Turbodyne Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1976

226 N.L.R.B. 522 (N.L.R.B. 1976)

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turbodyne Corporation ,, Gas_Turbine =Division and In
ternational Brotherhood of, Boilermakers, Iron
Shipbuilders, Blacksmiths , , Forgers and Helpers,
AFL-CIO, and Local 705
Turbodyne Corporation , `Gas Turbine Division and In-
ternational Union, United Automobile , Aerospace
and Agricultural Implement Workers of America,
UAW, Petitioner,' and Local Union No. 970, Metal
Shop ,' Warehousemen & Helpers, affiliated with In-`
ternational Brotherhood of Teamsters , Chauffeurs,
Warehousemen and - Helpers of America, Peti-
tioner.' Cases 18-CA-4915,18-RC-10756, and 18-
RC-10762
October 19, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On July 15, 1976, Administrative Law Judge Rob-
ert Cohn issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the Charging Party filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, rec-
ommendations,' and conclusions of the Administra-
tive Law Judge and to adopt his recommended Or-
der.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
'International Brotherhood of Boilermakers , Iron Shipbuilders , Black-
smiths, Forgers , and Helpers , Local 705 , AFL-CIO, intervened in Cases 18-
RC-10756 and 18-RC-10762 , respectively
2 In the absence of exceptions thereto , we adopt pro forma the findings
and recommendations of the Administrative Law Judge with respect to
Cases 18-RC-10756 and 18-RC-10762.
orders that the Respondent, Turbodyne Corporation,
Gas Turbine Division, St. Cloud, Minnesota, its offi-
cers, agents, successors, and-_ assigns, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election held on
March 4, 1976, -in' Cases 18-RC-10756 and 18-RC-
10762a be, and it hereby is, set aside.
IT IS FURTHER ORDERED that Cases 18-RC-10756
and 18-RC-10762 be, and they hereby are, remand-
ed to the Regional Director for Region 18 for further
proceedings consistent with the recommended Order
of the Administrative Law Judge.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This consoli-
dated proceeding was heard at Minneapolis, Minnesota, on
May 13, 1976,1 pursuant to due notice. The complaint, is-
sued on April 26, alleges, in substance, that Turbodyne
Corporation, Gas Turbine Division (herein the Employer,
Respondent, or Company) violated Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended (herein
the Act), by, on or about March 1, withdrawing recogni-
tion from Boilermakers 2 and by further engaging in cer-
tain unilateral conduct without notice to or bargaining
with that Union.
By its duly filed answer, Respondent admitted the juris-
dictional allegations of the complaint, but denied that it
had withdrawn recognition from the Boilermakers. Re-
spondent further admitted that it took certain unilateral
action as alleged in the complaint, but denied that it took
this action without notice to the Boilermakers.
By order of the Acting Regional Director for Region 18
of the Board, on April 28, the foregoing complaint pro-
ceeding was consolidated with two representation proceed-
ings (Cases 18-RC-10756 and 18-RC-10762) for purposes
of hearing. Such consolidation was based on a finding by
the said Acting Regional Director that the aforesaid unfair
labor practices of Respondent constituted the same con-
duct which the Boilermakers had contended should pro-
vide a basis for setting aside an election conducted by the
Region on March 4, on which more anon.
Subsequent to the hearing, and within the time allowed,
helpful posthearing briefs have been received from the
General Counsel, Respondent, and the Boilermakers.
Upon the entire record in the case, I make the following:
t All dates hereinafter refer to the calendar year 1976, unless otherwise
indicated
2 International Brotherhood of Boilermakers , Iron Shipbuilders , Black-
smiths , Forgers and Helpers , AFL-CIO, Local 705
226 NLRB No. 81
TURBODYNE CORP. 523
FINDINGS AND CONCLUSIONS
1. THE ALLEGED UNFAIR LAIJOR_PRACTICES 3
A. Background and Setting of the Issues
The facts giving rise to the issues in this proceeding were
stipulated at the hearing, and may be set forth, in pertinent
part, as follows:
On April 22, 1973, a collective-bargaining agreement
with a termination-date of February 29, 1976, was entered
into by the Respondent and Boilermakers Union, covering
the employees in the unit 4 Article I, section I, of said
agreement provides for recognition by the Company of the
Boilermakers Union as the sole and exclusive collective-
bargaining agent for employees in the aforesaid unit. Arti-
cle IX of said agreement provides for the establishment of
a noncontributory pension plan and trust along with the
dates and amount of payment to be made to fund the pen-
sion benefits.5 Article 19 of the aforesaid agreement sets
forth the grievance procedure which, as is the usual case,
involves the participation of union representatives in the
several steps thereof.
On December 15, 1975, and on-December 18, 1975, peti-
tions were filed by the UAW and Teamsters, Local 970,
respectively (Cases 18-RC-10756 and 18-RC-10762). All
parties, including the aforesaid Petitioners, Respondent
and Boilermakers, executed a, Stipulation For Certification
Upon Consent Election which was approved by the Re-
gional Director on January 2. Pursuant to said stipulation,
an election was conducted by the Regional Director on
January 22. The results of said election, as set forth in the
tally of ballots served on the parties, were as follows: Ap-
proximate number of eligible voters, 210; void ballots, 0;
votes cast for UAW, 78; votes cast for Teamsters Local
Union No. 970, 87; votes cast for Boilermakers Local 647,
3 There is no issue as to the Board's jurisdiction or of the status of the
Unions involved as labor organizations The complaint alleges `sufficient
facts which are admitted by Respondent's answer, upon which I may, and
do hereby, find that the Respondent is engaged in commerce within the
meaning of Sec 2(6) and (7) of the Act, and that the Boilermakers Union is
a labor organization within the meaning of Sec. 2(5) of the Act I take
official notice of the records in the aforesaid representation cases to the
effect that the petitioners in those cases (International Union, United Auto-
mobile, Aerospace and Agricultural, Implement Workers of America, UAW,
and Local Union No 970, Metal Shop, Warehousemen and Helpers, affili-
ated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, are'labor organizations within the meaning of
Sec. 2(5) of the Act.
4 The appropriate unit consists of all production and maintenance em-
ployees employed in the St. Cloud plant, 711 Anderson Avenue, N, St
Cloud, Minnesota, including inspectors, stores and shipping clerks, exclud-
ing office :clerical employees, professionals, technicals, quality control tech-
nicians, guards and supervisors as defined in the National Labor Relations
Act, as amended.
5 By memorandum dated March 14, 1975, this article was amended to
state
It is agreed that effective March-4, 1974. contributions will be paid by
the Company to the Boilermaker-Blacksmith National Pension Trust in
the amount of five cents (5 cents) per hour and effective March 3, 1975,
an additional fifteen cents (15 cents) per hour (total contribution 20
cents 20(cents) ) per hour
26; votes cast against participating labor organizations, 13;
challenged ballots, 0; valid votes counted plus challenged
ballots, 204.
-On January 27, the Boilermakers Union filed timely ob-
jections to conduct affecting the election and, on February
24, all parties entered into a stipulation which provided for
a rerun election to be conducted on March 46, -
On February 29, the current agreement between Re-
spondent and the Boilermakers Union expired. On March
1, Respondent distributed to all employees in the unit a
copy of a shop manual which purported to govern the wag-
es, hours, and working 'conditions of the employees. In a
covering letter to the employees, the manual was described
as "an attempt to carry forward for the time being our
existing wages, hours, and working conditions." -However,
with respect to the grievance procedure, the involvement of
a union representative was deleted. Also the covering letter
announced that "all contributions -to the Boilermakers'
pension fund have been discontinued. The Company will,
however, continue to set aside money at'the previous rate
to fund any subsequent arrangement which may be arrived
at." 7 -
Also on March 1, by letter, the International vice presi-
dent of the Boilermakers Union confirmed a telephone
conversation which he assertedly had with an officer of
Respondent in which the Boilermakers' Union was notified
that the Company, was "officially terminating our collec-
tive-bargaining agreement and unilaterally replacing it
with a operating manual designed solely by the Company
as a replacement to said agreement." The writer of the
letter accused the Company of engaging in an unfair labor
practice by such conduct, and requested that the Company
continue to deal with the Boilermakers Union "as bargain-
ing agent in all' matters relating to grievances and other
matters relating to terms and conditions of employment of
bargaining unit employees inasmuch as the Boilermakers
Union is still the certified bargaining agent," However, it
was stipulated that at all times since March 1 Respondent
has refused to accept and process any grievances presented
by agents- of the Boilermakers Union and, more specifical-
ly, on March 22 and on April 2, grievances presented by
the Boilermakers grievance committee were rejected by Re-
spondent's representatives.
On March 4, a` rerun election was conducted pursuant-to
the aforesaid order, of the Regional Director dated Febru-
ary 27. The results of the rerun election, as set forth in the
tally of ballots served on the parties, were as follows: Ap-
proximate number of eligible voters, 203; void ballots, 0;
votes cast for UAW; 86; votes cast for Boilermakers, 46;
votes cast for Teamsters, 62; votes cast against participat-
ing labor organizations, 3; challenged ballots,- 0; valid
votes counted plus challenged ballots, 197.
On March 9, the Boilmakers Union filed timely objec-
tions to conduct affecting the results of the rerun election
which, as previously set forth, alleged conduct substantially
similar to that contained in the instant complaint case.
6 On February 24, Boilermakers Union Local No 647 became Boilermak-
ers Union 705, which accounts for the discrepancy in ,the name of that
Union before and after said date
7SeeGC Exh 4
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Analysis and Concluding Findings
There can be no question but that following the filing of
the petitions by the UAW and Teamsters in December
1975, and the procedures subsequent thereto, a question
concerning representation (QCR) arose with respect to the
employees of Respondent in the appropriate unit. It is fur-
ther apparent that such QCR had not been resolved, by
February 29 when the, current agreement between-Respon-
dent and Boilermakers Union terminated. The question be-
comes, then, what the legal duties and obligations of Re-
spondent were vis-a-vis the Boilermakers Union as
exclusive collective-bargaining representative of its- em-
ployees, pending resolution of the QCR.
It is well established that an employer, faced with claims
for representation of his employees by two or more com-
peting labor organizations, must remain neutral.8 The issue
becomes somewhat more complex, however, where, as in
the instant case, one of the competing labor organizations
is an incumbent and the QCR has not been resolved by the
time its collective-bargaining agreement with the employer
expires. What constitutes "remaining neutral" for an em-
ployer under these circumstances?
Counsel for the General Counsel,,relying.principally on
such Board cases as Shea Chemical Corporation,' Telauto-
graph Corporation,10 and G & H Towing Company," con-
tends that the unilateral action taken by Respondent, in the
instant case was unlawful.
In Shea, the Board held that where a QCR exists:
an employer may not go so far as to bargain collec-
tively with the incumbent (or any other) union unless
and until the question concerning representation has
been settled by the Board. This, is not to say, that the
employer must 'give an undue "advantage to. the rival
union by refusing to permit the incumbent union to
continue administering its contract or processing
grievances through its stewards.'2
The foregoing holding of the Board was affirmed in Tel-
autograph, which involved the filing of a decertification pe-
tition.
G&H Towing involved an allegation of violation of Sec
tion 8(a)(2) and (1) of the Act. In that case, as in the case at
bar, a QCR.existed at a time when the collective-bargain-
ing agreement between the company and incumbent union
expired.13 In these circumstances the respondent and in-
cumbent union "extended the termination date of their ex-
isting contract from time to time so as to avoid a lapse in
contractual relations while awaiting resolution of the repre-
sentation question. No changes were made in wages or any
other contractual terms during this period. There is no evi-
dence that the parties engaged in any bargaining, or even
introduced preliminary proposals. Thus, 'consistent with
' Midwest Piping and Supply Co., Inc., 63 NLRB 1060 (1945)
9 121 NLRB 1027 (1958).
10 199,NLRB 892 (1972).
'i 168 NLRB 589 (1967)
iz 121 NLRB at 1029
13 An NLRB election was in progress at the time inasmuch as the respon-
dent, a towing company, had employees in various locations, and the voting
could not be completed until several days following the expiration of the
contract
what we said in Shea, G&H pursued a neutral course by
neither `bargaining collectively with the incumbent or any
other union' nor `refusing to permit the incumbent union
to continue ' administering its contract. . . .' We find no
violation in the extensions of G&H's contract with the Sea-
farers [incumbent union]." 11
Under the foregoing authorities, it seems clear that it
would not have been a violation of the Act for Respondent
and incumbent union' too' temporarily extend the provisions
of the `expired contract pending resolution of the QCR. It
would seem to follow that a violation of the Act does occur
where, during a hiatus 'perlod;'the respondent unilaterally
attempts to impose-and 'does impose-new procedures
for the-resolution of grievances.15
The Respondent does' not appear to meet head on the
foregoing argument. Rather, it defends its engaging in, the
March I conduct, above described, on- the grounds that it
had a good-faith'doubt of the Boilermakers continued ma-
jority status. In its brief, Respondent'contends that such
doubt resulted from the fact "that the Boilermakers Union
obtained only 26 out of the 204 votes cast during the repre-
sentational election conducted by the Regional Director on
January 22, 1976." It follows, argues Respondent, that it
was not under a duty 'to bargain with the Boilermakers,
and "therefore the nondiscriminatory unilateral changes it
made regarding the grievance -procedure and the pension
plan which form the basis of the General Counsel's case do
not constitute violations of Section 8(a)(1) or (5) of the
Act." Respondent further contends that such objective evi-
dence as shown by the Boilermakers relatively poor show-
ing in 'the January election provided ample support, for its
good-faith doubt of the Boilermakers majority status, and
overcame a,ny 'such presumption of majority status that
flowed from the current collective-bargaining agreement.16
I cannot agree with Respondent's position. It is clear
from the facts in this case that a QCR had arisen-and still
existed-at the time of Respondent's alleged unlawful con-
duct. It is well settled that, where there exists a QCR, the
employer is obliged under law to adopt and maintain a
neutral position with respect to the competing labor orga-
nization until such QCR has been resolved. The basic issue
to be resolved in this case, in my view, is what constitutes
"remaining neutral" in such a situation where one of the
vying labor organizations is' an incumbent union whose
collective-bargaining agreement with Respondent has ex-
pired. Shea, Telautograph, and G&H,'Towing, supra, teach
that an employer is clearly not required to abrogate the
terms and conditions of employment,'which had been ex-
tant in the plant during,, the currency of the last collective-
bargaining contract. Indeed, in G&H Towing, as previously
noted, it was specifically held-not to be a violation of Sec-
"'168 NLRB at 591
15 Cf The Hilton-Davis Chemical Company, Division of Sterling Drug, Inc,
185 NLRB 241, 242-243 (1970), where in a hiatus situation (not involving a
QCR), the Board stated " It seems clear, to us that an employer may not
unilaterally attempt to impose new channels for resolution of disputes with-
out undercutting the union's representative status "
The same principle applies with respect to the unilateral discontinuance
of a retirement fund See Sir James, Inc, 183 NLRB 256 (1970)
is See, e g., Bartenders, Hotel Motel and Restaurant Employers Bargaining
Association of Pocatello, Idaho and its Employer-Members, 213 NLRB 651
(1974)
TURBODYNE CORP. 525
tion 8(a)(2) and (1) of the Act for the parties to extend the
termination date of the existing contract pending resolu-
tion of the QCR. The other side of this coin, it seems to me,
is that a violation of Section 8(a)(5) and (1) of the Act
occurs when an employer unilaterally institutes certain ba-
sic changes in the coll ective agreement pending resolution
of the QCR.
If the foregoing legal analysis is valid, the question of
good-faith doubt of majority status of the incumbent union
by the respondent, at some point in time during the process
of resolution of the QCR, is essentially beside the point.
The legal obligation of an employer, irrespective of doubt
of majority status, is to await resolution of the QCR by the
National Labor Relations Board or other appropriate
agency, before instituting any changes in the working con-
ditions of the employees. This, of course, Respondent
failed to do in this case.
But, even under Respondent's view, I would have ex-
treme difficulty in concluding that it had met its burden of
overcoming the presumption of majority status possessed
by the contracting union.17 As previously noted, the Re-
spondent bases its whole case on the fact that the Boiler-
makers received only 26 of approximately 210 votes in the
January election. However, the Boilermakers filed timely
objections to conduct affecting the results of said election,
and said election was set aside by agreement of the parties
without further record being made of what such conduct
consisted of. It would seem to be a reasonable inference to
be drawn from the foregoing facts that the wrongful con-
duct had some effect on the vote in the election.
Based upon all of the foregoing, I conclude, and there-
fore find, that the unilateral conduct, above described, en-
gaged in by Respondent on March 1 constituted violations
of Section 8(a)(5) and (1) of the Act, and I will recommend
an appropriate remedy.
Upon the basis of the above findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAw
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Boilermakers Union, the Charging Party herein,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By withdrawing recognition from the Boilermakers
Union, by unilaterally altering the grievance procedure
previously established by the terms of the recently expired
collective-bargaining agreement, and by ceasing to contri-
bute to the Boilermakers Union's pension plan in the man-
ner above described, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
17 The Board and court 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-bargaming agreement, and this presumption
continues after the expiration of the agreement although it may be over-
come by appropriate evidence. See Essex International, Inc, 222 NLRB 121
(1976); Eastern Washington Distributing Company, Inc, 216 NLRB 1149
(1975); Terrell Machine Company, 173 NLRB 1480 (1969), enfd. 427 F.2d
1088 (C A. 4, 1970)
4. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof , and constitute unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act, as aforesaid, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 18
Respondent, Turbodyne Corporation, Gas Turbine Di-
vision, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally withdrawing recognition from the Boil-
ermakers Union as the exclusive bargaining representative
of its employees in the appropriate unit, unilaterally ceas-
ing to make "contributions on behalf of the employees in
the appropriate unit to the Boilermakers Union's pension
plan, and unilaterally altering the grievance procedure pre-
viously established by the terms of the collective-bargain-
ing agreement between the Respondent and Boilermakers
Union, which expired on February 29, 1976.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Pending resolution of the existing question concern-
ing representation of the employees in the appropriate
unit: (1) recognize the Boilermakers Union as the exclusive
collective-bargaining representative of its employees in the
appropriate unit; (2) restore the grievance procedure which
existed in the collective-bargaining agreement with the
Boilermakers Union, which expired on February 29, 1976;
and (3) reimburse all delinquent payments to the Boiler-
makers Union's pension fund since March 1, 1976.
(b) Post at its St. Cloud, Minnesota, facility copies of
the attached notice marked "Appendix." 19 Copies of said
notice, on forms provided by the Regional Director for
Region 18, after being duly signed by Respondent's repre-
sentative, shall be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
18 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
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
19 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered , defaced, or covered by any
other material.
(c) Notify the said Regional Director , in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that , in view of the above findings
and conclusions , the Boilermakers Union's objections to
the rerun election conducted by the - Board in Cases 18-
RC-10756 and 18-RC-10762 be sustained, and that the
results of said election be set aside , and that both cases be
remanded to the Regional Director for Region 18, for the
purpose of conducting a new election at such time as he
deems the circumstances permit the free choice of a bar-
gaining representative.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pending resolution of the question concerning representa-
tion which presently exists among our employees in the
unit described below , we hereby notify our employees as
follows:
WE WILL NOT refuse to recognize International
Brotherhood of Boilermakers , Iron Shipbuilders,
Blacksmiths , Forgers, and Helpers, ' Local 705, AFL-
CIO, as the exclusive collective-bargaining representa-
tive of our employees in the appropriate unit . The ap-
propriate bargaining unit is:
All production and maintenance employees em-
ployed in the St. Cloud plant, 711 Anderson Ave-
nue, N., St. Cloud, Minnesota , including inspectors,
stores and shipping clerks; excluding clerical em-
ployees, professional, technical , quality control
technicians, guards and supervisors as defined in
the National Labor Relations Act, as amended.
WE WILL NOT unilaterally change or alter the griev-
ance procedure as it existed in the last collective-bar-
gaining agreement between us and the aforesaid
Union prior to March 1, 1976.
WE WILL make up all delinquent payments to the
said Union's pension fund which we have failed to
make since March 1, 1976.
TURBODYNE CORPORATION, GAS TURBINE DIVISION