, from
Wayne Morris, Janette Kennedy, and Maxine Downey, and that he re-
ceived the other four pages, bearing only five signatures dated August
26, 1982, to September 2, 1982, before September 10, 1982 (Tr. 79-81). In
giving the eight pages to Stringer on August 16, Wayne Morris told him
that as the Labor Board was giving them the "run around," the employ-
who gave me the petition explained that since it
looked like the Labor Board was not going to do
anything with the first petition, the employees de-
cided that the only thing to do was to have an
"election of their own." He thought that I might be
able to take some action based on the new petition.
Since I am no expert in the labor laws, I talked
to other Company officials and asked them what to
do in view of the fact that the contract is about to
expire. Based on all the factors, including the peti-
tion pending before the Labor Board and the latest
petition I received, we decided it would not be ap-
propriate to meet with the Union at this time. We
sent a letter to one of the Union leaders today set-
ting out the Company's position. And I would like
to read that letter to you now:
(Read Letter)' 2
We are checking a little bit further to determine
what we can and should do in the future based on
all that is now going on. I don't have all the an-
swers right now, but as soon as I do, I will be back
in touch with you.
One thing is clear-the current contract will con-
tinue in effect up through August 25. We will abide
by its terms until that time, and based upon what
the Union does and what we find out, we will
decide the fair and legal thing to do after the con-
tract expires.
To sum all this up, as you can see, what we want
is to have this whole issue resolved as soon as possi-
ble. We have thought all along that you had the
right to express your feelings about this Union in a
Labor Board election. We hope that the Union will
finally agree with us, and let you do just that.
Thank you for your attention. If anybody should
have any questions, I will try to answer them indi-
vidually after we get back to work.' 3
ees had decided to hold their own election and "here's the results." (Tr.
82.) As the record reflects, the employees did not conduct an actual elec-
tion, but obtained employee signatures by Morris, Downey, and others
soliciting signatures from employees. The first 8 pages contained 84 sig-
natures dated from August 3 to August 16, 1982. Stringer testified that he
determined that two employees, William D. Majors and Peggy O. Hill,
whose signatures were on pages 5 and 6, respectively, were not em-
ployed as of August 16, 1982 (Tr. 83-85, 133). Stringer credibly testified
that there were 161 employees in the unit on August 16, 163 on Septem-
ber 10, and that the number of signatures on each of these dates constitut-
ed a majority of the unit (Tr. 284, 285, and 302). Of course, 81 employee
signatures would be needed to constitute a majority on August 16 and 82
on September 10. The actual numbers were 82 as of August 16 and 87 as
of September 10, 1982. Although evidence was adduced at the hearing
concerning whether a handful of the signers were temporary employees
and not properly considered as part of the unit, neither the General
Counsel nor the Charging Party contends that resolution of their status
would change the results of the majority showing.
II Stringer credibly testified that at this juncture in his speech he did
read the letter, dated August 16, 1982 (Jt. Exh. 13), from Respondent's
attorney Stuart Newman to Kenneth G. Wray, assistant southern director
for the Union (Tr. 603). The text of the letter is quoted earlier herein.
I 3 Stringer testified that some handwriting on the exhibit was his notes
and that he did not say anything other than what appears on the text of
the speech (Tr. 595). That testimony is a bit ambiguous, for Stringer put
sequence numbers from one to three on three of the last four paragraphs
Continued
82
MASTER SLACK CORP.
3. The speech of September 10, 1982
Elvin Stewart, business agent for the Union, testified
that the last conversation he had at the plant with Gen-
eral Manager Stringer occurred on August 26, 1982, pur-
suant to the request of the latter (Tr. 208-209). On that
occasion Stringer advised Stewart that he would discuss
any grievance existing as of the previous midnight and
that matters were in the hands of Respondent's attorneys.
Stewart conceded on cross-examination that during the
course of the year he and Stringer had enjoyed a cordial
relationship (Tr. 210), conducting 40 to 50 weekly meet-
ings at which problems were discussed or resolved (Tr.
200, 210, and 216), and that he knew of no unfair labor
practice charges that were filed during the term of the
contract (Tr. 215).
By letter of August 30 to Attorney Newman, Kenneth
G. Wray stated (Jt. Exh. 14):
Dear Mr. Newman:
This is to acknowledge receipt of your letter of
August 16, 1982.
We doubt your claims that ACWU no longer
represents a majority of the Bolivar employees. You
have proposed that the issue of representation be
settled by proceeding to a Board election. I would
like to point out that such an election is currently
being blocked by the company's failure to comply
with the Board's order to pay backpay to certain of
its employees who were fired for union activities.
The company could remove the obstacles it has
placed to an election by paying those former em-
ployees, as it was ordered to do by the Labor
Board and by the Court. I would like to again pro-
pose that we meet for the purpose of negotiating a
new collective bargaining agreement.
Please advise me of your response to this proposal.
Very truly yours,
Kenneth G. Wray
Assistant Southern Director
Newman responded by letter, also dated August 30, in-
forming Wray (Jt. Exh. 15):
Dear Mr. Wray:
As you know, we are the attorneys for Master
Slack Corporation. Pursuant to Article XXXIII of
the Collective Bargaining Agreement between the
above-referenced Corporation and your Union,
formal notice is hereby given of our client's intent
to terminate all aspects of that Agreement. As Arti-
cle XXXIII dictates, all obligations under this
Agreement will be automatically cancelled as of
September 9, 1982.
Very truly yours,
Jackson, Lewis, Schnitzler & Krupman
Stuart Newman
and added "To sum all this up" at the beginning of a paragraph which, I
find, he numbered as 3 and moved to the penultimate position. That is, I
find that stringer reordered the sequence of the last few paragraphs.
Newman's reference to article 33 of the contract and
the cancellation of the contract on September 9 points up
the fact that the contract did not expire automatically
but had to be terminated under article 33. That article
provides for notice of not less than 10 days of intent to
terminate the contract. After the notice time elapsed, "all
obligations under this Agreement are automatically can-
celled."
The final piece of correspondence is Newman's letter
of September 10 to Wray reading (Jt. Exh. 16):
Dear Mr. Wray:
This is to advise you that our client, Master
Slack Corporation, has a good-faith and reasonably
grounded belief that your union no longer enjoys
the support of a majority of unit employees at its
Bolivar, Tennessee, manufacturing facility. Accord-
ingly, our client no longer recognizes your union as
the collective bargaining representative of Bolivar
employees as of this date.
Very truly yours,
Jackson, Lewis, Schnitzler & Krupman
Stuart Newman
The parties stipulated (Tr. 286) that on September 10,
1982, Stringer read the following speech to assembled
employees (G.C. Exh. 7):
On August 16th I called all of you together to
advise you what had taken place as of that date
concerning the Union.
I have called you together this afternoon to
advise you of what has happened since that time.
As all of you already know a majority of our em-
ployees signed a petition stating that they no longer
wanted to be represented by the Union. The group
of employees that presented the petition to the
Company told me that since the NLRB would not
call an election they were conducting their own
election. As a result of their election the Union lost
a majority of our employees.
Based upon these petitions and what many of you
have told us, it is clear that a majority no longer
want to be represented by the Union. Therefore, ef-
fective today we have withdrawn recognition from
the Union as your representative.
We think that withdrawing recognition is the
only fair and legal thing to do at this time. As far as
we are concerned, we are now a nonunion compa-
ny. Therefore, we will be dealing directly with you.
The Company will be looking to do everything
possible to make this a better place to work. That
includes adjusting your wages to help you and your
family meet the rising costs caused by inflation. In
this regard our Company officials are conferring
with their legal department to determine what
changes can and should be made and I expect to be
back with you very shortly.
On behalf of the Company I want to say that we
are looking forward to working directly with you
83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
again and if any of you have any specific questions
I will try to answer them after we return to work.
E. Analysis and Conclusions
The basic legal principles are well settled. Absent un-
usual circumstances, a union is irrebuttably presumed to
enjoy majority status during the first year following its
certification. On expiration of the certification year, the
presumption of majority status becomes rebuttable.
Pennco, Inc., 250 NLRB 716 (1980). That rebuttable pre-
sumption also continues to apply after the expiration of a
collective-bargaining agreement. Guerdon Industries, 218
NLRB 658, 659 (1975). An employer who wishes to
withdraw recognition from a certified union after the
first year, or after the expiration of a collective-bargain-
ing agreement, may rebut the presumption of majority
status in either of two ways: (1) By showing that on the
date recognition was withdrawn the union did not in fact
enjoy majority support, or (2) by presenting evidence of
a sufficient objective basis for a reasonable doubt of the
union's majority status at the time the employer refused
to bargain. Id. Pennco; Guerdon.
In the case before us Master Slack contends that it has
rebutted the presumption under both options set out
above. Without passing on the second option, I find that
Respondent has established that the Union did not enjoy
majority support on both August 16, 1982, and Septem-
ber 10, 1982.
Although a majority of the unit did not support the
Union on the relevant dates, the law is equally well set-
tled that an employer may not avoid its duty to bargain
by relying on any loss of majority status attributable to
his own unfair labor practices. Pittsburgh & New England
Trucking Co., 249 NLRB 833, 836 (1980).
Thus, it is clear that prior unremedied unfair labor
practices remove as a lawful basis for an employer's
withdrawal of recognition the existence of a decerti-
fication petition or any other evidence of loss of
union support which, in other circumstances, might
be considered as providing objective considerations
demonstrating a free and voluntary choice on the
part of employees to withdraw their support of the
labor organization.
Id. Pittsburgh & New England. However, the unfair labor
practices must be of a character as to either affect the
Union's status, cause employee disaffection, or improper-
ly affect the bargaining relationship itself. Id. Guerdon,
stated differently, the unfair labor practices must have
caused the employee disaffection here or at least had a
"meaningful impact" in bringing about that disaffection.
Deblin Mfg. Corp., 208 NLRB 392 (1974). In short, there
must be a causal relationship between the unlawful con-
duct and the petition of August-September 1982. Olson
Bodies, Inc., 206 NLRB 779 (1973).
The General Counsel contends, in effect, that the
causal relationship is demonstrated as a matter of law by
virtue of the continued impact of the unremedied unfair
labor practices in light of the background of flagrant and
serious unfair labor practices. That argument begs the
question.
Under Olson several factors are named as criteria for
determining whether a causal relationship has been dem-
onstrated. They include: (1) The length of time between
the unfair labor practices and the withdrawal of recogni-
tion; (2) the nature of the illegal acts, including the possi-
bility of their detrimental or lasting effect on employees;
(3) any possible tendency to cause employee disaffection
from the union; and (4) the effect of the unlawful con-
duct on employee morale, organizational activities, and
membership in the union.
Respecting the first factor, 8 to 9 years elapsed be-
tween the bulk of the illegal acts and the submission of
the petition on August 16, 1982. As for factors two and
three, there can be no doubt that the serious and flagrant
unfair labor practices were of a character to have a pos-
sible long lasting effect on the bargaining unit and to dis-
courage employees from supporting the Union. As for
the fourth item, there is no direct evidence concerning
the impact on employee morale. There is indirect evi-
dence concerning the effect on organizational activities
and union membership.
On this latter point, both employee Yvonne Money
(Tr. 152) and Business Agent Elvin Stewart (Tr. 203) tes-
tified that they noticed no trends in the number of em-
ployees attending union meetings during the 1981-1982
period. From their testimony it seems that 40 to 50 em-
ployees would regularly attend union meetings during
the time of the 1981-1982 contract, including well into
the summer of 1982. Moreover, Stewart testified that the
union members appeared comfortable to him in July 1982
on an occasion when they wore union T-shirts and but-
tons in the plant (Tr. 213-214). He counted 30 employees
wearing such emblems in the lunchroom the day of his
visit (Tr. 207). The significance of this evidence is its
revelation that during the critical weeks of June and July
1982, the supporters of the Union felt every bit as confi-
dent in openly expressing where they stood as did the
signers of the antiunion petition. The crucial difference is
that it was the latter group, not the former, which con-
stituted a majority of the bargaining unit.
Regarding the matter of whether employees discussed
the previous case, the answer is affirmative. At union
meetings Nathaniel McCellan would ask when he was
going to receive his backpay. The backpay requirements
seem to have been a rather common topic of discussion
in the plant. Indeed, it became an unpleasant joke. Dis-
criminatee Leroy Lake testified that other employees
kidded him that the backpay, if it was ever paid, would
be so long in coming that it would be the grandchildren
of the discriminatees who would spend it (Tr, 229-230).
One person who so teased Lake was Mary Nell Puckett,
a "supervisor" or "assistant plant manager" (Tr. 231).'4
Other employees testified to seeing the notice Respond-
ent posted pursuant to the order of the Board, and some
others were aware of the pending litigation. Others, such
as Curtis Wayne Morris, testified that they were not
aware of any of the foregoing.
"4 Although there are certain references to Puckett's different titles in
the record (Tr. 319, 337, and 591), there is no allegation she is a statutory
supervisor or that her remark violated the Act.
84
MASTER SLACK CORP.
All of the 18 signers of the petition who were called
by Respondent and permitted to testify on the subject,
prior to my foreclosing Respondent from calling the
other signers, testified that, to the extent they heard the
talk about the prior and pending litigation, or to the
extent that they were aware of any such matters, none of
those matters had any impact on their signing the peti-
tion.
Typical of the responses of the employees regarding
their reasons for signing the petition is that of Barbara
Griffin, hired in 1964, who testified that although she
was aware of the unfair labor practice issues, they had
nothing to do with her signing the petition. "I signed it
because I didn't want the Union. I didn't feel the plant
needed a union." (Tr. 363.)
In contrast to the long tenure of Griffin, sewing opera-
tor Judy Wiggins was hired in November 1981, not long
after the collective-bargaining agreement had become ef-
fective. She testified that she heard the plant talk about
the NLRB case, the seniority claims, the backpay claims,
and the "lawsuit," and that it had no impact on her deci-
sion to sign. She signed because (Tr. 556):
Q. Would you tell His Honor in your own
words, as-in any way you want-why it was that
you signed the petition?
A. Because I didn't want the Union in the facto-
ry.
Q. Can you tell His Honor why?
A. I just didn't feel like it was doing any good. I
just didn't want it there.
No signer of the petition testified that any of the past
or pending litigation had anything to do with his or her
signing the petition.
It surely must be concluded that there is no direct evi-
dence of a causal relationship between Respondent's un-
lawful conduct of 1973-1974 and the 1982 petition.
Moreover, I further conclude that the indirect factors are
insufficient here to operate as a matter of law to pre-
clude Respondent from withdrawing recognition.
In view of all the circumstances here, I find that Re-
spondent' lawfully suspended bargaining on August 16,
1982, and that it lawfully withdrew recognition from the
Union on September 10, 1982. Having lawfully with-
drawn recognition, Respondent was free to announce
and grant the wage increases which it did. Hemet Casting
Co., 260 NLRB 437 (1982). Accordingly, I shall dismiss
the complaint in its entirety.
CONCLUSIONS OF LAW
1. Master Slack Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
3. Respondent did not, as alleged, violate Section
8(a)(1) and (5) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' 5
ORDER
The complaint is dismissed in its entirety.
'6 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.
85