S & M Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 5, 1968

172 N.L.R.B. 1008 (N.L.R.B. 1968)

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S & M Manufacturing Company and Miscellaneous
& Allied Division of Union Local 80-A, Distillery,
Rectifying , Wine and Allied Workers Inter-
national Union of America , CLC, AFL-CIO.
Case 30-CA-247
July 5, 1968
SUPPLEMENTAL DECISION AND ORDER
By MEMBERS FANNING, BROWN , AND JENKINS
On June 20, 1967, the National Labor Relations
Board issued its Decision and Order' in the above-
entitled proceeding finding in agreement with the
Trial Examiner that the Respondent violated Sec-
tion 8(a)(1) of the Act when Foreman Papp made
the coercive statement to employee Kescenovitz
that the Respondent would not enter into a con-
,tract with the Union. However, the Board found,
contrary to the Trial Examiner, that the Respon-
dent refused to bargain in good faith in violation of
Section 8(a)(5) of the Act. Thereafter, a petition
for review of the Board's decision was filed by the
Respondent without opposition from the General
Counsel.
Acting on the petition for review the Board2 has
reexamined its Decision and Order herein, as well
as the entire record and, for reasons stated
hereafter, we now find that the General Counsel
has not sustained his burden of proving majority
status as of the critical date, June 16, 1965.3 How-
ever, we adhere to our original decision's finding of
a violation of Section 8(a)(1) of the Act.
The Trial Examiner l.ad found that as of March
23, 1965, the Union no longer represented a
majority of the employees and therefore the
Respondent had no obligation to recognize the
Union or bargain collectively with the Union. He
based this finding on the fact that as of March 23,
1965, 15 striking union members had been
replaced by the Respondent; that as of this same
date 10 union members had voluntarily resigned
from the Company, and 4 other strikers had
returned to work and had notified the Union in
writing of their withdrawal from the Union; and
that since the union membership at the time the
strike started did not exceed 47, a loss of 29 mem-
bers as of March 23 would leave the Union without
a majority.
In the original decision it was found that the 10
employee " resignations" were necessary for them
to get employment elsewnc.c and that it did not
constitute unequivocal evidence of intent to per-
manently sever their employment, and they were
entitled to an offer of reinstatement when the strike
was over if they had not been permanently
replaced. Therefore, the Board found that the
Union had not lost its majority status as of March
23. It was further concluded that the Respondent's
1-day contract offer on June 16, 1965, was not
made in good faith and found that the Respondent
unlawfully refused to bargain as of that date,
thereby converting the economic strike to an unfair
labor practice strike.
In its petition, Respondent contends, inter alia,
that the Union did not represent a majority of the
employees on June 16 because as of that date it had
hired 21 permanent replacements and had in-
creased its operation so that it had 65 full-time em-
ployees compared to 47 at the time of the strike.
While not discussed in the initial decision, the
Board noted that the Trial Examiner specifically
discredited Respondent's claim that as of June 18
or 19, it entertained a good-faith doubt that the
Union represented a majority of the employees. As
the Trial Examiner noted, the record discloses that
in an exchange of correspondence between the
parties in July and August, the question of the
Union's majority status was never raised. Moreover,
on or about August 8, the Company sent another
contract proposal to the Union by mail. As a con-
sequence, the majority concluded that since the
question of the Union's majority status had not
been timely raised, the Union's presumption of
majority status continued until the strike was con-
verted into an unfair labor practice strike (by its
refusal to bargain) on June 16 and thereafter. In-
asmuch as Respondent had not questioned the
Union's majority status as of June 16, the majority
found it unnecessary to inquire into that issue as of
that date.
Upon review of the record and consideration of
the arguments advanced by Respondent, it is recog-
nized that the validity of any refusal-to-bargain
finding is dependent upon the Union's majority
status as of June 16, 1965, the date when Respon-
dent refused to bargain. The record shows that the
Respondent had 65 employees at work on that
date. As the only employees then working were
returning strikers who had resigned from the Union
or newly hired employees who had crossed the
picket line to go to work and who are not shown to
have manifested their support of the Union, it can-
165 NLRB 663 'Member Brown , who dissented in the original decision from the
Pursuant to the provisions of Section 3(b) of the National Labor Rela- 8 ( a)( 5) finding therein, joins in this Decision to dismiss the 8 ( a)(5) allega-
tions Act, as amended, the National Labor Relations Board has delegated eons of the complaint
its powers in connection with this case to a three -member panel
172 NLRB No. 104
S & M MFG. CO. 1009
not be found that there were any union adherents
among the employees working on June 16. In these
circumstances, whether the total number of per-
manent employees at work on June 16 was 47, as at
the beginning of the strike, or 65, as Respondent
claims, it is clear that the General Counsel has
failed to satisfy his burden of establishing that the
Union enjoyed majority status on June 16, 1965,
the critical date herein.4 Accordingly, we shall
dismiss the 8(a)(5) allegation of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respon-
dent , S & M Manufacturing Company , Milwaukee,
Wisconsin , its officers, agents , successors , and as-
signs , shall:
1. Cease and desist from:
(a) Telling employees that they will not enter
into a collective -bargaining agreement with Miscel-
laneous & Allied Division of Union Local 80-A,
Distillery , Rectifying , Wine and Allied Workers In-
ternational Union of America , CLC, AFL-CIO, or
any other union.
(b) In any like or related manner interfering
with , restraining , or coercing our employees in the
exercise of the right to self-organization , to form,
join, or assist the aforesaid Union or any other
labor organization, to bargain collectively through
representatives of their own choosing , and to en-
gage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion , and to refrain from any and all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized by the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its plant at Milwaukee , Wisconsin,
copies of the attached notice marked " Appendix."5
Copies of said notice , on forms provided by the Re-
gional Director for Region 30 , after being duly
signed by an authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 30,
in writing , within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed as to the 8(a)(5) allegations.
MEMBER FANNING , dissenting:
I remain of the opinion that this Respondent vio-
lated Section 8(a)(5). This is hardly a case of initial
organization where the General Counsel has the af-
firmative burden of proving the union's majority
status to support an 8(a )(5) allegation. Here the
Union had represented the Company's employees
for many years. Apparently, the bargaining rela-
tionship became strained in January 1965 when the
Union changed its status from an independent
union carrying the Company's name to an affiliate
of the AFL-CIO. At that time the Union
represented virtually all of the Company's 47 em-
ployees. Unable to secure their economic demands,
the employees struck on January 20, 1965. The,
strike was 100 percent effective. Thereafter, some
replacements were hired, some employees took
other jobs, others crossed the picket line, and the
Company's normal complement of employees was
swollen to almost twice its size. From this the Com-
pany argues, and the majority now agrees, that the
Union did not, in fact, represent a majority of the
employees in the appropriate unit as of June 16,
1965. As the majority points out, the Company did
not question the Union's majority on June 16 or at
any pertinent time thereafter.6 Indeed, as late as
August 8 the Company still sought to bargain with
the Union as the majority representative of its em-
ployees. In these circumstances, I would not require
the General Counsel to establish affirmatively that
the Union at all times had a continuing majority.
Nor would I infer that a union long established as a
bargaining representative has lost its majority mere-
ly because the company hired replacements and, as
in all strikes, some employees sought and found
other employment while the strike was in progress.
Obviously, in the chaotic conditions of a severe
strike the fortunes of the striking union go up and
down and with it the allegiance of the employees.
In my opinion, however, an established oargaining
representative which, as here, goes on strike with
The Trial Examiner did not find nor does the record establish that the
loss of majority status was attributable to any unfair labor practices of the
Employer
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order -
' I am not satisfied that a defense of good-faith doubt, even if timely
raised by Respondent, would have helped it, in view of the 8(a)( I) conduct
of about April 1, found by the Trial Examiner and adopted by my col-
leagues A flat statement to strikers that the employer will not sign with
their representative cannot but have affected the actions of the employees
354-126 O-LT - 73 - pt 1 - 65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the support of all employees should be entitled to a
presumption of continuing majority status, at least
until it is challenged by the Company or put to the
test in a Board election.'
See also my dissent in Stoner Rubber Co , 123 NLRB 1440. 1447 et seq
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that.
WE WILL NOT tell our employees that we will
not sign a collective-bargaining contract with
Miscellaneous & Allied Division of Union,
Local 80-A, Distillery, Rectifying, Wine and
Allied Workers, International Union of Amer-
ica, CLC, AFL-CIO, or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-or-
ganization, to form, join, or assist the aforesaid
Union or any other organization, to bargain
collectively through representatives of their
own choosing, and to engage in other con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection,
or to refrain from any and all such activities,
except to the extent that such right may be af-
fected by an agreement requiring membership
in a labor organization as a condition of em-
ployment , as authorized by the Act.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
the aforesaid Union or any other labor organiza-
tion.
S & M MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Second Floor Commerce Building, 744
North Fourth Street, Milwaukee, Wisconsin 53203,
Telephone 414-272-3861.