The Dow Chemical Co.

National Labor Relations Board - Board Decisions

Jan 7, 1975

216 N.L.R.B. 82 (N.L.R.B. 1975)

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Dow Chemical Company and United Steelworkers
of America, AFL-CIO. Cases 7-CA-10338 and
7-CA-10598
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
January 7, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On July 31, 1974, Administrative Law Judge Ralph
Winkler issued the attached Decision in this proceed-
ing. Thereafter, General Counsel and the Charging
Party filed exceptions and supporting briefs, and the
Respondent filed an answering brief to the General
Counsel's and Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and hereby is,
dismissed in its entirety.
I Acting Chairman Fanning would not adopt the Administrative Law
Judge's conclusion that a bargaining order would not, in any event, be
appropriate in this case under the rule of Herbert Bernstein, et a! d/b/a
Laura Modes Company, 144 NLRB 1592 (1963), and Allou Distributors, Inc.,
201 NLRB 47 (1973). Those cases did not involve picket line misconduct
which might be anticipated in an emotion-packed and otherwise legitimate
stoke situation . In those cases , as distinguished from the instant case, the
union acted in open , flagrant, and violent disregard of employer and
employee rights in a totally inexcusable manner.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge : Hearing in
this matter was held on various dates, beginning on March
5 and concluding on April 24, 1974, upon an amended
consolidated complaint issued by the General Counsel on
October 21, 1973, and Respondent 's amended answer.
Upon the entire record in the case , including my
observation of the demeanor of witnesses and upon
consideration of briefs,' I make the following:
Respondent is a Delaware corporation with plants in
various States, including a petrochemical plant in Bay City,
Michigan . I find, as the parties agree , that Respondent is
engaged in commerce within Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, and its
Local 14055 (formerly, until approximately August 1972,
International Union of District 50, Allied and Technical
Workers of the United States and Canada), herein jointly
called the Union, are labor organizations within Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent and the Union have been parties to
successive collective-bargaining agreements since the
1950's , the last such agreement running from January 1969
until January 17, 1972. The parties began negotiations for a
renewal agreement in November 1971. Meetings were held
and various proposals exchanged , and no agreement was
reached when the 1969-1972 contract expired by its terms
on January 17, 1972. The Union called a bargaining strike
and the employees walked out on February 7, 1972.
Although many eniployees have returned to work, the
strike still continues . On September 5, 1972, the Board
issued a Decision and Order against the Union, finding the
Union responsible for blocking ingress to and egress from
the plant , threats of physical harm, and other acts of
misconduct from the inception of the strike . District 50,
Allied and Technical Workers, Local 14055 (Austin Compa-
ny), 198 NLRB 1184, (1972). The Union's strike miscon-
duct continued, meanwhile, and on February 5, 1973, the
Court of Appeals for the Sixth Circuit entered a consent
judgment enforcing , in full, the Board's Order against the
Union . The Union resumed strike misconduct on or about
April 24, 1973, and such misconduct continued almost
daily until the court of appeals entered a consent contempt
adjudication on May 17, 1973. N.L.RB. v. Local 14055,
District 29, United Steelworkers of America, AFL-CIO, et
al., 524 F.2d 853 (C.A.D.C., 1976). On April 15, 1973, the
Respondent withdrew bargaining recognition from the
Union.
The original charge in the present matter was filed on
April 25, 1973, and served on April 26, 1973. It was
accordingly determined at the hearing without objection
from any party, that October 26, 1972, was the cutoff date
under Section 10(b) of the Act for finding unfair labor
practices in this proceeding.
The complaint alleges violations of Section 8(a)(1), (3),
and (5) of the Act. Without setting forth all of these
allegations, it is sufficient to indicate for preliminary
purposes that the crux of the General Counsel 's action is
r I desire to acknowledge the excellent briefs submitted in this matter.
216 NLRB No. 16
THE DOW CHEMICAL COMPANY
that Respondent allegedly failed to bargain in good faith in
certain specified respects2 after which it unlawfully
withdrew recognition from the Union. The General
Counsel contends that the strike was thereby converted
into an unfair labor practice strike and that Respondent
refused to accord strikers the reinstatement rights of unfair
labor practice strikers.
Denying that it failed or refused to bargain in good faith
and that the strike was prolonged by unfair labor practices,
Respondent further claims that it was warranted in
withdrawing recognition from the Union, This claim is
two-pronged: first, that Respondent had reasonable basis
in objective fact for believing that the Union no longer
commanded majority support; and, secon4, that in any
event the Union lost entitlement to exclusive bargaining
status in view of its misconduct, within the doctrine of
Laura Modes Company, 144 NLRB 1592 (1963).
B. The Negotiations and Strike and Related Events
In their first negotiating meeting on November 24, 1971,
the parties settled on "ground rules" to be followed in their
bargaining sessions . The parties accordingly decided, inter
alia, that they would initial and exchange individual
contract sections as agreed upon, with the expressed
understanding, however, that agreement on each such
approved contract section would only be tentative until
acceptance by the parties of all terms of an entire contract
and, in effect, that "either party (could) nullify a tentative
agreement at any time" prior to such final acceptance. In
subsequent meetings a number of contract sections were
thus tentatively approved, including a standard union-shop
provision on January 15, 1972, and a dues-checkoff clause
3 days later. Approximately 120 bargaining sessions were
held by the time negotiations were suspended on January
12, 1973.
The 1969-72 contract expired on January 17, 1972, and
as also indicated above, the Union called a strike
commencing on February 7, 1972. The entire bargaining
unit of 168 active employees went out on strike, and the
Union's aforementioned strike misconduct began the first
day of the strike. Respondent sought to continue plant
operations during the strike, initially with salaried (nonun-
it) personnel. Early in April 1972, Respondent advertised
for permanent strike replacements in local newspapers.
The Union and strikers responded with "considerable
violence" at the plant, and in an effort to control such
misconduct, Respondent thereupon agreed with the Union
that Respondent would not hire or attempt to hire
permanent replacements. On June 9, 1972, Respondent
hired salaried employees at its Midland plant on a
temporary basis and assigned such Midland personnel to
its Bay City plant .3 Respondent informed the Union at the
time that such 4dditional personnel from the Midland
plant would "not constitute permanent replacement of
2 The bad-faith allegations were limited to the following:
(a) Commencing on or about February 7, 1972, unilaterally granting and
main{pimng sick leave and supplemental insurance benefits for temporary
strike replacements , those benefits being greater than those proposed or
offered in contract negotiations with the Union.
(b) On or about October 19 , 1972, rescinding approval of union-security
provisions previously agreed to on January 15, 1972, and thereafter refusing
to reconsider said rescission and to bargain concerning alternative union-
83
anybody's job" at Bay City. These temporary replacements
from Midland were hired on a salaried basis and therefore
received somewhat different and perhaps even higher sick
leave and supplemental insurance benefits than the
nonsalaried Bay City employees had been paid under the
expired contract.
Respondent and union negotiators meanwhile continued
holding regular negotiating meetings. Altogether, as stated
above, approximately 120 bargaining sessions were held
between December 24, 1971, and January 12, 1973.
It may be appropriate at this point to describe the
Union's strike misconduct at the Bay City plant, for such
illegal activity was tied in with the future course of both
contract and strike settlement negotiations as hereinafter
discussed. All such findings of misconduct are based upon
stipulated facts and are also covered in substantial part by
the aforementioned Board and Court Orders.
C. Union Strike Misconduct
On various occasions during the period from February 7,
1972, through April 25, 1972, the Union (including its
president and vice president) forcibly blocked plant
ingress , both vehicular and personnel; threatened personal
harm to plant personnel; and placed spikes and nails at
plant driveways.
During the period from April 25, 1972, until February 5,
1973, although with "lesser frequency," the Union contin-
ued to engage in conduct similar or identical to its
aforementioned conduct between February 7 and April 25,
1972.
Starting on or about April 24, 1973, and continuing until
or about May 17, 1973, the Union and named officers and
representatives including union negotiators, violated the
aforementioned court enforcement decree in that they
"committed acts of violence upon and threatened with
violence employees and supervisors working for Dow
Chemical Co., Austin Company and other employers doing
business with Dow Chemical Co. or Austin Company;
inflicted considerable property damage on the property of
persons employed by or doing business with Dow or
Austin or others; have [`repeatedly . . . and almost daily")
blocked ingress to and egress from the Dow Chemical Co.'s
Bay City, Michigan, plant for employees and supervisors of
various employers by massing in large numbers in front of
and about the plant's various gates and by placing disabled
vehicles across the paths thereof; have inflicted considera-
ble property damage on vehicles owned or operated by
persons seeking to work for employers in or having
business with employers in the Dow Co. plant complex;
have blocked and attempted to block ingress to and egress
from the Dow Co. plant by placing spikes and nails in
roadways; have formed caravans to follow and have
followed employees as they leave the plant; and have at
times, in like or related manner, restrained and coerced
security proposals.
(c) Demanding and insisting to impasse on nonmandatory subjects,
namely, that the Union reimburse Respondent for alleged damages inflicted
by the Union on Respondent during the strike.
3 Respondent has a plant in Midland about 20 miles from the Bay City
plant involved herein. The Midland plant personnel is not within the
Union's bargaining unit in the present case.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the exercise of rights guaranteed in Section 7
of the National Labor Relations Act."
D. Negotiations, Continued
Some eight strikers crossed the picket line and returned
to work in September or early October 1972. At the next
negotiating session following their return, according to the
credible testimony of Respondent Industrial Relations
Manager Frank Neering, Union District Director Charles
Younglove objected to the Company allowing strikers to
return. Younglove repeated this objection at the following
meeting on October 19, and according to Neering's
credible testimony, Union Staff Representative George
Watts informed Respondent's negotiating committee at
that meeting that union members who crossed the picket
line to return to work while the strike was in progress
"would be subject to disciplinary action, fines , and could
lose their wages that they were earning." Neering there-
upon responded that Respondent was "not going to allow
any of the people that had returned to work to be hurt in
any way, shape or manner; that I [Neering] felt an
employee ought to have a right to decide for himself
whether or not he wished to return to work; and if that was
their [the Union's] position, we were not going to agree to a
union-shop clause." 4
The parties continued their bargaining sessions, and at
the Union's suggestion the Respondent submitted, in
writing, a complete contract package on November 29,
1972. This package did not contain a union-shop provision
but did include a checkoff clause . Ultimately the parties
reached agreement on all contract issues except the union-
shop clause requested by the Union. The parties discussed
the union-shop issue at the subsequent bargaining sessions,
and for a while the Union proposed modifications of its
union-shop demand. The Union was unable to persuade
Respondent to accept any of such proposals, and the
Union ultimately stated it would not agree to a contract
without a union-shop clause. While Arnot of the union
committee testified that Respondent's negotiators were
thus unwilling to accede to union demands in this
connection, the record does not preponderantly establish
that Respondent was unwilling to discuss or that it refused
to discuss the matter.
E. Strike Settlement Issues
As the parties progressed in their resolution of contract
issues in November 1972, they also addressed two separate
matters arising out of illegal union misconduct during the
strike. Respondent had incurred property loss as a result of
union misconduct, as set forth above, and Respondent had
4 As stated above , the complaint alleged that Respondent rescinded its
earlier approval of the union -secunty clause on October 19, 1972. Ray
Arnot is president of Local 14055 and was chairman of the Union's
negotiating committee Union District Director Charles Younglove became
active in negotiations early in October 1972, and Union Staff Representa-
tive George Watts also participated in the negotiations . According to Arnot,
Neenng informed the Union at the October 19 session that the Company
would have to leave the "checkoff" clause on the bargaining table in order
to protect former strikers who were returning to work, and the Union's
witnesses also testified that Neering further mentioned in this connection
rumors of threatened disciplinary action by the Union against such
returning stokers . Younglove testified that Respondent did not raise the
discharged seven strikers for acts of strike violence. The
question of reinstating these seven dischargees arose at a
bargaining session on November 8, 1972, and the matter
was repeatedly discussed at subsequent meetings as the
Union continued to urge such reinstatement. The parties
explored various alternatives proposed by the Union, and
in fact devoted an entire meeting in December to a
consideration of the reinstatement matter.
The other matter involved the Respondent's request for
reimbursement for property damage resulting from strike
violence. Plant Manager K.E. Coulter thus submitted an
itemized list of damages at the December 1, 1972
bargaining session. The Union rejected the damage claim,
and the matter was discussed at subsequent meetings. I see
no reason to burden this Decision with details of various
discussions on this matter, for at the final bargaining
session on January 12, 1973, Union Negotiator Younglove
admittedly told Respondent that the $8,000 damage claim
"would not be a hangup" if the other issues were resolved.
Credible testimony further establishes, moreover, that the
damage claim was understood by the parties as part of a
separate "back-to-work" agreement and not within the
terms of a collective-bargaining contract or a condition of
the acceptance of such collective-bargaining contract by
the Company.
The last bargaining session between the parties' respec-
tive committees was on January 12, 1973.5 One or two
informal meetings took place afterward, but without
resolving the single remaining contract issue as to union-
shop or the mentioned back-to-work issues . The Union
requested no further meetings , and the Respondent
subsequently withdrew bargaining recognition from the
Union . Before taking up the circumstances of such
withdrawal, it may be helpful to resolve those portions of
the complaint wherein the General Counsel alleges that the
strike was converted to an unfair labor practices strike by
reason of a purported refusal and failure by Respondent to
bargain in good faith.
F. Bad-Faith Allegations
Union-Shop: Each of the last five collective-bargaining
agreements between Respondent and the Union (or its
predecessors), covering the period of 1959-72, contained
union-shop provisions. And, early on in the present
negotiations, the parties had tentatively agreed to include
an identical union-shop clause in a new agreement. The
General Counsel contends that Respondent rescinded such
union-shop agreement on November 22, 1972, despite
purported assurances from the Union that the Union
would not take disciplinary measures against returning
union-shop issue until November 23, while Arnot placed the time on
November 29 and Watts testified that he could not recall whether the issue
was raised on October 19. Arnot further testified that a tentatively settled
issue could become unsettled under the "ground rules" when there was an
"intertwining" with another unsettled issue . When asked whether the union-
shop issue was related to the checkoff matter which he testified as having
been raised by Respondent on October 19, Arnot testified it was a "matter
of opinion" that "could go either way."
5 Approximately 12 full bargaining sessions were held during the 10(b)
period covered by the complaint, i e , since October 26 , 1972, and between
10 and 20 contract issues were resolved during such period , leaving only the
union-shop issue undecided.
THE DOW CHEMICAL COMPANY
strikers, and the General Counsel further asserts that
Respondent bargained in bad faith by an "adamant refusal
to modify its [union-shop] position" as to the Union's
original or subsequently modified proposals.
I have found, contrary to the General Counsel's assertion
but in accordance with the allegation of the complaint in
this matter, that Respondent did in effect withdraw its
tentative agreement on the union-shop clause on October
19, 1972. Such withdrawal is outside the operative period
under Section 10(b) of the Act and therefore may not be
the basis of an unfair labor practice finding. Whatever the
date, however, I am satisfied that the record does not
establish bad-faith bargaining in this connection.
There is no question here concerning applicable princi-
ples: Section 8(d) of the Act defines the duty to bargain as
the mutual obligation "to meet at reasonable times and
confer in good faith with respect to wages, hours and other
terms and conditions of employment, or the negotiation of
an agreement ." This statutory standard comtemplates "a
willingness to enter the discussions with an open mind and
purpose to reach an agreement consistent with the
respective rights of the parties." N.L.R.B. v. Texas Coca-
Cola Bottling Co., 365 F.2d 321, 322-323 (C.A. 5, 1966).
While a party may not come to the bargaining table with a
closed mind, neither is he bound to yield any position
fairly maintained (N.L.R.B. v. United Nuclear Corp., 381
F.2d 972, 979 (C.A. 10, 1967)); "firmness of a bargaining
position does not constitute bad faith." Dallas General
Drivers, etc., Local Union No. 745 v. N.LR.B., 355 F.2d 842
(C.A.D.C., 1966); and where negotiations are otherwise
carried on in good faith, Section 8(a)(5) is not violated
"simply because on some of the issues, even though they
may be crucial, one or the other of the parties has been
unwilling to recede from its position so as to yield to the
contentions or demands of the other" (The Dow Chemical
Company, 186 NLRB 372, 381-382 (1970)) or because of a
refusal to grant a union-shop clause contained in an earlier
contract (ibid.) or by a change on matters agreed upon
earlier in negotiations . Taylor Chevrolet Corp., 199 NLRB
1064, (1972); Midwestern Instruments, 133 NLRB 1132,
1139 (1961).
Ultimately the question of good faith in negotiations
involves a finding of motive or state of mind to be inferred
from the circumstantial evidence viewed as an integrated
whole. N.L.R.B. v. National Shoes, Inc., 208 F.2d 688,
691-692 (C.A. 2, 1953); N.L.R.B. v. Reed & Prince Mfg.
Co., 205 F.2d 131, 139-140 (C.A. 1, 1953), cert. denied 346
U.S. 887. The term "good faith" is a concept that can have
meaning "only in its application to the particular facts of a
particular case" (N.LR.B. v. American National Insurance
Co., 343 U.S. 395, 410, (1952)), and "the Board may not
either directly or indirectly compel concessions or other-
wise sit in judgment upon the substantive terms of
collective-bargaining agreements" (343 U.S. at 404); H. K.
Porter Co. v. N. L. R. B., 397 U.S. 99, 106 (1970).
There is no showing that Respondent sought to under-
mine the bargaining status of the Union or that Respon-
dent engaged in conduct infringing the statutory rights of
individual striking employees. On the other hand, the
85
record does establish and the Board and the court of
appeals have adjudicated that during the strike and
negotiations the Union violated the statutory rights of
employees as well as the right of Respondent to operate the
plant free of violence with permanent replacements. I am
satisfied that Respondent did consider and discuss the
Union's various union-security proposals, and I also find
that Respondent did not seize upon the union-shop issue as
a ploy to forestall reaching a contract with the Union. It
was the Union's own misconduct that created the climate
which brought about the Respondent's changed stance on
union security. In the context of this entire case and
despite purported assurances and proposals from the
Union as to returning strikers, I am unable to find that the
record preponderantly establishes that Respondent refused
to bargain or otherwise acted in bad faith in rejecting the
Union's various union-shop demands.
Unilateral grant of improved sick leave and insurance
benefits: It is recalled that union strike violence forced
Respondent to agree with the Union that it would not hire
permanent replacements for the strikers and that it
thereupon hired temporary employees on a salaried basis
at its Midland plant and then assigned such Midland
personnel to Bay City. As salaried personnel of Midland,
these employees received sick leave and insurance benefits
computed on such salaried basis, rather than on the hourly
basis of Bay City striking personnel. Until at least April 15,
1973, however, returning strikers received the same
benefits established under their expired 1969-72 contract.
Even assuming that the mentioned benefits paid these
salaried employees of Midland were greater than any such
benefits tendered by Respondent in negotiations with the
Union, such conduct in this case is hardly violative of the
Act or otherwise indicative of bad-faith bargaining as
argued by the General Counsel. This is so for several
independent reasons. Firstly, even assuming the unilateral
payment to be an unfair labor practice or otherwise
cognizable as a predicate for a finding of bad-faith
bargaining, such payments were initiated and first imple-
mented before October 26, 1972; the benefits payments
themselves were "innocent" on their face and only became
unlawful (if at all) by consideration of the situation when
they were originally granted (Paper Products and Miscella-
neous Chauffeurs, etc. (Combined Container Industries), 209
NLRB 883 (1974)); such original grant being outside the
period allowed under Section 10(b) of the Act, the
continuation may hardly be deemed independent juridical
conduct and it is therefore time barred under Section
10(b). Bonwit Teller, Inc., 96 NLRB 608, 610 (1951).
Secondly, at least until withdrawal of recognition from the
Union, the payments were not made to permanent
replacements6 for striking employees or otherwise to
employees within the bargaining unit. Thirdly, the record
does not show that the subject benefits were a matter of
serious, if any, conflict in negotiations between the parties
or that the payments to the replacements seriously
impeded the course of negotiations or, in any event,
interfered with the resolution or execution of a collective-
bargaining agreement.
6 This second ground would be inapplicable if, as discussed hereinafter,
the replacements be deemed permanent rather than temporary.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Strike damage claim : As indicated above, the parties
concurrently discussed a return-to-work agreement as they
appeared to be approaching a resolution on the terms of a
collective-bargaining contract. The return-to-work issues
involved the Union's demand that the seven dischargees be
reinstated and the Respondent's demand that the Union
make Respondent whole to the extent of $8,000 in itemized
damages arising out of strike misconduct. The return-to-
work issues were discussed during contract negotiating
sessions, but, as also indicated above, the parties clearly
understood that return-to-work issues were matters apart
from contract negotiations and the parties thus contem-
plated two separate agreements. According to the credible
testimony of Neering, and contrary to Younglove's
testimony, the company representatives at no time stated
or otherwise indicated that payment of the damage claim
was a condition of Respondent's willingness to enter into a
collective-bargaining agreement. In any event, as stated
above, the Union advised Respondent that the damage
claim would not be a "hangup" if other issues were
resolved.
It is also recalled that on November 29, 1972, Respon-
dent submitted to the Union, at the latter's request, a
complete contract package. There was nothing in this
package concerning the mentioned damage claim or the
reinstatement of dischargees and the Union had only to
accept the package in order to bind Respondent to the
terms of a new collective-bargaining agreement. However,
the Union did not do so, principally, at least, because of its
insistence on the union-shop clause.
I accordingly conclude that Respondent did not insist,
much less insist to impasse, that the Union satisfy
Respondent's damage claim as a condition to Respon-
dent's willingness to accept or execute a collective-bargain-
ing contract.? I further conclude upon consideration of the
specified items of alleged bad faith, separately and in
totality, that Respondent did not violate the Act in such
respects and that the record does not establish that
Respondent has otherwise bargained in bad faith. The
strike, therefore, was not converted to and did not become
an unfair labor practices strike.
G. Withdrawal of Recognition
On April 13, 1973, more than 14 months after the
inception of the strike, Respondent received a petition
from employees in the Bay City plant expressing their
desire to terminate their affiliation with the Union. The
General Counsel asserts no claim of invalidity respecting
this petition. As of April 13, 1973, Respondent had a full
complement of employees working in the plant consisting
of 61 returned former strikers and 82 "temporary"
replacements; 42 of the returned strikers (or 69 percent of
that group) signed the petition, and 58 replacements (or 71
percent of that group) also signed the petition. Altogether,
therefore, the petition bore the names of approximately 70
percent of the employees actually working in the Bay City
plant at the time. Various other individuals of the original
sinking group had meanwhile severed their employment
r Had I found otherwise , I might have to consider whether the Union
insisted on reinstatement of the dischargees as a condition to its execution
of a collective -bargaining agreement and, if so, whether such insistence
with Respondent;. and on April 15, 1973, there were
approximately 64 employees still on strike.
Upon receipt of the mentioned petition on April 13,
1973, and after considering various alternatives, Respon-
dent notified the Union by letter dated April 15, 1973, that,
in accordance with the wishes of majority of the employees
at Bay City, Respondent was withdrawing or had with-
drawn recognition of the Union as bargaining representa-
tive for Bay City employees. At the same time the
Company decided to offer immediate permanent employ-
ment to the temporary salaried replacements and to give all
remaining strikers 10 days within which to return to their
jobs, after which they would be deemed permanently
replaced. Respondent further decided that, if necessary,
the Company would create extra positions in order to make
room for all returning strikers and replacements who
wanted permanent employment. All affected employees
were accordingly notified on April 16, 1973. And on that
same date, Respondent converted all temporary replace-
ments to permanent status, and restructured the Bay City
unit from an hourly to a salaried basis.
The Union's response to its loss of bargaining recogni-
tion was, as described above, a widespread campaign of
violent harassment against employees, supervisors, custom-
ers, and suppliers of Respondent. This campaign as the
parties have stipulated was "participated in, instigated,
encouraged or condoned" by top officials of the Local
Union and staff representatives of the United Steel
Workers and was finally brought under control by a
contempt adjudication against the Union and six of its
officers.
Under established law, "a certified union, upon the
expiration of the first year following its certification enjoys
a rebuttable presumption that its majority representative
status continues. An employer may lawfully refuse to
bargain with a union if it affirmatively establishes that, at
the time of the refusal, the Union no longer commanded a
majority or that the employer's refusal was predicated on a
reasonably based doubt as to the continuing majority.
With respect to the former there must be affirmative proof
that the majority of unit employees no longer wanted the
Union to represent them. With regard to the latter, the
employer need not prove that the Union lost its majority
but need only establish that it had a reasonable basis for
doubting the Union's majority at the time it refused to
bargain." Orion Corporation, 210 NLRB 633 (1974); J. H.
Rutter-Rex Manufacturing Company, Inc., 209 NLRB 6
(1974).
The General Counsel's principal contention respecting
withdrawal of recognition from the Union is that Respon-
dent raised such majority issue "in a context of unfair
labor practices." The General Counsel further contends
that Respondent, in any event, did not have a reasonably
grounded, good-faith doubt that the Union had lost its
majority status, and the General Counsel asserts in this
connection that temporary replacements are ineligible for
inclusion in respect to majority status determination and
constituted bad-faith bargaining on its part Cf Elgin Joliet & Eastern
Railway Co. v. Burley, et al, 325 U.S 711, 722-724 (1945), 327 U S 661
(1946), Hughes Tool Co v N.LR.B., 147 F 2d 69, 72, 73 (C A 5 1945)
THE DOW CHEMICAL COMPANY
that economic strikers should be included for such purpose
unless permanently replaced.
Respondent claims that the April 13 petition provided
reliable , objective evidence for believing that the Union no
longer represented a majority of the employees working in
the plant, and that Section 9(cX3) of the Act did not
require Respondent to count employees still on strike as
more than 12 months had elapsed since the strike began.
Respondent further claims, despite the original hiring of
strike replacements on a temporary basis , that such
replacements be treated as permanent for majority deter-
mination purposes in view of the circumstances of illegal
union coercion attending their hire.
Were it found here that Respondent had bargained in
bad faith and that the strike was converted to an unfair
labor practice strike , the General Counsel 's primary
contention respecting withdrawal of recognition would be
established . I have concluded otherwise , however, and
have found that the strike was economic in its inception
and remained economic at all material times.
Section 9(c)(3) of the Act provides in relevant part that
"Employees engaged in an economic strike who are not
entitled to reinstatement shall be eligible to vote under
such regulations as the Board shall find are consistent with
the purposes and provisions of this Act in any election
conducted within 12 months after the commencement of
the strike." In C. H. Guenther & Son, Inc., d/b/a Pioneer
Flour Mills, 174 NLRB 1202 (1964), the Board held that
Section 9(cX3) was applicable to proceedings under
Section 8(a)(5) of the Act and that replaced economic
strikers who had sought reinstatement were eligible to be
counted with their replacements for purposes of computing
the involved union 's representative status . Both the strike
and the requested reinstatement were within a year of the
strike's commencement in that case.
Wahl Clipper Corporation, 195 NLRB 634 (1972), was a
representation case involving the voting eligibility of
certain replaced strikers . The strike was settled some 8
months after its commencement , and the strike settlement
provided that the strikers in question be placed on a
preferential hiring list . These former strikers on the
preferential list had not been recalled by the election date,
which was more than 1 year from the commencement of
the strike . Upon consideration of the legislative history of
Section 9(c)(3), the Board concluded that these replaced
strikers were not eligible to vote . Referring to certain
statements of the Board in the Wahl Clipper decision, the
Respondent urges that the Board 's decision be read as
holding that Section 9(cX3) limits the voting eligibility of
economic strikers to the statutory 12-month period
whether or not the strikers are replaced.
I find it unnecessary to decide the voting eligibility of
unreplaced strikers in this case, for I am satisfied in the
circumstances herein that the replacements should be
regarded ab initio as permanent replacement for the
strikers, and, in any event , that the replacements achieved
permanent status contemporaneously with the withdrawal
of recognition.
It is hornbook law that parties should not be permitted
to enjoy the fruits of unlawful conduct , and this record
clearly establishes that Respondent was coerced by
87
unlawful union misconduct into originally hiring replace-
ments on a "temporary" rather than a permanent basis. To
withhold voting eligibility from the replacements and
accord such eligibility to strikers would in these circum-
stances, as Respondent contends , "simply reward the
Union for resorting to illegal coercion."
I accordingly conclude that as of April 13, 1973, the
eligible voting complement consisted of 61 returned
strikers and 82 replacements and that a substantial
majority of these employees afforded Respondent reliable
objective basis to doubt the Union's majority status. I
further conclude , considering the circumstances of this
case, that Respondent had substantial basis for doubting
the Union's majority even assuming , contrary to my
findings herein, the eligibility of the 64 remaining strikers.
It follows, therefore, as I also conclude, that Respondent
did not engage in unlawful unilateral action on and after
April 16, 1973, as further alleged in the complaint.
Respondent further contends that , even if it be held to
have violated Section 8(a)(5) of the Act, a bargaining order
would nevertheless be inappropriate against the back-
ground of "extensive and flagrant" picket line misconduct
revealed here . Respondent relies in this connection on
Laura Modes Co., 144 NLRB 1592 (1963), and Allou
Distributors, Inc., 201 NLRB 47 (1973), in which latter case
the Board withheld a bargaining order from a long-time
incumbent union upon sustaining a contention that "the
Union's misconduct was of such a grave and serious nature
as to disqualify it from such an order."
Withholding a remedial bargaining order in an otherwise
appropriate case is an "extraordinary sanction " (Donovan
d/b/a New Fairview Hall Convalescent Home, 206 NLRB
688 (1973)). It should be invoked most sparingly, and only
in most serious situations . Even in cases of flagrant
misconduct , the Board is reluctant to impose such sanction
where the subject activity is provoked by flagrant unlawful
actions of the involved employer. Quintree Distributors,
Inc., 198 NLRB 390 (1972). Without further burdening this
decision, for I have already concluded that Respondent did
not violate Section 8(aX5) and that a bargaining order is
therefore without warrant here , I nevertheless agree with
Respondent that the reasons for denying a bargaining
order in Laura Modes and Allou Distributors are at least
equally present here.
H. Further Allegations
The complaint also alleges that Respondent threatened
striking employees with permanent replacement despite the
fact that said employees were engaged in an unfair labor
practices strike and that Respondent failed and refused to
reinstate unfair labor practice strikers upon purportedly
unconditional application for reinstatement . An employer
in an economic strike has a right to hire permanent
replacements and may so advise striking employees
beforehand. (The Dow Chemical Company, 186 NLRB 372,
379, 384). The General Counsel acknowledged at the
hearing that a finding of an unfair labor practice strike was
the premise of these allegations and having found that this
was not such a strike, I see no need to discuss these items
further. I also deem it unnecessary, in view of the
conclusions heretofore reached on the gravamen of this
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint , to discuss several other matters alleged in the
complaint , which matters are insignificant in context and
which lack evidentiary support to a substantial degree.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within Section 2(6) and (7) of the Act.
2. The Union is a labor organization within Section
2(5) of the Act.
s In the event no exceptions are filed as provided by Sec. 104.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
3. Respondent has not violated the Act in the respects
alleged in the complaint.
Upon the foregoing findings, conclusions , and the entire
record, and pursuant to Section 10(c) of the Act , I hereby
issue the following recommended:
ORDERS
It is hereby ordered that the consolidated complaint
herein be dismissed.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.