Telautograph Corp.

National Labor Relations Board - Board Decisions

Oct 20, 1972

199 N.L.R.B. 892 (N.L.R.B. 1972)

892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Telautograph Corporation and Local Union No. 3, In-
ternational Brotherhood of Electrical Workers,
AFL-CIO. Case 29-CA-2180
October 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On December 16, 1971, Trial Examiner Samuel
M. Singer issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and the Respondent filed
an answering brief to the General Counsel's excep-
tions.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions and to
adopt his recommended Order.
We would, however, note that the decertification
petition, supported by an adequate showing of inter-
est, as the Regional Director here properly found in
the representation case, raised a question concerning
representation. In Shea Chemical Corporation, 121
NLRB 1027, the Board established the rule that when
a real question concerning representation has been
raised by the filing of a petition by a rival union that
"an employer may not go so far as to bargain collec-
tively with incumbent (or any other) union until the
question concerning representation has been settled
by the Board." The same rule should be applied where
a real question concerning representation has been
raised by the timely filing of a decertification petition.
As in the case of a petition filed by a rival union, the
incumbent union may still continue to administer its
contract and process grievances, and the rule does not
apply in situations where, because of contract bar,
certification year, inadequate showing of interest, or
any other established reason, the decertification peti-
tion does not raise a real representation question.
We wish to clarify this matter, since a clear state-
ment of that principle may obviate the necessity for
lengthy delays in the processing of properly supported
decertification petitions under like circumstances in
the future. Such processing need not be delayed by an
• 8(a)(5) charge, since such charge could be promptly
dismissed as nonmeritorious unless, of course, the
charge contains allegations that the Respondent has
committed some act (other than its mere refusal to
bargain) which may be a proper basis for finding a
violation `of our Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
MEMBERS FANNING AND JENKINS, concurring:
For the reasons stated by the Trial Examiner, we
would dismiss the complaint in this case.
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This proceeding,
heard at Brooklyn, New York, on October 27, 1971, pur-
suant to a charge filed on November 9 and complaint issued
on May 28, 1971, concerns allegations that Respondent
(herein sometimes called the Company) violated Section
8(a)(5) and (1) of the National Labor Relations Act by
refusing to meet and bargain with the Charging Party as
exclusive representative of its employees, on and after No-
vember 4, 1970, subsequent to expiration of their collective
agreement. All parties appeared and were afforded full op-
portunity to be heard and to examine and cross- examine
witnesses. General Counsel and Respondent presented their
positions in oral argument at the conclusion of the trial.
Only Respondent filed a brief.
Upon the entire record I and from my observation of
the testimonial demeanor of the witnesses, I make the fol-
lowing:
FINDINGS AND CONCLUSIONS
I RESPONDENTS BUSINESS THE
LABOR ORGANIZATION INVOLVED
Respondent, a Virginia corporation with its principal
office and place of business in Los Angeles , California,
manufactures and leases graphic communications equip-
ment in several States , including at its branch office in
Elmhurst , New York, the facility here involved. Its annual
interstate sales exceed $500,000 . I find that Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Charging Party (the Union) has at all material
times been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II THE UNFAIR LABOR PRACTICES
A. The Facts 2
Respondent and the Union have had contractual rela-
tions for many years, their last contract covering the period
November 3, 1969-November 2, 1970. It is stipulated that
the bargaining unit consisted of Respondent's district
Transcript corrected by my order on notice dated November 30, 1971.
Z Findings are based almost entirely on documentary evidence , stipula-
tions , and uncontradicted testimony
199 NLRB No. 117
TELAUTOGRAPH CORPORATION
service representatives employed at its Elmhurst facility, of
whom there were 11 during the period here involved. On
August 4, 1970,3 Union Business Representative Doughty
wrote Respondent that "in accordance with the [subsisting]
collective bargaining agreement . . . Local Union No. 3
desires to terminate its agreement ... on its termination date
November 2, 1970" and requested a meeting to discuss a
new agreement. Company Vice President Sweat testified
credibly that on August 18 he wrote back, suggesting that
the parties meet during the week of September 14.
On September 3, one of the employees in the bargain-
ing unit (Golowach), filed a petition for an election to decer-
tify the Union. After a hearing on the petition held on
October 9, the Regional Director on October 23 issued his
Decision and Direction of Election: (a) overruling the
Union's objection to the election on the asserted ground
that its current contract with the Employer barred the peti-
tion; (b) holding that the petition was timely filed; and (c)
finding that a "question affecting commerce exists concern-
ing the representation" of the employees in the bargaining
unit "within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act." The Regional Director directed the
conduct of a secret election "among the employees in the
unit found appropriate at the time and place set forth in the
notice of the election to be issued subsequently." All eligible
voters were to vote "whether or not they desire to be repre-
sented for collective bargaining purposes by Local Union
No. 3, International Brotherhood of Electrical Workers,
AFL-CIO."
In the meantime, on October 16, Business Representa-
tive Doughty requested Company Vice President Sweat to
"contact [him] as to convenient time for meeting to discuss
the changes and modifications in the agreement." On No-
vember 4, Sweat replied:
Regarding your letter of October 16, expressing your
desire to meet and discuss changes and modifications
in the agreement.
It is my feeling, at this time, it would be inappropriate
to meet, due to some question regarding representation
of the unit.
On November 9, the Union filed its unfair labor practice
charge, alleging, inter aha, that Respondent "has refused to
bargain and still refuses to bargain with [it] with respect to
a new contract," thereby under Board practice "blocking"
the conduct of the election previously directed by the Re-
gional Director on October 23 .4 On May 28, the Regional
Director issued the complaint herein.5
3 All dates are 1970 unless otherwise indicated.
4 Under its "blocking charge" rule, "the Board does not, as a general
practice, direct an election during the pendency of an unfair labor practice
charge affecting the unit involved " Columbia Pictures Corporation, 81 NLRB
1313, 1314. However, the rule is not a mechanical one and the Board has
directed elections when it appeared that "an immediate election will effectu-
ate the policies of the Act ." Ibid. See also Star Union Products Company, 127
NLRB 1173, 1174, Commarto, et at. v. McLeod 78 LRRM 2741, 2743 (S D.N
Y.)
S The Regional Director did not , however, set aside the petition or his
Decision and Direction of Election . Accordingly, the decertification pro-
ceeding is still pending.
B. Conclusions
893
1. The complaint alleges that on and since November
4, 1970, Respondent has failed and refused to bargain with
Local 3 as exclusive bargaining representative of
Respondent's employees in the appropriate unit . General
Counsel relies on the doctrine of contractual presumption
(i.e., the long contractual relationship between the parties)
to establish the Union's continued majority status. For rea-
sons stated below, I find that the record does not support
the complaint allegation.
2. To be sure, the Board and courts have consistently
held that a contracting union is presumed to represent a
majority of the employees in the bargaining unit during the
life of a collective agreement . While this presumption con-
tinues of ter expiration of the agreement, it may be overcome
by a, showing: (a) that the union no longer enjoys'majority
support; or (b) that the employer entertains a good-faith
doubt concerning its continued majority. See, e .g.;N.L.R.B.
v. Master Touch Dental Laboratories, Inc., 405 F.2d 80, 82
(C.A. 2); Terrell Machine Company v. N.L.R.B., 427 F.2d
1088 (C.A. 2). As General Counsel emphasizes, the filing of
a decertification petition in itself does not justify withdraw-
al of recognition, since such filing may only show that 30
percent of the employees wanted determination of the rep-
resentation question through a Board-conducted election
(see, e .g., Wabana, Inc., 146 NLRB 1163, 1171), although
the presence of other "objective" evidence may establish
that the petition has the support of a majority, just as if a
majority had signed it. See Firestone Synthetic Rubber &
Latex Co., 173 NLRB 1179; Randall Company, 133 NLRB
289, 295-96. Be that as it may, my finding that Respondent
was not legally obligated to bargain with the Union on
November 4, 1970, is predicated not on any objective con-
siderations of good-faith doubt concerning the Union's con-
tinued majority, but rather on the doctrine that in the
special circumstances of this case a question concerning
representation existed, foreclosing Respondent from deal-
ing with the Union on November 4.6
3. As found, subsequent to the filing of the decertifica-
tion petition, the Regional Director conducted a hearing on
the petition. On October 23, 1970, he issued his Decision
and Direction of Election expressly finding that a "question
affecting commerce exists" concerning the representative
status of the Union which should be resolved by a Board-
conducted election. Respondent's refusal to bargain took
place on November 4, when the Regional D'irector's deter-
mination to hold an election was still outstanding. It would
appear that by directing the election the Regional Director
in fact found that the representation question could best be
resolved through a secret election-"the most satisfactory
... method of ascertaining whether a union has a majority
support." (N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 602;
N.L.R.B. v. Flomatic Corp., 347 F.2d 74, 78 (C.A. 2)). In my
6 In reaching this conclusion, it is unnecessary to rely on the testimony of
Respondent 's witness Golowach (the employee who filed the decertification
petition) to the effect that poor to the Company's November 4 refusal to
bargain Golowach had told company officials that a majority of the employ-
ees were supporting the decertification petition and that the Union would
lose the election According to Respondent, this factor (among others) sup-
ports its good-faith doubt that the Union continued to represent a majority
of the unit employees.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view, Respondent had the right to rely on this procedure
and finding and to decline to negotiate with the Union
pending outcome of the Board-directed election. As in Elec-
tric Motors and Specialties, Inc., 149 NLRB 1432, 1435, the
Employer's "declination [to bargain on November 4] came
after the representation hearing and at a time that the mat-
ter was awaiting decision on the merits." It is no answer that
the election was made impossible by the Union's filing of
a charge "blocking" the election and that based on that
charge the Regional Director ultimately issued a complaint
to test majority status in a complaint proceeding since the
attempted "blocking" action was taken by the Union it-
self.' The fact is that the Regional Director had already
determined to test employee sentiment by way of an elec-
tion. The decertification procedure established by the Act
(Sec. 9(c)(1)(A)(ii)) assures employees the right to determine
that a currently recognized union is no longer the majority
representative through the election procedure. See Temple-
ton v. Dixie Color Printing Co., 444 F.2d 1064, 1069 (C.A.
5). There is no evidence, nor even claim, that the Respon-
dent here had engaged in any unfair labor practices or
antiunion activity to render improper or in any way taint the
atmosphere for such election. It in no way assisted or par-
ticipated in the filing of the decertification petition or other-
wise sought to dissipate the Union's majority status.
4. It is this critical factor-i.e., the absence of unremed-
ied employer unfair labor practices-that distinguishes this
case from those relied on by General Counsel (transcript p.
95). Thus, in Wabana, Inc., 146 NLRB 1162, the majority
question was raised in a context of numerous unfair labor
practices designed to undermine the union as bargaining
representative and to cause disaffection of employees from
such representative, including sponsoring and assisting em-
ployees in the filing of the decertification petition. In Mas-
sey-Ferguson, Inc., 184 NLRB No. 69, enfd. 9/20/71 (C.A.
7), the majority loss claim also came after commission of
employer unfair labor practices (unilateral wage increases)
and, as the Board found, "any loss would have been attrib-
utable to the Respondent's unfair labor practices." Fur-
thermore, in both cases the Regional Director dismissed the
7 As already noted, insofar as appears the Regional Director's sole theory
that the Union retained its majority status is predicated on the doctrine of
contractual presumption.
decertification petition, unlike in the instant case where the
petition is still pending. Finally, in Docorel Corporation, 163
NLRB 146 (the third case relied on by General Counsel),
the Board again found that the majority issue was raised in
the context of employer unfair labor practices; and, al-
though a decertification election was there conducted and
lost by the incumbent union, it was set aside "as a result of
Respondent's misconduct preceding the election." (163
NLRB at 149.) Since it was found that there "was no proba-
tive evidence that the Union [there] had in fact lost its
majority" at the times material in the proceeding (ibid.), the
union in Decorel was found to have retained its majority
status. See N.L.R.B. v. Midtown Service Co., 425 F.2d 665,
669 (C.A. 2).
Accordingly, under the special circumstances in this
case-including the Regional Director's Decision and Di-
rection of Election still outstanding at the time of
Respondent's alleged (November 4) refusal to bargain, the
complete absence of any evidence (or even claim) of Com-
pany misconduct tainting the atmosphere for a Board-con-
ducted election, and the continuing pendency of the
Regional Director's order for an election-I find that the
question of the Union's representative status can and
should be determined by means of the election ordered by
the Regional Director. Cf. Skaggs Drug Centers, Inc., 176
NLRB No. 102. I conclude that Respondent's refusal to
bargain on November 4, pending the outcome of the Board-
ordered election, was not violative of Section 8(a)(5) and (1)
of the Act.
CONCLUSIONS OF LAW
It has not been established that Respondent on or
since November 4, 1970, has failed or refused to bargain
with Local 3 as the exclusive bargaining representative of its
employees in the appropriate bargaining unit , in violation
of Section 8(a)(5) and (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record , it is ordered
that the complaint be and it is hereby dismissed in its entire-
ty.