Viking Lithographers, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 139 (N.L.R.B. 1970)

VIKING LITHOGRAPHERS, INC. 139
Viking Lithographers, Inc. and Miami Printing
Pressmen & Assistants' Union , Local 207 , subor-
dinate to International Printing Pressmen &
Assistants ' Union of North America , AFL-CIO.
Case 12-CA-4533
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
On October 17, 1969, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief.
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
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
On January 19, 1968, the Union won an election
among the Respondent's employees, 13 to 8, and
was certified on March 11. The parties engaged in a
number of bargaining sessions until the middle of
January 1969 and between January 14 and Februa-
ry 3, 1969, exchanged letters relating to bargaining
matters. Between February 3 and May 5, 1969,
there was no communication between Respondent
and the Union regarding negotiations. Between
May 5 and May 14, the Union and the Respondent
exchanged the communication described below.
Thereafter, on May 14, 1969, some 14 months after
the Union's certification, the Respondent notified
the Union that it doubted the Union continued to
represent a majority of the employees and stated it
declined to negotiate further for a bargaining agree-
ment.
The complaint alleges that, by so refusing to con-
tinue to recognize the Union, the Respondent vio-
lated Section 8(a)(5) and (I) of the Act. The Trial
Examiner , concluding that the Respondent had no
reasonable basis for questioning the Union's majori-
ty status, found the violation as alleged. We do not
agree with this result.
The principle applicable in the present situation
has long been established. After the certification
year has run, an employer may lawfully withdraw
recognition from an incumbent union because of an
asserted doubt of the union's continued majority if
its assertion of doubt is raised in a context free of
unfair labor practices and is supported by a show-
ing of objective considerations providing reasona-
ble grounds for a belief that a majority of the em-
ployees no longer desire union representation.'
Here the Respondent engaged in no independent
unfair labor practices, and the withdrawal of recog-
nition occurred more than a year after the certifica-
tion. Consequently, as the Trial Examiner quite
properly viewed the problem, the issue to be
resolved is whether or not those "objective con-
siderations" existed, justifying the asserted doubt
concerning the Union's majority status.
Here, as noted, the Respondent and the Union
engaged in a number of bargaining sessions
between April 1968 and January 1969. But
between mid-January, when it received certain
proposals from the Union, and May 5, when it
received a telegram, the Respondent heard nothing
from the Union concerning formal negotiations. In
fact it appears that during that January-May period
the Union was wholly inactive in the plant and
several employees expressed to management
dissatisfaction with the Union.2 However, the Union
did hold a meeting of the Respondent's employees
on the evening of May 4,3 and the following day the
Respondent received a telegram from the Union in
which it accepted the Company's "final offer" and
requested that the Respondent reduce it to writing
for signatures. The Union made no attempt at that
time to secure any bargaining advantage what-
soever, but simply capitulated completely. No final
offer comprising a complete contract had in fact
' Nu-Southern Dyeing & Finishing , Inc , and Henderson Combining Co ,
179 NLRB 573
2On cross-examination the Union's International representative who
handled negotiations with the Company testified that he asked for no
meetings after January 10 because "we had the unfair labor practice
charge " and " were waiting for it to be processed against the Com-
pany " However, the charge included no allegation that Respondent in
negotiations had failed to bargain in good faith Moreover , there is nothing
in the record to suggest that the Respondent was informed of this asserted
reason , not does the record suggest that the Respondent should have in-
ferred that such asserted reason existed Consequently , this testimony does
not in our opinion detract from the objective facts concerning the Union's
inactivity
' Only about eight employees attended However, there is no evidence
that the Respondent , prior to the hearing in this case , was aware of the
number at that meeting
184 NLRB No. 16
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been made, there being limited matters necessarily
a part of an agreement not covered by any com-
pany offer, and other areas in which the parties
could not even agree on what the Company's final
offer had been. Finally, at that time only four of the
unit employees employed at the time of the election
remained in the plant with two of those four having
announced their intent to quit-doing so in 2 or 3
weeks. In these circumstances we believe that the
Respondent was not unreasonable or unrealistic in
construing the Union's contractual surrender and
haste to enter into a contract, the terms of which
were at best ambiguous, as an attempt to secure its
bargaining status in the face of declining employee
support.
The foregoing factors relied on by the Respon-
dent may not by themselves show that the Union
had in fact lost its majority as of May 14, 1969,
when the Respondent withdrew recognition. How-
ever, here in a context free of unfair labor practices
or even of manifest union animus on the part of the
Respondent, those factors noted above do provide,
in our opinion, an objective basis which could
properly furnish reasonable grounds for the
Respondent to believe that the Union had lost its
majority status.' Consequently, we find that the
Respondent did not violate Section 8(a)(5) or (1)
of the Act when on May 14, 1969, it withdrew
recognition from the Union. Accordingly, we shall
dismiss the complaint.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed.
' See Lloyd McKee Motors, Inc , 170 NLRB 1278
184 NLRB No 16T-7
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: This case was
tried before me at Miami, Florida, on August 20
and 21, 1969. It was initiated by a charge filed on
May 26, 1969, and a complaint issued on July 17,
1969, against the Respondent, Viking Lithog-
raphers, Inc., alleging that the Respondent had vio-
lated Section 8(a)(5) and (I) of the Act by refus-
ing to continue to recognize Miami Printing Press-
men & Assistants' Union, Local 207, subordinate to
International Printing Pressmen & Assistants'
Union of North America, AFL-CIO, herein called
the Union. In its answer duly filed, the Respondent
admitted certain jurisdictional allegations of the
complaint but, with respect to the alleged unlawful
refusal to bargain, affirmatively alleged that when it
declined to continue recognizing the Union it did so
on the ground that it had a good-faith doubt that
the Union then represented a majority of its em-
ployees in the appropriate unit.
At the hearing, all parties were represented and
were afforded full opportunity to adduce evidence
bearing upon the issues. Subsequent to the hearing,
counsel for the Respondent filed a brief which has
been carefully considered.
Upon the entire record in the case , and from my
observation of the witnesses and their demeanor, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Florida corporation with its
place of business in Miami, Florida, where it is en-
gaged in the business of printing, binding, and mail-
ing brochures. During the Respondent's last fiscal
year its gross volume of business exceeded
$500,000 and it purchased and received goods and
materials valued in excess of $50,000 directly from
points outside the State of Florida. Although the
Respondent admitted the foregoing facts relating to
its volume of business, it denied that it was engaged
in commerce within the meaning of the Act. I find
that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Miami Printing Pressmen & Assistants ' Union,
Local 207, subordinate to International Printing
Pressmen & Assistants ' Union of North America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On March 11, 1968, following a Board-con-
ducted election held on January 19, the Board cer-
tified the Union as the exclusive representative of
the Respondent's employees in an appropriate
unit.' The first bargaining meeting was held on
April 11, and thereafter there were 1 1 further
meetings, the last one occurring on January 10,
1968. No contention is made that the Respondent
engaged in any unlawful conduct during the course
of the bargaining meetings. At the outset the Union
had submitted a proposal and thereafter the
Respondent had submitted a counterproposal; it
was on the latter that most of the discussion at the
' The unit admittedly appropriate consists of "All offset pressmen and
apprentices, feeder operators and helpers , cameramen, assistant
cameramen, platemakers , and stripper-opaquers ," excluding all other em-
ployees, office clerical employees, guards, and supervisors as defined in the
Act The vote in the election was 13 to 8 in favor of the Union, with I chal-
lenged ballot
VIKING LITHOGRAPHERS, INC. 141
bargaining sessions occurred. As of January 10, the
parties had reached agreement on a number of mat-
ters but wages, health and welfare, and certain
other provisions of the contract were still in
dispute. By letter dated January 14, Larry Smith,
International representative of the Union who had
participated in the negotiations along with an em-
ployee committee, wrote to the Respondent
proposing as a basis for "a final settlement" that
the Respondent pay the entire cost of the health
and welfare program, grant stated increases for
specific job classifications, and agree to a proposal
regarding manning on the four-color press. This
letter was acknowledged by Jesse Hogg, counsel for
the Respondent, on January 15, and on February 3
he wrote to International Representative Smith stat-
ing that, after having conferred with the Respon-
dent, the Union's proposal was not acceptable.
From February 3 until May 5 there was no com-
munication between the Respondent and the
Union. Under date of May 5, following a meeting
with employees on May 4, the Union sent to coun-
sel for the Respondent, who had been the principal
representative of the Respondent in the negotia-
tions, the following telegram:
This is to advise that the Union accepted the
last Company offer, Sunday, May 4, 1969.
Please prepare the Contract for proper signa-
tures. Will call you next Tuesday or Monday,
when I am in Miami. Regards, Larry J. Smith,
Representative, IPP&AU of NA.
Counsel for the Respondent acknowledged receipt
of the telegram by letter dated May 7, stating that
the president of the Respondent was out of the city
and that he would talk to him the following week.
Counsel added that "it has been so long since we
met that I cannot remember what we agreed to and
what was still open." On May 14, counsel wrote to
the Union, stating that he had conferred that day
with the president of the Company who "informs
me that he is of the opinion that your organization
does not now represent a majority of unit em-
ployees at Viking and that this has been true for
several months past." Accordingly, he advised that
the Respondent "entertained a good-faith doubt of
your majority status, and the company therefore
declines to negotiate for a collective bargaining
agreement with your union."
The General Counsel contends that the Respon-
dent was not motivated by a good-faith doubt of the
Union's majority status on May 14 when it
withdrew recognition of the Union as the exclusive
representative of the Company's employees and
declined to negotiate further with the Union, and
that therefore the Respondent violated Section
8(a)(5) and (1) of the Act. The Respondent, on
the other hand, argues that it was fully justified in
questioning the Union's majority status.
The principles governing an employer's continu-
ing duty to recognize and deal with a union which
had previously been duly certified by the Board as
the exclusive bargaining representative of his em-
ployees, were reviewed and restated in Laystrom
Manufacturing Co.2 as follows
Absent unusual circumstances, there is an ir-
rebuttable presumption that the majority status
of a certified union continues for 1 year from
the date of certification.3 After the first year
the certificate still creates a presumption of
majority status, but the presumption is nor-
mally rebuttable by an affirmative showing that
the union no longer commands a majority.4
Moreover, where the certificate is a year or
more old and employer may withhold further
bargaining without violating the Act and insist
that the union reestablish its statutory
representative status if, but only if, he in good
faith has a reasonable doubt of the union's
continuing majority.'
A showing of such doubt, however, requires
more than an employer's mere assertion of it
and more than proof of the employer's subjec-
tive frame of mind. The assertion must be sup-
ported by objective considerations. The ap-
plicable test, as defined in the Celanese case, is
whether or not the objective facts furnish a
"reasonable basis" for the asserted doubt, or,
put another way, whether or not there are
"some reasonable _grounds for believing the
Union has lost its majority status since its cer-
tification. "6
' Celanese Corporation of America, 95 NLRB 664, 673
' Frito-Lay, Inc , 151 NLRB 28, Cf Celanese Corporation of Amer-
ic a, supra
' See, e g, The Richard W Kase Company, 141 NLRB 245, Mitchell
Standard Corporation, 140 NLRB 496, The Randall Company, et al,
133 NLRB 289, Celanese Corporation of America, supra, footnote 4, at
672
" Celanese Corporation of America, supra, footnote 4, at 673
Whether or not an employer's doubt is grounded on
an honest and reasonable belief that the union had
lost its majority status "cannot be resolved by
resort to any simple formula" but "can only be an-
swered in the light of the totality of all the circum-
stances involved in a particular case. "3
In support of its claim that it did entertain a
good-faith doubt of the Union's majority status
when it withdrew recognition on May 14, which
was 14 months after the Union had been certified
as exclusive bargaining representative, the Respon-
dent relies on several considerations. Hogg, counsel
for the Respondent and its principal negotiator, met
with Robert Birenbaum, Respondent's president, on
May 14 to determine what reply to make to the
2 151 NLRB 1482, 1483-84, enforcement denied on other grounds 359
F 2d 799 (C A 7)
3 See, e g, Ray Brooks v N L R B, 348 U S 96, Celanese Corpora-
tion of America, 95 NLRB 664, 672
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's May 5 telegram accepting "the last Com-
pany offer" and requesting that the contract be
prepared for signature. Hogg testified that at the
outset of the meeting he expressed the view to
Birenbaum that in his opinion the Union did not
represent a majority and had not for some time.
Birenbaum agreed with this view. They then
discussed the factors which they felt buttressed this
opinion. At Hogg's request Birenbaum had
prepared a list of unit employees as of March 11,
1968, when the Union was certified, and as of May
5, 1969, when the Union sent its telegram. This
showed that of the 21 unit employees on March 11,
1968, only 4 were in the Respondent's employ on
March 5, 1969, in a unit then consisting of 25 em-
ployees. Of these four, one, Gerald Konidare, who
had been a member of the employee committee,
had before May 5 given notice that he was quitting
and he did terminate his employment on May 9.
Another member of the negotiating committee,
Ralph Martinucci, had expressed an intention to
give notice; he in fact quit on May 23. Aside from
Konidare and Martinucci, Birenbaum testified that
"just about every other man who I knew to be
vitally interested" in the Union "had left in most
cases months previous" to May. New employees, so
Birenbaum testified, had expressed no interest in
the status of negotiations, and the fact that from
January to May there were no problems between
management and the employees led Birenbaum to
believe that there was little interest in the Union.
A further factor relied on by the Respondent was
the Union's behavior during and after the negotia-
tions, which Hogg characterized as "lackadaisical."
The Union did not press for more frequent
meetings and on several occasions left a meeting
without seeking to arrange another. Thus at the
conclusion of the fourth meeting on July 2, Smith
for the Union refused to commit himself as to
further meetings. Late in that month he telephoned
Hogg and inquired if the Respondent was prepared
to make any further concessions ; when Hogg
replied in the negative and suggested that the
Union should make some concessions , which Smith
declined to do, Smith concluded by stating, "Well,
if you change your mind , give me a call."
Thereafter, no meeting occurred until October 6.
The October 29 meeting ended with no provision
for a future negotiation session. About mid-
November Smith called Hogg and indicated that he
did not wish to meet further; however, Hogg per-
suaded him to meet on November 29. At the
November 29 meeting the Union indicated that it
might engage in a strike , but Smith was persuaded
by Hogg to arrange for a further meeting on
December 16. At the December 16 meeting the
Respondent improved its wage offer on several
classifications. When Birenbaum complained to
Smith that the drawnout negotiations caused low
' Laystrom Manufacturing Co , supra, Printers Service Inc , 175 NLRB
809
morale among the employees and high turnover,
Smith rejoined that this condition was attributable
to the Company and stated that there were only a
few "die hards" left. Hogg and Birenbaum in-
terpreted the latter remark to mean there were only
a few union supporters remaining.
The last meeting occurred on January 10 and
ended with no arrangements being made for further
negotiations. Thereafter, on January 14, the Union
wrote the Respondent making certain proposals as
a basis for "final settlement." These were rejected
by the Respondent in a letter dated February 3. On
February 5, the Union filed unfair labor practice
charges, including an allegation that the Respon-
dent had violated Section 8(a)(5) by instituting
certain disciplinary action without bargaining with
the Union. This charge was dismissed by the Re-
gional Director and his action was sustained by the
General Counsel on appeal. No meetings were held
after January 10 between the parties and there was
no communication between them after February 3
until the May 5 telegram from the Union stating it
accepted the Respondent's last offer. As stated
above, the Respondent on May 14 withdrew recog-
nition and refused to negotiate further.
Under all the circumstances, and considering as
well the fact that the Respondent bargained with
the Union in good faith and had engaged in no in-
dependent violations of Section 8(a)(1) of the Act,
I am not persuaded that the Respondent had a
"reasonable basis," supported by objective con-
siderations, for questioning the Union's majority
status on May 14, 1969. Turnover among em-
ployees in the unit, heavily relied on by the Respon-
dent as supportive of its asserted good -faith doubt,
in and of itself has been held not to be such an ob-
jective factor as to constitute a reasonable basis for
believing that a union lost its majority since certifi-
cation.4 As the Board observed in Laystrom (at
1484), "new employees will be presumed to sup-
port a union in the same ratio as those whom they
have replaced." Nor do I find in the time lags
between meetings and the Union's failure to engage
in a strike which had been intimated a basis for in-
ferring that the Union had lost support of a majori-
ty. To the contrary, I note that the January 14 letter
sent by Smith to the Respondent as a proposal for
final settlement bears the handwritten names of 17
employees , thus indicating that a substantial majori-
ty then supported the Union. Aside from normal
turnover , there is no evidence-other than the
Union's telegram of May 5 accepting the Respon-
dent 's terms- indicating that after the expiration of
the certification year the Union lacked the ad-
herence of a majority.
Upon the entire record, I conclude that the
Respondent did not have a good-faith doubt or a
reasonable basis for believing that the Union had
lost its majority status on May 14, 1969. 1 therefore
1 \
VIKING LITHOGRAPHERS, INC. 143
conclude that the Union on that date continued to
be the certified representative of the employees in
an appropriate unit and that the Respondent, by
withdrawing and withholding recognition and refus-
ing to bargain with it on and after May 14, 1969,
violated Section 8(a)(5) and (1) of the Act.5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in sec-
tion III, above, occurring in connection with the
operations described in section I, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act. To remedy the Respondent's unlaw-
ful refusal to fulfill its statutory bargaining obliga-
tion, I recommend that it bargain on request with
the Union, as the exclusive representative of its em-
ployees in the unit found appropriate herein, and, if
an understanding is reached, embody such un-
derstanding in a signed agreement. I also recom-
mend that the Respondent post at its plant the
notice attached to this Decision as an appendix.
In oral argument, counsel for the General Coun-
sel urged that the Respondent be ordered to sign a
contract at the Union's option and to reimburse the
employees with interest for the loss of any benefits
which would have accrued to them, citing
Beverage-Air Company, 164 NLRB 1127. In that
case, the parties had reached oral agreement on
terms, which the employer refused to execute.
Here, I am convinced that a number of contractual
provisions had not reached the status of concrete
proposals readily susceptible of acceptance but,
rather, were still in the discussion and modification
stage. In view of the uncertain content of various
clauses which the Union by its telegram purported
to accept, I am satisfied that it would not be ap-
propriate in this case to recommend execution of a
particular contract and reimbursement order.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. The 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. All offset pressmen and apprentices, feeder
operators and helpers, cameramen , assistant
cameramen, platemakers, and stripper-opaquers,
but excluding all other employees, office clerical
employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. At all times since March 11, 1968, the Union
has been the exclusive bargaining representative of
the employees in the aforesaid appropriate unit
within the meaning of Section 9(a) of the Act.
5. By refusing on and after May 14, 1969, to
recognize and bargain collectively with the Union
as the exclusive representative of the employees in
the aforesaid appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of
the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order6 7 is omitted from publica-
tion. ]
' Lloyd McKee Motors, Inc , 170 NLRB 1278, relied on by the Respon-
dent as dispositive of the instant case, is distinguishable on its facts
6 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
that 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 Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
I In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 12, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "