Rodgers & McDonald Graphics

National Labor Relations Board - Board Decisions

Jul 30, 2004

342 N.L.R.B. 662 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 63
662
McDonald Partners, Inc. d/b/a Rodgers & McDonald
Graphics and Communications Workers of
America, Local 14904, Southern California Ty-
pographical and Mailer Union, AFL–CIO–CLC.
Case 21–CA–32908
July 30, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On October 1, 2001, the National Labor Relations
Board issued its Decision and Order in this case, in
which it affirmed Administrative Law Judge Mary Miller
Cracraft’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by withdrawing recognition
from Communications Workers of America, Local
14904, Southern California Typographical and Mailer
Union, AFL–CIO–CLC (the Union),1 following the expi-
ration of the parties’ 1995–1998 collective-bargaining
agreement, without a good-faith, reasonable uncertainty
as to the Union’s continued majority status.2
Thereafter, the Respondent filed a petition for review
of the Board’s Order with the United States Court of Ap-
peals for the District of Columbia Circuit. On June 20,
2003, the court granted the Respondent’s petition and
remanded the case to the Board, finding that the Board
improperly refused to consider some of the Respondent’s
evidence submitted in support of its claim of a good-faith
reasonable doubt of the Union’s majority support.3
The court concluded that the Board improperly disre-
garded evidence of employee dissatisfaction with the
Union arising before the execution of the parties’ 1995–
1998 contract. In brief, this evidence, which is fully de-
scribed in the judge’s decision, 336 NLRB at 841–842,

1 The Union merged with Southern California Typographical and
Mailer Union Local 17, affiliated with Local 14917 of Communications
Workers of America, AFL–CIO–CLC, on January 1, 1997. The parties
agree that the Union, as successor to Local 14917, took over represen-
tation of the employees in Respondent’s bargaining unit pursuant to the
merger.
2 Rodgers & McDonald Graphics, 336 NLRB 836 (2001). In Levitz
Furniture Co. of the Pacific, 333 NLRB 717 (2001), the Board over-
ruled Celanese Corp., 95 NLRB 664 (1951), insofar as it permitted an
employer to withdraw recognition from an incumbent union on the
basis of a good-faith doubt of the union’s continued majority status.
The Board held that an employer may unilaterally withdraw recognition
only where the union has actually lost majority support. Id. at 717.
However, the Board held that its analysis would only be applied pro-
spectively. Thus, in the present case, the Board applied the “good-faith
uncertainty” standard as elucidated by the Supreme Court in Allentown
Mack Sales & Service v. NLRB, 522 U.S. 359 (1998).
In view of the fact that Levitz is not applicable to the instant case,
Chairman Battista and Member Schaumber express no view as to
whether that case was correctly decided.
3 McDonald Partners, Inc. v. NLRB, 331 F.3d 1002 (D.C. Cir. 2003).
includes statements made by two union stewards, Cyn-
thia Termath and Ignacio Burgos, to the Respondent’s
owner, Doyle McDonald, reporting a lack of employee
support for the Union. The court held that the Board had
misinterpreted the Supreme Court’s decision in Auciello
Iron Works, Inc. v. NLRB, 517 U.S. 781 (1996), as pre-
cluding the Respondent from relying on such evidence to
establish a good-faith doubt of the Union’s majority
status. The court determined that Auciello Iron Works
only precludes an employer from relying on evidence
predating the execution of a collective-bargaining
agreement while the irrebuttable presumption of union
majority status exists during the term of that agreement,
up to 3 years. McDonald Partners, Inc., 331 F.3d at
1005–1006. However, in the court’s view, this irrebut-
table presumption does not forever preclude an employer
from relying on precontract evidence to show it had a
good-faith, reasonable doubt. Instead, “[w]hen the three-
year period passes or the contract expires, the presump-
tion becomes rebuttable, and all evidence—again, re-
gardless of when it arose—may potentially be relevant to
the employer’s good faith doubt.” Id. at 1006.
The court also concluded that the Board erroneously
refused to consider evidence of declines in union mem-
bership and dues-checkoff authorizations during the term
of the contract. This evidence includes the following: (a)
statements by Respondent’s managers to McDonald indi-
cating that employees were no longer interested in the
Union and that no employee remained a member in good
standing with the Union after July 1995; (b) Termath’s
1995 statements to McDonald reporting that she had re-
signed from the Union because she was dissatisfied with
its representation, that most employees were dissatisfied
with the Union, and that none of the employees belonged
to the Union; (c) the failure of any employee to submit a
dues-checkoff authorization to the Respondent following
execution of the 1995–1998 contract; and (d) the Allied
Printing Trades Association’s 1996 termination of the
Respondent’s right to use the union association label (a
graphic called a “union bug”) on its products because the
Respondent did not employ any members in good stand-
ing with the Union.
The Board adopted the judge’s refusal to consider the
evidence of a decline in dues authorization checkoffs and
the loss of the union bug based on the Board’s traditional
disregard of such evidence as grounds for good-faith,
reasonable doubt. The court rejected the Board’s ration-
ale in this regard. The court acknowledged that “a union
may enjoy majority support even if less than a majority
of employees maintain union membership or authorize
their employer to deduct union dues from their pay-
checks.” Id. However, the court reasoned that while
RODGERS & MCDONALD GRAPHICS 663
union membership and dues-checkoff data “might not
conclusively demonstrate a lack of majority support,” id.,
they may suggest an erosion of support and therefore be
probative of an employer’s good-faith, reasonable doubt,
id. at 1007.
The court also rejected the Board’s alternative holding
that the union membership and dues-checkoff evidence
could not be considered because of its staleness. Specifi-
cally, the court found that the dues-checkoff evidence
was current and continuing given that “[e]ach day with-
out any dues authorizations constituted new evidence of
lack of employee support for the union.” Id. at 1007. As
to the other evidence of lack of union membership,
summarized above, the court found that it was not stale
because, in its view, there had been no showing of
changed circumstances or new evidence calling the reli-
ability of the old evidence into doubt. Id. at 1008. Ac-
cordingly, the court concluded that a remand was neces-
sary to allow the Board to consider all probative evi-
dence as required by Allentown Mack Sales & Service,
supra.
On September 3, 2003, the Board accepted the court’s
remand, and statements of position were filed by the Re-
spondent, the Charging Party Union, and the General
Counsel.4 Having accepted the remand,5 the Board must
also accept the court’s opinion as the law of the case.
The Board must therefore abide by the court’s direction
to consider the aforementioned evidence that the court
found to have been improperly disregarded by the Board.
Upon consideration of this evidence, as well as the other
evidence previously considered by the Board but found
insufficient,6 the Board finds that the Respondent satis-
fied its burden of proving that it had a good-faith, rea-
sonable uncertainty as to the Union’s majority status at
the time it withdrew recognition from the Union in Au-
gust 1998. Accordingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.

Stephanie Cahn, Esq., for the General Counsel.
Harry R. Stang, Esq.(Bryan Cave, LLP), of Santa Monica, Cali-
fornia, for the Respondent.

4 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
5 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
6 This evidence includes the resignation of the two union stewards
after execution of the 1995–1998 contract, and the failure of the Union
to hold meetings with members, to process grievances during the last
year of the 1995–1998 contract, and to involve employees in contract
negotiations in 1998.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. This
case was tried in Los Angeles, California, on June 29, 1999.
The charge was filed by Communications Workers of America,
Local 14904, Southern California Typographical and Mailer
Union, AFL–CIO–CLC (the Union) against McDonald Part-
ners, Inc. d/b/a Rodgers & McDonald Graphics (Respondent)
on August 13, 1998, and the complaint was issued January 26,
1999.1 At issue is whether Respondent’s withdrawal of recogni-
tion from the Union in August 19982 violated Section 8(a)(1)
and (5) of the Act.
The parties were afforded full opportunity to appear, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record,3 including my observation of the demeanor of
the witnesses,4 and after considering the briefs filed by counsel
for the General Counsel and counsel for the Respondents, I
make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a state of California corporation, maintains its
commercial printing business in Carson, California. During
calendar year 1997, its business operations involved the pur-
chase and receipt of goods valued in excess of $50,000 directly
from points outside the State of California. Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.

1 The consolidated amended complaint issued January 26, 1999. It
combined this case with Case 20–CA–32592 for purposes of hearing. I
granted a motion to sever Case 20–CA–32592 from the instant case
because Case 20–CA–32592 was settled prior to hearing. The com-
plaint paragraph relevant to Case 20–CA–32592 was deleted from the
consolidated amended complaint.
2 All dates are in 1998 unless otherwise indicated.
3 Respondent’s unopposed motion to correct the transcript is granted.
Counsel for the General Counsel moved to strike portions of Respon-
dent’s posthearing brief. Specifically, counsel moved to strike Respon-
dent’s arguments regarding the investigative stage of these proceedings
because no evidence in the record supports the factual assertions made
by Respondent. General Counsel’s motion to strike those portions of
Respondent’s brief dealing with the investigative stage of this case is
granted.
4 Very few facts are in dispute. However, to the extent necessary,
credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664
II. ALLEGED UNFAIR LABOR PRACTICES
A Overview
Respondent and the Union’s predecessor were parties to a se-
ries of collective-bargaining agreements, the most recent of
which was effective from June 1, 1995, through May 31, 1998.
In a memorandum of agreement executed by the Respondent on
January 5, 1998, Respondent recognized the Union as the ex-
clusive collective-bargaining representative of unit employees
covered by the 1995–1998 contract including pressroom, ship-
ping and receiving, bindery, mail room, pre-press, machinist,
and building maintenance employees.
Following expiration of the 1995–1998 contract, the Union
requested that Respondent bargain with it for a new contract.
One bargaining session was completed. Thereafter, Respondent
refused to continue bargaining and on August 5, 1998,5 Re-
spondent withdrew recognition of the Union as the exclusive
bargaining representative of unit employees.
B. Facts
The merger between the Union and Southern California Ty-
pographical and Mailer Union Local 17, affiliated with Local
14917 of Communications Workers of America, AFL–CIO–
CLC (Local 14917) was effective January 1, 1997. The parties
agree that the Union, as successor to Local 14917, took over
representation of the employees in Respondent’s bargaining
unit pursuant to the merger.
The Union and Respondent executed a Memorandum of
Agreement on December 8, 1997, and January 5, 1998,6 respec-
tively, acknowledging that they were parties to the 1995–1998
contract between Respondent and Local 14917 and setting forth
percentage merit increases, effective December 7, 1997.
Following expiration of the 1995–1998 agreement, Respon-
dent and the Union commenced bargaining for a new agree-
ment on June 3, 1998. Proposals were exchanged at this ses-
sion. The second session was scheduled for July 23, 1998.
However, upon his arrival, Howard Dudley, president of the
Union, was informed that pursuant to discussions between
counsel for Respondent and counsel for the Union, there would
be no bargaining that day. Counsel for Respondent informed
Dudley that Respondent had not yet made a decision regarding
whether it would continue bargaining.
Nevertheless, Dudley sent a letter to Respondent dated Au-
gust 1, 1998, in which he requested that the parties continue

5 Respondent concedes that it withdrew recognition from the Union.
However, it avers that the actual date of withdrawal was August 15
rather than August 5, 1998. On August 5, 1998, Respondent set forth its
bases for withdrawal of recognition. Respondent afforded the Union an
opportunity to present evidence, within 10 days, contrary to its evi-
dence. Accordingly, Respondent argues that it withdrew recognition on
August 15, 1998, when the Union failed to respond. I reject Respon-
dent's argument regarding the date. The Union had no burden to prove
its majority status or rebut Respondent’s assertions regarding its doubt
of the Union’s majority status. It may rely instead on a presumption of
majority status which attaches following contract expiration. See, e.g.,
Pennsylvania State Education Assn.-NEA v. NLRB, 79 F.3d 139, 144
(D.C. Cir. 1996).
6 Although Respondent’s signature is dated January 5, 1997, the par-
ties agree that the correct date is January 5, 1998.
bargaining, proposing dates for further negotiations. By letter
of August 5, 1998, Respondent opined that the Union did not
represent a majority of its bargaining unit employees. The letter
recited that the Union had rejected a stipulated representation
election to resolve the issue. Further, the letter set forth the
“facts and circumstances” which Respondent relied upon and
requested that the Union respond stating whether the statements
were accurate or were subject to explanation. Rather than re-
spond to the August 5 letter, the Union filed the instant charge.
The specific “facts and circumstances” relied on in the letter
may be summarized as follows:

1. The Union was never certified as the bargaining repre-
sentative of Respondent’s employees.
2. The vote to merge between the Union and Local 14917
was conducted even though many of Respondent’s bar-
gaining unit employees expressed opposition to the
conduct of, and representation by, officers of Local
14917.
3. Only members of the two locals involved in the merger
were allowed to vote.
4. None of the bargaining unit employees had any contact
with or knowledge of Dudley or any other Union offi-
cials prior to the merger.
5. None of the bargaining unit employees were given no-
tice of the merger, an opportunity to discuss it, or a
chance to vote.
6. There have been virtually no communications between
bargaining unit employees and the Union. The over-
whelming majority, if not all, of the employees are un-
aware of the activities of the Union, the identity of its
officials, or the fact that the Union determined, without
consulting any bargaining unit employees, to allow
automatic renewal of the 1995–1998 contract.
7. At the only negotiation session, it was apparent to the
Respondent that the Union had not consulted with any
bargaining unit employees regarding negotiation posi-
tions, no employees were involved in bargaining, and
the Union refused to tell Respondent how many of its
employees were members of the Union.
8. The Union did not contradict the Respondent’s assertion
that no employees had executed dues check-off authori-
zations or were paying dues to the Union.
9. No Union meetings have been held for many months.
Although some employees received notice of a Union
meeting on July 22, 1998, it does not appear that any at-
tended the meeting.
10. The Union has not filed or processed any grievances on
behalf of bargaining unit employees.

The letter concluded:

In summary, the objective facts available to [Respon-
dent] are that [the Union] never gave [Respondent’s] em-
ployees the chance to vote on an affiliation, never in-
formed them of the referendum, never informed them
about the status of negotiations, and has effectively ex-
cluded them from the bargaining process and grievance
adjustments. Moreover, it appears that no [Respondent]
RODGERS & MCDONALD GRAPHICS 665
employee is a member in good standing of the CWA or
[the Union], or has been, for some time.
While [Respondent] is fully prepared to meet its obliga-
tions under the National Labor Relations Act, it is not pre-
pared, absent a credible and timely showing that the above
facts and circumstances are not correct, to perpetuate a
situation in which its employees’ affairs are being deter-
mined by a purported labor organization which is essentially
unknown to them and has effectively excluded them from
any participatory involvement in the selection of its repre-
sentatives, in collective bargaining, in grievance adjustments
or in other decisions fundamental to their welfare.

As mentioned, the Union did not respond to this letter. There
is no dispute that Respondent’s employees who were members
of the Union would have had an opportunity to vote in the af-
filiation election. Members of the Union and Local 14917 re-
ceived ballots by mail. There is additionally no dispute that the
Union did not take any action to terminate the 1995–1998 con-
tract. Moreover, there is no dispute that the Union did not bring
any bargaining unit employees to the table with it when the
parties negotiated in June 1998. Finally, there is no dispute that
Respondent lost its right to use the union bug in March 1996.
Use of the union bug is premised on employment of members
in good standing in the Union.
Cynthia Termath, mail manager,7 acted as chapel chairperson
(steward) and participated in bargaining on behalf of Local
14917 until 1995. Termath recalled speaking with Doyle
McDonald, Respondent’s owner, on two occasions during the
period November 1994 to June 1995, when there was no collec-
tive-bargaining agreement in existence. Termath told McDon-
ald that based upon her conversations with bargaining unit em-
ployees, she had concluded that employees had lost confidence
in Local 14917. She explained that employees did not believe
that Local 14917 was representing them and they were very
upset. Two or 3 weeks later, she spoke with McDonald again.
She told him that most of the employees did not want Local
14917 at that time and they were very displeased.
In addition, Ignacio Burgos, chapel chair for the Union since
1982, spoke with McDonald during this same period. Burgos
told McDonald that the employees were really dissatisfied with
the Union. “They didn’t want to go back into the union.8 They
felt that the union wasn’t visible enough for them. Didn’t feel
like there was anything tangible with the union because they
didn’t see any representatives from the union that often.”
Nevertheless, a contract for the period 1995–1998 was nego-
tiated. Termath was on the Local 14917 bargaining committee.
Local 14917 agreed to Respondent’s proposal deleting union
security from the contract. After the 1995–1998 contract was
negotiated, Termath resigned from Local 14917 because she
was dissatisfied with its performance. In addition, in 1996,

7 Termath’s title indicates that she manages the mail. The parties
agree that she is not a supervisor.
8 On cross-examination, Burgos phrased his words to McDonald:
“That the workers really didn’t want the union. They were dissatisfied
with the union that they felt that the union really didn’t represent
them.”
Respondent lost its ability to use the union bug. Burgos recalled
that he resigned when this occurred.
Termath spoke with McDonald shortly after she resigned
from Local 14917. She told him that she had resigned because
she was dissatisfied with the service she had received and, “I
figured I could, you know, get along without them just as well.”
Termath also told McDonald that, “the other employees were
perfectly happy with pulling out of [Local 14917] and, you
know, exercising their right as a—to not belong to the union
any more.” At some point during the first 2 months following
execution of the 1995–1998 contract, Termath told McDonald
that none of the bargaining unit employees were members of
Local 14917. She also told him that employees had stopped
dues checkoff. In yet another conversation, Termath told
McDonald that a majority of the employees were dissatisfied
with representation by Local 14917.9
Termath was unaware of the merger between Local 14917
and the Union until long after the merger vote.10 During the last
year of the 1995–1998 contract, neither Termath nor Burgos
was aware of any grievances being processed by the Union on
behalf of employees. Termath was not aware of any employees
being asked to assist in negotiations in 1998. However, she did
recall receiving a questionnaire from the Union regarding the
upcoming negotiations. She completed the questionnaire and
returned it to the Union. Termath was not aware that the Union
had not given notice to terminate or modify the 1995–1998
contract.
McDonald recalled that during the period from November
1994 to July 1995, his managers reported to him that employees
were no longer interested in Local 14917. Based upon walking
through the plant two or three times a day, he concluded that,
“there was a real lack of kindness towards the union.”
McDonald also recalled a series of meetings with Termath
during this same period of time. During these meetings, she
told him that employees, “didn’t understand the union and why
we had one, what the purpose was, the usefulness of the union.”
On another occasion when McDonald spoke with Termath, she
asked him why the employees had a union. During this same
period of time, another employee, Burgos, voiced concern
about why Local 14917 was “there” during a meeting with
McDonald.

9 During direct examination, Termath testified that she told McDonald
that none of the employees wanted the Union and none of them were
having dues checked off any more. Termath stated that she had spoken to
about 60 of the approximately 100 unit employees prior to making this
report to McDonald. On cross-examination, Termath was asked, “[Y]ou
testified about a conversation you had with Mr. McDonald when you told
him that you had spoken to 60 people or approximately 60 people?”
Termath responded affirmatively and was thereafter questioned about the
employees with whom she spoke. Thereafter, Termath referred to telling
McDonald that, “after talking to a lot of the employees, a majority of the
employees, they were dissatisfied with representation by the union.”
Based upon these exchanges, I find that Termath told McDonald that she
had spoken to a majority of the employees and that they were dissatisfied
with representation by the Union.
10 Burgos could not recall whether he received notice of the merger.
He did not remember notice of any meetings to discuss a merger. He
did not receive a ballot to vote on the merger.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
Due to these and other concerns voiced by employees about
Local 14917, Respondent negotiated an “open” contract
(McDonald’s term) for the 1995–1998 term. Pursuant to this
contract, employees may join or not join the Union. Prior to the
effective date of this contract, Respondent had discontinued
checkoff of union dues. Following the effective date, no em-
ployees submitted checkoff authorizations to Respondent.
McDonald was informed by his managers at a subsequent meet-
ing that none of the bargaining unit employees were members
in good standing of the Union after July 1995.
By letter of March 4, 1996, Respondent was informed by the
Union that it would lose its use of the label of International
Allied Printing Trades Association (the union bug). McDonald
thereafter attended a meeting to discuss this matter. He pro-
tested that he had a Union contract and did not believe that the
Union could withdraw use of the union bug. Dudley responded
that Respondent had no dues paying employees and, accord-
ingly, could not continue to utilize the union bug.
Following his notification of the merger between Local
14917 and the Union, McDonald discovered that none of the
unit employees had been informed of the merger prior to the
merger vote. No grievances were filed pursuant to the 1995–
1998 contract from June 1, 1997, to May 31, 1998.
Respondent terminated the 1995–1998 contract pursuant to
the terms of the contract after noticing that the Union had not
sent a notice of termination. The first negotiation meeting, held
on June 3, 1998, was not attended by any unit employees. As
far as McDonald knew, no unit employees were involved in
bargaining or in developing negotiation goals or strategy. He
asked Termath if she needed the day of negotiations off and
was surprised to find that Termath was unaware that negotia-
tions would commence that date. This was also true of Burgos.
McDonald asked him if he would be involved in negotiations
and Burgos told him that he was unaware of negotiations.
On July 22, McDonald noticed that the Union placed an-
nouncements of a meeting on the windshields of the cars in
Respondent’s parking lot. The meeting was to be held in the
parking lot after work. Although McDonald did not watch the
parking lot the entire time, he did not see any employees attend
the meeting. Thereafter, Respondent withdrew recognition.
C. Legal Framework
During the term of a collective-bargaining agreement, a un-
ion enjoys an irrebutable presumption of continuing majority
status.11 Following expiration of a collective-bargaining agree-
ment, the presumption of majority status is rebuttable.12 Gener-
ally, in order to rebut the presumption of continuing majority
status, postexpiration withdrawal of recognition may be based
upon either an affirmative showing that the union lacked major-
ity status at the time of withdrawal or on a reasonably grounded
good-faith doubt of the union’s continued majority status based
on objective considerations and in an atmosphere free of em-
ployer unfair labor practices.13 In this case, Respondent relied

11 Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 37 (1987); NLRB
v. Burns Security Services, 406 U.S. 272, 290 fn. 12 (1972); El Torito-
La Fiesta Restaurants v. NLRB, 929 F.2d 490 (9th Cir. 1991).
12 NLRB v. Curtin Matheson Scientific, 494 U.S. 775, 778 (1990).
13 Id.
upon its “good faith doubt” rather than an affirmative showing
of lack of majority. Respondent bears the burden of proof to
show by a preponderance of the evidence that it had a good-
faith basis for doubting the union’s majority status at the point
it ceased negotiating with the union.14
In Allentown Mack Sales & Service, v. NLRB, 522 U.S. 359
(1998), the Court upheld use of the identical good faith doubt
standard for both polling and withdrawal of recognition. In
doing so, the Court characterized a good-faith doubt as, “a
genuine, reasonable uncertainty about whether [the union] en-
joyed the continuing support of a majority of unit employ-
ees.”15 In addition, the Court stated that employee statements of
dissatisfaction with the quality of union representation are rele-
vant to determining the existence of a good-faith doubt. The
Court held that evidence of a good-faith doubt might be pro-
vided by “probative, circumstantial evidence,” that is, not only
evidence of express, first-hand disavowals but also reliable
second-hand evidence of lack of support.16 The Court ex-
plained,

Unsubstantiated assertions that other employees do not sup-
port the union certainly do not establish the fact of that disfa-
vor with the degree of reliability ordinarily demanded in legal
proceedings. But under the Board’s enunciated test for poll-
ing, it is not the fact of disfavor that is at issue (the poll itself
is meant to establish that), but rather the existence of a reason-
able uncertainty on the part of the employer regarding that
fact.
. . . .
Of course the Board is entitled to be skeptical about the em-
ployer’s claimed reliance on second-hand reports when the
reporter has little basis for knowledge, or has some incentive
to mislead. But that is a matter of logic and sound inference
from all the circumstances, not an arbitrary rule of disregard
to be extracted from prior Board decisions.
D. Arguments
Counsel for the General Counsel notes that Respondent bar-
gained with the Union following expiration of the 1995–1998
contract. After the first bargaining session on July 23, 1998, a
second session was scheduled for August. However, Respon-

14 Pennsylvania State Education Assn.-NEA v. NLRB, 79 F.3d 139,
148 (D.C.Cir. 1996). Prior to the hearing in this case, Respondent sub-
poenaed union records regarding employee membership in the Union,
grievances processed by the Union, and employee participation in the
Union. I granted the Union’s motion to quash the subpoena because the
Union’s records did not relate to any matter at issue. An employer must
be aware of the objective facts on which it bases withdrawal of recogni-
tion at the time it withdraws recognition. Orion Corp., 210 NLRB 633,
634, enfd. 515 F.2d 81 (7th Cir. 1975). Accordingly, after acquired
subpoenaed evidence is totally irrelevant for purposes of showing that
Respondent had a reasonably based good-faith doubt of lack of major-
ity status.
15 Allentown Mack, supra. See also Henry Bierce Co., 328 NLRB
646, 650–651 (1999).
16 For example, in Allentown Mack, supra, the Court noted that evi-
dence from a union steward that “if a vote was taken, the Union would
lose” and “it was his feeling that the employees did not want a union,”
was worthy of substantial probative value on the issue of reasonable
doubt.
RODGERS & MCDONALD GRAPHICS 667
dent withdrew recognition before a second session could be
held. Counsel for the General Counsel argues that Respondent’s
evidence of its good-faith doubt was based upon information it
obtained in 1995, prior to execution of the 1995–1998 contract.
Counsel asserts that Respondent was precluded from relying
upon this evidence once it executed the 1995–1998 contract.
Moreover, this information, counsel asserts, was stale and unre-
liable evidence and did not demonstrate a lack of majority sup-
port for the Union.
Respondent asserts that the facts it relied upon to withdraw
recognition demonstrate not only its good-faith doubt, but also
the Union’s complete lack of support among unit employees.
Noting that the chief shop stewards and several unit employees
informed Respondent that they no longer supported the Union,
that the employees did not want to be represented by the Union,
and the employees no longer belonged to the Union, Respon-
dent asserts that it possessed a well-founded good-faith doubt
of majority support at the time it withdrew recognition. Re-
spondent asserts that there is absolutely no evidence that em-
ployee or chief shop stewards’ reports were unreasonable or
unreliable. Finally, Respondent contends that the General
Counsel failed to produce any evidence of membership in the
Union, dues check-off authorizations, records of meetings with
bargaining unit employees, grievances, records reflecting the
appointment of stewards or bargaining committee members, or
records of proposed meetings. Respondent does not view its
evidence as “stale.” Rather, Respondent perceives the evidence
on a continuum from 1994 and 1995 assertions from employees
and chief shop stewards of lack of majority status to the more
recent inactivity of the Union.
Analysis
In agreement with counsel for the General Counsel, I find
that Respondent may not rely upon evidence which predates its
execution of the 1995–1998 contract. In Auciello Iron Works v.
NLRB, 517 U.S. 781 (1996), relied upon by counsel for the
General Counsel, the Court held that an employer may not enter
into a collective-bargaining agreement and thereafter assert a
good-faith doubt of the union’s majority status based on facts
the employer knew prior to agreeing to the contract. In essence,
such facts become moot if the employer chooses to bargain to
agreement with the union. The employer, thus, reaps the eco-
nomic benefit of bargaining to agreement without raising the
issue.17 Therefore, it follows that throughout the term of the
contract and after its expiration, the employer has foregone
reliance upon any evidence in support of its good-faith doubt
which predates execution of the contract.
Moreover, Respondent’s reliance on lack of certification of
Local 1491718 is unavailing. A union is entitled to an irrebu-
table presumption of majority status during the first year fol-

17 “Here, for example, if Auciello had acted before the Union’s tele-
gram [of acceptance] by withdrawing its offer and declining further
negotiation based on [its reasonable good faith] doubt (or petitioning
for decertification), flames would have been fanned, and if it ultimately
had been obliged to bargain further, a favorable agreement would have
been more difficult to obtain.” Id. 475 U.S. at 789–790.
18 Facts and circumstances #1.
lowing certification19 while it is entitled to an irrebutable pre-
sumption of majority status for a reasonable period of time
following voluntary recognition.20 In the current circumstances,
Respondent and the Union or the Union’s predecessor have had
a bargaining relationship for at least 6 years. Accordingly, the
presumption of majority status at issue herein flows not from
certification or voluntary recognition but rather from the collec-
tive-bargaining relationship including execution of and adher-
ence to collective-bargaining agreements. Accordingly, I reject
this factor as a basis for support of a good-faith doubt of major-
ity status.
Respondent also based its withdrawal of recognition on the
mechanics of the merger vote between Local 14917 and the
Union and failure of either Local 14917 or the Union to give
notice to its employees of the merger vote.21 Nevertheless, Re-
spondent concedes that the merger satisfied the due process
standard set forth in NLRB v. Financial Institution Employees
Local 1182 (Seattle-First National Bank), 475 U.S. 192 (1986).
Moreover, as to the substantial identity issue, Respondent rec-
ognized the Union as the legitimate successor to Local 14917.
Accordingly, the fact that some of Respondent’s employees22
were not involved in the merger, not to mention that the merger
was effective January 1, 1997, is of little significance in deter-
mining whether Respondent had a good faith doubt of the Un-
ion’s majority status. Moreover, a union affiliation change has
been held an inadequate basis for withdrawal of recognition.23
Similarly, inactivity of the Union,24 failure to involve em-
ployees in bargaining,25 and failure to process grievances,26
even if true, are not factors which alone support a good faith
doubt warranting withdrawal of recognition. Inactivity of a
union (short of defunctness) or failure to process grievances is
ordinarily an insufficient basis upon which to rebut the pre-
sumption of continuing majority status.27
Finally, former chapel chairperson Termath testified that
shortly after execution of the 1995–1998 contract, she told
Respondent that she had resigned from the Union because she
was dissatisfied with the service she had received and had de-
termined that she could get along without the Union just as
well. Termath also told McDonald that, “the other employees
were perfectly happy with pulling out of [Local 14917] and,
you know, exercising their right as a—to not belong to the un-
ion any more.” At some point during the first 2 months follow-
ing execution of the 1995–1998 contract, Termath told McDon-
ald that none of the bargaining unit employees were members
of Local 14917. She also told him that employees had stopped

19 Brooks v. NLRB, 348 U.S. 96 (1954).
20 Keller Plastics Eastern, 157 NLRB 583, 587 (1966).
21 Facts and circumstances ##2–5.
22 There is no evidence that Respondent knew whether each and
every one of its unit employees was ignorant of the merger vote.
23 NLRB v. Financial Institution Employees Local 1182 (Seattle-
First National Bank), supra.
24 Facts and circumstances ##6 and 9.
25 Facts and circumstances #7.
26 Facts and circumstances #10.
27 See e.g., L & L Wine & Liquor Corp., 323 NLRB 848, 851 (1997);
Pennex Aluminum Corp., 288 NLRB 439, 441–442 (1988), enfd. 869
F.2d 590 (3d Cir. 1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
dues checkoff. In yet another conversation, Termath told
McDonald that a majority of the employees were dissatisfied
with representation by Local 14917.
This evidence, alone, is an insufficient basis to support a
good-faith doubt of majority status. The former steward for the
predecessor union reported first hand information that she had
withdrawn from the Union because she was dissatisfied with
the Union. She additionally reported the following second-hand
information: (1) other employees were happy to “pull out” of
the Union and “not belong” to the union; (2) none of the bar-
gaining unit employees belonged to the Union and many had
stopped dues checkoff; (3) a majority of employees were dissat-
isfied with the Union’s representation of them. Interestingly,
McDonald did not corroborate Termath’s testimony.28 Unde-
niably, Termath’s statements might contribute to a reasonable
uncertainty regarding whether a majority of unit employees
continued to support the Union. However, without more, these
statements alone are insufficient.
In Allentown Mack, supra, the Court noted that the employer
had reliable first-hand evidence that 7 of 32 unit employees did
not support the union. An eighth employee reported that he did
not feel he was being represented for the amount of union dues
he was paying. The union steward also reported that if a vote
were taken, the Union would lose. Finally, another employee
reported that the entire night shift did not want the union. The
Court concluded that an employer could reasonably give great
credence to the statements of second-hand opposition to the
union, especially those of the steward. When combined with the
first-hand opposition, the Court found that there was sufficient
evidence to support a doubt or uncertainty of the union’s con-
tinued majority support. In comparison, the quantum of evi-
dence herein is substantially less. In a bargaining unit of ap-
proximately 100 employees, one of two former stewards for the
predecessor union provided the only viable evidence for Re-
spondent to rely upon. However, this evidence falls far short of
the evidence in Allentown Mack, supra. Instead of assertions
that the Union would lose the election, the statements Termath
made indicate dissatisfaction only. Although statements of
dissatisfaction with the quality of union representation are rele-
vant, the evidence in this case, from only one source, taken as a
whole, does not provide a genuine reasonable uncertainty re-
garding the Union’s status.
Failure of employees to join the Union or execute dues-
checkoff authorizations29 has traditionally been disregarded as a
basis for a reasonable good-faith doubt. The Board has rea-
soned that an employee may well desire continued representa-
tion by a union even though the employee does not belong to
the union or pay union dues. In the final analysis, the issue has
been viewed as “majority support” for union representation
rather than financial support or union membership.30 In order to

28 Even though McDonald did not corroborate Termath’s testimony
regarding postexecution statements, I credit Termath’s testimony. Ter-
math was a forthright witness whose testimony was tested extensively
on cross-examination. Her demeanor indicated that she was certain of
her facts. Accordingly, I credit her testimony.
29 Facts and circumstances #8.
30 See, e.g., Manna Pro Partners, 304 NLRB 782, 783 (1991), enfd.
986 F.2d 1346 (10th Cir. 1993) (majority support refers to whether a
support a “good-faith” doubt of majority status, the Board has
not traditionally allowed reliance upon a decline in union mem-
bership or in dues checkoff-authorizations.31 In the instant case,
Respondent lost its union bug in 1996 due to its failure to em-
ploy union members in good standing. Assuming that pursuant
to Allentown Mack the loss of the union bug and Respondent’s
knowledge of failure of employees to join the Union or pay
union dues is relevant to a good-faith doubt, I find that Respon-
dent’s evidence of such events is stale and unreliable.
At the time of withdrawal of recognition, Respondent’s
knowledge was 2 to 3 years old. I find, in agreement with coun-
sel for the General Counsel, that Termath’s statements in 1995
and loss of the union bug in 1996 are an unreliable basis for
withdrawal of recognition in 1998 due to their remoteness in
time. Certainly, during this 2- to 3-year period of time, with an
intervening merger of the Union, turnover of employees, and
passage of time, Termath’s sentiments regarding 1995 em-
ployee feelings toward the Union’s predecessor are no longer
probative of current employee sentiment toward the Union.
Similarly, loss of the union bug in 1996 does little to indicate
whether at the time of withdrawal of recognition any unit em-
ployees were members in good standing of the Union.
In conclusion, Respondent’s evidence is both quantitatively
and temporally insufficient, I find that Respondent unlawfully
withdrew recognition from the Union.
CONCLUSION OF LAW
By withdrawing recognition from the Union in August 1998,
Respondent refused to bargain with the Union in violation of
Section 8(a)(1) and (5) of the Act and has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Pursuant to Caterair International,
322 NLRB 64 (1996), Respondent must resume compliance
with its preexisting bargaining obligation. Caterair requires
restoration of the status quo ante. Accordingly, Respondent
must recognize and bargain with the Union in order to remedy
its unlawful withdrawal of recognition.
[Recommended Order omitted from publication.]

majority of unit employees support union representation, and not to
whether they are union members, quoting Petoskey Geriatric Village,
295 NLRB 800 at fn. 9 (1989)).
31 See, e.g., Furniture Rentors of America, 311 NLRB 749, 755–756
(1993), enf. in relevant part 36 F.3d 1240, 1244–1245 (3d Cir. 1994);
cf., NLRB v. Silver Spur Casino, 623 F.2d 571, 580 (9th Cir. 1980),
cert. denied 451 U.S. 906 (1981) (finding that evidence of lack of union
membership was insufficient to rebut a presumption of continuing
majority status but nevertheless noting that union membership, even in
a right-to-work State, is some indication of union support, though it
may be only marginally relevant).