Peoples Gas System, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 1008 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peoples Gas System, Inc. and Teamsters Union Local
769, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case 12-CA-6025
September 29, 1978
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.I.O
AND MURPHY
On November 14, 1974, the Board issued its Deci-
sion and Order in this proceeding' finding, contrary
to the Administrative Law Judge, that Respondent
had not violated Section 8(a)(5) and (1) of the Act as
alleged and ordering that the complaint be dismissed
in its entirety.2 Upon the petition for review, the
United States Court of Appeals for the District of
Columbia on April 8, 1976, reversed and remanded
the case to the Board for "reconsideration and rear-
ticulation of its decision."3' On May 14, 1976, the
Board notified the parties they could file statements
of position with respect to those issues raised by the
court's remand and all parties filed such statements.
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.
Respondent Peoples Gas is a public utility engaged
in the sale of natural liquid petroleum and in the sale
and installation of gas appliances. Since 1966, the
Union has been the certified bargaining representa-
tive of all production, maintenance, and distribution
employees of Respondent's east coast division in
Dade and Broward Counties, Florida. Respondent
and the Union entered into two successive contracts,
the latter expiring in February 1973. Pursuant to the
Union's timely request, the parties commenced nego-
tiations toward a new agreement in January 1973, but
no final agreement was reached by April 23, 1973,
when Respondent filed a representation petition with
the Board.4 That petition was the first indication the
Union had that its representative status was being
I 214 NLRB 944. Member Murphy was not a member of the Board at that
time and did not participate in that decision.2On February 12, 1975, the Board denied the Union's motion for recon-
sideration on the ments. Immediately thereafter the Union filed an appeal
with the United States Court of Appeals for the Distnct of Columbia and the
following day filed with the Board a representation petition in Case 12-RC
4807 for an election among the unit employees involved in this unfair labor
practice proceeding. An election was held on May 30, 1975, which the Union
lost, with 61 votes for and 93 against. No objections were filed and on June
10, 1975, a Certification of Results of Election issued.
I Teamsters Local Union 769, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N.L.R B.,
532 F.2d 1385.
'Case 12 RM-257, which was dismissed on November 29. 1973
questioned. On May 1, 1973, Respondent notified the
Union that it would not engage in further bargaining
during pendency of the representation petition. The
Union filed its charge in this proceeding 6 days later,
and on November 23, 1973, the General Counsel is-
sued his complaint alleging that Respondent violated
Section 8(a)(5) and (1) of the Act by its April 23 with-
drawal of recognition and subsequent refusal to re-
sume negotiations.
The General Counsel's arguments against Respon-
dent rested ultimately on the Board's well-settled
principle that an incumbent union's representation
position is supported by a presumption of continuing
majority status, which cannot lawfully be questioned
unless objective considerations provide reasonable
grounds for an employer's believing a majority of em-
ployees no longer desire such representation.5 At the
early stages of this proceeding, Respondent con-
tended (I) that in view of certain consequences of a
1970 strike the presumption was not applicable to the
Union's bargaining status and (2) that if the principle
were applicable, objective considerations did exist
justifying its withdrawal of recognition. The Adminis-
trative Law Judge considered each of' these defenses
in detail. He concluded they were without merit and
thus found that Respondent violated the Act as al-
leged. However, as indicated, the Board reversed,
concluding that at the time it withdrew recognition
Respondent was in possession of objective consider-
ations which "when viewed in their entirety" justified
its conduct. In reaching this result the Board relied
primarily on (1) the large drop in the percentage of
employees whose valid checkoff authorizations were
on file; (2) a sudden change in the Union's bargaining
posture strongly suggesting (the Board concluded)
that the Union itself was skeptical of its employee
support; and (3) substantial changes in the composi-
tion of the unit resulting from (a) the acquisition,
since 1970, of two groups of employees "added under
circumstances suggesting lesser support for the
Union" and (b) a high turnover of employees from
September 1972 to April 1973. the time of withdrawal
of recognition.
The court, in reversing the Board, adverted to a
number of what it considered inadequacies in the
Board's Decision. We find it unnecessary, however, to
pursue all these matters in detail, and limit our analy-
sis to those which are critical to the conclusion.
With respect to the checkoff authorizations, there is
some evidence that between 1970, the date of the
Union's unsuccessful strike, and April 1973 the num-
ber of employees having such authorizations on file
I See, e.g., Nu-Southern Dyeing & Finishing, Inc., and Henderson Combin-
ing Co., 179 NLRB 573, fn. 1 (1969). and case cited therein: Viking Lithogra-
phers, Inc., 184 NLRB 139 (1970).
238 NLRB No. 143
1008
PEOPLES GAS SYSTEM, INC.
dropped by some 37 percent. 6 Nevertheless, at the
time recognition was withdrawn there were still on
file with Respondent valid checkoff authorizations
from 51 percent of the nonprobationary unit employ-
ees.7 Yet in the Board's original Decision, as the court
complained and we now agree, there is no adequate
explanation of why the percentage drop in such au-
thorizations was emphasized and the percentage ma-
jority minimized. And, at this stage and time, we can
perceive of no solid reason for the difference with re-
spect to the treatment of the two. In fact, although
the checkoff figures might properly be construed as
indicating some weakening in the Union's support,
they did not show a loss of majority but rather sug-
gest the contrary--i.e., that the Union in fact contin-
ued to be the majority representative. Furthermore,
the checkoff information on which Respondent's
counsel, Hogg, purportedly acted in withdrawing rec-
ognition was at best incomplete. It was to the effect
that in 1970 some 76 percent of the unit employees
had authorizations on file, while in April 1973 the
comparative figure was only 39 percent. However,
this latter percentage is based on including the per-
manent employees with the probationary employees
who, unknown to Hogg, were not permitted to file
checkoff authorizations. Thus, that figure does not
contradict the figure of 51 percent for checkoff autho-
rizations on file with Respondent from permanent
employees. Consequently, the lesser percentage figure
is essentially meaningless unless the assumption is
made that a far smaller percentage of probationary
rather than permanent employees would have filed
checkoff authorizations. But there is nothing in the
record before us that would justify any such assump-
tion. It is thus clear that Hogg acted overhastily on a
misunderstanding of the import of the information he
had received and failed to obtain other relevant con-
trary information he could have readily acquired
6 It appears that this 3
7
-percent figure was admitted in evidence by the
Administrative Law Judge only as evidence of Respondent's state of mind at
the time it withdrew recognition and not as evidence of the actual number of
employees on checkoff
I Respondent contends that the Union did not "in any fair and reasonable
sense" have 51 percent of the nonprobationary employees on checkoff on the
date recognition was withdrawn since two cards counted were from employ-
ees who pnor to that time had sent Respondent withdrawal-from-checkoff
notices. If those cards were discounted, then only 49 percent of the nonpro-
bationary employees were on checkoff. However, these two revocations, even
if accepted at face value, afford no support to Respondent's claim that it had
reasonable grounds for doubting the Union's majority; for, at the time Re-
spondent's counsel, Hogg, withdrew recognition, he was, insofar as the rec-
ord indicates, unaware of the existence of said revocations. As for the
Union's actual majority status on April 23, these revocations are of only little
effect, for they were more than offset by eight authorizations-seven from
nonprobationar' unit employees-held by the Union on that date, but not
yet delivered to Respondent. With respect ot the foregoing matters, the Ad-
ministrative Law Judge, for reasons set forth in his Decision. refused to
exclude the two authorizations where revocation had been sent only to Re-
spondent or to count the authorizations held by the Union but not yet deliv-
ered to Respondent. From these results he reached his 51-percent figure
which the Board accepted in its initial Decision, which the court relied on in
its opinion. and which we now use as fairly describing the situation.
from Respondent's records. Such selective misleading
information does not qualify as an objective consider-
ation under the rule.8 In sum, there is nothing in the
checkoff authorization percentages that would sup-
port a conclusion either that the Union did not in fact
represent a majority in April 1973 or that Respondent
was justified in so assuming. 9
Secondly, we concede that there are difficulties
with the Board's previous consideration of certain
post-1970 changes in the unit complement and with
their impact on the Union's majority. Involved here
are the addition of two groups of employees to the
unit-permanent strike replacements approximating
40 percent of the unit employees in 1970, and some 25
employees acquired in a 1972 merger-and a high
turnover rate of unit employees between September
1972 and April 1973. Applicable here, as the court
suggests,i° is the well-settled presumption that newly
added employees support the Union to the same ex-
tent as the existing unit members. Consequently, the
fact of a substantial change in unit personnel since
the Union acquired its initial majority is not of itself
evidence of a loss of even drop in employee support.
However, the Board did state with respect to the 1970
strike replacements and the 1972 merged employees
that those two groups were added to the unit "under
circumstances suggesting a lesser degree of union sup-
port therein." We need not now question that suspi-
cion for contrary to the position taken by Respondent
and by the Board prior to the court's decision, any
adverse impact by these groups on the Union's major-
ity status cannot reasonably be held to have cause a
loss of such status. This is so because by April 1973
all the yet employed individuals in these two groups
would have been permanent employees and thus, as
the court in effect pointed out, their adverse influence,
if any, on the Union's support was already measured
in the drop in outstanding checkoff authorizations,
which, however, never did, as we have noted, go be-
low the 50-percent mark." Therefore, the record here
' See Davis &d Henmphill, Inc., 177 NLRB 282, 284-286 (1969).
9 We wish to make it clear that we are not holding here that the percentage
of checkoff authorizations on file is proof that a union does or does not
actually enjoy majority status. See, e.g., Dalewood Rehabilitation Hospital,
Inc. d/b/a Golden State Rehabilitation Convalescent Center, 224 NLRB 1618
(1976). All we are holding is that a drop in the percentage of employees on
checkoff is not proof of the Union's loss of majority, nor reasonable grounds
for believing the Union has lost its majority support, especially where, as
here, a majority of eligible employees has remained on checkoff
'°532 F.2d at 1390.
H In support of his position, our dissenting colleague adverts at several
points to the "severe drop in checkoff authorizations and high turnover rate"
as separate factors supporting Respondent's "good-faith" doubt, as if the
court had not pointed out that the drop in checkoff authorizations and em-
ployee turnover were not necessarily independent objective considerations
but rather were interdependent factors, the decrease in authorizations being
a consequence of the employee turnover.
A further consequence of this interdependence is that there is no basis on
the record for assuming, as the dissent in effect does, that the drop in check-
off authorizations demonstrated any erosion of existing support for the
(Continued)
1009
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provides no objective basis for concluding that the
addition of these two groups, even assuming their loy-
alty to the Union was suspect, resulted in the Union's
losing majority support. In view of these consider-
ations, we see no reason for concluding that the
change in the employee complement was an objective
factor supporting Respondent's withdrawal of recog-
nition. We so find.
Third, there are also problems with relying on the
alleged "sudden and unexplained change in the
Union's bargaining posture" which suggested, it was
claimed, that the Union itself lacked confidence in the
extent of the support it had maintained. In issue here
is primarily the Union's failure to follow through with
a strike threat and its eager offer towards the end of
negotiations to sign almost any contract Respondent
might propose. In retrospect, it seems evident to us
that implications to be drawn from such bargaining
conduct are essentially subjective in nature, rather
than objective. Furthermore, Whatever may have
been the Union's misgivings concerning its strength,
that conduct does not impel, or even give much sup-
port to, a conclusion that it felt it had lost its majority
or that in fact it had. Indeed, we can readily conceive
of various plausible explanations for the Union's be-
havior that carry no necessary implication of loss of
strength. For example, it may well be that the Union
sought agreement on almost any contract in order to
aviod risking the loss of majority support through an
unsuccessful strike action while pursuing its aims
through a less risky Board proceeding.' In such cir-
Union, that is, demonstrated any change of heart by union adherents. [he
drop may well have been caused, as noted, by new employees failing to sign
authorization cards, and thus would not represent any faltering in the
Union's bedrock support. Such an inference would seem warranted by the
lack of any evidence, aside from one instance, of revocation of' authorizations
and complete absence of any evidence of employee dissatisfaction with the
Union. Also, contrary to the language of the dissent, the record does not
support any conclusion that there was a "downward trend" in outstanding
authorizations. At most, the record shows that the number of employees on
checkoff in 1973 was substantially less than in 1970, but there is no evidence
that this change was occasioned by continuing revocation of authorizations,
reflecting arguably a continuing erosion of' union support rather than primar-
ily by two discrete events, i.e., the 1970 replacement of strikers and the
acquisition of another company in 1972. In any event, the dissent's emphasis
on the drop in outstanding authonrizations is, in the circumstances here,
clearly misplaced.
12 We, of course, do not consider, as the dissent claims, the Union's capit-
ulation to be "some hitherto unheard of bargaining tactic." Our point is
simply that the Union's conduct is subject to plausible interpretations other
than that single one opted for by Respondent and our colleague, and which
they contend shows that the Union's "objective level of support was some-
thing of an overstatement." In fact, to the extent the record supports a par-
ticular interpretation of the Union's conduct, we believe it shows, as the
Administrative Law Judge suggested, that that conduct was indeed caution-
ary in purpose rather than motivated by any belief or knowledge that major-
ity support had eroded. Thus the Union's 1970 strike had proved somewhat
disatrous to the Union and had in effect cost a number of strikers, and thus
presumably union supporters, their jobs. The Union therefore may well have
had deep misgivings about resorting to strike action or other show of
strength in view of the then recent adverse consequences of the strike upon
its bargaining strength and upon the welfare of its adherents. It also may
very well have felt that though a majority of' employees supported it as their
bargaining agent those same employees would be reluctant in view of the
earlier misadventure to risk their jobs by striking in support of bargaining
cumstances the Union's capitulation would not repre-
sent a confession of weakness but rather would be a
means of conserving its strength. Of course, here we
engage in little more than speculation; but then Re-
spondent's construction of the import of the Union's
bargaining conduct and our past defacto concurrence
in its interpretation were, similarly, essentially specu-
lation. Therefore, we find that the vagaries of the
Union's tactics were not criteria objectively demon-
strating that the Union had lost majority support.
We are not holding here that those matters consid-
ered above are never relevant factors along with var-
ious objective considerations in appraising a union's
strength. However, here they stand essentially alone,
and any suspicions they may have engendered con-
cerning the Union's loss of majority gained no sup-
port from the surrounding circumstances. For, as the
Administrative Law Judge pointed out in his Deci-
sion, there is no evidence of any employee renunci-
ation of, or opposition to, the Union which would
serve as a basis for reasonable doubt of majority sta-
tus. Consequently, we find that the matters discussed,
whether taken singly or together, did not warrant the
action taken by Respondent. Therefore, and in view
of all the foregoing-including the court's decision-
we conclude that the Administrative Law Judge was
correct in finding that Respondent was not justified
by objective criteria in withdrawing recognition from
the Union on April 23, 1973.
Accordingly, in view of the above and particularly
the court's decision, we find that Respondent violated
Section 8(a)(5) and (1) when it withdrew recognition
from the Union and thereafter refused to bargain
with that labor organization.
THE REMEDY
In his recommended Order the Administrative Law
Judge, inter alia, recommended that Respondent be
ordered to bargain with the Union. Such a bargaining
order is obviously appropriate and, we would say,
necessary to remedy effectively the unlawful conduct
and to return the situation to what it was prior to the
unlawful withdrawal of recognition. Nevertheless,
Respondent now contends that a bargaining order is
barred by our decision in Irving Air Chute Company,
Inc., Marathon Division, 149 NLRB 627 (1964). In
that case, the Board held in effect that in appropriate
circumstances it would issue a bargaining order in an
unfair labor practice proceeding in favor of a union
demands. In short, the Union's capitulation may show nothing more than
that the Union sensed its supporters would not back up strong economic
action that would risk their jobs. But it does not necessarily indicate it was a
minority union. and, in view of the background events here. the Union's
capitulation does not support any reasonable inference that the Union no
longer enjoyed majority support.
1010
PEOPLES GAS SYSTEM, INC.
which had lost an election but only if the election had
been set aside upon meritorious objections filed in the
representation proceeding. As noted above, no objec-
tions were filed in the election held on May 30, 1975,
which the Union lost. Nevertheless, that holding is
not applicable to the matter here before us for at least
two reasons. First, Irving Air Chute dealt with a situ-
ation where a union was seeking initial recognition,
inter alia, through a Board-conducted election. Here,
however, the Union at no time relevant was seeking
initial recognition, but rather it was seeking to recap-
ture recognition unlawfully withheld prior to the con-
duct of the election.' Consequently, to accept the
election results would have the effect of forcing the
Union into an election campaign to regain what was
unlawfully taken from it. In short, the only conceiv-
able way to remedy the unfair labor practice and to
establish the status quo ante in this proceeding is to
issue a bargaining order. Second, it would have been
futile for the Union to have filed any objection to the
election based on Respondent's withdrawal of recog-
nition, for at that time the Board had held such with-
drawal to be lawful, and, thus, of course, it would not
have been held to be objectionable conduct. Conse-
quently, any such objection would have been over-
ruled and the results of the election certified, as in-
deed they were, absent any objections. In short, the
filing of an objection to the election would have
served no useful purpose except possibly the narrowly
technical one of preserving the Union's rights under
what we hold to be an overly literal construction of
Irving Air Chute.
In sum, we conclude that a bargaining order is nec-
essary and uniquely appropriate to remedy Respon-
dent's unfair labor practices. We further conclude
that such an order is not barred by the principle
enunciated in Irving Air Chute.'4 Consequently, we
shall adopt the Administrative Law Judge's recom-
mended Order. However, in view of the Board's ini-
tial conclusion that the withdrawal of recognition was
not unlawful and the court's opinion did not reverse
but only directed reconsideration of that conclusion,
we believe that the interests of the parties, the em-
ployees, and the public will in the circumstances here
be best served if the effective date of the Order is-
and we so hold-the date of issuance of this Supple-
"~ Thus, the election was held in a context of a continuing unfair labor
practice of a most senous kind and, consequently, the dissent's observation
that "no unfair labor practices were committed during the critical period"
seems as a matter of substance to be rather hollow. Also the dissent's suppo-
sition that the Union's tiling of its petition "indicated that the effects of the
refusal [to bargain] were so attenuated as not to preclude the holding ofa fair
election" is sheer speculation and attached to the filing of a petition a rather
novel implication.
1' The court clearly took the position in its decision that the Board was not
barred upon reconsideration from issuing a bargaining order in favor of the
Union if deemed it appropriate 532 F:.2d at 1387 88
mental Decision and Order.' 5 Finally, as a conse-
quence of all the foregoing and in view of Respon-
dent's continuing unfair labor practices during the
critical period of the election held in Case 12-RC-
4807 on May 30, 1975, we hereby dismiss the petition
in that case and vacate all proceedings held in con-
nection therewith.
In view of all the foregoing, including the court's
opinion in this proceeding, the parties' statements of
position, and the entire record in the case, we now
conclude that the Administrative Law Judge cor-
rectly found that Respondent violated Section 8(a)(5)
and (I) of the Act and we therefore affirm his rulings,
findings, and conclusions and adopt his recommend-
ed Order, as set forth below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge (issued April 9,
1974) and hereby orders that the Respondent, Peoples
Gas System, Inc., Dade and Broward Counties, Flor-
ida, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to recognize and bargain collectively
with Teamsters Union Local 769, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive bar-
gaining representative of the employees in the unit
described below, concerning rates of pay, wages,
hours of employment, and other conditions of em-
ployment:
All employees in its East Coast Florida division
in Dade and Broward Counties engaged in pro-
duction, maintenance, and distribution, includ-
ing installation, plant, propane and service de-
partment employees; but excluding all office
clerical employees, meter readers, sales employ-
ees, watchmen, guards, and supervisors as de-
fined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
I' Having tound that Respondent's withdrawal of recognition on April 23,
1973, viiolated Sec. 8(aX5) and (1) of the Act, Chairman Fanning would
provide for the Board's usual remedy. In the Chairman's view, the Board's
normal Order, combining a cease-and-desist provision and an affirmative
bargaining provision is necessary to reach all matters with respect to which
Respondent should be obligated to bargain upon request, including matters
as to which it may have been unlawfully refusing to bargain since April 23,
1973. Chairman Fanning does not agree that the fact that the Board's Sup-
plemental Decision, after a court remand, reached a result different from its
original Decision warrants, under all the circumstances in this case, the im-
position of an other-than-usual Board remedy
1011
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named Union, as the exclusive bargaining rep-
resentative of all the employees in the unit described
above, concerning rates of pay, wages, hours of em-
ployment, and other conditions of employment and,
if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its place of business and facility in Mi-
ami, Florida, copies of the attached notice marked
"Appendix."' 6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 12, after
being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other ma-
terial.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER PENELLO, dissenting:
I would affirm the Board's original Decision in this
case and find that Respondent had sufficient objective
considerations upon which it could base a reasonable
doubt as to the Union's majority status.
Initially, the majority states that the original Board
Decision in this case gave no reason why the percent-
age drop in authorizations was emphasized at the ex-
pense of the Union's apparent maintenance of a ma-
jority (51 percent) in nonprobationary checkoff
authorizations. The reason for this emphasis, of
course, is that we have consistently looked to the
trend in dues-checkoff authorizations as evidence of
employee support or a lack thereof.' Thus, while we
have stated that the number of employees on dues
checkoff may not indicate any lessening of support
for the Union if it is a relatively low, stable figure, a
dramatic drop in the number of checkoff authoriza-
tions may reasonably be viewed as evidence of weak-
ened employee allegiance."
In the instant case, 90 percent of all eligible (i.e.,
nonprobationary) employees were on checkoff in
1970. By early 1973, this figure had dropped to 51
'6 In the event that this Order is enforced by a judgment of a Uruted 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."
II Convair Division of General Dynamics Corporation, 169 NLRB 131
(1968).
Is Id at 134.
percent. If probationary employees were included in
the unit, the comparable figures are 76 percent of all
employees on checkoff in 1970, and 39 percent on
checkoff in 1973 at the time Respondent withdrew
recognition. I would note at this point that the Board
requires that an employer must have objective consid-
erations upon which to base a reasonable doubt as to
the majority status of the Union,'9 not objective con-
siderations proving a lack of majority support for the
bargaining representative. Here, Respondent acted in
good-faith reliance on information that only 39 per-
cent of unit employees were on checkoff.20 This statis-
tic (when viewed in conjunction with other factors
discussed, infra) must certainly be considered as an
objective basis for doubting the Union's majority, if it
is later determined that 51 percent of the eligible em-
ployees were found to be on checkoff.
Regardless of which statistics are utilized, however,
this much is clear: the Union's checkoff authoriza-
tions had dropped by almost 40 percent in a period of
over 2 years, a circumstance which must, by any stan-
dard, be viewed as a "dramatic" drop in checkoff au-
thorizations. It is this dramatic downward trend in
dues authorizations which the Board found signifi-
cant in its original Decision, and it was this trend,
coupled with other factors discussed below, upon
which Respondent could entertain a reasonable
doubt as to the Union's majority status.
It is significant that Respondent made inquiries as
to the extent of the Union's number of checkoff au-
thorizations only after an occurrence which was also
relied on by the Board in its initial Decision as an
objective consideration justifying a reasonable doubt
as to majority status. This circumstance was the
Union's precipitous shift in bargaining posture during
negotiations, the details of which I set forth more ful-
ly below.
After some six negotiating sessions conducted be-
tween the Union and Respondent in January and
February 1973, the Union requested that Respondent
submit its final offer. Thereafter, Respondent did sub-
mit its final proposal, and the Union stated that this
offer would be presented at a general membership
meeting on February 5, 1973, but that the bargaining
committee would recommend its rejection. Prior to
this time, the Union had informed Respondent that it
already had authorization to call a strike.
Despite their announced intentions, the Union's
president and the bargaining committee recommend-
ed acceptance of Respondent's last offer, and this of-
fer was accepted at a general membership meeting.
19 Celanese Corporation of America, 95 NLRB 664 (1951).
n Despite the majority's characterization of the use of this information as
"selective misleading information," there is nothing to indicate that there
was any bad faith on the part of Respondent. Moreover, the record reveals
that Respondent found the trend in authorizations significant, as well as the
low percentage figure.
1012
PEOPLES GAS SYSTEM, INC.
Although the Union's attorney notified Respondent
that the parties "had a contract," Respondent's attor-
ney requested another meeting to resolve several mat-
ters left unsettled at the last negotiating session. The
parties met on February 14, and severe differences
arose as to whether agreements had actually been
reached on a number of items, and thereafter, on
February 20, the Union filed unfair labor practice
charges against Respondent.
In early March, however, the Union's attorney re-
quested that Respondent's attorney prepare an agree-
ment which the Company would be willing to sign,
reflecting all of Respondent's proposals on the yet un-
resolved issues, indicating that the Union "might"
sign such an agreement. On April II11, the Union's
attorney again called Respondent's counsel and asked
him to prepare an agreement which the Company
would be willing to sign, stating this time that the
Union "would" sign an agreement embodying all of
Respondent's proposals.
To summarize briefly, Respondent was presented
in February with a situation wherein the Union was
to recommend rejection of its final offer and was ap-
parently ready to strike. Barely 2 months later, how-
ever, the Union's attorney was prepared to sign any
document which Respondent found acceptable. I
agree with the circuit court that this sudden and un-
usual shift in bargaining behavior by the Union is
"directly relevant to impeaching the significance of
the number of employees on checkoff."2'
Thus, the Union's sudden willingness to sign any
contract agreeable to Respondent precipitated an in-
quiry into the level off support for the Union. The
results of this inquiry reflected a significant down-
ward trend in checkoff authorizations which, even ac-
cepting the 5 I-percent majority checkoff figure, could
only buttress a conclusion that the Union's abrupt
capitulation was not, as suggested by the majority,
some hitherto unheard of bargaining tactic. Rather,
the willingness on the part of the Union to sign any
agreement acceptable to Respondent was an attempt
to maintain its status as bargaining representative
through the execution of a contract, and a reflection
that even the Union's objective level of support was
something of an overstatement.22 Unlike the majority,
I would find that the "background events" here
clearly support a reasonable inference that the Union
i1 Teamsters Local Union 769, affliated with the International Brotherhood
of Teamrsters, Chauffeurs, Warehousemen and Helpers of A mnera [People Gas
System, Inc.] v. N.L.RB., 532 F.2d 1385 (C.A.D.C., 1976).
1' In Viking Lithographers, Inc., 184 NLRB 139 (1970), a case similar to
the instant one in many respects, we held that the respondent was not "un-
reasonable or unrealistic in construing the Union's contractual surrender and
haste to enter into a contract, the terms of which were at best ambiguous, as
an attempt to secure its bargaining status in the face of declining employee
support," and found an objective basis for withdrawing recognition from the
union.
no longer enjoyed majority support. In the circum-
stances, I have no doubt that the Union had "deep
misgivings" about testing its strength. In any event, it
is one thing to say that the Union was not prepared to
call a strike, and quite another for the Union to be
willing to sign anything management proposed.
While I would agree that Respondent's turnover rate
is somewhat inconclusive standing alone as an objec-
tive consideration, I do not think it was unreasonable
of Respondent to consider its high annual turnover
rate (36 percent), when viewed in conjunction with
the overall pattern of declining checkoff authoriza-
tions and the Union's effective surrender at the bar-
gaining table, as lending credence to a belief that pro-
bationary employees were not (and would not be)
supporting the Union.
We have stated repeatedly that an employer may
lawfully withdraw recognition from a union where
the withdrawal is based on a reasonable and well-
grounded doubt as to the continued majority status of
the union. This "reasonable" doubt can be advanced
as a defense to a refusal to bargain only if the em-
ployer can show that the doubt was based on objec-
tive considerations and is asserted in an atmosphere
free from other unfair labor practices.2 3 Here, in a
context of no unfair labor practices. Respondent, ini-
tially confronted with a promise of rejection of its last
contract offer and a strike threat, suddenly found the
Union willing to agree to anything Respondent pro-
posed. Properly curious, Respondent investigated and
found that union checkoff authorizations had de-
creased almost 40 percent in a period of slightly over
2 years. These factors, combined with Respondent's
high turnover rate between 1970 and 1973, coalesced
to form the basis for Respondent's doubt as to the
majority status of the Union.24 Viewed from Respon-
dent's perspective at the time recognition was with-
drawn (rather than retrospectively), I believe Respon-
dent's doubt was a reasonable and well-grounded one
and supported by Board precedent.25 The severe drop
in checkoff authorizations and the high turnover rate
provided an explanation for the Union's eagerness to
sign anything Respondent would find acceptable: the
level of objective support for the Union was overstat-
ed, and the Union was seeking to maintain its repre-
sentative status by the execution of a collective-bar-
gaining agreement.
The majority concedes that the matters considered
by Respondent were "relevant" in appraising the
Union's level of support, but notes that here these
:~ Nu-Southern Dyeing & Finishing, Inc., and Henderson Combining Co.,
179 NLRB 573 (1969), enfd. in part 444 F.2d II (C.A. 4, 1971).
24 We have held that even a union's maintenance ofa majonty on checkoff
does not preclude a finding of good-faith doubt based on objective ccnside,-
ations. See Mitchell Standard Corporation, 140 NLRB 496 (1963).
12 See Viking Lithographers, Inc. 184 NLRB 139 (1970).
1013
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factors "stand essentially alone." As I have outlined
above, the objective considerations relied on by Re-
spondent were not evaluated separate and apart from
one another, but instead were inextricably inter-
twined in Respondent's determination that there was
a reasonable doubt as to the majority status of the
Union. Thus, I wish to emphasize that I would not
find the factors relied on by Respondent, standing
alone, to rise to the level of objective considerations
sufficient to support a reasonable doubt as to the
Union's majority. Nonetheless, in the circumstances
of this case, I would find that the considerations re-
lied on by Respondent, when viewed in their entirety,
support a lawful withdrawal of recognition.
Accordingly, I would affirm the Board's original
Decision in the case and dismiss the complaint in its
entirety.
Beyond my disagreements with the majority on the
merits, however, I am troubled by the remedy in this
case and the overruling, sub silentio, of our Decisions
in Bernel Foam Products Co., Inc.,26 and Irving Air
Chute, Inc.27
In the instant case, Respondent, after withdrawing
recognition, filed a petition in Case 12-RM-257.
Thereafter the Union filed an 8(a)(5) charge which
was dismissed in the Board's orginial Decision.2 8 Af-
ter filing a petition for review in the circuit court, the
Union then filed a petition in Case 12-RC-4807. The
Regional Director for Region 12 notified the parties
that he was postponing the election pending a deci-
sion by the court of appeals. The Board, however,
directed the Regional Director to proceed with the
election, which the Union lost.2 No objections were
filed, and on June 30, 1975, a Certification of Results
of Election issued.
In Irving Air Chute, we held that a union which
loses an election may nonetheless seek bargaining or-
der relief where the employer has engaged in conduct
requiring the election be set aside. However, we also
stated in Irving that:
We will not grant such relief... unless the elec-
tion be set aside upon meritorious objections
filed in the representation case. Were the election
not set aside on the basis of objections in the ...
representations case, we would not now direct a
bargaining order even though the unfair labor
practice phase of this proceeding itself estab-
lished the employer's interference with the elec-
tion.3 0
The reason for this rule is our concern with the integ-
26 146 NLRB 1277 (1964).
27 149 NLRB 627 (1964), enfd. 350 F.2d 176 (C.A. 2, 1965).
'R Penples Gas System, Inc., 214 NLRB 944 (1974).
29 The election, conducted on May 30, 1975, showed 61 votes for, and 93
against, the Union; there were 2 void ballots and 2 challenged ballots.
13 Irving, supra at 630.
rity of the election process and the notion that a bar-
gaining order remedy is appropriate notwithstanding
the results of the election because of an employer's
interference with the conduct of the election. Clearly,
in the normal 8(a)(5) situation, we issue a bargaining
order because an employer's unfair labor practices
make unlikely the holding of a free and fair election.
Here, the Union, some 2 years after the withdrawal of
recognition, thought it could obtain a free and fair
election, and the Board, in directing that the election
be held, obviously agreed. In fact, no unfair labor
practices were committed during the critical period,
and no objections to the conduct of the election were
filed by the Union. If there was an unlawful refusal to
bargain in 1973, I would posit that the Union's filing
of a petition indicated that the effects of that refusal
were so attenuated as not to preclude the holding of a
fair election in 1975. Again, even assuming arguendo
an unlawful withdrawal of recognition in 1973,1' I
would not extent Irving Air Chute and issue a bar-
gaining order in situations such as the instant one,
where no objections have been filed, and the Board
has certified the results of the election.
31 If indeed it was the alleged unlawful withdrawal of recognition in 1973
which fbrms the basis for the issuance of the bargaining order herein and the
dismissal of the petition in Case 12-RC 4807, I find it curious that the
majority makes the bargaining order prospective rather than retroactive. The
entire basis for the majority's findings rest on the notion that the 1973 with-
drawal of recognition was a continuing violation. Accordingly, in order to
truly establish the status quo ante if there was an unlawful refusal to bargain,
the bargaining order should be dated from the initial refusal to bargain.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIILL NOT refuse to recognize and bargain
collectively with Teamsters Union Local 769, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of the
employees in the unit described below, concern-
ing rates of pay, wages, hours of employment,
and other conditions of employment. The bar-
gaining unit is:
All employees of the Company's East Coast
Florida division in Dade and Broward Coun-
ties engaged in production, maintenance and
distribution, including installation, plant, pro-
pane and service department employees; but
excluding all office clerical employees, meter
readers, sales employees, watchmen, guards,
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, of coerce employees in
1014
PEOPLES GAS SYSTEM. INC.
the exercise of the right guaranteed them by Sec-
tion 7 of the Act.
WE WILL bargain collectively, on request, with
the above-named Union, as the exclusive bar-
gaining representative of all the employees in the
unit described above, with respect to rates of
pay, wages, hours of employment, and other con-
ditions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement.
PEOPLES GAS SYSTIEM. INC.
1015