Pennco, Inc.

National Labor Relations Board - Board Decisions

May 23, 1979

242 N.L.R.B. 467 (N.L.R.B. 1979)

PENNCO, INC.
Pennco, Inc. and Communications Workers of Amer-
ica, AFL-CIO. Case 9-CA-12040
May 23, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
Upon a charge duly filed on December 19, 1977, by
Communications Workers of America, AFL-CIO,
herein called the Union, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 9, on May 5, 1978, issued and
served on the parties a complaint and notice of hear-
ing. In substance, the complaint alleges that Pennco,
Inc., herein called Respondent, violated Section
8(a)(5) and (1) of the National Labor Relations Act,
as amended, by refusing to supply the Union with a
copy of one of its two health insurance plans and by
refusing to recognize or meet and bargain with the
Union concerning a collective-bargaining agreement
with the Union. On May 8, 1978, Respondent filed an
answer admitting in part, and denying in part, the
allegations in the complaint.
Thereafter, a hearing was conducted on October
18, 1978, before Administrative Law Judge James M.
Fitzpatrick. At the hearing all parties entered into a
stipulation in which they petitioned the Board to ap-
prove the transfer of this proceeding to the Board and
waived the making of findings of fact and conclusions
of law by an administrative law judge and the issu-
ance of an administrative law judge's Decision. The
parties further stipulated that the entire record in this
proceeding shall consist of the charge, the complaint,
the answer, the stipulation with exhibits attached
thereto, and the transcript of the proceeding. There-
after, the parties filed a Motion to Transfer the Pro-
ceeding to the Board, Stipulation and Agreed State-
ment of Facts. On December 8, 1978, the Board
granted the motion, approved the stipulation, and
transferred the proceeding to the Board advising the
parties to file briefs with the Board in Washington,
D.C.
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.
Upon the basis of the stipulation, the briefs, and
the entire record in this proceeding, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Kentucky corporation, is engaged in
the manufacture of aluminum doors and windows at
its facility in Ashland, Kentucky. During the 12
months preceding the issuance of the complaint
herein, a representative period, Respondent pur-
chased and received goods and materials valued in
excess of $50,000 which were shipped directly to its
Ashland, Kentucky, facility from points outside the
Commonwealth of Kentucky.
The parties stipulated, and we find, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
On August 23, 1976, the Union filed a petition with
the National Labor Relations Board seeking certifica-
tion as the exclusive representative of Respondent's
production and maintenance employees. An election
was held on October 21, 1976,' and on November 1,
1976, the Union was certified by the National Labor
Relations Board as the exclusive representative of Re-
spondent's production and maintenance employees in
a unit appropriate for the purposes of collective bar-
gaining with respect to wages, hours of employment,
and other terms and conditions of employment. 2
Prior to November 1976, there had been no collec-
tive-bargaining history between Respondent and the
Union. Throughout that month, Respondent fur-
nished the Union with preliminary bargaining infor-
mation with respect to wage scales, pension plans,
insurance plans, names of employees, and other re-
quested information. The parties held negotiating
meetings on December 8, 1976, and January 13, Feb-
ruary I and 10, March 4 and 16, and April 4, 1977.
Subsequently, five more bargaining sessions were held
in the presence of the Federal Mediation and Concili-
ation Service on April 25, May 17, June 3, August 22,
and September 21, 1977.
' The tally was 114 votes for, and 62 votes against, the Union with 5
challenged ballots, a number insufficient to affect the results.
2 That unit was:
All production and maintenance employees employed by the Em-
ployer at its Ashland. Kentucky, plant, including truck dnivers, and lead
people; but excluding all office clerical employees, confidential employ-
ees, technical employees, and all professional employees, guards and
supervisors as defined in the Act.
242 NLRB No. 73
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 18, 1977, the Union began an economic
strike against Respondent's Ashland plant and estab-
lished a picket line. Picketing continued throughout
the summer, fall, and winter of 1977. Incidents on the
picket line occasioned the issuance of a restraining
order by the Boyd Circuit Court of Boyd County,
Kentucky.
After the strike began Respondent advised the em-
ployees that permanent replacements would be hired
for those who did not return to work. During the last
pay period prior to the strike, Respondent employed
173 bargaining unit members. By November 3, 1977,
the pay period after the expiration of the one year
certification period---and while the strike was still in
progress there were 257 employees in the bargaining
unit on the payroll of whome 47 had been on the
payroll prior to the commencement of' the strike. Of
these 47 employees, 28 employees were employed on
the October 21, 1976, election date. All of the em-
ployees working in Respondent's plant during the
strike had to cross the Union's picket line.
Sometime in early November 1977, Respondent
advised the mediator of the Federal Mediation and
Conciliation Service that it had a good-faith doubt of
the Union's current majority status in the unit based
on the factual circumstances outlined above and that
it would not negotiate further with the Union. The
mediator relayed this information to the Union
shortly thereafter. Respondent declined to attend a
negotiating session scheduled for November 16, 1977,
and has at all times since then refused to meet with
the Union for the purpose of collective bargaining.
Respondent further declined to accept, reject, or meet
with the Union regarding a proposed contract sent to
Respondent by the Union on November 29, 1977.
The strike continued until September 15, 1978, at
which time the Union removed its pickets, and 42
employees unconditionally offered to return to work.
At no time between November 1, 1976, and the time
of the hearing in this case did the Union abandon the
bargaining unit or relinquish its interest in negotiat-
ing a collective-bargaining agreement on their behalf.
B. Contentions of the Parties
The General Counsel contends that the high turn-
over among Respondent's employees and the failure
of some employees to observe the Union's picket line
were not sufficient objective evidence to support Re-
spondent's asserted good-faith doubt of the Union's
majority at the time of its refusal to bargain. In sup-
port thereof, the General Counsel relies, inter alia, on
James W. Whitfield, d/b/a Cutten Supermarket, 220
NLRB 507 (1975), and Windham Community Memo-
rial Hospital and Hatch Hospital Corporation, 230
NLRB 1070 (1977), enfd. 577 F.2d 805 (2d Cir. 1978).
The General Counsel further contends that, inas-
much as Respondent has not established a sufficient
basis for its asserted good-faith doubt, its refusal to
recognize or meet and bargain with the Union con-
cerning a collective-bargaining agreement constituted
a violation of Section 8(a)(5) and (1) of the Act. Addi-
tionally, the General Counsel urges the Board to find,
as alleged in the complaint, a second violation of Sec-
tion 8(a)(5) and (1). In this regard, he relies on Re-
spondent's stipulation at the hearing that if the Board
should find that it did not have sufficient objective
evidence supportive of its asserted good-faith doubt,
Respondent would admit that it refused to bargain
with the Union by failing to furnish the Union a copy
of one of its two health insurance plans, as requested
by the Union, on or about July 8, 1977. Finally, the
General Counsel argues, based on Cavalier Division of
Seeburg Corporation, and Cavalier Corporation, 192
NLRB 290 (1971), Cantor Bros., Inc., 203 NLRB 774
(1973), Cutten Supermarket, supra, and Windham
Community Memorial Hospital, supra, that Respon-
dent alleged unfair labor practices converted the ex-
isting ecomonic strike into an unfair labor practice
strike as of November 5, 1977.
Respondent, on the other hand, contends that the
employee turnover, coupled with the fact that re-
placement employees had to cross a picket line which
had been the scene of violence, not only constitutes a
sufficient basis for its asserted good-faith doubt of the
Union's majority status, but also imposes on Respon-
dent an obligation on behalf of its nonstriking em-
ployees to refuse to continue to recognize the Union.
In this regard, Respondent argues that the evidence
presented rebuts the presumption of the Union's ma-
jority status. Accordingly, the General Counsel has a
burden, which Respondent asserts he had not met, to
show that the union represents a majority of Respon-
dent's employees. Respondent notes that 16 months
after the commencement of the strike herein only 42
striking employees unconditionally offered to return
to work while the total number of Respondent's em-
ployees had increased by 76 employees. Finally rely-
ing on Beacon Upholstery Company, Inc., 226 NLRB
1360, 1367-68 (1976), Respondent contends that the
interests of those employees who crossed the picket
lines are diametrically opposed to those of the em-
ployees who remained on strike and were perma-
nently replaced, and thus the nonstriking employees
should not be presumed to support the Union.
C. Discussion and Conclusions
We agree with the General Counsel that Respon-
dent violated Section 8(a)(5) and () of the Act by
refusing to recognize and bargain collectively with the
Union as of November 5, 1977, and by refusing to
468
PENNCO. INC.
furnish the Union with a copy of one of its health
insurance plans as requested by the Union on or
about July 8, 1977. We do so for the following rea-
sons.
It is a well settled principle that a certified union
enjoys an irrebuttable presumption of majority status
for at least I year after certification.3 After the expira-
tion of the certification year, the presumption of a
union's majority status continues but becomes rebut-
table. An employer may rebut this presumption by
affirmatively establishing that the union has, in fact,
lost its majority status, or that it had sufficient objec-
tive bases for reasonably doubting the union's con-
tinuing majority status at the time that it withdrew
recognition from the union. Assertion of such doubt,
however, must be supported by objective consider-
ations.4 We find, as urged by the General Counsel,
that Respondent has not demonstrated sufficient ob-
jective evidence to support its asserted doubt of the
Union's majority status as of the time of Respon-
dent's refusal to bargain with the Union.
In this regard, it is well established that new em-
ployees are presumed to support the Union in the
same ratio as those whom they have replaced. See,
e.g., Windham Community Memorial Hospital, supra,
Cutten Supermarket, supra, and Surface Industries,
Inc., 224 NLRB 155 (1976). Furthermore, an employ-
ee's decision not to support a strike does not establish
that he or she has rejected the union as his or her
collective-bargaining representative. Cutten Super-
market, supra; Strange and Lindsey Beverages, Inc.,
and Dr. Pepper Bottling Co., Inc., Joint Employers
d/b/a Pepsi-Cola-Dr. Pepper Bottling Co., 219 NLRB
1200 (1975); King Radio Corp., Inc., 208 NLRB 578
(1974), enfd. 510 F.2d 1154 (10th Cir. 1975); Frick
Company, 175 NLRB 233, fn. 1 (1969), enfd. 423 F.2d
1327 (3d Cir. 1970). Additionally, unlike Beacon Up-
holstery, supra, cited by Respondent, here the unit
composition has not been altered by the lawful dis-
charge of striking employees thus undercutting the
presumption of union majority support. Accordingly,
we find that since Respondent has presented no other
independent objective evidence supporting its as-
serted belief that the Union no longer represented a
majority of its employees at the time it refused to
bargain, Respondent has not rebutted the presump-
tion of the Union's continuing majority status.
In view of the foregoing, we conclude that by refus-
ing to recognize and bargain with the Union concern-
ing a collective-bargaining agreement, and by refus-
ing to supply the Union with a copy of one of its
health insurance plans,5 Respondent has violated Sec-
3Ray Brooks v. N.LR.B., 348 U.S. 96, 98-104 (1954).
4 Laysrrom Manufacturing Co., 151 NLRB 1482 (1965).
See, e.g., The Nestle Company, Inc., 238 NLRB 92 (1978)
tion 8(a)(5) and ()of the Act. Further, although there
can be no certitude that a collective-bargaining con-
tract would have been agreed upon had Respondent
not refused to bargain, such refusal to recognize or
meet and bargain with the Union clearly precluded
any possibility of reaching agreement on a contract
and tended to impede any possible settlement of the
strike. Accordingly, we agree with the General Coun-
sel that Respondent's refusal to bargain converted the
Union's economic strike into an unfair labor practice
strike as of November 5, 1977. Therefore, on that
date, the strikers assumed the status of unfair labor
practice strikers.
CONCLUSIONS OF LAW
I. Pennco, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Communications Workers of America, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act is:
All production and maintenance employees em-
ployed by Respondent at its Ashland, Kentucky,
plant, including truck drivers, and lead people;
but excluding all office clerical employees, confi-
dential employees, technical employees, and all
professional employees, guards and supervisors
as defined in the Act.
4. At all times material herein the Union has been
and is the exclusive representative of all the employ-
ees in the above-described unit for the purposes of
collective bargaining within the meaning of Section
9(a) and Section 8(a)(5) of the Act.
5. Since on or about November 5, 1977, and con-
tinuing to date, by refusing to recognize and bargain
with the Union concerning a collective-bargaining
agreement, and since on or about July 8, 1977, and
continuing to date, by refusing to furnish the Union
with a copy of one of its health insurance plans as
requested by the Union, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. The strike which commenced on May 18, 1977,
was converted to an unfair labor practice strike on
November 5, 1977-the date Respondent unlawfully
withdrew recognition and refused to bargain with the
Union.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, we shall order it to cease and
desist therefrom and to take certain affirmative action
which we find necessary to effectuate the policies of
the Act.
Having found that Respondent engaged in unfair
labor practices in violation of Section 8(a)(5) and ()
of the Act, we shall order that it cease and desist
therefrom and, upon request, recognize and bargain
collectively with the Union as the exclusive represent-
ative of its employees in the appropriate unit. We
additionally shall order Respondent to furnish the
Union with a copy of one of its two health insurance
plans as requested by the Union.
Having found that Respondent's refusal to bargain
with the Union converted the strike to an unfair labor
practice strike on November 5, 1977, we shall order
that all striking employees who were not permanently
replaced before that date be reinstated, upon their
unconditional request, to their former jobs or, if such
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges, previously enjoyed, discharging, if
necessary, any replacements hired after November 5,
1977; and that it make whole such employees for any
loss of earnings resulting from its failure to reinstate
them within 5 days of their unconditional request,
with interest thereon to be computed in accordance
with Florida Steel Corporation, 231 NLRB 651
(1977).6 If Respondent herein has already rejected, or
hereafter rejects, unduly delays, or ignores any un-
conditional offer to return to work or attaches unlaw-
ful conditions to its offer of reinstatement, the 5-day
period serves no useful purpose and backpay will
commence as of the unconditional offer to return to
work.7 Such employees for whom no employment is
immediately available shall be placed on a preferen-
tial hiring list for employment as positions become
available and before other persons are hired for such
work. Priority for placement on such list is to be de-
termined by seniority or some other nondiscrimina-
tory test. See, Cutten Supermarket, supra.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
6 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
See, Newport News Shipbuilding and Dry Dock Company, 236 NLRB 1637
(1978).
Pennco, Inc., Ashland, Kentucky, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively
with Communications Workers of America, AFL-
CIO, as the exclusive bargaining representative of the
employees in the following appropriate unit:
All production and maintenance employees em-
ployed by Respondent at its Ashland, Kentucky,
plant, including truck drivers, and lead people;
but excluding all office clerical employees, confi-
dential employees, technical employees, and all
professional employees, guards and supervisors
as defined in the Act.
(b) Refusing to furnish the Union with a copy of
one of its health insurance plans as requested by the
Union.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which we
find necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good
faith with Communications Workers of America,
AFL-CIO, as the exclusive bargaining representative
of the employees in the appropriate unit described
above, concerning rates of pay, wages, hours or other
terms and conditions of employment and, if an agree-
ment is reached, embody it in a signed contract.
(b) Furnish the Union with a copy of one of its
health insurance plans as requested by the Union.
(c) Reinstate, upon unconditional request, all strik-
ers who were not permanently replaced before No-
vember 5, 1977, to their former jobs or, if such posi-
tions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges previously enjoyed, discharging,
if necessary, any replacements hired after November
5, 1977; and make such employees whole for any loss
of earnings resulting from its failure to reinstate them
within 5 days of their unconditional request in the
manner set forth in the section of this Decision enti-
tled "The Remedy." Such employees for whom no
employment is available shall be placed on a prefer-
ential hiring list based upon seniority, or some other
nondiscriminatory test, for employment as jobs be-
come available.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
470
PENNCO. INC.
(e) Post at its place in Ashland, Kentucky, copies
of the attached notice marked "Appendix." 8 Copies
of said notice on forms provided by the Regional Di-
rector for Region 9, after being duly signed by Re-
spondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of the Order,
what steps Respondent has taken to comply herewith.
I In the event that 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,"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively with Communications Workers of
America, AFL-CIO, as the exclusive bargaining
representative of the employees in the following
appropriate bargaining unit:
All production and maintenance employees em-
ployed by us at our plant in Ashland, Kentucky,
including truck drivers, and lead people; but ex-
cluding all office clerical employees, confidential
employees, technical employees, and all profes-
sional employees, guards, and supervisors as de-
fined in the Act.
WE WILL NOT refuse to furnish the Union with
a copy of one of our health insurance plans as
requested by the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights as guaranteed by Sec-
tion 7 of the Act.
WE WILL, upon request, bargain collectively in
good faith with Communications Workers of
America, AFL-CIO, as the exclusive bargaining
representative of the employees in the appropri-
ate unit described above, concerning rates of
pay, wages, hours, or other terms and conditions
of employment and, if an agreement is reached,
embody it in a signed contract.
WE WILL furnish the Union with a copy of one
of our two health insurance plans as requested
by the Union.
WE WILL reinstate, upon unconditional re-
quest, all strikers who were not permanently re-
placed before November 5, 1977, to their former
jobs or, if such positions no longer exist, to sub-
stantially equivalent positions, without prejudice
to their seniority or other rights and privileges
previously enjoyed, discharging, if necessary, any
replacements hired after November 5, 1977; and
make such employees whole for any loss of earn-
ings resulting from our failure to reinstate them
within 5 days of their unconditional request,
with interest. WE WILL place employees for
whom no employment is available on a preferen-
tial hiring list based upon seniority or some other
nondiscriminatory test, for employment as jobs
become available.
PENNCO, INC.
471