Textron, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1961

133 N.L.R.B. 289 (N.L.R.B. 1961)

THE RANDALL COMPANY, DIVISION OF TEXTRON, INC. 289
The Randall Company, Division of Textron , Inc. and Inter-
national Union , United Automobile, Aircraft and Agricultural
Implement Workers of America , AFL-CIO and Local 647.
Case No. 9-CA-2057. September 020, 1961
DECISION AND ORDER
On November 18, 1960, Trial Examiner Morton D. Friedman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the Respondent,' the General Counsel, and the Charging
Party 2 filed exceptions to the Intermediate Report and supporting
briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM took no part in the consideration of
the above Decision and Order.
1 The Respondent contends that the complaint was invalid because the Regional Director
who had originally dismissed the Union's charges then rescinded his dismissal action, and
issued a complaint based on such charges, while the Union 's appeal from the dismissal
was pending with the General Counsel. We find, however , that the General Counsel had
in effect exercised his reviewing authority by permitting the Regional Director to re-
consider his dismissal and thereafter issue a complaint . We conclude that the Regional
Director acted properly in issuing the complaint and that there was no abuse of discretion
in the reconsideration of the Regional Director 's dismissal of the charge . N.L.R.B. v.
Fant Milling Company, 360 U S. 301 , footnote 3.
2 The Charging Party has .requested oral argument . The request is denied as the record,
including the exceptions and briefs, adequately presents the issues and the positions of
the parties.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly desig-
nated Trial Examiner in Cincinnati , Ohio, on June 14 and 15, 1960 , on the complaint
of the General Counsel and answer by the Respondent . The issue litigated was
whether The Randall Company , Division of Textron, Inc., herein called the Respond-
ent, refused to bargain with the International Union , United Automobile, Aircraft
and Agricultural Implement Workers of America , AFL-CIO and Local 647 ,1 herein
'At the hearing the General Counsel made a motion to amend the complaint to add
the International Union, UAW, to the complaint. The motion was granted over the objec-
tion of the Respondent's Counsel . The Respondent requested additional time to amend its
133 NLRB No. 41.
624067-62-vol . 133-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called collectively the Union, in violation of Section 8(a) (5) and (1) of the Act.
All parties were afforded full opportunity to examine and cross-examine witnesses,
to introduce evidence, to present oral argument, and thereafter to file briefs. Briefs
were received from counsel for all parties.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RANDALL COMPANY, DIVISION OF TEXTRON, INC.
The Respondent, The Randall Company, Division of Textron, Inc., is engaged
in the business of manufacturing and distributing automobile parts and related
products at its plant in Cincinnati, Ohio. During the 12-month period immediately
preceding the issuance of the complaint herein, a representative period, Respondent
sold and shipped products of a value in excess of $50,000 directly to points outside
of the State of Ohio.
Accordingly, I find that the Respondent is engaged in commerce within the mean-
ing of the Act and that it will effectuate the policies of the Act to assert jurisdiction
in this proceeding.
It. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO and Local 647, are labor organizations within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary statement and issues
The question presented in this case is whether the Respondent, after approximately
12 years of contractual relationship between the Respondent's immediate predecessor
and the Union, which had been certified by the Board as the employees' bargaining
representative, was warranted in breaking off the bargaining, relationship for the
alleged reason that it doubted the Union's majority status. Otherwise put, did the
Respondent in the face of this long history of collective bargaining, the certification,
and other factors, have a good-faith doubt as to the Union's majority status?
Another, and a preliminary issue to be disposed of here, is whether the Regional
Director, representing the General Counsel, acted without -authority when he
revoked his original notice dismissing the original charge and amended charge filed
herein, after the filing of an appeal with the General Counsel by the Union from
such dismissal, and then issuing the complaint which is the basis for this proceeding.
Since it must be disposed of preliminary to a disposition of the case on the merits,
this second issue will be discussed first.
B. The affirmative defense that the Regional Director was without .authority to act
On February 16 and March 10, 1960, the charge and amended charge in the
instant proceeding were filed by the Union. On March 11, 1960, the Regional Di-
rector forwarded notices to the Union and to the Respondent dismissing the charges
as being without merit and notifying the Union that if it desired to appeal the dis-
missal the request for review of such dismissal, together with a supporting statement,
should be received by the General Counsel in Washington by the close of business
on March 24, 1960. On March 23, 1960, the Union's request for review was
received by the General Counsel in Washington and on March 24, a copy of such
request was received by the Regional Director. On March 25, 1960, the General
Counsel sent a letter to counsel for the Union acknowledging receipt of the request
for review ,and extending to April 8, 1960, the time to file a statement in support of
the request for review. This letter further requested that the Regional Director be
furnished with a copy of the statement in support of the appeal. On April 8, 1960,
the statement in support of the Union's appeal was received in timely fashion by the
General Counsel in Washington, but a copy of the said statement was not received
by the Regional Director until April 14, 1960. Thereafter, on April 20, 1960, the
Regional Director notified the parties in writing that upon reconsideration he was
withdrawing his March 11 dismissal letter and that he would issue a complaint
answer to meet the effect of an added Charging Party, but prior to the close of the hear-
ing, the Respondent stated on the record that its answer to the original complaint was
sufficient as answer to the complaint as amended'at the hearing. There is no contention
before the Trial Examiner to the effect that the amendment to the complaint was pre-
judicial to the Respondent.
THE RANDALL COMPANY, DIVISION OF TEXTRON, INC. 291
within a short time. Thereafter, on May 3, 1960, the Board, at the request of the
Regional Director, dismissed the petition in a representation proceeding filed by
the Respondent 2 giving as a reason for its action the issuance of the complaint
in the instant proceeding.
The Respondent, by way of an affirmative defense to this proceeding, contends
that the failure of the Union to file with the Regional Director a copy of its state-
ment in support of its appeal within the time limited therein by the General Counsel
in accordance with the Board's Rules and Regulations 3 was fatal to the appeal and
that, therefore, when the Regional Director withdrew his dismissal letter and issued
a complaint, there was no valid appeal before the General Counsel and, accordingly,
there was no charge before the Regional Director upon which a complaint could
be based.
In reply, the General Counsel contends that ".. . it is always in the discretion of a
court or administrative agency to relax or modify its procedural rules adopted for the
orderly transaction of business before it when in a given case the end of justice
requires it." 4
This statement is applicable here provided, of course, that the Respondent was
not prejudiced in any way by the action of the General Counsel and the Regional
Director in relaxing the rules. The Respondent does claim prejudice in the dismissal
of its representation petition,5 filed upon its refusal to bargain further with the
Union. However, the mere technical failure to timely file a copy of the supporting
.statement with the Regional Director did not. I find, cut off the Union's right to
appeal with such finality that the rule regarding timeliness of service of a copy of
the statement could not be relaxed by the General Counsel. This is so because
the original statement was served upon the General Counsel in timely fashion and
no decision on the merits was made by the General Counsel before the copy was
served on the Regional Director and to which the latter had time to respond.
Moreover, it should be noted that the purpose of serving a copy of the statement
in support of the appeal upon the Regional Director is so that he may file opposition
to the application if he deems it necessary to the proper administration of the Act.
In the instant case, he not only did not serve such opposition, but rather, finding merit
in the Union's arguments in support of the appeal, withdrew his letter dismissing
the complaint, thereby relieving the General Counsel of the necessity of deciding
the appeal.
In these circumstances, to hold that the charge lacked vitality and to find that
there was no proper appeal before the General Counsel would be tantamount to
denying to the General Counsel his inherent power to relax his own rules where
justice and the proper administration of the Act require such relaxation.
Accordingly, I find no merit in the Respondent's contention.6
C. The events leading up to the refusal to bargain-background and bargaining history
In June 1948, the UAW International, as the result of a consent election, was certi-
fied as the bargaining representative of all of the machine shop employees of The
Randall Company, the Respondent's predecessor. Thereafter Randall and the
Union entered into an agreement supplementing their then current agreement for the
purpose of including therein machine shop employees? The latest agreement by
a Case No. 9-RM-230 (not published in NLRB volumes).
a Section 102.19 of the Board's Rules and Regulations, Series 8, reads as follows :
Review by the General Counsel of refusal to issue-If, after the charge has been
filed, the Regional Director declines to issue a complaint, he shall so advise the
parties in writing, accompanied by a simple statement of the procedural or other
grounds. The person making the charge may obtain a review of such action by filing
a request therefor with the General Counsel in Washington, D.C., and filing a copy
of the request with the Regional Director, within 10 days from the service of the
notice of such refusal by the Regional Director. The request shall contain a com-
plete statement setting forth the facts and reasons upon which the request is based.
N.L.R.B. v. Monsanto Chemical Company, et at., 205 F. 2d 763 (C.A. 8).
e Upon issuance of the complaint in this proceeding the petition in the representation
proceeding filed by the Respondent was dismissed.
6 Nor do I believe that this conclusion constitutes an improper extension of the holding
of the Board in Pant Milling Company, 117 NLRB 1277, that a Regional Director may
withdraw his notice of dismissal of a charge where a timely appeal has been filed.
4 Although the successive bargaining agreements have been single documents since 1949,
covering all employees in the plant, Randall and the Union maintained in their agreements
three separate units, namely the production unit, the hand metal polishing unit, and the
machine shop unit.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its terms ended on August 24, 1959, but the agreement was continued and renewed
verbally from month to month pending negotiation of a new agreement. The old
agreement finally expired on December 18, 1959, pursuant to notice given by the
Respondent on November 16, 1959.
In June 1959, Textron, Inc., acquired all the assets of The Randall Company and
the name of the Respondent was then changed to The Randall Company, Division of
Textron, Inc. Although most of the management personnel of the former Randall
Company continued on after the change in ownership in the same capacity in which
they had performed for The Randall Company, the personnel director was changed
on December 1, 1951, when Patrick Crotty assumed this position from one, Zimmer-
man, the former labor relations director. Thereafter, Crotty met with the Union's
representatives on December 22 to discuss and explore with the Union the possible
renewal of the Bargaining agreement which expired on December 18, 1959. Prior
to that, late in November 1959, Crotty had attended as an observer a meeting be-
tween the Union and the Respondent which was attended by Zimmerman, Crotty's
predecessor, and by union representatives. It is agreed by the parties that at that
meeting there was discussed the possibility of closing down production at the Re-
spondent's plant at 5000 Spring Grove Avenue, Cincinnati, Ohio, the plant here
involved, and, furthermore, the parties discussed a decertification petition filed by
production employee King covering all of the employees employed at the said plant.
At this time, therefore, Crotty was made aware that there was some dissension in the
ranks of the Respondent's employees with regard to the Union.
Although there is some disagreement as to what occurred at the December 22
meeting between Crotty and Gaines, the union representative, the testimony of
both of these individuals established that very little was accomplished toward the
negotiations for a new agreement. Crotty explained that the Respondent had decided
to close down all its production and, in fact, such production had closed down com
pletely by December 18, 1959. By this time also, the Respondent had rented back in
one of the buildings it had sold, sufficient space to conduct its machine shop, which
up to that point had been a maintenance adjunct of the Respondent's production
unit . Now, however, the Respondent had decided to conduct the machine shop pos-
sibly as a unit in which experimental models and parts would be machined, and
where individuals would be trained for the purpose of filling Respondent's machinist
requirements at its other plants. Because of this, and because both parties realized
that it was more or less an introductory meeting at which Crotty was seeking to get
his bearings in his new position as personnel director of the Respondent, both parties
agreed that the meeting was merely exploratory in nature. Although there was some
discussion with regard to vacation pay and termination pay due those individuals
who had been laid off by reason of the Respondent's decision to shut down produc-
tion , not even on this was there reached a tentative basis for agreement . As a result,
when they parted, both parties agreed that at the next meeting Crotty would have a
definite idea of what the Company would want by way of a renewal of the agreement
with regard to the remaining machine shop employees.
Nothing was mentioned by Crotty at the December 22 meeting with regard to
any doubts entertained by the Respondent as to the Union's majority status. Also,
sometime between the December 22 meeting and the final meeting on January 4,
1960, Crotty and Gaines spoke to each other on the telephone to arrange for the
January 4 meeting. Again, nothing was said by Crotty with regard to any possible
doubts of the Respondent as to the Union's majority status in the machine shop unit.
Pursuant to this telephone conversation, the parties met again on January 4, 1960.
The early part of the meeting was concerned with the production employees who had
been laid off, discussion for the most part centered upon the vacation pay that was
due these individuals. At the end of the discussion with regard to the laid-off em-
ployees, Crotty requested that the committee representing the production employees
leave the room inasmuch as the latter part of the meeting would not pertain to
them. Gaines said that he did not see that there was any difference if they remained.
Ultimately, before the parties arrived at the point of discussing a new agreement
with regard to the machine shop employees, Crotty asserted that the Respondent
had doubts as to the Union's majority status among these employees and refused
to bargain further with the Union. Crotty then asked of Gaines that the Union file
a representation petition to hold a new election to determine whether or not the
Union did represent a majority of the machine shop employees. This Gaines refused
to do stating that he knew of no reason to doubt the Union's majority status and
asked Crotty the basis for the latter's doubts, this being the first time that the Union
had any notice whatsoever of any doubts on the Respondent's part as to the Union's
majority status . Crotty told Gaines that this doubt had arisen to a certain extent
because of the many changes made in production and in the machine shop. No
other reasons were given by Crotty and the meeting broke up.
THE RANDALL COMPANY, DIVISION OF TEXTRON, INC. 293
Thereafter, and on the same day, the Respondent filed a representation petition.
This petition, was processed by the Regional Director and a notice of hearing was
issued thereafter After a hearing held in due course the Board, on April 7, 1960,
issued a Decision and Direction of Election in a unit including all machine shop
employees at the Respondent's 5000 Spring Grove Avenue plant and in which the
Board refused to pass on the Company's good faith, holding that the Union's request
for a new contract raised a question concerning representation. On May 3, 1960,
the Board issued an order dismissing the petition in that proceeding by reason of the
Regional Director's issuance of his complaint in the instant proceeding.
D. The evidence with regard to the good-faith issue
As heretofore set forth, the Respondent did not, prior to the meeting of January
4, 1960, inform the Union in any way that it entertained any doubts as to the Union's
majority status. There is no question that prior thereto the Respondent was aware
that production employee King had filed a decertification petition sometime in the
fall of 1955.8 The petition therein included in its unit request all production and
maintenance employees, including the machine shop employees at the 5000 Spring
Grove Avenue plant. The total number of employees in the plant at that time was
76. Although, there is nothing in the record to show that the Respondent had knowl-
edge as to how many of the employees in the machine shop had signed the petition
or were counted as employees supporting the petition when the petitioner's showing of
interest was computed, by the same token, there is nothing in the record to show
that the Respondent had any intimation that the machine shop employees had not
supported King's petition.
On December 8, 1959, a notice of hearing was issued in this decertification pro-
ceeding. However, on December 16, 1959, King asked the Regional Director for
an order permitting withdrawal of a petition. This was followed on December 17
with such an order and the petition was withdrawn. The record does not explain
why the petition was withdrawn.
In addition to the foregoing, Crotty testified without contradiction that immedi-
ately after he took over the position as personnel director, he spoke to Zimmerman,
his predecessor in that position, with regard to union matters at the plant generally.
Among the matters which, according to Crotty, Zimmerman spoke to him about
was a petition circulated by machine shop employee Lee Padgett in the fall of
1959.9 Zimmerman told Crotty that over 50 percent of the machine shop employees
signed this petition which asked for the removal of the Union as the representative
of the machine shop employees.10 Crotty further testified that Zimmerman also
informed him that no grievances from the machine shop had ever been processed
by the Union, although there were frequent and other grievances processed through
the Union originating among the employees in the production unit. Zimmerman
also told Crotty that, in his opinion, the employees of the machine shop did not
want to be represented by the Union and had always regarded themselves in a class
apart from the production employees.
Crotty also testified without contradiction that Ruhrwein, foreman of the ma-
chine shop, told him that he was sure that the men would not choose the Union
again if given an opportunity to make another choice. He also stated that the men
in the machine shop had told him that they would be better off if they did not have
the Union and that if they did not have the Union maybe so many of the men would
not be laid off.
Crotty further testified, again without contradiction, that McKenna, the engineer-
ing department administrator whose administration included the machine shop, con-
firmed what Zimmerman and Ruhrwein had told him with regard to the King and
8 This case was known as The Randall Company, Case No 9-RD-238 (not published in
NLRB volumes).
9 Currently Padgett is a supervisor at another plant of the Respondent.
10 At the hearing the Charging Party and the General Counsel objected, on grounds that
it was hearsay, to the entire line of testimony which included what Crotty stated was
told to him by other management representatives of the Respondent However, these
objections were overruled on the basis that the evidence and testimony was received not
for the purpose of establishing the truth as to what these statements said occurred-for
example whether Padgett did in fact circulate a petition and whether he did obtain
50 percent of the signatures of the employees of the machine shop-but rather to show
the state of mind of Crotty and what motivated the Respondent to refuse to continue
recognition of the Union. See Ohio Associated Telephone Company v. N.L R B., 192 F.
2d 664 ,(C.A. 6).
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Padgett petitions and the apparent displeasure of the men with the Union. McKenna
further told Crotty that the employees of the machine shop over the years had shown
an increasing dissatisfaction with the way that their interests were being represented
by the Union; that the men could not see where the Union was providing them with
any benefits and that their representation at union meetings was not recognized; that
the machine shop employees were highly skilled and that their rates were increased
only when the production employees' rates were increased and they were not in-
creased in greater proportions and that therefore they were not getting sufficient
representation.
In addition to the foregoing, Crotty testified that although the decision to continue
the machine shop after December 18 meant that some of the employees in the ma-
chine shop would be retained, at the time of the events herein there were no definite
plans as to just how the machine shop would operate; as to what classifications would
be retained and furthermore as to how many of the employees would be continued;
that this together with the fact that employment in the machine shop dropped from
70 to 32, threw the entire situation in the machine shop into confusion not only
with regard to the future of the machine shop unit but also with regard to the
question of the majority representation among the employees comprising that unit.
Crotty's testimony was supported by the testimony of Eubanks, the Respondent's
vice president, who testified that not only did Crotty pass these matters along to
him, but that he had conversations with Ruhrwein and the others in which the
same matters were related to him as were to Crotty. Eubanks testified that it was
on this information, plus the other facts herein set forth, that he, with Crotty's as-
sistance, decided on December 30 to cease relationships with the Union until such
time as the latter's majority status was established.
In addition to the foregoing, it should be here noted as above set forth, that the
Respondent immediately upon informing the Union at the January 4, 1960, meeting
that it doubted the majority status of the Union, filed a representation petition.
Moreover, there is a complete absence of a showing of independent violations of
the Act or other anti-union animus; nor were any alleged.
The General Counsel and the Union contend, however, that the testimony of
Crotty and Eubanks contained inconsistencies, was self-serving and represented after-
thoughts contrived as a defense and, therefore, that such testimony cannot be credited.
In support of this contention they cite the fact not once during the bargaining ses-
sion of December 22, 1959, did Crotty hint to Games that the Respondent had any
doubts as to the Union's majority status. Nor did Crotty mention this matter in his
telephone conversation with Garnes near the end of December 1959. Moreover,
they contend, that even when the Respondent through Crotty did express its alleged
doubts at the January 4 meeting, no real explanation was given for the doubts even
when the same was requested by Garnes.
Although there were inconsistencies in the testimony of Eubanks and Crotty,
they were confined for the most part to such things as dates and times of incidents
and meetings. However, it is significant that their testimony as to what was told them
by other management people, if out of the whole cloth as contended by the General
Counsel and the Union, could have been refuted in part, at least, by employees
whom the General Counsel could have produced. Yet he did not.
Moreover, such evidence as the decertification proceeding arising out of the King
petition, which is a matter of record, is completely consistent with the main thrust
of the testimony of Eubanks and Crotty. Nor do I find from their demeanor on
the stand any reason to discredit these two witnesses. Accordingly, I credit their
testimony."
Finally, the General Counsel presented, as additional evidence of the Respondent's
lack of good faith, 27 checkoff cards of machine shop employees, none of which
had been revoked. The record shows that as of the date of the refusal to bargain
there were only 32 employees in the unit, and, according to the General Counsel,
the Respondent could not have had a good-faith doubt as to the Union's majority
status in the face of those 27 unrevoked checkoff authorizations which, according
to the General Counsel, demonstrated the Union's majority status. It should be
noted, however, that all the contracts between the Union and the Respondent's
predecessor, pursuant to which the checkoff cards were given, contained union-
security clauses.
n In so crediting Crotty I do not overlook the testimony of Garnes which is incon-
sistent with that of Crotty as to what occurred at the bargaining sessions of December 22
and January 4. However, I do not rely on any of this contested matter in making my
findings.
THE RANDALL COMPANY, DIVISION OF TEXTRON, INC. 295
Concluding Findings
The Board has consistentently held, with court approval, that although a certified
union's majority status is unrebuttable during the certification year, absent unusual
circumstances, after the certification year ends the presumption of majority, though
continuing, is rebuttable even absent unusual circumstances. 12 An employer may
rebut this presumption by calling upon the Board to conduct another election and by
refraining, pending such election, from any action which might tend to interfere
with a free choice by employees. He is not, however, necessarily required to file
such a representation petition, although his failure to do so may be one factor to be
considered by the Board in determining whether the employer is acting in good
faith.13 He may, if motivated by a good-faith doubt of the union's majority status
cease recognizing the union without breach of his statutory obligations. Whether he
is motivated by such good-faith doubt is a question of fact to be determined by the
circumstances of each case.14
With the foregoing statement of the general law applicable to the issues here
presented I will examine the evidence heretofore set forth to determine whether
the Respondent, in refusing to deal further with the Union, was motivated by a
good-faith doubt as to the Union's continuing majority status. Whether the Union
did, in fact, have a majority need not be determined.15
Upon the credited testimony of Crotty and Eubanks, the following factors tend-
ing to show good faith are established: (1) the numerous statements of Zimmerman,
Ruhrwein, and McKenna to the effect generally that the machine shop employees
were dissatisfied with the Union; (2) the statement to Crotty that in the fall of 1959
Padgett circulated a petition among the machine shop employees, which over half
of the employees signed, requesting the end of representation by the Union; and
(3) the fact that production employee King filed a decertification petition supported
by a sufficient showing of interest in a unit of all the Respondent's employees
including the machine shop employees.
The foregoing when considered in the light of the undisputed fact that the Re-
spondent immediately upon its refusal to further deal with the Union filed a repre-
sentation petition to resolve its doubts as to the Union's majority status, coupled with
the complete absence of any evidence or intimation that the Respondent engaged
in an independent violation or antiunion activity of any kind would establish, without
more, that Respondent did have a good-faith doubt as to the Union's majority status.
What then is the effect of the matters which the General Counsel and the Union
contend establish lack of good faith?
Although at the time it refused to bargain, the Respondent had in its possession
the unrevoked checkoff cards of at least 27 out of the 32 employees still employed
in the machine shop unit, I do not believe that this is sufficient to establish that the
Respondent, in the light of the other factors presented herein, could not have enter-
tained a good-faith doubt as to the Union's majority. In so concluding, I note from
the record that the Respondent relies upon the fact that the checkoff cards, although
dating back as far as 1948 or 1949, were, nevertheless, the outgrowth of a contract
which contained a union-security clause. Although the checkoff was voluntary,
membership in the Union, by reason of the union-security clause, was not. In these
circumstances, the checkoff cards do not constitute as reliable a determination of
membership in the Union as would checkoff cards given pursuant to a contract which
did not contain a union-security provision.16
Moreover, although the checkoffs were unrevoked, when, upon the expiration of
the contract, the Respondent discontinued deducting dues from the salaries of the
machine shop employees, there was no protest from any of the machine shop em-
ployees or from the Union:
That the Respondent did not reveal its brewing doubts as to the Union's majority
status either when it met with the Union on December 22 or when Crotty spoke to
Garnes on the telephone late in December, is sufficiently explained by the fact
that Crotty was new in his position and, the meeting of December 22 was not a true
"Celanese Corporation of America, 95 NLRB 664, 672, cited with approval by the
Supreme Court in Ray Brooks v N.L.R B., 348 U.S. 96, 104
'- Celanese Corporation, supra, at 674.
14 Celanese Corporation, supra, at 673; Stoner Rubber Company, Inc, 123 NLRB 1440
18 Celanese Corporation, supra, at 671. The majority question may be answered by the
Board's reinstating the Respondent's representation case
to See The Juvenile Manufacturing Company, Inc., 117 NLRB 1513, 1531, where the
Board affirmed a Trial Examiner 's holding that where union membership is mandatory,
dues checkoff authorizations are not probative evidence of majority status at the time of
an alleged refusal to bargain.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining session as to the machine shop unit , but merely an exploratory meeting.
Moreover, Crotty was gathering the material to present to Eubanks who, by reason
of his position, was the officer who ultimately had to make the decision of whether
to continue to deal with the Union. Eubanks' hesitation in making this decision is
understandable in the light of the grave consequences that could, and in this case did,
result from such decision. However, he did make the decision before any bargain-
ing of any consequence occurred with regard to the machine shop employees.
The failure of Crotty to fully set forth to Garnes why the Respondent had doubts
as to the Union's majority status is explained by the impression of Crotty that he
did not have to explain the basis for his doubt if the Respondent refrained from
antiunion activity and filed a representation proceeding.14 In all of the circum-
stances here presented this explanation is entirely plausible. The failure to explain
does not, in and of itself, establish lack of good faith.
Upon all of the foregoing, therefore, I find that the Respondent did have a good-
faith doubt as to the Union's majority status when it refused to further bargain with
the Union. I cannot, upon the evidence presented, find that the Respondent's refusal
to bargain, its insistence upon an election, and its filing of a representation petition was
merely a "gimmick," as contended by the Union, which was motivated by a rejection
of the principles of collective bargaining or by the desire to seek time in which to
destroy the Union's majority status. Accordingly, I shall recommend dismissal of
the complaint.18
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2 ( 6) and (7)
of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent did not engage in an unfair labor practice in violation of Section
S (a) (5) and (1) of the Act, as alleged in the complaint.
[Recommendations omitted from publication.]
171 do not pass upon Respondent 's contention that its filing of the petition and its
refraining from antiunion activity satisfied the requirements of the Act and that it did
not have to show more to establish its defense . Since the entire record established good
faith I do not need to consider the narrower basis of defense.
111 do not find N.L.R.B. v. Auto Ventshade, Inc., 276 F. 2d 303 (C.A. 5), dispositive.
Aside from the fact that the Respondent here does not deny its initial obligation to
bargain as a successor , in that case the decertification petition relied on by the employer
as proof of its alleged good-faith doubt was filed long after the refusal to bargain.
American Flint Glass Workers' Union of North America, AFL-
CIO and Glass Container Manufacturers Institute. Case No.
8-CB-406. September 02, 1961
DECISION AND ORDER
On July 8, 1960, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor practices and
recommending that the complaint be dismissed, as set forth in the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel and the Charging Party filed exceptions to the Intermediate Re-
port and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
133 NLRB No. 47.