Naylor, Type & Mats

National Labor Relations Board - Board Decisions

Oct 26, 1977

233 N.L.R.B. 105 (N.L.R.B. 1977)

NAYLOR, TYPE & MATS
Houston Shopping News Co., d/b/a Naylor, Type &
Mats and Houston Typographical Union No. 87,
a/w International Typographical Union, AFL-
CIO. Case 23-CA-6146
October 26, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On April 12, 1977, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
I In his Decision, the Administrative Law Judge states that employee
Marilyn Joiner told Elizabeth Nalle, Respondent's president, that she and
other employees had taken a head count and their figures showed "16
employees who were members of the Union and II who were not." The
Administrative Law Judge, however, reversed the relevant figures. as record
evidence establishes Joiner told Nalle that the head count revealed that 11
employees were members of the Union and 16 were not.
2 In her dissent in Houston Shopping News Co., d/b/a Naylor, Type &
Mats, 223 NLRB 1133. 1135-36(1976). Member Murphy disagreed with the
majority's finding therein that Respondent violated Sec. 8(aXS) and (I) by
failing to notify the Union of its intent to lease its hot type department to its
employees. Accordingly, in her view there is no unfair labor practice,
unremedied or otherwise, which would preclude Respondent in this
proceeding from raising the issue of the Union's lack of majority status. But
even assuming, arguendo, that Respondent violated Sec. 8(aXS) and (I) as
found in the prior proceeding involving Respondent, Member Murphy
agrees with the Administrative Law Judge that Respondent is not precluded
under the facts in this case from questioning the Union's majority status.
The obvious reason for this is that the Board's unremedied Order in the
prior proceeding is extremely narrow in scope and "would not be apt to
have detrimental or lasting effects upon employees in the unit." Taft
Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801 (1973).
DECISION
STATEMENT OF THE CASE
HENRY L. JALETrE, Administrative Law Judge: This case
involves a withdrawal of recognition from an incumbent
union because of an asserted good-faith doubt of majority.
The proceeding was initiated by a charge filed by the
above-named Union on July 23, 1976,1 pursuant to which
complaint issued on August 18, alleging that the above-
named Respondent had violated Section 8(aX)(l) and (5) of
the Act. On October 12, hearing was held in Houston,
Texas.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs filed by the
parties, I hereby make the following:
FINDINGS OF FACT
I. THE FACTS
Respondent has its place of business in Houston, Texas,
where it is engaged in custom typesetting and camera work,
using both a hot type and coldtype method of production.2
Since the fifties Respondent and the Union have been
parties to successive collective-bargaining agreements, the
last of which expired August 31, 1974. At the time of
expiration the Union and Respondent were engaged in
negotiations for a new contract.
In the fall of 1974, work began to fall off in the hot type
department and by February 1975, the problem of lack of
work in that department had become acute. On or about
February 27, 1975, Respondent offered to lease the hot
type department to its employees. The employees rejected
the offer. Respondent had not given the Union prior
notification of its offer to the employees and, on March 3,
1975, it did so. On March 4, 1975, the hot type employees
were notified that effective March 5, 1975, their depart-
ment would be reduced to three individuals. As a result,
five employees were laid off.
Respondent's conduct was made the subject of an unfair
labor practice charge filed by the Union on March 5, 1975,
pursuant to which complaint issued alleging that Respon-
dent had violated Section 8(a)(1), (3), and (5) of the Act.
Hearing was held on July 23, 1975, before Administrative
Law Judge Benjamin K. Blackburn. On September 23,
1975, Administrative Law Judge Blackburn issued his
decision in which he found that Respondent had not
violated the Act and he dismissed the complaint. On April
29, 1976, the Board issued its Decision and Order in which
t Unless otherwise indicated all dates are in 1976.
2 Jurisdiction is not in issue. Respondent admits it meets the Board's
indirect outflow standard for the assertion ofjurisdiction.
233 NLRB No. 24
105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it agreed with his finding that the layoff of five employees
was motivated by purely economic considerations and was
therefore not violative of Section 8(a)(3) and (1) of the Act.
However, the Board disagreed with Administrative Law
Judge Blackburn's finding that Respondent had not
violated Section 8 (a)(5) and (1) of the Act. The Board
found that Respondent's failure to notify the Union of its
offer to lease the hot type department to employees was
conduct violative of Section 8(a)(5) and (1) of the Act.3
Until on or about July 23, 1975, the parties had been
engaged in negotiations. On or about September 25, 1975,
the Union requested a meeting for the purpose of
negotiating. On September 26, Respondent declined to
meet on the ground that it entertained a good-faith doubt
as to the Union's majority status.
For reasons not indicated in the record, but one might
assume because of the pendency of exceptions to Adminis-
trative Law Judge Blackburn's decision in the above-
described case, the Union did nothing about Respondent's
refusal to meet until April 7, 1976, when it filed an 8(a)(1)
and (5) charge in Case 23-CA-6016. Thereafter, on April
28, the Regional Director for Region 23 advised Respon-
dent that the charge had been withdrawn and nothing
further transpired until June 4, when the Union again
requested negotiations. Respondent did not reply to the
Union's request and the instant proceeding was initiated
shortly thereafter.
II. ANALYSIS AND CONCLUSIONS
The complaint alleges that from on or about June 4,
Respondent has refused to meet and bargain with the
Union. It is clear that Respondent has refused to meet and
negotiate (its failure to reply to the Union's June 4 request
is, in effect, a refusal) and the only question is whether it
was legally justified in doing so.
Respondent asserts that it was justified in refusing to
bargain because it entertained a good-faith doubt of the
Union's majority status. There is no evidence in this case
that the Union enjoyed majority status at the time of
Respondent's refusal to bargain, but that is not dispositive
of the case, because the Union enjoyed a presumption of
majority by virtue of its incumbent status, including its
having been party to a collective-bargaining agreement
until August 31, 1974.
This proceeding was initiated by a charge filed on July
23, 1976, almost 2 years after the expiration of the contract,
and one might well ask how long after its expiration did the
presumption continue. The question requires answer
because Respondent asserts that the complaint is barred by
Section 10(b) of the Act.4 As noted above, Respondent first
refused to bargain with the Union on September 26, 1975,
and no timely charge was filed with respect thereto; rather,
a charge was filed on July 23, 1976, predicated on a
demand to bargain on June 4, 1976.
Despite this chronology, and whatever might be dictated
under other circumstances, it is clear in the circumstances
3 Houston Shopping News Co., d/b/a Naylor Type & Mats, 223 NLRB
1133 (1976).
4 Sec. 10(b) provides, in pertinent part.
That no complaint shall issue based upon any unfair labor
herein that the Union at all times relevant, including June
4, 1976, enjoyed a presumption of majority status and that
unless Respondent could overcome that presumption it
was required to bargain with the Union, on request, in June
1976. Accordingly, the complaint is not time barred. The
circumstances which dictate this conclusion is the fact that
at all the times in question, since March 5, 1975, there has
been pending before the Board an allegation that Respon-
dent had violated Section 8(a)(5) and (I) of the Act in
February 1975, an issue not resolved until April 29, 1976,
and then resolved in the Union's favor.
Respondent's refusal to bargain poses two issues: (1)
could Respondent raise the issue of the Union's majority
status in the face of an unremedied unfair labor practice,
and (2) were there objective considerations to support its
assertion of good-faith doubt.
As to the first issue, General Counsel asserts that "Prior
unremedied unfair labor practices preclude an employer
from questioning the majority status of the union." This
quoted language taken from King Radio Corporation, 208
NLRB 578, 583 (1974), is only partly correct. It is modified
by the sentence following it that "As stated in Taft,
however, the nature of the unremedied violation is a factor
to be considered." The reference made was to Taft
Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801 (1973),
wherein the Board agreed with the Administrative Law
Judge that Respondent was not foreclosed from challeng-
ing the majority status of the Union solely on the basis of
Respondent's unremedied unfair labor practice. As the
Administrative Law Judge there noted and the Board
agreed, the Board's unremedied Order was extremely
narrow in scope and "would not be apt to have detrimental
or lasting effects upon employees in the unit." In my
judgment, the same observation can be made with regard
to Respondent's unremedied unfair labor practice in this
case.
The record indicates the existence of a long history of
collective bargaining and contains not one scintilla of
evidence that Respondent entertained any animus against
the Union. The unremedied unfair labor practice was not
motivated by unlawful considerations (the Board dismissed
an allegation that the layoff of employees was violative of
Section 8(aX3) of the Act) and consisted of a failure to
notify an incumbent bargaining representative about a
proposed change in a condition of employment. Moreover,
as noted earlier, Respondent operates both a hot type and
coldtype department, and the prior unfair labor practice
affected the hot type department only. (It appears from the
Board's decision in the earlier case that at the time of its
occurrence that department numbered only eight employ-
ees and a foreman. The major part of the unit consisted of
the photocomposition department which numbered 23
employees in September 1975). In the circumstances, it is
difficult to conceive how the unfair labor practice had any
detrimental or lasting effects on unit employees. While the
record indicates that some of the employee disaffection for
the Union was expressed to Respondent contemporaneous-
practice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon
the person against whom such charge is made ....
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NAYLOR, TYPE & MATS
ly with the hearing of the earlier unfair labor practice,
nothing in such expressions carried any indication that the
employees were reacting to unfair labor practice conduct.
Finally, it should be noted that here, as in Taft, the Board's
remedial order was very narrow and, apart from the cease-
and-desist provisions and notice posting, provided as
affirmative action only that Respondent offer to bargain
with the Union about any plan to lease any portion of
Respondent's operation to employees. For all the foregoing
reasons, I conclude Respondent was not precluded from
asserting a good-faith doubt of majority status.
Respondent predicates its assertion of good-faith doubt
on judicial admissions by counsel for the General Counsel
and the Charging Party admitting lack of majority,
extensive discussions wherein a majority of the employees
told management that the Union did not represent a
majority of the employees, and the lengthy hiatus in
bargaining.
The judicial admissions relied on by Respondent are
statements of counsel for General Counsel and counsel for
the Union in colloquy with Administrative Law Judge
Blackburn in the prior proceeding relative to the allegation
in that case that the layoff of hot type department
employees was motivated by considerations of union
membership.
JUDGE BLACKBURN: Let me say it to you another
way. In effect, you're conceding that the practical effect
of this termination, if it's not undone in the course of
this litigation, would be to make this a minority union
in that plant?
COUNSEL FOR GENERAL COUNSEL, Mr. Helms: Yes,
sir.
JUDGE BLACKBURN: Are you conceding that?
MR. HELMS: Yes, sir. That's exactly the position we
take, that the company wants to -
JUDGE BLACKBURN: And that's your motive theory?
MR. HELMS: Yes, sir.
JUDGE BLACKBURN: You take the same position, Mr.
Tucker? (Counsel for the Union)
MR. TUCKER: Yes, we do.
JUDGE BLACKBURN: Go ahead with Mr. Samuel, Mr.
Helms.
MR. TUCKER: Let me add to that. We don't
necessarily concede that if what has been done with this
termination or layoff is not undone by this litigation,
that the union will be a minority in the plant.
JUDGE BLACKBURN: You're taking a different posi-
tion from Mr. Helms?
MR. TUCKER: I'm saying that this is not necessarily
the case because of the fact of the fluctuation of union
members in the photocomposition room. We would say
that this is a possibility. And we would say that we'd
certainly agree with the General Counsel that it is part
of our theory that the motivation here would be to
eliminate union members and, thereby to eliminate
union influence regarding representation or alternative
method that we contended was used, not only eliminat-
ed members, but splitting up the units so as to eliminate
union influence in the photocomposition room.
In my judgment, that colloquy is insufficient to support
an assertion of good-faith doubt, because counsel for
General Counsel was not an agent or representative of the
Union whose statements could be binding on the Union,
and counsel for the Union, although subscribing to
General Counsel's theory, did not concede that the Union's
majority status was dependent on the outcome of the
litigation. He conceded the possibility that the Union
would be a minority Union if it did not prevail in that
proceeding, but maintained that "this is not necessarily the
case because of the fact of the fluctuation of union
members in the photocomposition [coldtype] room."
Accordingly, I find no merit to this aspect of Respondent's
defense.
The only remaining issue is the sufficiency of the
evidence that employees communicated to Respondent
their desire not to be represented by the Union. To support
its burden on this issue, Respondent adduced testimony
from its president, vice president, and two employees.
There is a significant amount of duplication in the
testimony of these several witnesses. In the main, the
testimony of Respondent's president, Elizabeth Nalle. is
the key to a determination of the case.
On direct examination, Nalle testified to conversations
she had with 23 employees. By implication, all 23
employees conveyed to her their desire not to be represent-
ed by the Union. However, upon examination into details
of these conversations, it developed that reliance could not
be placed on the conversations with II of the 23
employees.
In the cases of Joe Janca and Albert Sralla, Nalle never
testified as to what they told her. Robert Campbell was a
new employee and the conversation described by Nalle did
not indicate he did not want union representation. Henry
Kuntz did not say one way or the other. The remarks of
Carlos De La Fuente were ambiguous. In the cases of
Howard Heerwagen, Dave Godwin, and John Doran, they
were not unit employees at the times relevant. In Stanley
Napierkowski's case, it is unclear whether he was a unit
employee at the times relevant.
In the cases of Tom Reed and Albert Broussard, Nalle's
information was only what Vice President W. K. Hoppas
had told her. Hoppas' testimony was that Broussard, an old
employee and known union member, came to him to ask
about the Union's pension plan. Hoppas told him to check
with the Union. Later, he heard that Broussard dropped
out of the Union. In Tom Reed's case, Hoppas testified
Reed came to him in mid-May to ask about his job
security. Hoppas asked him why he wanted to know and
Reed said he was thinking of dropping his union card.
Hoppas told him that there was no such thing as security
unless a person did his job and he could not advise him.
Hoppas learned later that Reed had dropped out of the
Union. In short, all that really can be said of Broussard
and Reed is that they dropped their union membership.
The Board has clearly stated: "There is no necessary
correlation between membership and the number of union
supporters, since no one could know how many employees
who favor bargaining do not become or remain members
thereof." (Emphasis supplied.) Terrell Machine Company,
173 NLRB 1480, 1481 (1969). In Broussard's case, Hoppas
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
candidly admitted that he did not know whether, in the
event of an election, Broussard would vote for the Union
or not, because Broussard "didn't voice that opinion."
Accordingly, I find that Respondent could not rely on
Broussard's and Reed's dropping out of the Union as an
objective consideration of loss of majority.
As to the remaining 12 employees to whom Nalle
adverted, I am persuaded that their remarks manifested a
desire not to be represented by the Union and could be
relied on by Respondent in questioning the Union's
majority status. They are Dale Birran, Millie Barnes,
Marilyn Joiner, Dora Espinoza, John Mueller, Kathy
Long, Chris Alexander, Susan Kupper, Paula Quartararo,
Patty Paiz, Louis Phillips, and Philip Sandling.
In summary, Nalle's testimony indicates the wishes of
only 12 of the employees in a unit stipulated to number 31
employees. However, the record contains additional sup-
port for Respondent's doubt. Thus, Hoppas testified that
proofreader Bill Jefferies, a member of the Union, came to
him and asked if he could make his own deal, that he was
unhappy about certain work restrictions in effect. Jefferies
stated that the people in the front and back (a reference to
the location of departments) did not recognize the Union.
In my judgment, Respondent could rely on this conversa-
tion as evidence that the Union did not enjoy majority
status.
In addition to the foregoing, there is uncontradicted
testimony that although markup work is included in the
unit, the Union has never represented, or contracted on
behalf of, the markup employees. It can reasonably be
inferred, and I find, that inasmuch as they were not being
represented by the Union, the markup employees were not
supporters of the Union. It was stipulated that there were 4
employees in markup and if that number were added
Respondent would have adduced evidence concerning 17
employees on which it could predicate a reasonably based
doubt of majority status. However, one cannot count this
entire markup crew because one member, John Mueller,
has already been counted. That still leaves 3 employees in
markup, including Henry Kuntz, to whom Nalle had
reference, who can be added to the 13 for a total of 16
employees concerning whom Respondent had evidence to
support a reasonably based doubt of majority status.
The foregoing analysis should suffice to establish that
Respondent met its burden of showing by objective
considerations that it had a reasonably based doubt of the
Union's majority status, but it fails to do complete justice
to the record. Thus, it overlooks the fact that the
conversations Nalle had with employees had greater scope
than to advise her of a single employee's desires. Thus,
Dora Espinoza had told Nalle "nobody back there wants
the Union" and Nalle had asked her to name people and
she had enumerated 17 employees who were opposed to the
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
Union and only 8 who supported it. Employee Marilyn
Joiner told Nalle that she and other employees had taken a
head count and their figures showed 16 employees who
were members of the Union and I I who were not.
There is a suggestion in the testimony of Nalle and
Joiner, as well as Millie Barnes, that the head counts may
have been made on the basis of union membership, and, as
noted earlier Terrell Machine, supra, teaches that there is no
necessary correlation between membership and the num-
ber of union supporters. If the head counts submitted to
Respondent were the only evidence in support of its
asserted doubt of majority status, I would be loath to find
that its asserted doubt was supported by objective
considerations. However, when one considers Nalle's long
association with the Company, the size of the unit and her
personal knowledge concerning the views of many employ-
ees, coupled with the many conversations she described as
adverted to earlier, the head counts, even if based on union
membership, could reasonably be considered an indication
of the Union's lack of majority support.
Finally, there is the matter of the long hiatus in
bargaining. Whether or not such hiatus was an indicium of
the Union's lack of majority status is problematic in view
of the fact that throughout the period of inactivity an
unfair labor practice case was pending before the Board. I,
therefore, give no weight to the hiatus as an indicium of the
Union's lack of majority status.
In summary, on the basis of the conversations described
by Nalle, Hoppas, and the head counts reported to Nalle, I
find that Respondent's asserted doubt of majority status
was supported by objective considerations and that
Respondent did not violate Section 8(aXl) and (5) of the
Act by refusing to bargain with the Union.
CONCLUSIONS OF LAW
1. Houston Shipping News Co., d/b/a Naylor Type &
Mats, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Houston Typographical Union No. 87, a/w Interna-
tional Typographical Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Respondent did not violate Section 8(aX)(1) and (5) of
the Act by refusing to bargain with the Union.
Upon the foregoing findings of fact, conclusions of law
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER5
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
108