Spillman Co.

National Labor Relations Board - Board Decisions

May 19, 1993

311 N.L.R.B. 95 (N.L.R.B. 1993)

95
311 NLRB No. 18
SPILLMAN CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 The judge found that ‘‘[o]f the 17 employees who were on Re-
spondent’s payroll in January when the Respondent withdrew rec-
ognition, seven or 40 percent were employees at the time of the
Union’s certification.’’ Both the Respondent in its exceptions and the
General Counsel in his answering brief agree that the correct figure
for the total number of employees at the time of withdrawal is 17.
The General Counsel also agrees with the judge that seven of these
employees had been on the payroll when the Union was certified.
However, the General Counsel computes the percentage as 38.89
percent rather than the 40 percent found by the judge. The Respond-
ent contends that only six employees working in January were on
the payroll when the Union was certified, which is 31.5 percent. The
Respondent excludes Ronald Riddle who was on sick leave at the
time of the certification. Thomas Coniglio, the Respondent’s vice
president and general manager, stated at the hearing that Riddle was
possibly still on sick leave at that time. He also testified twice that
Riddle was no longer employed.
Spillman Company and Sheet Metal Workers’
International Association, Local Union No. 24,
AFL–CIO. Case 9–CA–29432
May 19, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On December 18, 1992, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
In its exceptions, the Respondent contends, as it did
to the judge, that it withdrew recognition from the
Union pursuant to a reasonably based good-faith doubt
of the Union’s majority status. To support its position,
the Respondent relies on Southern Wipers, Inc., 192
NLRB 816 (1971). Like the judge, we reject the Re-
spondent’s position. In Southern Wipers, the parties
ceased bargaining for approximately 7 months. During
this time, the union had no contact with employees,
several of whom indicated to the employer that they
were glad that the union had left. Simultaneously, the
employer experienced heavy turnover of employees.
The Board, in finding that the employer’s withdrawal
of recognition was not unlawful, concluded that the
employer established a good-faith doubt based on ob-
jective considerations.
Significantly, in this case, unlike Southern Wipers,
there is no evidence that the Respondent’s employees
expressed to the Respondent dissatisfaction with the
Union. The parties stipulated: ‘‘Between July 1, 1991,
and January 27, 1992, no employees of Respondent ex-
pressed to Respondent the desire that the Union no
longer represent them.’’ This factor is critical. We re-
quire that an employer come forward with specific evi-
dence of employee dissatisfaction with the union, and
we will not rely on unsupported assumptions in this re-
gard. See, e.g., R.J.B. Knits, 309 NLRB 201, 205 (IV.
Analysis) (1992), and cases cited. Moreover, it is this
sort of evidence, totally absent here, which an em-
ployer must have if the employer relies on employee
turnover to support the employer’s good-faith doubt of
a union’s majority status. See, e.g., Pennex Aluminium
Corp., 288 NLRB 439, 441 (1988). This is so because
we have adopted a rebuttable presumption that newly
hired employees will support a union in the same ratio
as the employees they replace. See Colson Equipment,
257 NLRB 78, 79 (1981), enfd. in relevant part 673
F.2d 221 (8th Cir. 1982).
Here, the Respondent urges that employee turnover
is a factor in its reasonably based good-faith doubt of
the Union’s majority status. The Respondent also
excepts to the specific numbers used by the judge in
establishing employee turnover, and the General Coun-
sel in his answering brief, joins this dispute.2 We find
it unnecessary to resolve this dispute over numbers. As
indicated above, in the absence of evidence that em-
ployees expressed dissatisfaction with the Union, the
Respondent’s reliance on employee turnover fails. In
this case, there is nothing to rebut the presumption that
the Respondent’s newly hired employees supported the
Union in the same ratio as the employees they re-
placed.
In asserting its reasonably based good-faith doubt of
the Union’s majority status, the Respondent also relies
on the bargaining hiatus and the Union’s failure to
hold meetings with the employees. These factors, like
the employee turnover, do not help the Respondent.
The 6-month bargaining hiatus is not a sufficient ob-
jective consideration on which to base a good-faith
doubt of majority support. See King Soopers, Inc., 295
NLRB 35, 38 fn. 11 (1989) (4-month bargaining hia-
tus). The Union’s failure to meet with the employees
is also inadequate as an objective consideration. We
have found union inactivity for much longer periods
than the 6 months at issue here to be insufficient to
support an employer’s good-faith doubt. See Flex Plas-
tics, 262 NLRB 651, 657 (1982), enfd. 726 F.2d 272
(6th Cir. 1984), and cases cited. Moreover, the Union’s
reassertion of its bargaining rights in January 1992, ne-
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Both witnesses appeared to me to be credible. I believe that
Booth tried to call Scott and I also believe Scott’s testimony that he
gated any inference to be drawn from the preceding
period of inactivity. See Pioneer Inn & Pioneer Inn
Casino, 228 NLRB 1263, 1264 (1977), enfd. 578 F.2d
835 (9th Cir. 1978). Accordingly, we adopt the judge’s
decision.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Spillman Company, Co-
lumbus, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Deborah Jacobson and Joseph Devine, Esqs., for the General
Counsel.
Jerry Spicer, Esq. (Snyder, Rakay & Spicer), of Dayton,
Ohio, for the Respondent.
Gregory B. Scott and Catherine Adams, Esqs. (Squire, Sand-
ers & Dempsey), of Columbus, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried at Columbus, Ohio, on September 11, 1992.
The charge was filed on March 23, 1992, by the Union,
Sheet Metal Workers’ International Association, Local Union
No. 24, AFL–CIO. The complaint, issued on May 4, 1992,
alleged that the Respondent, Spillman Company, failed and
refused to bargain in good faith with the Union in violation
of Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act), by withdrawing recognition of the Union as
the exclusive collective-bargaining representative of the em-
ployees. The Respondent’s answer, filed on May 18, 1992,
admitted the jurisdictional allegation in the complaint and de-
nied the commission of any unfair labor practices, stating
that the Union had waived, abandoned, relinquished, and dis-
claimed its status as exclusive collective-bargaining rep-
resentative of the Company’s employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Spillman Company, is a corporation en-
gaged in the manufacture of forms and equipment for the
concrete industry. With sales of goods valued in excess of
$50,000 directly to points outside the State of Ohio, the
Company is admittedly engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Union, Sheet Metal Workers’ International Associa-
tion, Local Union No. 24, AFL–CIO, is admittedly a labor
organization within the meaning of Section 2(5) of the Act.
Facts
A representation election was conducted on January 18,
1990, among the Company’s employees in the following bar-
gaining unit:
All full-time and regular part-time hourly production
and maintenance employees including ship-
ping/receivers, but excluding all office clerical employ-
ees, estimators, sales employees, sales supervisors, sales
managers, managers, foremen, the plant manager,
guards and all other supervisors as defined in the Act.
The tally of ballots showed 11 votes for the Union, 7
votes against it, and 1 challenged ballot. The Union was ac-
cordingly certified as the exclusive representative on August
17, 1990 (G.C. Exh. 2). The union negotiators, consisting of
David Booth, the Union’s business agent, and several em-
ployees, met with the Company’s spokesman, Gregory Scott,
an attorney, on 18 occasions between October 15, 1990, the
day of the first bargaining session and July 1, 1991, when
the last meeting was held (Tr. 10, 41, and 4; G.C. Exh. 2).
During the last negotiation meeting on July 1, the Com-
pany presented its ‘‘final offer’’ which contained all the
items to which the parties had agreed and certain provisions
dealing with insurance and wages which remained contested
(G.C. Exh. 2; Tr. 13, 42–43). For example, the final offer
provided for wage increases of 25, 20, and 15 cents for the
employees who would be divided into the three groups based
on their performance (Tr. 13, 47). The Union regarded the
wages as too low and the offer as unacceptable (Tr. 14, 16,
and 43). The Union so informed the Company and expressed
confidence that there would be ‘‘some movement’’ (Tr. 17).
The Union fully intended to continue the bargaining process
but the Respondent declined. Attorney Scott testified as fol-
lows (Tr. 48): ‘‘I don’t know if those are my exact words,
but I think he did make an overture about scheduling another
meeting after we gave him the final on that day, on July 1st,
and I said, ‘There’s no need to meet’ to discuss any further.
If you have questions about it, give me a call. Or if you ac-
cept it, just sign and send it to me.’’
On the same day, Union Negotiator Booth met with the
negotiating committee composed of several employees to dis-
cuss the final offer and to explore the employees’ options.
Booth told them that they ‘‘could go out on strike and try
to get the company that way,’’ but he also cautioned them
that he ‘‘had no jobs to offer them if the company replaced
them’’ (Tr. 16). He hoped that ‘‘if things got better down the
road’’ he could offer the key employees union jobs to im-
prove his bargaining position (Tr. 17).
Two weeks later, Booth spoke by telephone to two mem-
bers of the bargaining committee and told them that the par-
ties needed some time to cool off because ‘‘the Company
didn’t look like it was coming around’’ (Tr. 18). Booth testi-
fied that he attempted to call Scott sometime in August and
again in October and left a message when he was unable to
reach him (Tr. 19). In his testimony, Scott denied receiving
any messages about Booth’s telephone calls to him in August
or October (Tr. 44–45).1
97SPILLMAN CO.
did not receive any messages. It is possible that the recipient of the
calls failed to forward the messages.
On September 1, 1991, the Respondent implemented wage
increases for the bargaining unit employees (G.C. Exh. 2).
On January 14, 1992, Booth again called Scott’s office and
left a message. Scott returned the call on January 17, 1992
(Tr. 20, 43). During the telephone conversation, Booth re-
quested a meeting, but Scott replied that he was unsure
whether he still represented the Respondent (Tr. 21, 43). In
a letter, dated January 27, 1992, to the Union, the Respond-
ent’s president, Theodore Coons, acknowledged Booth’s in-
quiry stating, inter alia, as follows (G.C. Exh. 3):
It is the position of the Spillman Company that the
Sheet Metal Workers no longer represents the bargain-
ing unit employees at our Company, as we have heard
nothing from you since the Company gave you its last
offer on July 1, 1991.
In the interviewing period, there has been an across-
the-board change in wage, a complete semi-annual re-
view of all our associates, and the imposition of merit
increases as warranted by performance.
Furthermore, a significant number of new associates
have joined the company since the last negotiating ses-
sion, and well over half of them have joined the com-
pany since the representation election. You have not
even held meetings with them since last summer.
The parties stipulated that the Union did not meet with the
bargaining unit members between July 2, 1991, and January
1992 (G.C. Exh. 2). The foregoing summary of the record
presents the issue whether the Respondent properly withdrew
recognition from the Union.
Analysis
A union may loose its bargaining rights by waiver or by
a loss of majority status. A waiver must be clear and unmis-
takable and will not readily be implied. Peerless Publica-
tions, 231 NLRB 244 (1977); New York Mirror, 151 NLRB
834 (1965). Moreover, an employer who doubts a union’s
majority status must overcome the presumption of an incum-
bent union’s majority status. In this regard, ‘‘an employer
must show by a preponderance of the evidence either actual
loss of majority support or objective factors sufficient to sup-
port a reasonable and good-faith doubt of the union’s major-
ity’’ Laidlaw Waste Systems, 307 NLRB 1211 (1992). Here,
the Union neither waived its bargaining rights by a hiatus of
approximately 6 months of inactivity, nor did the Respondent
show a good-faith doubt of the Union’s majority support.
The record shows initially that the Union fully intended to
continue the negotiations even after it was presented with the
Company’s final offer on July 1, 1991. The Respondent how-
ever, informed the Union that further negotiations would be
futile and unnecessary. This scenario belies any indication
that the Union waived its bargaining history. Furthermore,
the Union’s strategy, clearly communicated by Booth to the
employee’s bargaining committee, was to wait until the
Union could afford to offer key employees jobs in the event
the Employer were to replace striking employees. In short,
the Union hoped that a hiatus of time would improve its bar-
gaining posture in the face of the Respondent’s perceived in-
transigence. Finally, even if it is assumed that Booth made
no contact with Respondent’s negotiator, the record shows
that Booth initiated the attempt in January 1992 to resume
the negotiations. It is clear therefore that the Union did not
waive its bargaining rights because of the months’ long hia-
tus.
Neither should the Respondent have reasonably assumed
that the Union had lost its majority status among the unit
employees. To be sure, the Union held no meetings with the
employees, and it did not protest the implementation of a pay
increase, but during that time ‘‘no employee of Respondent’s
expressed to Respondent the desire that the Union no longer
represent them’’ (G.C. Exh. 2). In spite of some turnover of
employees at the Respondent’s facility, the General Counsel
properly demonstrated that at least 5 of the original 19 em-
ployees on the Excelsior list of employees were still em-
ployed by the Respondent (R. Exh. 1; Tr. 56). In addition,
two other employees, Ernest Maynard, who underwent sur-
gery, and Ronald Riddle, who was involved in an accident,
must be counted as employees. Of the 17 employees who
were on the Respondent’s payroll in January when the Re-
spondent withdrew recognition, 7 or 40 percent were em-
ployees at the time of the Union’s certification. Considering
that newly hired employees are presumed to support the
Union in the same ratio as those they replaced, it is clear that
the Respondent could not demonstrate a reasonable doubt
based on the composition of his work force. Moreover, there
was no evidence of employee disaffection with the Union.
The inquiries by one of the employees directed at the Re-
spondent’s president whether he had heard from the Union
does not reveal any waning union support (Tr. 54).
Finally, the Union’s inactivity for the approximately 6
months, assuming that Scott did not receive Booth’s tele-
phone messages, does not entitle the Respondent to assume
that the Union had waived its bargaining rights, nor does it
support a reasonable and good-faith doubt of the Union’s
continued majority status. As already indicated, the Respond-
ent was aware of the Union’s attempt in July to continue the
negotiations because it found the final offer unacceptable.
Even though the Union expressed hope that some movement
was possible in the negotiations, the Respondent foreclosed
any further meetings. Under these circumstances it was un-
reasonable for the Respondent to hope that the Union would
somehow just go away. In any case, the Union’s initiation
of contact between the parties certainly removed all doubt
about the Union’s continued determination. Having examined
the totality of the circumstances, I find that the Respondent
has failed to show by a preponderance of the evidence objec-
tive factors sufficient to support a reasonable and good-faith
doubt of the Union’s majority.
CONCLUSIONS OF LAW
1. Spillman Company is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Sheet Metal Workers’ International Association, Local
Union No. 24, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union was certified as the exclusive collective-bar-
gaining representative of the following unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and rec-
ommended 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 purposes.
3 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
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.’’
All full-time and regular part-time hourly production
and maintenance employees including ship-
ping/receiving but excluding all office clerical employ-
ees, estimators, sales employees, sales supervisors, sales
managers, managers, foremen, the plant manager,
guards and all other supervisors as defined in the Act.
4. By withdrawing recognition from and refusing to bar-
gain with the Union as the exclusive collective-bargaining
representative of the employees employed in the unit set
forth above, the Respondent violated Section 8(a)(1) and (5)
of the Act.
5. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I recommend that it be required to cease and
desist therefrom and to take other actions designed to effec-
tuate the purposes and policies of the Act. I recommend that
the Respondent be required to recognize and bargain collec-
tively in good faith with the Union as the exclusive bargain-
ing representative of the unit employees and that it be re-
quired, on agreement, to embody the terms of the agreement
in a signed, written contract. I will also recommend that the
Respondent be required to post a Board notice advising its
employees of their rights and of the results in this case.
On these findings of fact and conclusions of law and on
the entire record, I make the following recommended2
ORDER
The Respondent, Spillman Company, Columbus, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition of the Union and refusing to
recognize and bargain collectively in good faith with Sheet
Metal Workers’ International Association, Local Union No.
24, AFL–CIO as the exclusive collective-bargaining rep-
resentative of employees in the above-described unit.
(b) By any like or related means interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively in good
faith with Sheet Metal Workers’ International Association,
Local Union No. 24, AFL–CIO as the exclusive representa-
tive of its unit employees, and, if agreement is reached, em-
body the terms of the agreement in a written signed docu-
ment.
(b) Post at the Respondent’s Columbus, Ohio facility cop-
ies of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT withdraw recognition of the Union or refuse
to recognize and bargain in good faith with Sheet Metal
Workers’ International Association, Local Union No. 24,
AFL–CIO as the exclusive collective-bargaining representa-
tive in the following appropriate bargaining unit:
All full-time and regular part-time hourly production
and maintenance employees including shipping/-
receivers, but excluding all office clerical employees,
estimators, sales employees, sales supervisors, sales
managers, managers, foremen, the plant manager,
guards and all other supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed to them by Section 7 of the Act.
WE WILL, on request, recognize and bargain collectively
with Sheet Metal Workers’ International Association, Local
Union No. 24, AFL–CIO as the exclusive representative of
employees employed at our Columbus, Ohio bargaining unit
and, if agreement is reached, embody the terms of the agree-
ment in a written signed document.
SPILLMAN COMPANY