Molded Acoustical Products, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1394 (N.L.R.B. 1986)

1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Molded Acoustical Products , Inc. and Teamsters
Local 773, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Case 4-CA-14794
31 July 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 17 January 19861 Administrative Law Judge
Wallace H. Nations issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed a brief in oppo-
sition to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Molded
Acoustical Products, Inc., Easton, Pennsylvania, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
' The issuance date reflected in the judge 's decision is incorrect
David Faye, Esq., and Joseph Kelly, Esq., for the General
Counsel.
Edward H. Feege, Esq., of Allentown, Pennsylvania, for
the Respondent.
William T Josem, Esq., of Philadelphia, Pennsylvania, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
Teamsters Local 773, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Union), filed a charge on 2 January
1985 against Molded Acoustical Products, Inc. (Re-
spondent). On 15 February 1985 the Regional Director
for Region 4 issued a complaint alleging that Respondent
has violated Section 8(a)(1) and (5) of the National
Labor Relations Act primarily by Respondent' s refusal
to bargain with the Union. A hearing on this case was
held before me in Bethlehem, Pennsylvania, on 6 May
1985. Posthearing briefs were received from Respondent,
the General Counsel, and the Charging Party about 20
June 1985.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing findings and conclusions on the issues involved in
this proceeding.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation, with its
principal office located at 1 Danforth Drive, Easton,
Pennsylvania, is engaged in the molding of fiberglass
products for thermal and acoustical applications. During
the past year Respondent has purchased and received
goods valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania. I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and
that it will effectuate the policies of the Act to assert ju-
risdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Teamsters Local 773, affiliated
with International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that since about 17 December
1984, Respondent has failed and refused to recognize the
Union and to bargain with the Union as the exclusive
bargaining representative of the employees in the appro-
priate bargaining unit. The National Labor Relations
Board, on 10 December 1984, certified the Union as the
exclusive bargaining representative of the employees in
the following described unit:
All full-time and regular part-time production and
maintenance employees at the Main Street facility,
but excluding all other employees, including office
and plant clerical employees, professional employ-
ees, leadmen , confidential employees, guards and su-
pervisors, as defined in the Act.
In its pleadings, Respondent alleges that it has opened
a new facility at 1 Danforth Drive, Easton, Pennsylvania
(the new plant), and was in the process of closing its fa-
cility located at 110 Main Street, West Easton, Pennsyl-
vania (the old plant), at the time of certification. Re-
spondent asserts that the certification issued by the
Board on 10 December 1984 was unlawfully issued be-
cause the Union had engaged in objectionable conduct
prior to the election resulting in certification. Further,
Respondent alleges that the Regional Director failed to
conduct an investigation into Respondent's objection to
the conduct affecting the election and its impact on the
eligible voters. The Board has finally ruled against Re-
spondent on these matters in its decision in Molded
Acoustical Products, 273 NLRB 156 (1984), and accord-
ingly, Respondent's assertions in these regards will not
be further considered.
280 NLRB No. 163
MOLDED ACOUSTICAL PRODUCTS
Respondent further urges that the certification does
not apply to Respondent's facility, operation, or employ-
ees located at its new plant and further, that as the old
plant was in the process of closing in December 1984
and has subsequently closed, Respondent had no obliga-
tion and currently has no obligation to recognize and
bargain with the Union. As a further defense to the alle-
gations contained in the complaint, Respondent urges
that the Union no longer has a majority status among its
employees in the described unit and that it has rebutted
any presumption of continued majority status. The facts
and the law, with respect to these defenses, will be dis-
cussed in detail under appropriate subheadings.
I will find that none of Respondent's defenses has
merit under the facts as they exist in this proceeding
under the applicable law.
A. Facts Relating to the Alleged Refusal to Bargain
On 26 October 1983 the Union filed a representation
petition seeking to represent certain employees of Re-
spondent. The parties entered into a Stipulation for Cer-
tification Upon Election on 14 November 1983 which
was approved by the Regional Director on 15 November
1983. At the election on Friday, 30 December 1983,
there were 60 votes cast for the Union, 55 cast against
the Union, and 8 determinative challenged ballots. Re-
spondent filed objections which were overruled by the
Regional Director. Respondent filed exceptions to the
Regional Director's report and recommendations to ob-
jections to the election and, as noted, on 10 December
1984, the National Labor Relations Board issued its De-
cision and Certification of Representation in which it
adopted the Regional Director's findings and recommen-
dations and certified the Union as the exclusive repre-
sentative of Respondent's employees in the unit set out
above.
Donald Hartzell, the Union's vice president and orga-
nizer, requested bargaining by letter to John A.
D'Amico, Respondent's president, dated 13 December
1984. Counsel for Respondent sent a letter to Hartzell,
dated 17 December 1984, in which he stated that Re-
spondent refused to bargain with the Union. Respondent
has continued to refuse to bargain with the Union since
that date. As Respondent adnuts its refusal to bargain, its
reasons and justifications for such refusal will be dis-
cussed.
B. Does the Union Certification for the Old Plant
Apply to Respondent's Operation at its New Plant?
The old plant located at 110 Main Street, West Easton,
Pennsylvania, was owned by John D'Amico and his
wife. At this plant, Respondent manufactured fiberglass
products for thermal and acoustical applications. During
the spring of 1983, D'Amico and his wife entered into an
agreement for the sale of his premises with a buyer, but
the sale fell through. The D'Amicos then attempted to
sell the building privately and put up several "for sale"
signs on the perimeter of the plant premises during Octo-
ber and November 1983. About August 1983, Respond-
ent already was in the planning stages for the new plant
and Respondent's management told those of its employ-
1395
ees who inquired that the Company was considering the
construction of the new plant.
Respondent's new plant was ready for occupancy in
early October 1984 and Respondent commenced moving
to this plant on approximately 8 October 1984. The par-
ties stipulated at the hearing that the old plant, which
was located in the burrough of West Easton in the
county of Northhampton, and the new plant which is lo-
cated in Palmer Township, Northhampton County, are
approximately 7 miles apart. Also stipulated was the fact
that D'Amico and his wife own both plants, and leased
the premises of both plants to Respondent. Respondent
has been in business since approximately 1976 or 1977.
The move from the old plant to the new plant was ac-
complished in stages . Employees were moved from the
older plant to the newer plant as they were needed,
either for the moving operation itself or to commence
operations in the new plant. In October 1984, because of
the transition, Respondent laid off a number of produc-
tion and maintenance employees. Also in November
1984, Respondent eliminated that portion of its business
of manufacturing fiberglass fittings for pipes and other
uses . Respondent dismantled the machines it was using in
these processes as they were no longer needed.
By 10 December 1984, the transition from the old
plant to the new plant was approximately 40 percent
completed. The remainder of the move was made be-
tween that date and 10 March 1985. No production or
maintenance employees have worked at the old plant
since 10 March 1985 and the same has been used for
storage.
Respondent contends that operations at the new facili-
ty are materially different than they were at the old facil-
ity. On the other hand, the General Counsel and the
Charging Party contend that the operations at both
plants are fundamentally the same. Edward F. Stokes,
Respondent's vice president of operations, testified that
Respondent has manufactured fiberglass products for
thermal and acoustical applications at both the old and
the new plants. He described the operation of the Com-
pany as a molder of fiberglass and also a job shop with
many jobs changing constantly so that the product is not
the same at all times . The new plant started operations
with 37 full-time and regular part-time production and
maintenance employees, all of whom had transferred
from the older plant. The new plant is an ultramodern
one-story building allowing for in-line production. In in-
line production, raw material is brought into the back of
the building and fed directly into the presses so that by
the time the processing is finished, the product is at the
packing and staging area for shipment.
The employees transferred from the old plant to the
new were given on-the-job training which took from 2
days to 1 week, depending on the individual. Stokes ad-
mitted that when the employees were first hired at the
old plant they were also given on-the-job training.
During the period that both plants were operating,
Stokes had overall responsibility of operations and manu-
facturing in both plants. He and owner, D'Amico, set
wage rates at both plants and employees received the
same wage rate when they transferred from the old plant
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the new. Unit employees at the new plant received
the same benefits that they had received at the old one.
Respondent's hiring policy is approximately the same
at both plants amd employees hired at both plants are
from the same geographical area. The type of skills Re-
spondent requires of applicants at the new plant are a
little different from the type required of applicants at the
old plant. As of the time of this hearing Respondent had
approximately 118 full-time and regular part-time pro-
duction and maintenance employees working at the old
plant. Of these, approximately 49 had been eligible to
vote in the election conducted on 30 December 1983.
Respondent's employees have no job classifications
and unit employees have no job descriptions and only a
few have job titles. Since the move to the new facility,
there have been changes in the supervisory personnel
and an increase in leadmen.
The unit employees at the new plant generally have
the same duties that they had at the old plant and there
is some job interchange among unit employees.
All the equipment from the old plant, except for an
obsolete press, was moved to the new plant and several
pieces of new equipment have been added at the new
plant. It was stipulated that Respondent had 227 different
customers as of 31 December 1983 and 180 different cus-
tomers as of 31 December 1984, of which 54 were new
since 31 December 1983. It had 101 different customers
as of 1 April 1985, of which 12 were new since 1 Janu-
ary 1985. Approximately 50 percent of Respondent's cus-
tomers currently have been doing business continuously
with Respondent since 30 December 1983. Catherine
Montalban, Respondent's manager of sales, central con-
trol, and corporate secretary, testified that she knew of
no customers which Respondent had lost because it had
moved. The parties stipulated that Respondent had 363
different suppliers as of April 1985 of which 161 were
new since 31 December 1983. It was also stipulated that
Respondent's employees are subject to the terms and
conditions set forth in the employee manual published by
Respondent and the current employee manual is substan-
tially the same as the one in effect as of 31 December
1983.
Robert Newman, a unit former employee, testified that
he worked for the Employer from 1 August 1983 until
27 February 1985. He worked at the old plant until he
was transferred to the new plant about December 1984.
Newman testified that he operated a flatboard press at
both plants, that he used the same press at both plants,
and that his job as a press operator was the same at both
plants. He testified that there were no significant differ-
ences between the presses at the two plants. The only
difference in the operation of these presses was that the
button was in a different place and some machines had a
different feed. He further testified that Respondent pur-
chased no new presses at the new plant during his em-
ployment there, but Respondent had built about five new
presses at the new plant which did not differ from the
presses at the old plant. In his opinion, employees of the
new plant do essentially the same work that was done at
the Main Street plant.
In an effort to differentiate its new operation from the
old, Respondent offered evidence that its products are
increasingly changing. It has a sales engineering force
which assists customers in designing their own products
and draws blueprints and prepares specifications for the
customers' products. Respondent is increasingly required
to perform engineering services for its customers and is
doing more customer design work than the more repeti-
tive work which it did in 1982 and 1983.
A large number of Respondent's customers, particular-
ly in the automobile industry, have installed a new order-
ing system in their operations in which they will order a
product with a very short lead time so that it will arrive
at the customer's plant at the time the customer is ready
to use it. The use of this system by Respondent's custom-
ers requires it to build and produce its products with
much less lead time than in the past. It was these
changes in Respondent's customers' demands that led to
the building of the new, more modern facility. The older
plant did not lend itself to a smooth movement of raw
material to the finished product. The new plant was de-
signed for the most efficient, speediest handling of the
product as possible. The more efficient setup of the new
plant allowed Respondent to reduce the number of main-
tenance and production employees from approximately
130 in December 1983 to 118 employees as of May 1985.
All parties in this proceeding agree that the determina-
tive law in this proceeding may be found in Brooks v.
NLRB, 348 U.S. 96 (1954), in which the Supreme Court
held that the certification of a union must be honored
through a reasonable period, ordinarily 1 year, in the ab-
sence of unusual circumstances. The Brooks court noted
that "unusual circumstances" were found in at least three
situations:
(1) The certified union dissolved or became de-
funct;
(2) As a result of schism, substantially all the
members and all the officers of the certified union
transferred their affiliation to a new local or interna-
tional; and
(3) Signs that the bargaining unit fluctuated radi-
cally within a short time.
Respondent contends that it is not required to recog-
nize and bargain with the Union because of the plant re-
location. Respondent asserts that the relocation consti-
tutes an unusual circumstance which rebutted the pre-
sumption that the Union remains as the majority repre-
sentative of the employees in the bargaining unit during
the certification period. I believe that neither the law nor
the facts support Respondent's position.
Respondent asserts several aspects of the relocation
and the resulting operation in support of its position.
First, Respondent cites the issuance , by the Board, of a
certification applying only to the old plant at the time
when all parties were aware that this plant was closing.
The fact that the certification specifically designates the
Main Street plant, does not justify Respondent's refusal
to recognize and bargain with the Union. Place designa-
tions are frequently used in unit descriptions, Board cer-
tifications, and collective-bargaining agreements as an ad-
ditional factor clarifying and identifying the employees
covered. Therefore, the place designation stated in this
MOLDED ACOUSTICAL PRODUCTS
certification merely defined the unit as it existed at the
time the certification issued . See Universal Security Instru-
ments, 250 NLRB 661, 671 ( 1980); Robertshaw Controls
Co., 240 NLRB 1260, 1262 ( 1979).
Respondent next relies on the physical relocation of its
facility to the new plant and the substantial change in its
operations since December 1983. Again , I disagree with
Respondent 's position. A plant relocation was not con-
templated as an unusual circumstance in Brooks , supra,
and would hardly be considered an unusual circumstance
in today 's world . It was not even an unknown circum-
stance that Respondent 's old plant was going to relocate
as the "for sale" sign was posted at the plant prior to the
election, putting the Union and the unit employees on
notice before the employees voted . Furthermore, the
facts reveal that both of Respondent 's plants had
common ownership , operated under the same name, are
only approximately 7 miles apart, engage in the same
basic operation , produce essentially the same product,
use substantially the same machinery , have many of the
same supervisors , particularly among high-level manage-
ment, and had substantially the same customers and sup-
pliers . In addition, a comparison of Respondent's em-
ployees at both plants shows that they perform virtually
the same work and job duties , have similar skills , receive
the same wages and benefits , work under substantially
the same conditions of employment and work rules, and
are from the same geographic area . I conclude that the
new plant is only a continuation of the same operation
conducted at the old plant.
I recognize that the new operation has been made
more efficient because of the more modern facility. Its
layout makes it possible for Respondent to successfully
adapt to a customer's changing demands . The basic oper-
ation, however, remains unchanged and Respondent con-
tinues to operate in the same industry producing the
same basic type of product. I find that the reasons ad-
vanced by Respondent to find that its relocation was an
"unusual circumstance" are without merit . See Marine
Optical, 255 NLRB 1241 (1981 ), and Robertshaw Controls,
supra . The two cases relied on by Respondent , Westward
Import Co ., 251 NLRB 1213 (1980), and Massachusetts
Marine & Stamping , 231 NLRB 801 (1971 ), enf. denied
578 F.2d 15 (1st Cir . 1970), in my opinion, only reinforce
the case against it. In both cases , the Board reaffirmed
that an existing and effective collective -bargaining agree-
ment remains in effect following a relocation, provided
operation and equipment remain substantially the same at
the new location, and a substantial percentage of the em-
ployees at the old plant transfer to the new location.
Moreover, these cases deal with issues of a relocation
during or shortly after the term of the collective -bargain-
ing agreement, not a relocation during the certification
period which is involved in this proceeding.
Respondent also has had what it terms a rapid turnov-
er of its production and maintenance employees since
December 1983 and the decrease in the size of the bar-
gaining unit since that date . This assertion will be dis-
cussed below together with Respondent 's arguments that
it lawfully refused to bargain with the Union because of
its reasonable belief that the unit had ceased to represent
a majority of the involved employees.
1397
C. Issue of Union 's Continued Majority Status
Respondent, citing Brooks, supra, urges that a fluctua-
tion in the size of the bargaining unit within a short
period of time may be used to rebut the presumption of
the continued majority support . Additionally, Respond-
ent urges that the turnover in its work force be consid-
ered together with what it considers evidence of loss of
majority support by the Union to justify its refusal to
bargain with the Union . At the election on 30 December
1983 , the Union received 60 votes with 55 votes being
cast against it. Since the move to the new plant site, only
49 or 50 of the 118 current maintenance and production
employees eligible to vote in that election remain in the
work force . Respondent 's work force has been reduced
from 130 to 118 since the move to the new plant because
of the efficiencies made possible by the new facility. As
noted earlier, the Supreme Court stated in Brooks, supra,
that the certification of a Union must be honored for a
reasonable period of time , ordinarily 1 year, in the ab-
sence of any unusual circumstances . Also as noted, one
of the unusual circumstances noted by the Supreme
Court was the size of the bargaining unit fluctuating
radically within a short time . I cannot find that the re-
duction in the involved work force from 130 persons to
118 is a radical fluctuation , nor do I find that only 50 of
the employees who were eligible to vote are still in the
work force supports Respondent's refusal to bargain. The
Board has held that employee turnover , even when a
majority of employees have been replaced, does not con-
stitute unusual circumstances warranting an employer's
refusal to bargain during the certification period . Dicker-
son Florida, 272 NLRB 63 (1984); Murphy Bros., 265
NLRB 1574, 1575 (1982); Carter-Glogau Laboratories, 265
NLRB 116, 117 (1982), enfd. mem. 730 F.2d 767 (9th
Cir. 1984); Sure-Tan, Inc., 231 NLRB 138 (1977). More-
over, even if Respondent's refusal to bargain had not oc-
curred during the certification year , the Board has held
that an employee turnover does not establish that a union
has lost its majority status. Murphy Bros., supra ; Silver-
man's Men's Wear, 263 NLRB 191 (1982), enfd. mem.
720 F .2d 665 (3d Cit . 1983).
In addition to the reduction in the work force and the
turnover in the employees making up the work force,
Respondent noted other evidence which it considers in-
dicators of loss of support for the Union. Stokes testified
that Respondent held a Christmas party for its employees
in 1984 at which 5 to 10 employees told him that they
did not feel they needed a union anymore and the condi-
tions were better at the new plant. Stokes could only
recall the names of two of the employees to whom he
had spoken at the party.
On 12 March Respondent received a mailgram from
the Union which read as follows:
This is to notify you that the employees repre-
sented by Teamsters Local 773 at your facilities will
engage in a work stoppage.
The mailgram was under the name of Donald Hartzell,
vice president/organizer of Local 773 . No work stop-
page occurred . Jose Agosto, a bargaining unit member,
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he was 1 of about 70 employees who at-
tended a union meeting at Easton , Pennsylvania, in
March 1985 . Agosto testified that the strike vote was
taken and only two employees voted against it, but no
strike occurred . On being shown the strike notice sent to
Respondent, Agosto agreed that one of the reasons the
employees did not go on strike was that the notice did
not specify a time or place for the strike . He further tes-
tified that the employees said , "let's wait" and not
enough employees were willing to go out on strike at the
time the mailgram was sent.
According to Stokes , a "couple of or "a few" unit
employees asked him how they could get out of the
Union so they could continue to work during the pro-
posed strike . Supervisors Ted Sroka and Jim Ketrow
told Stokes that they had received similar inquiries from
employees . Stokes said that these conversations with em-
ployees took place on the work floor in March 1985, but
Stokes could only recall conversations with the two em-
ployees he talked to at the Christmas party in which
they said they wanted to work and asked what they
should do . Stokes said that it is his belief that the Union
does not represent a majority of the unit employees of
the new plant based on "talking to people," "hearing dif-
ferent things," and "the feedback of our supervisors."
Supervisor Sroka testified that 12 to 15 first-shift em-
ployees asked him on the same day, in March 1985, if
they could work should there be a strike and whether
they could be fined if they came to work . Sroka recalled
seven such conversations . He testified that employee
Rose Poyer, in the presence of employees Ellen Sandt
and Natalie Balliet , asked whether the Company was
going to work and if the employees could be fined
should they cross the picket line . According to Sroka,
his second conversation was with Robert Reiss who
asked whether the Company was going to work and if
he could be fined should he come to work , if he could
get fired and where to send a resignation as a member of
the Union. Sroka indicated that he spoke to Reiss in
front of employee Dave Graziano . He testified that his
third conversation was solely with employee Ted Ri-
viello who asked for an address where he could resign
his union membership . His fourth conversation was with
Mark Miller alone and Miller asked him for a sheet of
paper with the Union's address . His fifth conversation
was with employee Barry Serfass , who said that he
could not afford to stay off from work and that he
wanted an address to write the Union . His sixth conver-
sation was with employee Dennis Wentzel and he also
wanted the Union 's address . His seventh conversation
was with employee Willie Loauza who asked him for the
address of the Union . Sroka gave the above-named em-
ployees the address of the Union but testified that he told
only two of them that they could tell the Union that
they were resigning their membership . Sroka did not
know whether any of the employees to whom he spoke
were union members or if they sent letters to the Union
resigning their membership.
Supervisor James Ketrow testified that in March 1985,
unit employee Frank Werkheiser asked him whether he
could work should there be a work stoppage because he
could not afford to take time off . He also asked Ketrow
if he could be fined . On the same day, Ketrow testified
that unit employee Jim Redington told him roughly the
same thing . Employee Ramon Torrez told Ketrow I or 2
days later that he did not want time off from work.
Ketrow gave Werkheiser and Redington the address of
the Union and told them that they could inform the
Union that they were resigning from it, but he did not
give the address to Torrez . Ketrow said at the hearing
that all three conversations were initiated by the employ-
ees and took place on the work floor on the second shift.
Employee Jose Agosto testified that in March 1985
Ketrow approached him, in front of a unit employee
named "Rich" in a warehouse area, and told him that he
would lose his Blue Cross -Blue Shield coverage if he
was on strike and that "if I want to resign he would give
me the address and telephone number ." According to
Agosto, Ketrow said the same thing on the same day to
a meeting of about 10 employees he supervised.
With regard to the conflict in the testimony between
Supervisor Ketrow and employee Agosto , I credit the
testimony of Agosto and discredit the denial by Ketrow.
Though Agosto 's command of the English language was
not the best, he appeared to understand the questions put
to him and answered them in a direct sincere manner.
On the other hand, Ketrow 's denial appeared to me to be
evasive . Moreover , the fact that an employee witness tes-
tifies against an employer while still employed supports
his credibility . See K-Mart Corp ., 268 NLRB 246, 250
(1983).
I cannot find as a matter of law that Respondent's evi-
dence justifies its refusal to bargain in this case. In Lee
Office Equipment, 226 NLRB 826, 831 (1976), the unit
employees notified the union in writing that they did not
want the union to represent them . However , it was held
in Lee, supra, that an employer may not justify a refusal
to bargain within the certification year on the grounds
that its employees no longer desire representation be-
cause loss of support among the employees for the union
does not represent an unusual circumstance within the
meaning of Brooks, supra. Similarly in Ace Typographers,
252 NLRB 412 , 413 (1980), the Board held that a peti-
tion from the employees submitted to the employer
within the certification year indicating that the union did
not represent a majority of the employees in the unit did
not justify the employer 's refusal to bargain . Also see
Washington Street Foundry , 268 NLRB 338, 340 ( 1983);
Cellar Restaurant, 267 NLRB 796, 801 (1982).
Similarly, Respondent 's reliance on the indications
from some of its employees that they would not support
a strike and wanted to resign their membership in the
Union does not justify the refusal to bargain . As noted,
an employer cannot refuse to bargain during the certifi-
cation year because the union no longer possessed major-
ity status . Even if the certification year had expired and
a majority of the union members had refused to go out
on strike, unlike the situation here , this would not pro-
vide support for a reasonably based doubt about the
Union 's majority status , because a failure of a majority of
employees to support a strike falls short of overcoming
the presumption of the Union's continued majority status.
Plymouth Locomotive Works, 261 NLRB 595, 605 (1982).
i
MOLDED ACOUSTICAL PRODUCTS
Based on the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, I find that
Respondent has violated Section 8(a)(1) and (5) of the
Act by failing and refusing to recognize the Union and
to bargain with the Union as the exclusive representa-
tives of the employees in the appropriate unit.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the
Act.
2. Teamsters Local 773, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time production and
maintenance employees employed by Respondent at its
Easton, Pennsylvania facility constitutes a unit appropri-
ate for the purposes of collective-bargaining within the
meaning of Section 9(b) of the Act.
4. Since 10 December 1984, the above-named labor or-
ganization has been, and is now, the certified exclusive
representative of all employees in the foregoing unit for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. Since 10 December 1984, by refusing to recognize
the involved labor organization as the exclusive repre-
sentative of all employees in the appropriate unit and by
failing and refusing to bargain with the labor organiza-
tion in good faith, Respondent violated Section 8(a)(1)
and (5) of the Act.
6. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that Respondent violated Section 8(a)(1)
and (5) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative actions de-
signed to effectuate the policies of the Act.
As I have found that Respondent violated its obliga-
tion under the Act by refusing to recognize the Union as
the exclusive representative of all the employees in the
appropriate unit and, further, Respondent has failed to
bargain in good faith with the Union over the terms and
conditions of employment with respect to the appropri-
ate unit, I shall recommend that Respondent be ordered
to recognize the Union as the exclusive representative of
all employees in the appropriate unit and, on request,
bargain in good faith with the Union as the exclusive
representative of the employees in the unit and, if an un-
derstanding is reached, to embody such understanding in
a signed agreement . Further, the initial period for certifi-
cation will be extended to begin on the date Respondent
commences to bargain in good faith with the Union. The
extension of the certification is required to ensure that
unit employees will be accorded the services of their se-
lected bargaining representative for the period provided
by law. I shall also order that appropriate notices be
posted.
1399
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Molded Acoustical Products, Inc.,
Easton, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recognize Teamsters Local 773, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America as
the exclusive representative of all the employees in the
appropriate collective-bargaining unit consisting of all
full-time and regular part-time production and mainte-
nance employees at its Easton , Pennsylvania facility.
(b) Refusing to bargain in good faith with the Union as
the exclusive collective-bargaining representative of the
employees in the above-described unit.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately recognize that the Union is the exclu-
sive representative of all employees in the above-de-
scribed unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
(b) On written request from the Union, bargain in
good faith with the Union over the terms and conditions
of employment of the employees in the appropriate-de-
scribed bargaining unit and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(c) Post at its Easton, Pennsylvania place of business
copies of the attached notice marked "Appendix."2
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
i 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
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize Teamsters Local
773, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica as the exclusive representative of all employees in the
appropriate collective-bargaining unit consisting of all
full-time and regular part-time production and mainte-
nance employees at our Easton, Pennsylvania facility.
WE WILL NOT refuse to bargain in good faith with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the above-described unit.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL immediately recognize that the Union is the
exclusive representative of all our employees in the
above-described unit.
WE WILL on written request from the Union, bargain
in good faith with the Union over the terms and condi-
tions of the employment for our employees in the above-
described bargaining unit and, if an understanding is
reached , to embody such understanding in a signed
agreement.
MOLDED ACOUSTICAL PRODUCTS, INC.