North American Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1252 (N.L.R.B. 1976)

1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North American Manufacturing Company and District
No 162, International Association of Machinists
and Aerospace Workers, AFL-CIO Case 18-CA-
4635
June 18, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On March 18, 1976, Administrative Law Judge
Stanley N Ohlbaum issued the attached Decision in
this proceeding Thereafter, Respondent filed excep-
tions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, North American Manu-
facturing Company, Sioux City, Iowa, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order
' In the third full paragraph of sec III B 3 of the Administrative Law
Judge s Decision appear Respondents bargaining credentials do not
and moreover Respondents bargaining representational ca
pacity In both of these instances the word Respondents should
read Union s
DECISION
PRELIMINARY STATEMENT ISSUES
STANLEY N OHLBAUM, Administrative Law Judge This
proceeding under the National Labor Relations Act as
amended, 29 U S C § 151, et seq (Act), based on com-
plaint issued September 16, 1975,1 by the Board's Regional
Director for Region 18, growing out of charge filed on July
21 and amended on August 25, was heard before me in
Sioux City, Iowa, on November 4, with all parties partici-
pating throughout by counsel, who were afforded full op
i Unless otherwise specified all dates herein are in 1975
portunity to present evidence and contentions as well as to
file briefs , which were received on December 9
The principal issues are whether Respondent Employer
violated Section 8(a)(1) and (5) of the Act by ( 1), interro-
gating employees concerning union activities ,' (2) refusing
to recognize and bargain with the Charging Party Union
on behalf of Respondent 's employees , (3) refusing to fur-
nish to the Union information and data required for bar-
gaining purposes , and (4) unilaterally granting increased
wages and benefits to bargaining unit employees 2
Respondent's denials of all allegations to the foregoing ef-
fect, except that it unilaterally granted increases in wages
and benefits-which it admits while disputing any illegality
therein, and its affirmative defenses that the Union is not
the representative of the unit employees and that Respon-
dent "in good faith doubted" the Union's status as such,
result in the issues litigated here
Upon the entire record 3 and my observation of the testi-
monial demeanor of the witnesses , I make the following
FINDINGS AND CONCLUSIONS
I JURISDICTION
At all material times, Respondent North American
Manufacturing Company has been and is an Iowa corpora-
tion, engaged in manufacture, sale, and distribution of in-
dustrial trucks, farm equipment, and related products at
and from its facilities at Highway 20 East, Sioux City,
Iowa, where and whence, during the representative year
immediately preceding the year of issuance of the com-
plaint, it manufactured, sold, and distributed, directly in
interstate commerce to places outside of the State of Iowa,
goods, materials, and products valued in excess of $50,000
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and that at all of
those times the Charging Party Union has been and is a
labor organization within the meaning of Section 2(5) of
the Act
II ALLEGED UNFAIR LABOR PRACTICES
A Interrogation
The complaint 4 alleges that on or about July 10
Respondent's plant manager and supervisor, Roderick
Benjamin, interrogated employees as to employees' union
activities, in violation of Section 8(a)(1) of the Act
Respondent's paintline employee, Jack L Campbell, tes-
tified that while he was on his workline on a morning fol-
lowing a July or August union meeting, plant superinten-
dent or manager, Roderick Benjamin, in the presence of
fellow employee Walter F Safin, asked Campbell if he
knew `how many members were in the union" (to which
Campbell responded that he did not know) and whether
Safin was a "strong union member (to which Campbell
z Added to complaint at hearing
The transcript is hereby ordered corrected in accordance with
Respondent s unopposed December 4 1975 letter application
a Para 10 renumbered as added at hearing
224 NLRB No 172
NORTH AMERICAN MANUFACTURING COMPANY
replied in the negative) Benjamin added that "There will
be a pay raise coming up " When Campbell asked him how
much, Benjamin replied that he "couldn't say because of
the unfair labor practice "
This testimony by Campbell concerning his interroga-
tion by Plant Superintendent Benjamin is in essence 5 cor-
roborated by Respondents pamtlme employee, Safin, who
has been in its employ for 21 years 6
Testifying on this subject, Respondent's plant manager,
Roderick Benjamin , professed to be able only to "vaguely
recall" a conversation with Campbell and Safm wherein
Benjamin remarked that he had heard that not many had
attended the union meeting on the previous evening On
cross-examination, Benjamin insisted he could not "recall
whether he asked Campbell if he had attended the meet-
ing, but he denies he asked how many belonged to the
Union or whether Safin was a strong union man or sup-
porter
I observed Campbell and Safin to be impressive witness-
es whose testimony deserves credence-particularly in
preference to the vague, blurred semirecollections of Ben-
jamin Crediting their testimony, I accordingly find that in
or about July or August 1975, Respondent through its
plant manager, Roderick Benjamin, interrogated these em-
ployees concerning their and other employees' union activ-
ities
At the hearing, during direct examination of
Respondent's witness, forklift department foreman and su-
pervisor, Dick Leaverton, testified that late in May he in-
quired of forklift department assembler, Harvey Baum-
gard, whether the latter had attended a union meeting on
the previous evening, that when Baumgard admitted he
had, Leaverton then asked him whether there were "a lot
of guys there," to which Baumgard answered no, and, fi-
nally, that when Leaverton pressed on as to whether Baum-
gard was a member of the Union `because I [Leaverton]
didn't know," Baumgard again said no On cross-examina-
tion, Leaverton further acknowledged that he had also
questioned other subordinates concerning their union
membership General Counsel's subsequent motion to con-
form pleadings to proof so as to encompass this (or these)
additional episode(s) of interrogation, coming from the
mouth of Respondent's own witness, was unopposed by
Respondent and was granted I accordingly find, upon the
basis of this testimony, that also in May 1975 Respondent,
through its Foreman and Supervisor Dick Leaverton, inter-
rogated its employee Harvey Baumgard (as well as another
employee) concerning his and other employees' union ac-
tivities
5 With the possible exception that Safin places the interrogation at around
a week following an August union meeting whether this was the same
meeting as the one referred to by Campbell is unclear I do not regard this
variance if it is such as significant Safin also indicated that Benjamin s
statement about a raise was in response to a question by Campbell
6 It has been pointed out that the fact that a witness is in the employ of an
employer at the time the employee testifies against the employer at the
risk of incurring the employer s displeasure if not hostility is a circumstance
entitled to be weighed in the employees favor in assessing his credibility
(Georgia Rug Mill 131 NLRB 1304 1305 In 2 (1961) enfd as modified 308
F 2d 89 (C A 5 1962) Wirtz v B A C Steel Products Inc 312 F 2d 14 16
(C A 4 1962) ) I have done so
1253
B Refusal To Continue Recognition of or Negotiations
With Union
Based upon the outcome of a Board-conducted statutory
secret ballot election held on May 9, 1973, the Union was
officially certified on May 16, 1973, as exclusive collective-
bargaining representative of an appropriate unit of
Respondent's production and maintenance employees at
its Highway 20 East, Sioux City, Iowa, facility 7 Subse-
quently, on September 22, 1973, Respondent entered into a
collective agreement with the Union on behalf of the unit
employees, effective as of September 10, 1973, through
September 9, 1975
On July 2, 1975-prior to the expiration of this collective
agreement-Respondent wrote the Union, in response to
the latter's June 23 letter seeking to negotiate a new con-
tract-declining to enter into such a negotiation, upon the
stated ground that "we do not believe it would be proper or
legal for us to consider you as the majority representative
of our employees at this time ' It is stipulated that since it
sent this letter to the Union (July 2), Respondent has con-
tinued in its refusal to bargain with the Union
The complaint alleges that this continuing refusal by Re-
spondent to recognize and bargain with the Union since
July 2 is in violation of Section 8(a)(5) and (1) of the Act
Respondent defends its admittedly continuing refusal since
July 2 to recognize or bargain with the Union upon the
basis that the latter no longer represented its employees or
that it "in good faith doubted the majority status of the
Union "
In support of its position, Respondent has here adduced
or tendered certain evidence which it maintains establishes
that, at the time it declined to deal with the Union (July 2),
the Union no longer represented a majority of the unit
employees or that Respondent had good-faith reason so to
believe The evidence presented or tendered by Respon-
dent along these lines is as follows Respondent' s Plant
Superintendent Roderick Benjamin testified that his July 2
letter to the Union refusing to bargain with it was sent by
authorization and direction of Plant Owner Elmer Hansen,
based on Respondent's conclusion that the Union no lon-
ger represented the unit employees because of three cir-
cumstances or factors, viz (1) a seeming absence of Union
"formal organization," (2) remarks of some employees, (3)
reduction in the number of union dues-checkoff authoriza-
tions on file with Respondent These will be considered
after first setting forth the surrounding factual frame of
reference to which they must be related
On July 2 , the same day as Respondent sent the Union
its letter refusing to bargain with it any longer, it released
to its employees a bulletin (G C Exh 10), likewise signed
by its Plant Manager Roderick Benjamin, in which it in-
formed its employees of its refusal to bargain with the
Union, quoting its July 2 letter to the Union to that effect,
and adding
It would be illegal for the company to recognize the
union at this time unless we were of the opinion that
they represented a majority of our employees We are
of the opinion that no more than approximately 25%
7 Board Case 18-RC-9500
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or so of our employees support the union in any way
and desire the union to be their representative
Also, there is no secret that it is our opinion that we all
would be better off without this union
I think the majority of employees who have decided
they don't want to be represented by this union are
quite correct There is a strike being carried on now at
Sioux Tool where the employees rejected a very sub-
stantial offer of improved wages and they are out on
strike without either unemployment compensation or
strike pay benefits from the union Obviously, I don't
know the facts of this situation, but it doesn't seem to
me like this is any particular time to be going out on
strike and most unions-other than Mr Sturgeon's
union [i e, Charging Party in the instant case]-seem
to know this
We wanted you to know our position regarding the
lack of majority status of this union and we believe we
are correct in this assessment
If there are any developments in the future, prior to
the expiration of the contract on September 10, we will
let you know
Following up on this bulletin of July 2, Respondent,
again through Plant Manager Benjamin, issued a further
bulletin to employees on July 15 (G C Exh 9), stating,
inter aha, that
Each employee must determine whether or not he is
getting his money's worth and representation from the
union and whether or not he would be better off with
or without the union as his representative
*
You don't need the union to have a good job at North
American Manufacturing and the other side of the
coin is that no employee is going to be harmed be-
cause he is a union member
We have heard some rumors to the effect that the
union is putting pressure on people to sign their check-
off cards which allow for a deduction of dues This
also should be an individual choice Iowa is a right to
work state
I would be less than honest if I did not say to you that
I believe we all would be better off if the union did not
represent our employees I believe the union to be a
negative force and I believe that it causes problems by
telling employees that it has powers it doesn't have
The union tells employees it can obtain benefits and
relief for employees which it just can't get I also be
lieve that the union statements to the effect that only
the union can provide job security are a bunch of ba-
loney If anyone would think about this, they would
realize that there is nothing to it
* *
So, if you don't want the union, stay away from the
meeting tonight Don't be a curious onlooker as they
will try to claim you as a member
Respondent's plant manager, Benjamin, also testified at
the hearing that he "always had "felt' a doubt `in my
mind" as to whether the Union really represented a majori-
ty of the employees because of its' seeming" lack of "orga-
nization" and a general "feeling" he had of the "pulse" of
the plant He acknowledged, in this regard, that his Com-
pany supplied its employees with printed withdrawal forms
and envelopes with postage for employees' withdrawals
from the Union, but he disavowed any personal involve
ment in that activity-"I had nothing to do with check off
resignations ' While insisting at the hearing that he at no
time urged employees to stay away from union meetings,
he at the same time acknowledged that he wrote and issued
the bulletin, quoted above, advising them to "stay away
from the meeting tonight " Respondent concedes that it
never sought a decertification election to ascertain the ac-
tual sentiment of its employees with regard to continued
union representation
Within this frame of reference, we proceed to consider
Respondent's alleged bases for refusing to continue to deal
with the certified union
1 Seeming lack of Union "formal organization"
Respondent justifies its refusal to continue to deal with
the Union on the basis of what Respondent in and since
mid-1975 deemed to be the Union 's lack of "formal organi-
zation" or structure No proof has been adduced here to
indicate that the nature of the Union 's juridical or other
organizational status or characteristics have in any way
changed since it won the secret ballot election of May 9,
1973, (G C Exh 2), and was officially certified by the
Board Respondent contends , however, that in some way
the "pulse" of its factory as allegedly perceived by it had
undergone a subtle change sensed by its executives The
manifestations of this, it maintains, were
a Seemingly low level of attendance at union meetings
Respondent asserts that it received reports that atten
dance at union meetings was not high Respondent's plant
manager, Benjamin, maintained at the hearing that
Respondent's information on this subject was derived sole-
ly from alleged "feedback" from supervisory subordinates S
Respondent's "hard" evidence on this subject consists of
8 Over Respondents objection I declined at the hearing to permit Re
spondent to engage in a broad inquisition through examination of the
Union and a roving expedition through its records as to how many and
which of Respondents employees maintained membership and attended
union meetings and what business transpired at those meetings In addition
to being a highly questionable open Sesame gateway into identifying
which of its employees were engaged in and the nature and extent of their
leadership in concerted activities protected under the Act as well as into
projected union bargaining positions plans and tactics-the very sort of
disclosure an Employer would stoutly resist-attendance at meetings is not
necessarily an indication of the degree of support for the organization hold
ing the meeting as explained below Furthermore Respondent s refusal to
bargain with the Union on July 2 could hardly have been predicated upon
information which it sought to obtain for the first time months later at the
hearing Moreover the Union represents nonmembers as well as members
Cf Strange and Lindsey Beverages Inc and Dr Pepper Bottling Co Inc
d/b/a Pepsi Cola Dr Pepper Bottling Co 219 NLRB 1200 (1975) Barten
ders Hotel Motel and Restaurant Employers Bargaining Association 213
NORTH AMERICAN MANUFACTURING COMPANY
testimony of its General Foreman Roland Holder-in its
employ for 25 years-that he learned from an employee
(George Thompson, an "Inspector" for the Company, who
did not himself testify) that a "very few" employees had
attended a certain union meeting, testimony of Forklift
Department Foreman Dick Leaverton-in its employ for
10 years-gleaned during his interrogation of his subordi-
nate Harvey Baumgard (described above) in May-that
forklift department assembler Baumgard replied in the
negative to a question by Leaverton as to whether there
had been "a lot of guys there" at the union meeting on the
previous evening, and, finally, testimony by Respondent's
Machine Shop Foreman Floyd Sitzmann-in its employ
for over 20 years-that one of his subordinates (Sherrill,
who likewise did not testify) told him that the union meet-
ing of July 15 was attended by around 15 employees, some
of whom signed `intent cards" for union representation 9
It is appropriate, in connection with Respondent's asser-
tion of apparent lack of Union formal organization" or
activity since mid-1975, to call attention to a number of
exhibits introduced into evidence by Respondent itself,
consisting of publications issued by the Union to
Respondent's employees, indicative of what may be re-
garded as typical if not extraordinary activity on the part
of an incumbent union These-dated May 20 and July 11
and 23-cover such subjects as notices of meetings and of
special meeting, grievance matters and arbitration, status
of contract negotiations, and filing of unfair labor practice
charges (Resp Exhs 10, 11, 12, and 14)
b Seemingly low level of grievance activity
Respondent further seeks to justify its refusal to main-
tain dealings with the Union because of what Respondent
regards as a low level of grievance activity antedating mid-
July Respondent's evidence of this consists of testimony
by General Foreman Holder that when he took certain
grievance information to parts department employee and
former union committeeman Patterson early in 1975, for
transmission to the Union, Patterson asked why it was he
(Patterson) who always had to convey such information to
the Union and that he was "tired of carrying all of that
stuff ' and "doing all the running for the union 'There was
also testimony by Respondents machine shop foreman
Sitzmann that when former union committeeman Corey
left the plant, he was not replaced as a committeeman, but
Sitzmann conceded that he knew of no grievances after
Corey left, and that employees other than Corey (or any
other committeeman) were at liberty to raise grievances,
indeed even if they did not work under Sitzmann
Here again, as with Respondent's contention concerning
supposed union "inactivity," Respondent's own evidence
presents a contrary picture, since umon literature dissemi-
nated to its adherents from May through July, placed into
evidence by Respondent itself (Resp Exhs 10, 11, and 14)
NLRB 651 ( 1974) Orion Corporation 210 NLRB 633 634 (1974) enfd 515
F 2d 81 (C A 7 1975)
9 Union Business Representative Richard Sturgeon denies the existence of
any such thing it his Union as an intent card I credit his testimony
1255
indicates grievance interest and activity by the Union Fur-
thermore, it has not been shown that there were in fact
grievable matters which were not, or which should or might
have been, presented at any material time here so as to
justify Respondent's alleged impression that the Union was
laying down on this aspect of its job Moreover,
Respondent's own witness George Taylor (an old-time
rank-and-file tool-and-die machinist), who according to his
testimony was at one time a union committeeman and de-
partmental steward and is still "acting" as such, filling the
vacancy left by Corey, testified that committeemen met
with management only at the third step of the grievance
process and not otherwise, and that approximately six such
meetings (at times involving multiple grievances) with
management were held in the first half of 1975 (as late as
July or August) aside from any number of informal griev-
ance discussions by himself or any other committeeman (of
which he would not necessarily be apprised) not reaching
the third step Furthermore, Plant Manager Benjamin him-
self conceded that there were several (according to Benja-
min, two or three-but Respondent's own stipulated work
force figures establish that the size of the unit here was
halved between the election and June 14, 1975-see Figure
1, infra) functioning union grievance committeemen in
mid-1975 and that he did in fact continue to receive griev-
ances-"around half a dozen"-in the first half of 1975 So
long as grievances continue to be handled, it is hardly a
matter for an Employer's concern what ratio of grievance
committeemen to unit employees the union maintains It
has not been established, nor would it be proper to sur-
mise, that the number of informal grievance discussions as
well as formal grievance meetings was extraordinarily
small or that it betokens less than zealous union represen-
tation of the unit employees' interests
2 Alleged remarks of employees
Respondent also bottoms its refusal to deal with the
Union upon alleged remarks of its employees coming to its
ears Plant Manager Benjamin testified to alleged conver-
sations with five employees, none of whom was produced
as a witness According to Benjamin, in May fabrication
department employee, Knaverl, remarked to him that
"there is only two [of eight or nine in his immediate group
or circle] that have ever been for the Union," forklift truck
department employee Meek commented that "I will be in
here one way or the other, whether there is a strike or not,"
and welder Griep remarked to him, "You know, if there is
going to be a strike I got to be working How do you
resign from the union,' to which Benjamin replied, "See
Roland [Holder, general foreman of the plant]", and, in
June, painter Defay passed the remark that he had been
"wrapped up with union in California and didn't want a
damn thing to do with them,' and parts department em-
ployee Duffy-on umon dues checkoff then-sounded off
that Hell, if they won't sign up and be members it is not
worth it "
Respondent's general foreman, Holder, also testified
that in May a fabrication department employee (Dale Bar-
rons, who did not testify)-who had never been a union
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member-characterized union activities as "a lot of fool-
ishness" and remarked that he as well as other employees
had been `well taken care of" by Respondent, and that
another fabrication department employee (Jess Washburn,
who likewise did not testify and who operates a farm of
Respondent's principal, Elmer Hansen) had remarked to
him that "if the people that supported the union didn't like
the work at North American they should go elsewhere and
work if they weren't satisfied with the way we were doing
things " Finally, Respondent's forklift department fore-
man, Leaverton, testified that in March 1974, shortly prior
to his promotion to foreman he had dropped out of union
membership because "I figured I wasn't getting anything
for my money", and there is testimony by Respondent's
parts foreman Jim Walsh that in late May or early June
two subordinates (Desy and Duffy, who, like the other em-
ployees mentioned, also did not testify) asked him how
they could "get out" of the Union since they were not "get-
ting anything" for their dues, in response to which he ad-
vised them to notify the Union in writing and referred
them to General Foreman Holder
3 Reduction in union dues checkoff authorizations
Finally, Respondent further justifies its refusal to deal
with the Union upon a diminution in the union dues-
checkoff authorizations on file with it, indicating this fac-
tor to have been a major component if not the "chief basis"
for its alleged "doubt" of the union representative status,
but Plant Manager Benjamin explicitly conceded, on re-
cross-examination, that he "would not base any proof of
union support on dues checkoff or membership alone "
Figure 1 shows the numbers and percentages of unit em-
ployees on union dues-checkoff authorization from the
date of execution of the collective agreement (September
22, 1973) to shortly after the date of Respondent's refusal
to bargain with the Union (July 2, 1975)
Fig 1 Unit Employees on Checkoff a/
No No on % on
Unit Checkoff Checkoff
1973
May 9 164 -- --
(election)
Sept 15
(collective
agreement
executed
Sept 22) 144 40 28
Dec 15 124 56 45
1974
Mar 1b 14b 54(52?) 37(367)
June 15 1b3 32(30?) 28(18?)
Sept 14 159 27(25?) 17(16?)
Dec 21 167 37(3b?) 22
1975
Mar 18 / 15 88a/ 18 20
June 14 75 15 20
July 5
(Resp
refusal to
bargain
July 2) 5 7 c/
Aug 16 81 13 16
3 Based upon Resp Exhs 1-9 GC Exh 2 and stipulations of record
IAccording to Plant Manager Benjamin s testimony this substantial di
minution of employees from December 1974 was in consequence of employ
ee terminations because of the discontinuance of the International Harvest
er Division of Respondents plant operations Benjamin also pointed out
that although the number of unit employees increased by mid 1974 their
distribution within the bargaining unit changed-an irrelevant circum
stance here since they remained within the bargaining unit As to the subse
quent (1975) diminution in size of the bargaining unit there is no reason to
assume from this that the Union no longer represented a majority of the
balance of the employees remaining in the bargaining unit at any given
time
According to Plant Manager Benjamin s testimony on July 2 1975
when Respondent refused to continue recognition of the Union checkoff
authorizations were on file with Respondent from 15 to 20 percent of the
unit employees
It will be seen from the above that, although the percent-
age of unit employees on checkoff declined appreciably
from its high point a few months after conclusion of the
collective agreement (December 15, 1973 45 percent) to its
low point a month following Respondent's refusal to con-
tinue recognition of the Union (August 16, 1975 16 per-
cent) (1) the percentage of diminution between the latter
date (August 16, 1975) and the date right after execution of
the collective agreement (September 15, 1973) is only 12
percent, and from the date of the collective agreement to
the date just before Respondent's refusal to continue recog-
nition of the Union (June 14, 1975) is only 8 percent, (2)
even as of the nearest available date to the date of execu-
tion of the collective agreement (September 15, 1973), the
percentage of employees on checkoff was only 28 percent,
less than 10 percent more than on the date (June 14, 1975)
closest to the date (July 2, 1975) when Respondent refused
continued recognition of the Union, (3) there was no de
cline (or even possibly a slight rise) between June 15, 1974,
and the last available date (June 14, 1975) before
Respondent s refusal to continue recognition of the Union,
and (4) the effect of Respondent's refusal to continue rec-
ognition of the Union (July 2, 1975) upon any percentage
decline is conjectural Furthermore, as shown below,
Respondent's bargaining credentials do not depend upon
checkoff authorizations since, as is well known, some em-
ployees prefer to preserve union membership anonymity
from their employer, moreover, Respondent's bargaining
representational capacity-as well as its obligation-under
the Act encompasses nonmembers as well as members Fi-
nally, as testified by Respondent's own witness, Taylor, the
latter informed Plant General Foreman Holder (who re-
ports directly to Plant Manager Benjamin) that some em-
ployees were dropping out of union membership because
they `can't afford to pay the dues"-not because they were
NORTH AMERICAN MANUFACTURING COMPANY
unsatisfactorily or inadequately represented , nor because
they no longer wished to be represented 10
Respondent maintains that the foregoing establishes the
Union's loss of representational status , as well as sufficient
basis for Respondent's claimed good-faith belief to that
effect, at the time (July 2) Respondent refused to continue
to deal with the Union I do not agree
We start with the established proposition that Board cer-
tification of a union as a unit bargaining representative
creates a rebuttal presumption of continuing majority sta-
tus after expiration of the certification year Ray Brooks v
N L R B, 348 U S 96 (1954) It is also appropriate at the
outset to bear in mind that for a variety of reasons there is
no equation between those employees who vote for union
representation and those who are or who become members
of the union, nor between those who vote for union repre
sentation and those who pay union dues or authorize a
dues checkoff from their wages Particularly may this be
true in a "right-to-work" state such as here (Iowa), where a
union-security or required union-membership provision is
impermissible in a collective agreement
Under Brooks, supra, Respondent was privileged to with-
draw recognition from the Union after the certification
year only if the Union was no longer the representative of
the unit employees or if Respondent had demonstrably
tangible, reasonable basis for a good-faith doubt as to the
Union's representative status N L R B v Gulfmont Hotel
Company, 362 F 2d 588, 589 (C A 5, 1966) "It is well set-
tled that where a union's certification year has ex-
pired, the presumption that its majority representative sta-
tus continues is rebuttable, and the employer may refuse to
bargain if (1) the union in fact no longer enjoys majority
representative status or (2) the refusal is predicated on a
good faith and reasonably grounded doubt of such majority
status, based on objective considerations and not advanced
for the purpose of gaining time to undermine the union '
GAF Corporation, 195 NLRB 169 (1972) (emphasis sup-
plied) 11
Respondent has failed to establish-as required in order
to rebut the presumption alluded to above-that at the
time it refused to continue dealing with the Union (July 2)
a majority of the unit employees no longer desired to be
10 Plant Manager Benjamin on the other hand testified that Taylor re
marked to him in late May that although the Union helps all of them
nobody around here really seems to care about the union on cross exams
nation Benjamin expanded this to In this plant nobody seems to support
it and further amplified on it to state that Taylor added that I am not
going to be down at the gate if they go on strike Based upon com
pared testimonial demeanor observations within the framework of the rec
ord as a wnole to the extent of any inconsistency as between Benjamin and
Taylor I credit Taylor
i See also Star Manufacturing Company Division of Star Forge Inc 220
NLRB 582 (1975) Wanda Petroleum Division of Dow Chemical Company
217 NLRB 376 (1975) Bartenders Hotel Motel and Restaurant Employers
Bargaining Association 213 NLRB 651 (1974) Brahaney Drilling Company
209 NLRB 624 (1974) enfd 513 F 2d 270 (C A 5 1975) cert denied 90
LRRM 3176 (1975) Leatherwood Drilling Company 209 NLRB 618 (1974)
enfd 513 F 2d 270 (CA 5 1975) cert denied 90 LRRM 3176 (1975)
N L R B v Washington Manor Inc 519 F 2d 750 (C A 6 1975) Harpeth
Steel Inc 208 NLRB 545 (1974) Cantor Bros Inc 203 NLRB 774 (1973)
enfd 6 LRRM 2572 (C A 9 1974) United Electric Company 199 NLRB
603 (1972) But cf Fremont Newspapers Inc v N L R B 436 F 2d 665 (C A
8 1970) (decertification petition signed by majority of unit employees p
671 fn 7)
1257
represented by the Union, and it is clear that Respondent's
"proof" of its claimed "bona-fide doubt" concerning the
Union' s continued representative status does not even
come close to meeting the test of the long line of cases cited
above Respondent's claimed "bona-fide doubt" stemmed
from wishful thinking on its part , arising out of its openly
advertised objective to rid itself of the Union-an alleged
"doubt" sought here to be fortified by bits and scraps of
gossip, hearsay , surmise, and conjecture These were alleg-
edly overheard or reported by its supervisors and perhaps a
few rank-and-file employees opposed to the Union-hard-
ly the most impressive of informants Obviously, as evi-
denced by the precertification election results , not all of
Respondent 's employees were union adherents , but the
status does not so require Respondent's basis for "doub-
ting" the Union's continued representative status was in
the nature of a grasping at straws to justify withdrawal of
recognition from a Union that it openly and ardently de-
sired to oust from its representative status so as to do away
with collective bargaining in its plant Toward this end,
Respondent even engaged in coordinate unfair labor prac-
tices-unlawful interrogation (as has been shown ) and un-
lawful unilateral grant of increased wages and benefits and
refusal to provide required bargaining information (as will
be shown)-to undermine the Union 's representative status
while still under collective agreement with it The situation
here is a far cry from one where bargaining unit employees
have in fact disavowed a union and come in and so testify,
or where meaningful numbers of unit employees have affir-
matively withdrawn their support from or have actually
shown their disaffection toward an incumbent union If in
fact that kind of situation existed here, why could not Re-
spondent have produced such proof through the testimony
of a significant number of unit employees themselves9 Or,
alternatively, why could not a petition have been filed with
the Board to decertify the Union and thereby set in motion
the orderly statutory machinery for secret ballot determi-
nation of the actual sentiment of the unit employees9 The
avoidance of either of these rational alternatives for a real
demonstration or a true test, and Respondent 's seeming
preference for apse dixit declaration and subsequent debate
as to the strength of its own speculative house of cards, are
themselves not without significance Singly and in totality
the alleged bases which Respondent now insists establish
the Union's absence of representative status and
Respondent 's `bona-fide doubt" thereof, are insufficient to
rebut the presumption of continued representative status of
the Union here during the term of the collective agreement
and while, as shown, it was in fact administering that
agreement
Respondent's contention as to the seeming lack of
Union "formal organization" or activity has not in fact
been established, on the contrary, its own evidence shows
continued union "formal organization" and typical repre-
sentational activity , both in regard to membership meet-
ings and in regard to grievance processing With regard to
attendance at meetings , it is clear that even poor atten-
dance would not be inconsistent with continued support or
even continued membership It is a known fact of life that
many individuals who support, including many who are
members of, an organization, do not attend all or many or
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perhaps even any of its meetings It is also true that indi-
viduals may subscribe to an organization 's purposes and
may wish to be represented by it, without paying dues to it
or belonging to it Respondent 's actual or proffered
"proof" regarding attendance at meetings is thus wide of
the mark Cf N L R B v Washington Manor, Inc supra,
Star Manufacturing Company, 220 NLRB supra, Orion Cor
poration, 210 NLRB 633 (1974), enfd 515 F 2d 81 (CA 7,
1975) And Respondent 's showing regarding grievance ac-
tivity here likewise has no persuasive force insofar as the
question of the Union 's continued representative status is
concerned Among other things , Respondent has not dem-
onstrated that grievances existed and were unprocessed by
the Union, nor even that the Union was lax in carrying out
its obligations in this regard Cf N L R B v Washington
Manor, Inc, supra, Star Manufacturing Company supra
Nor are the bits and scraps of rumor, gossip , hearsay, and
disaffection by nonadherents of the Union, of persuasive
weight or value here Cf N L R B v Washington Manor,
Inc, supra, Star Manufacturing Company, supra, Strange
and Livesay Beverages, Inc, supra Finally, insofar as the
diminution in filed checkoff authorizations is concerned, as
shown they were not significantly less percentagewise than
when the collective agreement was executed Less than a
majority of filed checkoffs , in the presence of a clearcut
union majority at the polls , is not unusual It may occur for
a variety of reasons , including the desire of some employ-
ees not to pay dues by wage checkoff , but directly to the
Union , the desire of some employees not to reveal their
union membership to their employer , and the lack of desire
of some employees to pay union dues or to maintain for
mal membership in a union where (such as in a right to
work State, like Iowa , here , or, in the absence of a "union
security" or maintenance of membership provision in a
collective agreement) they cannot be required to do so,
while they may at the same time enjoy any supposed ad
vantage of being represented by the Union Also, employ-
ees may simply be unable to afford to pay union dues
Thus , employees may vote for union representation and
may desire to continue to have such representation even
though they are not union members or on dues checkoff
Under all of the circumstances here, Respondent 's conten-
tion that the reduction in number of checkoff authoriza-
tions on file with it establishes that the union no longer
represented the unit employees , is also unpersuasive Cf
N L R B v Washington Manor, Inc, supra, Star Manufac
luring Company, supra, Guerdon Industries, Inc, 218 NLRB
658 (1975), United Supermarkets, Inc 214 NLRB 778
(1974), Bartenders, Hotel, Motel and Restaurant Employers
Bargaining Association, supra 12 Finally , in assessing the
12 The absence of objectively demonstrated persuasive showing of signift
cant employee defection from or dissatisfaction with the Union or of docu
mented dereliction of representational duty in an atmosphere free of unfair
labor practices distinguishes the instant case from Taft Broadcasting 201
NLRB 801 (1973) Southern Wipers Inc 192 NLRB 816 (1971) Viking
Lithographers Inc 184 NLRB 139 (1970) and Ingress Plastene Inc v
N L R B 430 F 2d 542 546-547 (C A 7 1970) And it is noteworthy that in
National Cash Register Company v N L R B 494 F 2d 189 (C A 8 1974)
unlike here there was not only evidence of employee resignations from the
union but employee decertification petitions had been filed requiring a stat
utory election
true character and weight of Respondent's contentions and
professed "good-faith doubt" herein, the surrounding con-
text of its avowed antiunion hostility and its contempora-
neous unfair labor practices deserve consideration 3 Cf
Bartenders, Hotel, Motel and Restaurant Employers Bargain-
ing Association, supra, Celanese Corporation of America, 95
NLRB 664 (1951)
In view of these considerations, the law as established by
controlling authority, and the record as made, I find that
Respondent has neither met its burden of rebutting the
presumption of the continued representational status cf the
Union, nor established by substantial credible evidence the
existence on its part of a valid and objectively well-found-
ed, bona-fide doubt as to that status, when it refused to
continue to recognize or bargain with the Union
C Refusal To Provide Union with Bargaining Information
and Data
The complaint additionally alleges that, in violation of
Section 8(a)(5) and (1) of the Act, since on or around July
18 Respondent has refused to supply information and data
needed by the Union for bargaining purposes on behalf of
unit employees
The underlying facts in this regard are established by
documents and are undisputed On July 8 the Union wrote
Respondent requesting certain information which it assert-
ed it needed "in order to intelligently represent the workers
in the bargaining unit", viz (1) the name, date of birth,
marital status, date of hire, job classification, and wage rate
of each unit employee, (2) work being subcontracted, and
to whom, (3) the names of laid-off employees, with the
dates of layoff, and (4) overtime worked by unit employees
during the past 3 months By its answering letter of July 18,
Respondent declined to supply any of the requested infor-
mation upon the ground that it was "not appropriate
because as stated in an earlier correspondence we feel you
don't represent a majority of our employees " In the same
letter, however, Respondent indicated that it "assume[d]
you need the information requested [is] for the purpose of
negotiating a new contract" On July 23 the Union re-
newed its request for the aforedescribed information, stat-
ing that it "is to be used to help us enforce the existing
contract and to allow us to bargain on a new contract for
the unit employees On July 30 Respondent wrote to the
Union that the requested information would be "promptly
turn[ed] over to you when you have shown proof of
majority representation "
On cross-examination, Respondent's plant manager,
Benjamin, appeared to acknowledge that between March
and July, antedating the Union's described July 8 request
letter, Respondent seemingly had failed to supply informa-
tion to the Union concerning unit terminations and hires
With regard to its recognized representational status un-
der the September 1973-75 collective agreement (G C
13 WFile not here asserted or found it is established law that loss of
majority is unavailable as a justification for refusal to bargain where it is
attributable to an employers unfair labor practices Franks Bros Co v
N L R B 321 U S 702 704-705 (1944) N L R B v Little Rock Downtown
er Inc 414 F 2d 1084 1091 fn 4 (C A 8 1969)
NORTH AMERICAN MANUFACTURING COMPANY
Exh 4), as well as with regard to negotiating a renewed or
modified collective agreement, the information and data
requested by the Union were relevant, material, and prima
facie necessary Respondent, contesting only the Union's
continuing representative status, does not contend other-
wise, indeed, as shown above, it explicitly offered to pro-
vide the requested information `when you have shown
proof of majority representation " However, in regard to its
administration of the subsisting (September 1973-75) col-
lective agreement, wherein its representative status was ex-
plicitly recognized for the term of the agreement, the
Union was under no obligation to reestablish that status as
a precondition to obtaining necessary bargaining/enforce-
ment information and data And, in view of findings made
supra concerning the presumed continuation of the Union's
representative status, which Respondent has failed to re-
but, Respondent was likewise unjustified in refusing to pro-
vide the requested necessary information based only upon
its own ipse dixit pronouncement concerning what it as-
sumed to be the Union's absence of representative status
It follows that for both reasons 14 Respondent's refusal to
supply the Union with the requested information and data
was unwarranted and improper
D Unilateral Granting of Economic Betterments
Finally, the complaint also alleges that, in further viola
tion of Section 8(a)(5) and (1), on or about September 14
Respondent unilaterally granted wage increases as well as
increased benefits to employees in the bargaining unit rep-
resented by the Union, without negotiating with the Union
The fact that these wage increases and other economic
betterments 15 were granted by Respondent at the time in-
dicated is undisputed,16 Respondent's denial of improprie-
ty is, again, hinged on its contention that the Union no
longer represented the unit employees Since this conten-
tion has been rejected (supra), it follows that the granting of
the wage increases and other economic betterments was in
derogation and bypass of the Union's representative status
and improper under the Act N L R B v Benne Katz,
d/b/a Williamsburg Steel Products Co 369 U S 736, 747
(1962)
14 However by stipulation entered into at an early stage of the hearing the
parties agreed that it is not being contended here that Respondent failed to
supply the Union with information required for the administration of the
collective agreement during its term Consequently no such finding is made
here
15 I e effective September 15 a 30 cent hourly increase over the wages
set forth in the collective agreement a further 10 cent hourly increase effec
tive 6 months later and a full extra holiday (December 24)
i6 Indeed credited testimony of General Counsel witness Jack L Camp
bell establishes that in late July or early August on the day following a
union meeting Plant Manager Benjamin told him and fellow employee Saf
in that There will be a pay raise coming up When Campbell asked how
much Benjamin responded that he could not say because of the unfair
labor practice Benjamin s imperfectly recollected version is that what he
said to Campbell and Safin was-on advice of counsel in response to a
question by Campbell union or no union hopefully there would be a
raise (Benjamin acknowledged also telling other employees in his office in
July that Union or no union hopefully there will be a raise in Septem
ber ) On the basis of comparative demeanor observat,ons I credit
Campbells version as to what Benjamin said
1259
Upon the foregoing findings and the entire record, I
state the following
CONCLUSIONS OF LAW
1 Jurisdiction is properly asserted in this proceeding
2 By interrogating employees as described and found
supra, Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act
3 By refusing on and since July 2, 1975, to recognize or
negotiate with the Union as exclusive bargaining represen-
tative of Respondent's employees in a unit appropriate for
collective-bargaining purposes,'7 under the circumstances
set forth and found supra, Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(5) and (1) of
the Act
4 By refusing since July 18, 1975, to supply the Union
with requested information and data material and neces-
sary for fulfillment of the Union's representational status
and obligations under the Act to the aforesaid bargaining
unit employees, under the circumstances set forth and
found, supra, Respondent has engaged in unfair labor prac-
tices in violation of Section 8(a)(5) and (1) of the Act
5 By granting wage increases and other economic bet-
terments to employees in the aforedescribed bargaining
unit, on and since September 15, 1975, unilaterally and
without negotiating with the Union, under the circum-
stances set forth and found supra, Respondent has engaged
in unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act
6 Said unfair labor practices and each of them have
affected, are affecting, and unless restrained and enjoined
will continue to affect, commerce within the meaning of
Section 2(6) and (7) of the Act
REMEDY
Respondent having been found to have violated Section
8(a)(5) and (1) of the Act in the respects enumerated, will
be required to cease and desist from further such viola-
tions Since the violations strike at root guarantees to em-
ployees under the Act, Respondent will also be required to
cease and desist from otherwise infringing on employees
rights under the Act Additionally, Respondent will be re-
quired to take the affirmative measures traditionally re-
quired to remedy violations of this nature, namely, to fur-
nish necessary bargaining information and to bargain in
good faith as it should have, as well as to post the usual
notice to employees indicating what it may not do and
what it must do by reason of the Order herein
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, there is hereby issued
the following recommended
17 Viz all production and maintenance employees employed by Respon
dent at its Highway 20 East Sioux City Iowa facilities but excluding office
clerical employees casual employees professional employees guards and
supervisors as defined in the Act
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 18
The Respondent, North American Manufacturing Com-
pany, Sioux City, Iowa, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Interrogating employees in violation of the National
Labor Relations Act, as amended, concerning their or
other employees' union or other organizational member-
ship and protected concerted activities
(b) Failing and refusing to recognize and negotiate in
good faith with District No 162, International Association
of Machinists and Aerospace Workers, AFL-CIO, as the
exclusive bargaining representative of Respondent's em-
ployees in the following unit of employees appropriate for
collective bargaining purposes, and to embody in a signed
agreement any understanding reached
All production and maintenance employees employed
by Respondent at its Highway 20 East, Sioux City,
Iowa, facilities, but excluding office clerical employ-
ees, casual employees, professional employees, guards
and supervisors as defined in the Act
(c) Failing and refusing to supply the aforesaid Union
with information and data requested by said Union which
is material and necessary for fulfillment of the Union's rep-
resentational status and obligations under the Act to the
aforesaid bargaining unit employees
(d) Granting or promising to employees in the aforesaid
collective bargaining unit, unilaterally and in bypass and
derogation of the bargaining representational status of said
Union, and without negotiating in good faith with said
Union, wage increases, or other economic betterments,
without prejudice, however, to any wage increase or other
economic betterments heretofore granted or announced
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, loin, or assist any labor organiza-
tion, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities
2 Take the following affirmative actions, necessary to
effectuate the policies of the Act
(a) Upon request, bargain in good faith with District
No 162, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive collective-
bargaining representative of Respondent's employees in
the aforesaid appropriate collective-bargaining unit and
embody in a signed agreement any understanding reached
(b) Upon request, promptly supply to said Union infor-
mation and data, requested by said Union, material and
necessary for fulfillment of the Union's representational
status and obligations under the Act to the aforesaid bar-
gaining unit employees
(c) Post in Respondent's premises and facilities at High-
way 20 East, Sioux City, Iowa copies of the attached no-
tice marked' Appendix ' 19 Copies of said notice, on forms
provided by the Board's Regional Director for Region 18,
shall, after being signed by Respondent's authorized repre-
sentative, be posted by Respondent immediately upon re-
ceipt thereof and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material
(d) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
18 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 which follows herein shall as provid
ed in Sec 102 48 of those 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
19 In the event this Order is enforced by a Judgment of a United States
Court of Appeals the words in the Notice 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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
present evidence and arguments, the decision has been an-
nounced that we have violated the National Labor Rela-
tions Act We have therefore been ordered to post this no-
tice and to do what it says
The National Labor Relations Act gives all the em-
ployees these rights
To engage in self organization
To form, loin, or help unions
To bargain collectively through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things
WE WILL NOT violate these rights of yours
WE WILL NOT interrogate employees, in violation of
the Act, concerning their or other employees union
membership, activities, or affairs
WE WILL NOT place into effect any wage increase or
other change in terms or conditions of employment of
employees in the collective-bargaining unit without
bargaining in good faith with our employees' collec-
tive-bargaining representative in regard thereto, or
without giving that representative reasonable advance
notice and adequate opportunity to bargain with us
about it, but this will not affect any wage increase,
extra vacation day, or any other economic betterment
we have already placed into effect or announced
WE WILL bargain collectively in good faith with Dis-
trict No 162, International Association of Machinists
NORTH AMERICAN MANUFACTURING COMPANY
and Aerospace Workers, AFL-CIO as the exclusive
bargaining representative of our employees in the fol-
lowing collective-bargaining unit, and embody in a
signed contract any agreement reached
All production and maintenance employees em-
ployed by North American Manufacturing Compa-
ny at its Highway 20 East, Sioux City, Iowa, facili-
ties, but excluding office clerical employees, casual
1261
employees, professional employees, guards and su-
pervisors as defined in the National Labor Rela-
tions Act as amended
WE WILL, upon request, supply the aforesaid Union
with information and data required for collective-bar-
gaining purposes
NORTH AMERICAN MANUFACTURING COMPANY