Rdr Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1988

290 N.L.R.B. 101 (N.L.R.B. 1988)

RDR INDUSTRIES
RDR Industries , Inc. and International Association
of Machinists and Aerospace Workers, AFL-
CIO, District Lodge 157. Case 3-CA-13541
July 29, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On May 26, 1987, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order
The Respondent and the Union began negotia-
tions for a new contract on October 14, 1986.3 As
of September, 7 of the 15 unit employees were
union members on dues checkoff. Prior to the No-
vember 12 negotiating session the Respondent's
counsel, Murray Kirshtein, informed the Union's
business representative, Lawrence Manca, that be-
cause of promotions and resignations there were
only 2 union members remaining in the now 10-
person unit that were on dues checkoff.
At the November 12 session Manca, Kirshtein,
and the Respondent's president, John Rushton,
were present. Kirshtein and Rushton both testified
that Kirshtein asked Manca, "Can you represent to
me that you represent the majority of the unit?"
Kirshtein testified that Manca replied, "I cannot
represent to you that I do."
The Respondent contended that, based on
Manca's statement, it had a reasonably grounded
doubt as to the Union's majority status and that it
therefore lawfully withdrew recognition from the
I The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We affirm the judge's quashing of the subpoena for the testimony of
Federal Mediator Robert Clintshaw The Respondent seeks Clintshaw's
testimony to corroborate the testimony of its witnesses that they asked
Union Negotiator Manca if he could "represent that he represented a ma-
jority" of the unit and that he answered that he could not Clmtshaw was
not present when the question was allegedly asked and answered At
most he could testify that Kirshtem told him over the phone that the
question was asked and answered Thus, we find that Clintshaw's testi-
mony would not be sufficiently probative to corroborate the Respond-
ent's witnesses and that the judge did not abuse his discretion in exclud-
ing this testimony
3 All dates are in 1986
101
Union. Manca denied that he made the statement
attributed to him.
We agree with the judge that Manca's ambigu-
ous response to Kirshtein's question, even if made
as Kirshtein testified, was insufficient to rebut the
Union's presumption of continuing majority status.
Therefore, it is unneccessary to remand the case to
the judge to resolve the credibility conflict.
If, in fact, Manca made such a statement, he
could have meant only that he did not know that a
majority of the unit were members of the Union or
that a majority would agree to the contract terms
he was negotiating. Futhermore, the statement is
not couched in affirmative terms-that Manca did
not represent a majority-but merely in terms of
declining to make an express statement that he did.
His alleged statement is in marked contrast to the
statements in Upper Mississippi Towing Corp., 246
NLRB 262 (1979), relied on by our dissenting col-
league. There, the majority relied on, among a
number of factors rebutting the union's presump-
tion of continuing majority status, three unambig-
uous statements. Those statements were found to
"clearly state NMU's estimate that it lacked em-
ployee support" and that the NMU would "never
be able to win the election." Manca's single ambig-
uous statement here simply does not rise to the
level of the union representatives' "admissions" in
Upper Mississippi.4
In short, we agree with the judge that Respond-
ent was not justified in withdrawing recognition
from the Union here. Accordingly, we shall adopt
his recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, RDR Indus-
tries, Inc., Mohawk, New York, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
MEMBER CRACRAFT , dissenting in part.
Contrary to my colleagues, I would not adopt
the judge's decision.' I would remand this case to
the judge for resolution of the credibility conflict
between the Respondent's witnesses (Attorney
Kirshtein and President Rushton) and Union Busi-
ness Representative Manca whether Manca was
asked whether he could represent that the Union
4 See United Supermarkets, 214 NLRB 958 (1974), in which a Board
majority found that an unclear statement was not an admission by the
union that it did not have majority status That case bares a closer resem-
blance to the situation here
i I do, however, agree with the majority's quashing of the subpoena
for the testimony of Federal Mediator Robert Chntshaw for the reasons
stated
290 NLRB No. 18
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
represented a majority of the unit employees and
whether Manca replied that he could not so repre-
sent.
The complaint alleges only an unlawful with-
drawal of recognition. There is no evidence that
the Respondent sought to undermine the Union or
that it committed any other unfair labor practices.
The Respondent bargained in good faith with the
Union to reach a successor agreement until the al-
leged question was asked and the alleged reply was
given , whereupon the Respondent withdrew recog-
nition. In the context of a sharp decline in the per-
centage of unit employees on dues checkoff, record
evidence , if credited , reveals that the Respondent
merely asked the Union to confirm that it remained
the employees' 9(a) representative and that the
Union admitted in its answer that it lacked majori-
ty support.2 Under these circumstances , I would
find that Manca 's statement, if credited , would pro-
vide the Respondent with an objectively based,
good-faith doubt of the Union 's continuing majori-
ty status. Upper Mississippi Towing Corp., 246
NLRB 262 (1979). Therefore, I would remand the
case to the judge for this vital credibility resolu-
tion.
2 If the Union had merely relied on its presumption of majority support
in responding to the Respondent 's inquiry , I would have no problem af-
firming the judge However , when , as here , it is alleged that the business
representative and chief negotiator for the Union admitted that he could
not represent that the Union had majority support , I believe a credibility
resolution must be made
Robert A . Ellison, Esq., for the General Counsel.
Murray J. S. Kirshtein, Esq., of Utica, New York, for the
Respondent.
DECISION AND ORDER
D. BARRY MORRIS , Administrative Law Judge. This
case was heard before me in Utica, New York , on 9 Feb-
ruary 1987.' On a charge filed on 24 November 1986,2 a
complaint was issued on 16 December , alleging that
RDR Industries , Inc. (Respondent) violated Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act). The complaint alleged that Respondent withdrew
its recognition of International Association of Machinists
and Aerospace Workers, AFL-CIO, District Lodge 157
(the Union) as the exclusive collective-bargaining repre-
sentative of its production and maintenance employees.
In addition , the complaint alleged that Respondent failed
to furnish the Union with information requested by it
and increased the hourly wage rates of unit employees
without prior notice to the Union . Respondent filed an
answer denying the commission of the alleged unfair
labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
i The record was closed on 27 March 1987.
a All dates refer to 1986 unless otherwise specified
argue orally , and file briefs . Briefs were filed by the
General Counsel and by Respondent.
On the entire record of the case , including my obser-
vation of the demeanor of the witnesses , I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
Respondent , a New York corporation with an office
and place of business in Mohawk , New York, is engaged
in the fabrication of sheet metal and related products. It
annually sells and ships from its New York facility goods
valued in excess of $50,000 to consumers located outside
the State of New York . Respondent admits that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and I so find. In ad-
dition , I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
On 1 July 1980 the Union was certified as the exclu-
sive collective -bargaining representative of Respondent's
production and maintenance employees . The parties sub-
sequently entered into a 3-year collective-bargaining
agreement . In 1983, pursuant to a decertification petition,
an election was conducted that resulted in the Union's
recertification . At the time approximately 15 to 17 em-
ployees were in the unit . The parties then entered into a
3-year collective-bargaining agreement extending from
10 November 1983 to 10 November 1986.
On 22 and 26 August 1986 the parties notified each
other , in writing, of their intent to enter into negotiations
for a successor agreement . In early September, Union
Business Representative Lawrence Manca orally request-
ed that Respondent President John Rushton provide a
listing of the hourly earnings of the unit employees. On
19 September Rushton provided the requested informa-
tion , which disclosed that wage increases were given to
some unit employees beyond that provided by the con-
tract.
2. Negotiations
On 14, 21 , and 23 October the parties met to negotiate
a successor contract , with Manca and Steward Dennis
Quatrino, representing the Union , and Rushton and Re-
spondent 's counsel , Murray Kirshtein , representing Re-
spondent . Manca and Kirshtein were the chief spokes-
men. During these discussions the parties reached a
number of tentative agreements , including an agreement
to increase wages.8
8 According to Manca , on 28 October the parties agreed to extend the
10 November expiration date of the then-existing agreement . Kirshtein
denied that the contract extension was agreed to. Art. 30 of the agree-
ment provides that any changes or modifications to the agreement must
be in writing and Manca conceded that there was nothing in writing ex-
Continued
RDR INDUSTRIES
As of September, 7 of the 15 unit employees were
union members whose dues were deducted from their
earnings by Respondent. On 26 August Rushton posted
an announcement that three foreman positions would be
filled, advising those interested to apply by 29 August.
Four employees, including Scott Fullington, all of whom
were union members on dues checkoff, applied. During
the last week of September, Fullington quit his employ-
ment with Respondent. On 7 November Leland Smith
notified Respondent and the Union, in writing, that he
was terminating his union membership as of 10 Novem-
ber.4
The parties resumed negotiations on 10 November,
with Manca and Kirshtein present. Certain items were
agreed on, subject to approval by Rushton and Quatrino.
Manca and Kirshtein agreed to continue negotiations the
following morning. The parties met again on 11 Novem-
ber, at which time various contract items were discussed.
The Smith resignation letter was shown to Manca, who
was then informed that the three foreman positions were
being filled immediately. Those selected were the indi-
viduals who had signed the 26 August posting. Kirshtein
then asked Manca whether all the members in the bar-
gaining unit would vote on the agreement. Manca re-
plied that only union members would vote. Kirshtein
said he would be more "comfortable if everybody in the
bargaining unit could vote on the agreement." Manca re-
plied that he had no objection to meeting with everyone
in the unit to inform them of the negotiations but that he
could only permit union members to vote on the agree-
ment. Manca and Kirshtein then agreed to speak with
Robert Klimshaw, a mediator with the Federal Media-
tion and Conciliation Service, as to the legality of having
the entire bargaining unit vote on the agreement. In ad-
dition, Manca said that he would discuss the question
with the Union's legal department.
3. Withdrawal of recognition
Kirshtein testified that he told Manca that he and
Rushton were concerned because less than a majority of
the unit employees were on checkoff. According to
Kirshtein he then asked Manca, "Can you represent to
me that you represent the majority of the unit?" Kirsh-
tein testified that Manca replied, "I cannot represent to
you that I do." Kirshtein further testified that he told
Manca:
If you can't provide for a majority of the employees
affected ratifying whatever agreement we come to,
and we're very close, and you can't represent to me
you represent a majority of the people, you give me
a problem. I can't negotiate with you.
Manca denied that he was asked whether the Union rep-
resented a majority of the employees. Kirshtein and
Manca then spoke by telephone to Clintshaw, who sug-
tending the agreement I find, therefore , that the agreement was not ex-
tended
Under the maintenance-of-membership clause of the 1983 contract,
employees had the right to resign from union membership between 1 and
10 November
103
gested that the Union obtain a legal opinion regarding
nonmember participation in the ratification process.5
On 12 November Manca was informed by the Union's
attorney that only members could participate in the rati-
fication. Manca so informed Kirshtem who replied that
Respondent would not negotiate further with the Union
Rushton acknowledged that Respondent would have
continued to negotiate with the Union had the Union al-
lowed the entire unit to ratify the agreement. Also on 12
November Manca made a written request for an updated
list of employees' earnings. Respondent never answered
the request. On 13 November Kirshtein and Rushton met
with the unit employees and informed them that Re-
spondent was implementing the wage increase that it had
tentatively agreed to with the Union This action was
taken without prior notice to the Union. Respondent has
refused to negotiate with the Union after 12 November.
B. Discussion
In Robertshaw Controls Co., 263 NLRB 958, 959
(1982), the Board stated.
We have consistently held that a union enjoys a
presumption of continuing majority status. In order
to rebut that presumption , an employer must either
show that the union in fact no longer retains majori-
ty support , or that its refusal to bargain was based
on a reasonably grounded doubt as to the union's
majority status. As to a reasonably grounded doubt,
the doubt must be based on objective consider-
ations.
When Respondent's representatives realized that less
than a majority of the unit employees were on checkoff,
they requested that all the unit employees ratify the
agreement. The union representative refused to accede to
this request and stated that only union members would
be eligible to vote on the agreements Kirshtein testified
that he then asked Manca whether Manca could affirm
that the Union represented the majority of the unit, to
which Manca replied that he could not so affirm. Manca
denied that such a question was asked or that such an
answer was given It is not necessary for me to resolve
the credibility issue, for even were I to credit Kirshtein's
version of the events, Respondent has not sustained its
burden of showing that the Union no longer retained ma-
jority support or that its refusal to bargain was based on
a reasonably grounded doubt as to the Union's majority
status.
Even crediting Kirshtein's version, the question and
answer are ambiguous. Kirshtein conceded that he ad-
vised Manca that, "You may have other people who are
s Respondent served a subpoena on Chntshaw to testify concerning the
telephone conversation The-General Counsel moved to revoke the sub-
poena, arguing that Federal mediators should not be required to testify at
Board proceedings The petition to revoke the subpoena was granted
NLRB v Lemon Tree, 618 F 2d 51, 54 (9th Cir 1980), Tomlinson of High
Point, Inc, 74 NLRB 681, 685 (1947)
6 The ratification process is an internal union matter and a union's de-
termination to limit participation to its members is a matter within its dis-
cretion See Darlington Veneer Co, 113 NLRB 1101, 1117 (1955), enfd
236 F 2d 85 (4th Cir 1956)
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union members who are not part of the checkoff ." Thus,
even if the question were asked as Kirshtein testified, it
could have meant whether Manca could represent that a
majority of the unit were union members . Indeed, it is
unlikely that an experienced union agent like Manca
would have told an employer with whom he was negoti-
ating that the Union did not speak on behalf of the ma-
jority . This is so , especially here, where there was no un-
derlying factual basis to make such a statement adverse
to the Union 's interest . Similarly, in United Supermarkets,
214 NLRB 958 , 964 (1974), the union representative ad-
mitted that "he did not believe he had a majority." The
Board , however, in observing that the number of dues-
checkoff authorizations is immaterial to the issue of ma-
jority status , held that respondent did not establish that
the union lost its majority status or that respondent had a
reasonable basis for so believing . The Board pointed out
that "the crucial question is whether a majority of em-
ployees have expressed dissatisfaction with the Union as
their collective-bargaining representative , and there is no
evidence showing such majority dissatisfaction" (id. at
958).
In Roberishaw Controls Co ., supra, the Board found
that the factors on which respondent based its refusal to
bargain were insufficient to support a reasonable doubt
as to the Union's continuing majority status. The Board
stated (at 959):
With regard to union membership , we have held
that a showing that less than a majority of the em-
ployees in the unit are members of the union is not
the equivalent of showing , that the union lacked ma-
jority support , because no one can know with cer-
tainty how many employees who favor union repre-
sentation do not become or remain members of the
union.
As appears from his closing statement, Kirshtein un-
derstood that the fact that less than a majority of the unit
employees were on checkoff was not sufficient to create
a good-faith doubt of majority status, where Respondent
was unaware of substantial dissatisfaction among the em-
ployees . Manca's ambiguous response , even if credited,
that he did not represent a "majority," was insufficient to
rebut the Union's presumption of continuing majority
status.
I therefore conclude that Respondent was not justified
in withdrawing recognition from the Union . I further
conclude that Respondent violated the Act by failing to
furnish the Union with the information it requested on 12
November7 and by increasing the employees ' wage rates
on 13 November without prior notice to the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
' See B. F. Diamond Construction Co, 163 NLRB 161, 175-76 (1967),
enfd 410 F.2d 462 (5th Cir. 1969), cert denied 396 U.S 835 (1969)
3. By withdrawing recognition of the Union as the ex-
clusive collective -bargaining representative of its produc-
tion and maintenance employees , by failing to furnish the
Union with the information it requested , and by increas-
ing the employees ' wage rates without prior notice to the
Union , Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and ( 1) of the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I find it necessary to order Re-
spondent to cease and desist therefrom and to take fur-
ther action necessary to effectuate the policies of the
Act. Inasmuch as I have found that Respondent unlaw-
fully refused to bargain collectively with the Union, I
shall recommend that Respondent be ordered to bargain
with the Union as the representative of its production
and maintenance employees.
The General Counsel has requested that the order in-
clude a visitatorial clause authorizing the Board to
engage in discovery under the Federal Rules of Civil
Procedure for the purpose of securing compliance with
the Board's Order . However, the General Counsel has
not shown any special circumstances necessitating a de-
parture from the standard remedy in similar cases. Ac-
cordingly , I will not include that requested remedy in
this Order. See Northwind Maintenance Co., 281 NLRB
317 (1986); O. L. Willis, Inc., 278 NLRB 203 ( 1986).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed8
ORDER
The Respondents , RDR Industries, Inc., Mohawk,
New York, its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Refusing to meet and bargain collectively with
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge 157 as the exclusive
representative of the employees in the following appro-
priate unit:
All production and maintenance employees em-
ployed by Respondent at its Mohawk facility, ex-
cluding office clerical employees , watchmen , guards
and supervisors as defined in the Act.
(b) Refusing to furnish necessary and relevant informa-
tion requested by the Union.
(c) Unilaterally changing wage rates or other terms
and conditions of employment of unit employees, with-
out prior notice to or bargaining with the Union.
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
RDR INDUSTRIES
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive representative of the above unit of employ-
ees and, on request, embody in a signed agreement any
understanding reached.
(b) Furnish necessary and relevant information re-
quested by the Union in a timely manner.
(c) Post at facility in Mohawk, New York, copies of
the attached notice marked "Appendix."9 Copies of the
notice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately on receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to are customarily posted Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. i,
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 EMPLOYESS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
105
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith with
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge 157 as the exclusive
representative of the employees in the following appro-
priate unit:
All production and maintenance employees em-
ployed by Respondent at its Mohawk facility, ex-
cluding office clerical employees, watchmen, guards
and supervisors as defined in the Act
WE WILL NOT refuse to provide necessary and rele-
vant information requested by the Union in a timely
manner
WE WILL NOT unilaterally change wages and other
terms and conditions of employment without prior notice
to the Union and without having afforded the Union an
opportunity to negotiate and bargain as the exclusive
representative of the employees in the appropriate unit
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights under Section 7 of the Act.
WE WILL, on request, bargain collectively in good
faith with the Union as the exclusive representative of
the employees in the above-mentioned unit and WE
WILL, on request, embody in a signed agreement any un-
derstanding reached.
WE WILL furnish necessary and relevant information
requested by the Union in a timely fashion.
RDR INDUSTRIES, INC