National Upholstering Co.

National Labor Relations Board - Board Decisions

Jul 26, 1993

311 N.L.R.B. 1204 (N.L.R.B. 1993)

1204
311 NLRB No. 154
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On April 8, 1993, Administrative Law Judge Jerrold H. Shapiro
issued the attached decision. The Respondent filed exceptions, and
the General Counsel filed a request to strike from the exceptions cer-
tain documents attached thereto.
We grant the General Counsel’s unopposed request, as the at-
tached documents are not part of the record and the Respondent has
advanced no basis on which we should consider them in these pro-
ceedings.
1 In its answer to the complaint, Respondent admits it meets one
of the Board’s applicable discretionary jurisdictional standards and
is an employer engaged in commerce within the meaning of Sec.
2(6) and (7) of the Act, and that the Union is a labor organization
within the meaning of Sec. 2(5) of the Act.
2 Respondent’s unopposed motion to correct the transcript is grant-
ed.
3 Misspelled in the transcript as ‘‘Kramer.’’
National Upholstering Company and United Steel-
workers of America, AFL–CIO–CLC. Case 32–
CA–12665
July 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This case involves the issue of whether the Re-
spondent had sufficient objective considerations to sup-
port a good-faith doubt of the Union’s majority status,
thereby privileging its withdrawal of recognition.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, National Upholstering
Company, Emeryville, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Virginia L. Jordan, Esq., for the General Counsel.
Wesley Sizoo, Esq. (Moore, Sizoo & Nieman), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which I held a hearing on January 28, 1993,
is based on an unfair labor practice charge filed on August
3, 1992, by the United Steelworkers of America, AFL–CIO–
CLC (the Union), against National Upholstering Company
(the Respondent), and on a complaint issued on September
17, 1992, by the Regional Director for Region 32 of the Na-
tional Labor Relations Board (the Board), on behalf of the
Board’s General Counsel, alleging that Respondent violated
Section 8(a)(5) and (1) of the National Labor Relations Act
(the Act). More specifically, the complaint alleges the Union
is the exclusive collective-bargaining representative of an ap-
propriate unit of the Respondent’s employees and, in viola-
tion of Section 8(a)(5) and (1) of the Act, on or about July
8, 1992, Respondent withdrew recognition of the Union as
the exclusive bargaining representative of the unit employees
and since then has refused to recognize and bargain with the
Union as the exclusive bargaining representative of the unit
employees. Respondent filed a timely answer to the com-
plaint, denying the commission of the alleged unfair labor
practices.1
On the entire record,2 from my observation of the de-
meanor of the sole witness, Don Silva, and having consid-
ered the parties’ posthearing briefs, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
Respondent is a corporation with an office and place of
business located in Emeryville, California, where it manufac-
tures and sells upholstered furniture. Its president and chief
executive officer is Don Silva.
During the time material, the full-time and regular part-
time employees employed by Respondent at its Emeryville
facility, who perform the upholstery and other closely related
work on its furniture (the unit employees), were covered by
a collective-bargaining agreement between Respondent and
the Union’s upholstery division (the 1988–1991 agreement).
It was effective by its terms from September 16, 1988, until
September 16, 1991, with the proviso that after the agree-
ment’s termination date it would continue to remain in effect
during the period of negotiations for a new agreement, until
a new agreement was reached or until either party gave the
other party 10 days’ notice of cancellation.
The preamble of the 1988–1991 agreement stated the
agreement was entered into by and between the Respondent
and the Union’s upholstery division acting through its agent
Local No. 3-U. In this respect, the preamble read:
This Agreement entered into . . . by and between
llll, its successors or assigns, Party of the first
part, hereinafter designated as the ‘‘Employer,’’ and the
UPHOLSTERY DIVISION, UNITED STEEL-
WORKERS OF AMERICA, AFL–CIO, Party of the
second part, hereinafter designated as the ‘‘Union,’’
acting through its Agent, Local No. 3-U, for itself and
in behalf of the employees now employed and herein-
after employed by the Employer.
The signatory page of the 1988–1991 agreement shows
that the agreement was signed by President Silva, on Re-
spondent’s behalf, and by an official of the Union on behalf
of the Union’s upholstery division. It was also signed by Er-
nest J. Cranmer.3 A business representative of Local No. 3
U (Local 3). However, it is clear from the printed language
in the space provided for Cranmer’s signature that Local 3
was not a party to the 1988–1991 agreement, but that
Cranmer signed it in his capacity as a business representative
1205NATIONAL UPHOLSTERING CO.
4 There is no contention that Respondent’s unit employees were
part of a multiemployer bargaining unit. Rather, the complaint al-
leges and Respondent admits that the unit employees employed by
Respondent, who were covered by the 1988–1991 agreement, com-
prised an appropriate bargaining unit.
5 R. Exh. 5, the July 1, 1992 memo from the Union to Respond-
ent’s employees, states this merger occurred in 1985, however, it
was neither offered nor received into evidence for the truth of the
matters contained therein (Tr. 19).
of Local 3, acting as an agent of the Union’s upholstery divi-
sion. In this regard, the signatory page of the agreement read
as follows:
IN WITNESS HEREOF, the Parties herein, through their re-
spective officers or representatives, have set their
hands:
FOR THE UNION: FOR THE EMPLOYER:
UPHOLSTERY DIVISION Name of Firm llll
UNITED STEELWORKERS By: llll
OF AMERICA, AFL–CIO
through its Agent
LOCAL NO. 3-U
By: Ernest J. Cranmer
Business Representative
UPHOLSTERY DIVISION
UNITED STEELWORKERS
OF AMERICA, AFL–CIO
By: John H. Sevenlo
Duly Authorized Officer
President Silva, the only witness in this proceeding, testi-
fied Respondent negotiated the 1988–1991 agreement, as
well as the prior collective-bargaining agreements covering
the unit employees, as part of an informal multiemployer
group comprised of Respondent and several of the other em-
ployers in the area who manufacture custom upholstery fur-
niture.4 In this regard, Silva testified:
We [referring to the several employees] would get to-
gether out of convenience and sit down with the union
as a group, but not as a formal group. We would al-
ways announce that before we started the meetings, we
always announce in the beginning that we’re only doing
this informally, out of convenience to meet. Any shop
that wanted to come down and sit down and listen to
what their union had to say would do this. This was es-
tablished in the early 80’s with Gary Tutunjian [a busi-
ness representative of Local 3]. He thought out of con-
venience would be great if everybody came down to
hear the same story at the same time if they wanted to
and that’s the way we met during the 80’s pretty much.
Silva also testified that there was no spokesperson for the
employers during the negotiations, instead the various rep-
resentatives of the several employers, including Silva, would
take turns asking questions and when the employers offered
a contract proposal, they would have a representative of one
of the employer’s speak on their behalf, either Silva or a rep-
resentative from one of the other employers. The agreements
negotiated by Respondent and the other employers as the re-
sult of these multiemployer negotiations, while not exactly
identical, were fairly similar.
Silva testified that throughout the 1980s, the above-de-
scribed collective-bargaining negotiations, including the ne-
gotiations which resulted in the 1988–1991 agreement, were
between the representatives of the several employers, who
comprised the multiemployer group, and business representa-
tives employed by Local 3, and that no official of the Union
ever participated or was present at any of the negotiations.
When asked if he was ever ‘‘approached by the union [Local
3] to accept the Steelworkers as a party to the contract,’’
Silva testified:
I believe it was during the negotiations of 1985, there
was going to be a change in the pension plan, the Up-
holsterers were going to merge their pension with the
Steelworkers and as I remember it, not only myself but
other shops present were concerned about that and we
did not want anything to do with the Steelworkers, we
were dealing with the Upholsterers union since the turn
of the century . . . and then all of a sudden in 1985
there was going to be the merger of the pensions and
we were a little concerned. Our belief was that the
Steelworkers have their problems and we again wanted
to keep our own little industry contained within and we
were assured by the union [Local 3] and also a rep-
resentative from the Upholsterers’ Union from Philadel-
phia, that this would be the case. They would have
nothing to do with our negotiations or anything else.
This was again, something that was said to me and said
to several other of the shops in the 1985 contract.
However, when shown the language contained in the 1988–
1991 agreement, set forth supra, which shows Respondent
had recognized the Union’s upholstery division as the unit
employees’ collective-bargaining representative, Silva, who
signed that agreement on Respondent’s behalf, admitted he
had read that language before he signed it, but testified he
did not realize its significance.
There is no support for the General Counsel’s contention
that Respondent has recognized the Union as the representa-
tive of the unit employees since 1985. The only record evi-
dence which sheds light on when Respondent recognized the
Union, is the 1988–1991 agreement, which by virtue of its
terms, establishes that at least as of the date it signed that
agreement, Respondent had recognized the Union’s uphol-
stery division as the unit employees’ bargaining representa-
tive.
I also note that even though there are indications in the
record that at some time in the late 1980s, Local 3’s then
parent organization, the Upholsterer’s International Union,
merged with the Union and apparently became its upholstery
division, there is no evidence establishing when this occurred
or under what circumstances it occurred.5
As I have found supra, the 1988–1991 agreement was
scheduled to expire on September 16, 1991, as were the
Union’s agreements with the other employers in the industry,
whose employees it represented. In anticipation of this, Local
3’s business representative Cranmer, with an employee bar-
gaining committee, met at the same time with Respondent’s
president Silva and the representatives of the other employ-
ers, to negotiate successor agreements with them. The first
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The parties failed to include in this stipulation the name of the
union which Respondent named in its petition.
such negotiation meeting was held in August 1991, and at
least two more negotiation meetings were held prior to Octo-
ber 10, 1991, between Cranmer and the employee committee
with the employers, including Respondent. On October 10,
1991, after the parties had failed to reach agreement on the
terms of new agreements and after Local 3 had given the 10-
day’s notice required by the 1988–1991 agreement, Local 3
called a strike of the unit employees employed by Respond-
ent and three or four of the other employers involved in the
contract negotiations.
Local 3’s strike against Respondent, which was supported
by most of the Respondent’s unit employees, lasted from Oc-
tober 10 until November 18, 1991. On November 13, Local
3’s business representative Cranmer wrote Silva as follows:
‘‘The members of Local 3-U who work for [Respondent],
took a vote by secret ballot, and agreed to return to work on
Monday, October 18, 1991, and in good faith continue to
bargain until a settlement can be reached.’’
During the strike, on November 4, Cranmer and the em-
ployee negotiation committee held a negotiation meeting
with Respondent’s President Silva, and the representatives of
the other employers involved in the negotiations, but were
unable to reach agreement on the terms of successor agree-
ments. In confirming the scheduling of this meeting, Local
3’s attorney wrote Respondent’s attorney, that ‘‘[o]n behalf
of the United Steelworkers of America, Upholstery Division
Local No. 3, this letter will confirm our meeting currently
scheduled for.’’
The only negotiation meeting held following the strike oc-
curred on or about December 20, 1991, when Cranmer, with
an employee committee, met with Silva in Respondent’s of-
fice, in the presence of a Federal mediator, but once again
they were unable to reach agreement on the terms of a new
collective-bargaining agreement.
It is undisputed that no official of the Union attended any
of the above-described negotiation meetings held in 1991.
The sole union official at these meetings was Local 3’s busi-
ness representative Cranmer.
The parties stipulated that on or about December 30, 1991,
the Respondent filed a representation petition with the
Board’s Regional Office in Case 32–RM–680, questioning
the representative status of the union which represented its
unit employees,6 and also stipulated that this petition was
dismissed by the Board’s Regional Office in late January or
early February 1992, and the dismissal was appealed by Re-
spondent to the Board.
While the Respondent’s appeal of the dismissal was pend-
ing before the Board, on or about March 12, 1992, the
Union’s upholstery division distributed a memo to all of
Local 3’s members, including those employed by Respond-
ent, which was signed by the upholstery division’s director
and which read as follows:
As you are probably aware, Business Agent Ernest
Cranmer, as of December 31, 1991, no longer services
our members in Local 3-U. Due to the difficulties in
the Local, the International has placed Local 3-U under
Administratorship and has appointed STAFF REP-
RESENTATIVE RAYMOND VALDEZ as Adminis-
trator.
Realizing this situation is not a workable one for our
members, we are presently in discussions with USWA
District 39 which could result in our Local 3-U mem-
bers being serviced by Local 1304. However, until the
matter is totally resolved you may contact the following
for any problems you may have:
Mr. Raymond Valdez, Administrator
4850 East Gage Avenue
Bell, CA 90201
(213) 771–8875
Or, if you prefer, you may contact my office directly
for assistance.
Whatever decision is finally reached, please be as-
sured it will be one that is in the best interests of our
members in Local 3-U.
Thank you for your patience and cooperation.
On or about July 1, 1992, Wayne Clary, a staff representa-
tive of the Union, transmitted a memo to Respondent’s unit
employees, which read as follows:
SUBJECT: COLLECTIVE BARGAINING AGREEMENT
In 1985 the Upholsterer’s International Union
merged into the United Steelworkers of America. Since
1985 the Upholsterer’s have been a Division of the
United Steelworkers.
In April of this year it was decided that upholstery
division Local 3-U would be merged into United Steel-
workers Local Union 1304. There were numerous rea-
sons for this decision and it was made by our Inter-
national Executive Board in Pittsburgh, PA.
Now that USWA L.U. 1304 has taken over the run-
ning of your old Local Union, we are attempting to get
contracts signed with all of the employers.
As you may or may not know, your employer had
filed a petition with the National Labor Relations Board
requesting that your Union not be allowed to represent
you. This petition was turned down by the N.L.R.B.
and that decision is currently under appeal by the Com-
pany.
While the appeal process is taking its course the
N.L.R.B. has instructed us to continue to negotiate with
your employer for a new Contract. To that end the
Union has notified your employer that it wishes to ne-
gotiate a new contract on your behalf.
I realize that you have been through some unpleasant
and uncomfortable times within the last year but I
would like to put that behind us if we can. I can’t make
up for what has happened in the past but I can promise
you that USWA L.U. 1304 will do everything it can to
assure that you have a good, honest, and prompt rep-
resentation in the future.
You have worked to hard over the years for your va-
cation, health & welfare, pension, seniority, wages, etc.
to let them all slip away.
For more information call:
DON SANTOS, USWA L.U. 1–510–352–1304
WAYNE A. CLARY, USWA International—1–510–
798–7050
1207NATIONAL UPHOLSTERING CO.
On July 2, 1992, Clary wrote Respondent that ‘‘the United
Steelworkers of America, AFL–CIO–CLC, on behalf of its
members in Local Union 1304 (including members of the
former upholstery division Local 3-U) desires to negotiate
the terms and conditions of a new collective-bargaining
agreement,’’ and asked that Respondent meet with the Union
at an early date for the purpose of such negotiations and
warned if Respondent did not respond to the Union’s request
to bargain, it would ‘‘force the Union to conclude that the
Company has breached its obligation to bargain in good
faith.’’
On July 8, 1992, Respondent’s attorney Sizoo wrote Clary,
acknowledging receipt of Clary’s July 2 letter, and responded
to it by stating:
You are aware, or should be, that there is an appeal
pending before the National Labor Relations Board in
Washington dealing with this question of representation,
there having been a very substantial question whether
or not Upholsterers’ Union, or any successor, did in
fact represent a majority of the employees. It is the
view of the Employer that the Union does not represent
a majority of the employees and therefore, of course,
there is no obligation placed upon the Company to bar-
gain with you. We assume in due course to receive a
decision from the National Labor Relations Board and
will be guided by any decision of the Board which is
relevant to this question.
Clary responded to Attorney Sizoo’s July 8 letter, by his
letter to Sizoo of July 13, 1992, stating he disagreed with
Respondent’s position, explained his reasons for disagreeing,
and repeated his prior demand that Respondent meet with the
Union for the purpose of negotiating a new collective-bar-
gaining agreement and warned if Respondent decided not to
bargain with the Union that the Union intended to ‘‘act ac-
cordingly.’’
Respondent did not respond to Clary’s July 13 letter, so
the Union on August 3, 1992, filed the unfair labor practice
in this case.
The parties stipulated that the Board on September 16,
1992, acted upon Respondent’s appeal of the dismissal of its
petition in Case 32–RM–680, and affirmed the Regional Di-
rector’s dismissal, ‘‘relying solely on the fact that the [Re-
spondent] has not established sufficient objective consider-
ations to warrant processing the RM petition.’’
On September 17, 1992, the complaint issued in this case.
As I have found supra, the unit employees employed by
Respondent struck in support of Local 3’s bargaining posi-
tion from October 10, 1991, until November 18, 1991. The
majority of the unit employees initially honored the picket
line which was maintained at the Respondent’s facility for
the duration of the strike.
When asked to give the total number of unit employees
employed by Respondent on the day before the strike, Silva
testified, ‘‘I can’t be perfectly accurate, but I would guess
around 30 to 32 people.’’ Silva further testified that as of the
date of the hearing in this case, January 28, 1993, Respond-
ent employed ‘‘approximately’’ the same number of unit em-
ployees that had been employed immediately prior to the
strike. No evidence was produced which would show the
number of unit employees employed by Respondent imme-
diately after the strike had ended or on December 30, 1991,
when Respondent filed the petition in Case 32–RM–680, or
during July 1992, when Respondent refused to honor the
Union’s request that it resume collective-bargaining negotia-
tions with the Union for a new agreement.
Silva testified that during the strike Respondent hired ‘‘ap-
proximately’’ 12 to 14 striker replacements, but testified that
this figure was an approximation inasmuch as it could have
been 10 to 12 or 14 to 16. No evidence was presented to
show whether these replacements were hired with the intent
that they be permanent, rather than temporary.
Silva also testified, ‘‘somewhere around a dozen [strikers
returned to work through the picket line] during the course
of the strike,’’ but admitted that since this was only an ap-
proximation there might have been one or two less than this.
In addition, he testified that during the strike between four
or five supervisors, who were covered by the 1988–1991
agreement, crossed the picket line to return to work.
No evidence was presented to establish whether some or
all of the unit employees who crossed the picket line to work
during the strike (striker replacements, nonstrikers, and strik-
ers who returned to work before the strike ended) remained
in Respondent’s employ as of December 30, 1991, when Re-
spondent filed its petition in Case 32–RM–680, or as of July
1992, when Respondent refused to honor the Union’s request
to negotiate a new collective-bargaining agreement. Respond-
ent presented no evidence whatsoever concerning the number
of unit employees employed on those dates or of the com-
position of the unit on those dates.
As I have found supra, Local 3’s business representative
Cranmer notified Respondent that the strike had ended,
when, on November 13, 1991, he wrote President Silva that
the striking unit employees had voted to return to work on
Monday, November 18, 1991, and to continue to negotiate
a new agreement with Respondent until a settlement was
reached.
On November 14, the day after Cranmer sent the above
letter, Silva testified that the approximately 15 striking em-
ployees who had been picketing Respondent’s facility en-
tered the facility, as a group, and told Silva they wanted to
return to work, but were worried about being prosecuted and
about their health and welfare insurance coverage. Silva testi-
fied he responded by stating, ‘‘This thing had gone on too
long. . . . If you guys come back to work, I’m going to try
my hardest to forget what happened yesterday, I expect you
to do the same,’’ and told them, ‘‘We have some new people
out in the factory, we have some people that you’ve worked
with before that are out in the factory, and when you come
back to work, I just want everybody to get in there and just
do their work . . . just forget the feelings.’’ Silva also testi-
fied he told them Respondent had no agreement with the
Union but would provide them with the same health and wel-
fare package as it provided to its nonunit office employees
and that while there was no agreement with the Union, if the
returning strikers wanted to belong to the Union they could
do whatever they wanted to do and declared, ‘‘If you want
to come back to work, let’s just go to work guys and get
back to it.’’ The group of strikers replied they wanted to re-
turn to work, but would not do so until Monday, November
18, because they wanted to take Friday, November 15 off
from work, in order to celebrate their return to work.
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 As the exclusive bargaining representative of a unit of Respond-
ent’s employees, the Union’s upholstery division was privileged
under the Act to designate Local 3 to act as its agent for the pur-
poses of administering the 1988–1991 agreement and to negotiate a
successor agreement on behalf of the Union’s upholstery division.
For, it is settled that a union which is recognized by an employer
as the exclusive bargaining representative of the employer’s employ-
ees, may designate whomever it wants, including officers and mem-
bers of other unions, including affiliated local unions, as its rep-
resentatives in dealing with the employer. Whisper Soft Mills v.
NLRB, 754 F.2d 1381, 1386 (9th Cir. 1984); General Electric Co.
v. NLRB, 412 F.2d 512, 516–517 (2d Cir. 1969).
As indicated supra, Silva on November 14 indicated to the
15 strikers, when they told him they wanted to return to
work, that they all could return to work immediately and that
they indicated they would do so. Silva further testified, that
in fact the 15 strikers returned to work on Monday, Novem-
ber 18, 1991 (Tr. p. 69, LL. 16–18). Silva also testified that
while he did not refuse to reinstate any of the strikers who
offered to return to work during the strike, he was unable to
take all of them and that not all of them have returned to
work since the end of the strike, but testified ‘‘at least half
of them did, I believe.’’
Silva testified that during his November 14 meeting with
the group of strikers there was no discussion about why a
representative of the Union was not present with them when
they entered Respondent’s facility and spoke to Silva. Then,
when asked if he discussed with the group of strikers wheth-
er or not they would have to be union members if they re-
turned to work, Silva testified:
I think somebody did ask me that question . . . and I
said no, if you want to belong to the union, you can
belong to the union or any other organization you want
to belong to. It doesn’t make any difference to
me. . . . I just want you guys to come back to work,
the doors are open for you and your jobs are there.
B. Discussion and Conclusions
The complaint alleges that on July 8, 1992, in violation of
Section 8(a)(5) and (1) of the Act, Respondent withdrew rec-
ognition of the Union as the exclusive representative of Re-
spondent’s unit employees and since that date has failed and
refused to recognize and bargain with the Union as the ex-
clusive bargaining representative of the unit employees. Re-
spondent admits it engaged in the conduct alleged in the
complaint and defends its conduct on the ground it was not
legally obligated to continue to recognize and bargain with
the Union, because Respondent had a good-faith belief, based
on objective considerations, that a majority of the unit em-
ployees did not want the Union to be their exclusive bar-
gaining representative.
In view of the complaint’s unfair labor practice allegations
and the Respondent’s defense, the governing legal principles
may be briefly summarized, as follows.
A union which has been voluntarily recognized by an em-
ployer is entitled to a continued presumption of majority sta-
tus. Absent extraordinary circumstances, not present in this
case, this presumption is irrebuttable for a reasonable period
of time following formal voluntary recognition, and con-
tinues during the term of any collective-bargaining agree-
ment. NLRB v. Iron Workers Local 103 (Higdon Con-
tracting), 434 U.S. 335, 348 fn. 8 (1978). Once a collective-
bargaining agreement expires, presumption of majority status
continues, but becomes rebuttable. NLRB v. Imperial House
Condominium, 831 F.2d 999, 1007 (11th Cir. 1987).
An employer can rebut the presumption and lawfully with-
draw recognition only by demonstrating that, on the date rec-
ognition was withdrawn, (1) the union in fact had lost the
support of a majority of the bargaining unit employees, or
(2) that the employer had a good-faith doubt, based on objec-
tive considerations, of the continued existence of the majority
support for the union. NLRB v. Curtin Matheson Scientific,
494 U.S. 775, 787 (1990).
Where, as here, a good-faith doubt of the Union’s majority
status is advanced as a justification for the withdrawal of rec-
ognition, the reasonableness of the asserted doubt is a factual
issue, and the employer has the burden of establishing the
objective basis of its doubt by a preponderance of the evi-
dence. Laidlaw Waste Systems, 307 NLRB 1211 (1992). It
is also settled that ‘‘the Board will not find that an employer
has supported its defense by a preponderance of the evidence
if the employee statements and conduct relied on are not
clear and cogent rejections of the union as a bargaining
agent, i.e., are simply not convincing manifestations, taken as
a whole, of a loss of majority support.’’ Id. at 1211, 1212.
Employee conduct offered to establish a reasonable doubt of
the union’s majority status ‘‘‘must demonstrate a clear inten-
tion by the employees not to be represented by the Union.’’’
AMBAC International, 299 NLRB 505, 506 (1990), quoting
Royal Midtown Chrysler Plymouth, 296 NLRB 1039, 1041
(1989). In other words, the asserted doubt ‘‘must be reason-
ably grounded and supported by objective considerations and
may not depend solely upon unfounded speculation or a sub-
jective state of mind.’’ Bickerstaff Clay Products Co. v.
NLRB, 871 F.2d 980, 985 (11th Cir. 1989), and cases cited.
In support of the complaint’s allegations that Respondent
violated the Act by refusing to recognize and bargain with
the Union as the exclusive bargaining representative of the
Respondent’s unit employees, the General Counsel relies
upon the following undisputed evidence, which has been pre-
viously set forth in detail: Respondent’s unit employees’
terms and conditions of employment were governed by the
1988–1991 agreement between Respondent and the Union’s
upholstery division, which was scheduled to expire on Sep-
tember 16, 1991; the 1988–1991 agreement, by its preamble
and the manner in which it was signed establishes that the
agreement was by and between the Respondent and the
Union’s upholstery division and that, by at least the date Re-
spondent signed the agreement in 1988, Respondent had rec-
ognized the Union’s upholstery division as the exclusive bar-
gaining representative of the unit employees and had ac-
knowledged that Local 3 would be acting as the agent of the
Union’s upholstery division for collective-bargaining pur-
poses;7 the negotiators of Respondent and Local 3, the agent
of the Union’s upholstery division, were unable to reach
agreement on the terms of a successor agreement to the
1988–1991 agreement and, when, after a hiatus in the nego-
tiations, the Union, on July 2, 1992, wrote to Respondent
that it wanted to resume the negotiations for a successor col-
lective-bargaining agreement, Respondent, by its attorney’s
letter to the Union of July 8, 1992, refused to resume the
contract negotiations, explaining to the Union that ‘‘[i]t is the
view of the Employer that the Union does not represent a
1209NATIONAL UPHOLSTERING CO.
8 See H. B. Design & Mfg., 299 NLRB 73, 74 (1990); see also
May Department Stores v. NLRB, 897 F.2d 221, 228 (7th Cir. 1990);
News Sentinel Co. v. NLRB, 890 F.2d 430, 432–433 (D.C. Cir.
1989).
majority of the employees and therefore, of course, there is
no obligation placed upon the Company to bargain with
you.’’
Based on the foregoing undisputed evidence and guided by
the legal principles previously set forth, I find that having
recognized the Union’s upholstery division as the exclusive
bargaining representative of the unit employees and having
entered into the 1988–1991 agreement with that union cov-
ering those employees, that when the agreement expired Re-
spondent was obligated under Section 8(a)(5) of the Act to
continue to recognize and bargain with the Union’s uphol-
stery division, or designated agent, for a successor agree-
ment, unless Respondent is able to demonstrate by a prepon-
derance of the evidence that when, on July 8, it withdrew
recognition and refused to resume bargaining for a successor
agreement with the Union, that it had a good-faith doubt
based on objective considerations, of the Union’s majority
status.
I have considered it was the Union’s upholstery division
that Respondent had recognized as the unit employees’ ex-
clusive bargaining representative and, as alleged in the com-
plaint, it was the Union, not the Union’s upholstery division,
which, on July 2, 1992, asked Respondent to resume contract
negotiations, and it was Respondent’s July 8, 1992 refusal to
bargain with the Union, rather than with the Union’s uphol-
stery division, which is alleged as a violation of the Act
herein. However, Respondent did not refuse to bargain with
the Union because it believed the Union was a different labor
organization than the Union’s upholstery division. For, when,
on July 8, 1992, Respondent rejected the Union’s July 2 re-
quest that Respondent resume contract negotiations and
when, at the start of the hearing in this case and in its
posthearing brief, Respondent set forth its reasons for reject-
ing the Union’s July 2 bargaining request, the sole reason ad-
vanced by Respondent was it was not obligated to resume
bargaining with the Union because Respondent had a good-
faith doubt of the Union’s majority status. Respondent has
never, to the Union or as a defense in this proceeding, taken
the position it was not obligated to resume contract negotia-
tions with the Union because the Union’s upholstery divi-
sion, not the Union, was the unit employees’ bargaining rep-
resentative or because the Union was a different labor orga-
nization than the Union’s upholstery division. In view of this,
and since the law is settled that the burden of proving a
change in a union’s identity rests with the employer who re-
fuses to recognize and bargain with what appears to be a
successor union,8 I find that by not litigating, nor even rais-
ing such a defense, Respondent has waived this defense and
is estopped from now asserting that the Union is a different
labor organization than its upholstery division. Mutual Coal
Co., 151 NLRB 564, 567 (1970); Argus Optics, 210 NLRB
923, 924 (1974). I also find that under the circumstances of
this case, by refusing to resume bargaining with the Union
on July 8, 1992, for a successor agreement to the 1988–1991
agreement, that Respondent refused to bargain within the
meaning of Section 8(a)(5) of the Act, absent a showing that
as of that date Respondent had a good-faith doubt, based on
objective considerations, of the Union’s majority status.
In its July 8 letter to the Union, in which it refused to re-
sume bargaining with the Union over the terms of a new
agreement, because it stated it doubted the Union’s majority
status, Respondent did not explain to the Union the basis for
its alleged doubt of the Union’s majority status. Nor did Re-
spondent’s sole witness in this proceeding, its president and
chief executive officer Silva, who was in charge of Respond-
ent’s labor relations, explain the basis for Respondent’s al-
leged doubt of the Union’s majority status, when he testified.
However, in Respondent’s posthearing brief, in support of
Respondent’s contention that it was privileged to refuse to
bargain with the Union because of a good-faith belief that
the Union lacked majority status, Respondent’s attorney lists
the following factors: the Union’s March 12, 1992 memo to
Local 3’s members, and its July 1, 1992 memo to the Re-
spondent’s unit employees indicating Local 3 had been
placed under an administrator and replaced as the Union’s
agent by Local 1304, and prior to the Union’s July 2 bar-
gaining request the Union had not contacted the Respondent
for a period of approximately 6 months; when the strike
against Respondent ended on November 18, 1991, the major-
ity of the unit employees were striker replacements and strik-
ers who had come to work during the strike through the
picket line; the strike ended, when on November 14, 1991,
15 of the strikers entered Respondent’s facility, without their
Union’s business representative, and spoke to Respondent’s
President Silva and offered to return to work; when Respond-
ent withdrew recognition from the Union, its negotiations
with the Union had reached an impasse; and, during the term
of the 1988–1991 agreement the total number of unit em-
ployees decreased from approximately 55 to approximately
30 or 32 because of layoffs due to a lack of work. My eval-
uation of these factors—concerning whether they singly or
collectively constituted objective considerations—follows.
The Union fails to communicate with the Respondent
for approximately 6 months and during this period in-
forms the unit employees it has placed Local 3 under
an administrator and replaced it with Local 1304
The failure of the Union to contact Respondent for ap-
proximately 6 months is not the kind of conduct which was
reasonably calculated to lead Respondent to believe that a
majority of the unit employees no longer desired union rep-
resentation. It is significant that Respondent’s president Silva
failed to testify Respondent’s belief that the Union did not
represent a majority of the unit employees was based, in
whole or in part, upon this factor. This is not surprising, be-
cause the Union’s delay of approximately 6 months in re-
questing a resumption of the parties’ contract negotiations is
readily understandable in view of the fact that shortly after
the December 20, 1991 negotiation session, Respondent, by
virtue of the representation petition it filed in Case 32–RM–
680 questioning the Union’s representative status, gave the
Union and the employees reason to believe that such a bar-
gaining request would have been futile until the matter of the
representation petition was finally resolved by the Board.
Moreover, when an employer alleges a union’s inactivity as
a basis for a good-faith doubt of its majority status, ‘‘[t]he
relevant factual support . . . is inaction between the employ-
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 As noted supra, ‘‘[t]he relevant date to look to in determining
the bona fides of the employer’s doubt is the date that recognition
is withdrawn.’’ Bickerstaff Clay Products Co., supra at 985, and
Orion Corp., 210 NLRB 633, 634 (1974).
ees and the Union.’’ NLRB v. Flex Plastics, 726 F.2d 272,
275 (6th Cir. 1984). Here, as in Flex Plastics, ‘‘the Company
[presented] no evidence that the Union-employee relationship
was not an active one, only that the Union-management rela-
tionship was inactive’’ for a period of approximately 6
months. Id. Quite the opposite, the record reveals that during
this 6-month period, although Local 3, the Union’s des-
ignated agent, had apparently been placed under an
‘‘administratorship’’ by the Union, the Union had notified all
of the unit employees that the Union was in the process of
arranging for them to be serviced by representatives from
Local 1304 and that until this was arranged that the unit em-
ployees, who needed immediate representation, should con-
tact Local 3’s administrator, whose address and phone num-
ber was made available to them by the Union. And, imme-
diately prior to its July 2, 1992 bargaining request, the Union
notified the unit employees that Local 1304 had in fact suc-
ceeded to the duties of Local 3 in representing the unit em-
ployees, and that Local 1304 would do all it could do to as-
sure the unit employees of effective representation and that
the Union intended to resume negotiations for a new collec-
tive-bargaining agreement.
Lastly, in evaluating Respondent’s contention that the
Union’s failure to contact Respondent between December 20,
1991, and July 2, 1992, gave Respondent reason to believe
that a majority of the unit employees no longer desired union
representation, I find it is significant that Respondent failed
to present evidence of employees’ statements or other em-
ployee conduct, during this 6-month period, which would
have led Respondent to believe that a majority of the unit
employees were dissatisfied with their representation by the
Union and/or no longer desired union representation.
The employment of striker replacements and the aban-
donment of the strike by strikers
It is the Board’s position—approved by the Supreme
Court—not to presume that striker replacements repudiate a
union as their collective-bargaining representative. Rather,
when evaluating an employer’s good-faith doubt based on
such employee turnover, the Board will ‘‘review the facts of
each case’’ and ‘‘require further evidence of union non-sup-
port before concluding that an employer’s claim of good
faith doubt or the union’s majority is sufficient to rebut the
overall presumption of continuing majority status.’’ Station
KKHI, 284 NLRB 1339, 1344–1345 (1987), enfd. 891 F.2d
230 (9th Cir. 1989); Curtin Matheson Scientific, supra at
784, 788–796. It is also settled that the refusal of an em-
ployee to join a strike or the action of an employee in return-
ing to work during a strike, does not by itself provide a rea-
sonable basis for presuming that he or she has repudiated the
union as bargaining representative, because it may mean no
more than the employee was forced to work for economic
reasons or, that he or she did not approve of the strike in
question, but still desired union representation. Bickerstaff
Clay Products Co. v. NLRB, 871 F.2d 980, 988 (11th Cir.
1989).
In this case, other than establish that the striker replace-
ments and the strikers who abandoned the strike crossed the
picket line to come to work, Respondent presented no evi-
dence that these employees or the Union engaged in conduct
which would have led Respondent to believe that the striker
replacements and/or the employees who abandoned the strike
were opposed to union representation. There is no evidence
that the replacements or the employees who abandoned the
strike were exposed to threats or violence, when crossing the
picket line, or that even one striker replacement or employee
who abandoned the strike ever expressly or implicitly stated
to Respondent that they were opposed to union representa-
tion. Under these circumstances, Respondent had no basis
whatsoever to believe that by merely crossing the picket line
that the striker replacements and the employees who aban-
doned the strike did not want the Union to represent them.
Also relevant in evaluating Respondent’s contention that
its doubt of the Union’s majority status was based in part
upon the number of striker replacements and employees who
abandoned the strike, is that there is no evidence that during
the relevant period of time, that these employees constituted
a majority of the bargaining unit employees. Under Section
2(3) of the Act, striking employees retain their employee sta-
tus, thus the bargaining unit for the purpose of determining
the Union’s majority status in a case where the employer has
hired striker replacements consists of the total number of
nonstrikers, strikers, returning strikers, and striker replace-
ments employed at the time of the refusal to bargain. C. H.
Guenther & Son, Inc. v. NLRB, 427 F.2d 983, 986–987 (5th
Cir. 1970); Whisper Soft Mills v. NLRB, 754 F.2d 1381, 1387
(9th Cir. 1978). Here, however, no evidence was presented
to establish whether some or all of the unit employees who
crossed the picket line during the strike to work (nonstrikers,
striker replacements, or strikers who returned to work during
the strike) remained in Respondent’s employ as of December
30, 1991, when Respondent by virtue of its representation
petition filed in Case 32–RM–680 first questioned the
Union’s representative status, or, on July 8, 1992, when Re-
spondent for the first time expressly refused to bargain with
the Union. In fact, Respondent presented no evidence what-
soever concerning the number of unit employees employed
as of December 30, 1991, or on July 8, 1992, or of the com-
position of the unit on those dates, i.e., employees hired
since the strike, the strikers who returned at the end of the
strike and since the strike, and employees who crossed the
picket line to work during the strike. Having failed to estab-
lish that the employees who crossed the picket line during
the strike (striker replacements, employees who did not
strike, and those who abandoned the strike) constituted a ma-
jority of the unit employees as of the date it refused to bar-
gain with the Union, Respondent is in no position to success-
fully contend that it was privileged to refuse to bargain with
the Union because these employees constituted a majority of
the unit employees as of the date when it refused to bargain
with the Union.9
The strikers end the strike by going to President silva,
without their union business representative, and offering
to return to work
The fact that on November 14, 1991, at the end of the
strike, 15 of the strikers went to President Silva without their
union business representative, and offered to return to work,
1211NATIONAL UPHOLSTERING CO.
10 There is no showing that there was in fact an impasse in the
parties’ contract negotiations during the relevant period of time; this
issue was not litigated.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
was not the type of conduct reasonably calculated to lead
Silva to believe that these strikers no longer desired union
representation. I note Silva did not testify this was a factor
which Respondent relied on when, several months later, it re-
fused to bargain with the Union because of its alleged lack
of majority status. This is not surprising because, as de-
scribed in detail previously, it is undisputed that during their
November 14 meeting with Silva, not one of the 15 strikers
indicated to him, expressly or by implication, that he or she
no longer wanted union representation. Moreover, shortly
after his November 14 meeting with the strikers, Silva re-
ceived Business Representative Cranmer’s November 13,
1991 letter which notified Silva that the Union had ended the
strike against Respondent, that the strikers had voted to re-
turn to work and to continue contract negotiations with Re-
spondent, and that the strikers would return to work on No-
vember 18. Clearly, if Silva on November 14 had speculated
that the strikers had decided to end the strike without the
Union’s knowledge or support, Cranmer’s November 13 let-
ter disabused him of that erroneous conclusion. Under the
circumstances, the fact that the strikers ended the strike by
coming to Silva without their business representative was not
reasonably calculated to lead Silva to believe that by engag-
ing in that conduct they were repudiating the Union as their
bargaining representative, rather than merely ending the
strike because of financial reasons.
The impasse in bargaining and the reduction in the size
of the bargaining unit
Respondent’s contention that an impasse in the parties’
contract negotiations10 and a reduction in the size of the bar-
gaining unit during the 1988–1991 agreement from approxi-
mately 55 to approximately 32 employees, supports its con-
tention that it was privileged to refuse to bargain with the
Union because it believed a majority of the unit employees
had repudiated the Union as their bargaining representative,
is too frivolous to warrant extended discussion. Respondent
cites no authority for this novel contention and there is no
readily apparent reason why the fact of a bargaining impasse
and/or a reduction in the size of the bargaining unit should
have led Respondent to reasonably believe that a majority of
the unit employees no longer desired union representation.
Also, Respondent failed to explain why the alleged bar-
gaining impasse and/or the reduction in size of the unit
caused it to believe that a majority of the unit employees no
longer desired union representation. Moreover, President
Silva did not testify that these were factors relied upon by
Respondent for doubting the Union’s majority status.
Conclusion
The factors relied upon by Respondent, whether consid-
ered individually or collectively, do not constitute sufficient
objective considerations to warrant a good-faith doubt of the
Union’s continued majority status. Not even one of the fac-
tors relied upon by Respondent shows a significant or sub-
stantial decline in Union support within the bargaining unit
or constitutes a reliable or persuasive indicator of employee
sentiment. Thus, Respondent has not met its burden of show-
ing by a preponderance of the evidence that its withdrawal
of recognition of, and refusal to bargain with, the Union, was
based on objective evidence sufficient to establish a good-
faith belief of a lack of majority support, therefore, the Re-
spondent’s July 8, 1992 withdrawal of recognition, and its
refusal to bargain with the Union since that date, violated
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time production employ-
ees employed at Respondent’s Emeryville, California facility
in the classifications of upholsterer, upholsterer cutter, uphol-
sterer estimator, outside, springer, cushion marker, upholstery
seamstress-cutter combination, slipcover cutter, fitter and
seamstress combination, quilter and upholstery seamstress;
excluding all other employees, office clerical employees,
guards and supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times material the Union has been the exclusive
collective-bargaining representative within the meaning of
Section 9(a) of the Act for all the Respondent’s employees
employed in the unit described above.
5. By withdrawing recognition from the Union and there-
after refusing to recognize and bargain with the Union as the
exclusive representative of the unit employees, the Respond-
ent engaged in and is engaging in unfair labor practices with-
in the meaning of Section 8(a)(5) and (1) of the Act.
6. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, National Upholstering Company,
Emeryville, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union as the
exclusive representative of the employees in the following
appropriate bargaining unit:
All full-time and regular part-time production employ-
ees employed at Respondent’s Emeryville, California
facility in the classifications of upholsterer, upholsterer
cutter, upholsterer estimator, outsider, springer, cushion
marker, upholstery seamstress-cutter combination,
slipcover cutter, fitter and seamstress combination,
quilter, and upholstery seamstress; excluding all other
employees, office clerical employees, guards and super-
visors as defined in the Act.
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 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
National 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.’’
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, recognize and bargain with the Union as
the exclusive representative of the employees in the above-
described unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement.
(b) Post at its Emeryville, California facility copies of the
attached notice marked ‘‘Appendix.’’12 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt 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
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other materials.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with the
United Steelworkers of America, AFL–CIO–CLC as the ex-
clusive representative of our employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
above-named union, as the exclusive representative of all
employees in the unit described below, with respect to rates
of pay, wages, hours of employment, or other terms and con-
ditions of employment and, if any understanding is reached,
embody such understanding in a signed agreement:
All full-time and regular part-time production employ-
ees employed at our Emeryville, California facility in
the classifications upholsterer, upholsterer cutter, uphol-
sterer estimator, outsider, springer, cushion marker, up-
holstery seamstress-cutter combination, slipcover cutter,
fitter and seamstress combination, quilter, and uphol-
stery seamstress; excluding all other employees, office
clerical employees, guards and supervisors as defined in
the National Labor Relations Act.
NATIONAL UPHOLSTERY COMPANY