Weisser Optical Co.

National Labor Relations Board - Board Decisions

Mar 14, 1985

274 N.L.R.B. 961 (N.L.R.B. 1985)

WEISSER OPTICAL CO
Weisser Optical Company and Local 853 , United
Optical Workers Union . Cases 33-CA-6864,
33-CA-6915, and 33-CA-6933
14 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 6 September 1984 Administrative Law Judge
Walter H. Maloney Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
The Board has considered the record and the at-
tached decision in light of the exceptions and briefs
and has decided to affirm the judge's rulings, find-
ings, and conclusions only to the extent consistent
with this Decision and Order.
The Respondent and the Union were parties to a
collective-bargaining agreement covering a unit of
optical shop workers and stock department em-
ployees. Prior to the agreement's expiration on 30
April 1984, the Respondent refused to bargain with
and withdrew recognition from the Union based on
a petition signed by 18 of 22 bargaining unit em-
ployees. While we disagree with the judge's finding
as explained below that this showing-of-interest pe-
tition was the product of "flagrant and repeated"
interference with employees' Section 7 rights, we
agree that the Respondent unlawfully sponsored
and encouraged the decertification effort and that
its refusal to recognize and bargain with the Union
and to provide the Union with necessary and rele-
vant information violated Section 8(a)(5) and (1) of
the Act.
The record reveals as background that, in early
1983, the Respondent's owner Philip Hirsch asked
employee Ken Ratcliff to initiate a decertification
effort, explaining that he wanted to rid the Re-
spondent of the Union. Ratcliff reluctantly agreed
and was provided a booklet explaining the Board's
decertification process, which included sample lan-
guage to be used in soliciting evidence of interest.
Shortly thereafter, Ratcliff discussed the issue with
other bargaining unit employees, and they decided
not to pursue decertification.
In early February 1984, Ratcliff s immediate su-
pervisor, Sallie Homan, told him she had received
a telephone call from Hirsch who told her "it was
getting close to this time," in reference to the
Board's "open period" during which a decertifica-
tion petition may be timely filed.' During a subse-
' The "open period" for filing a decertification herein was I February
to 1 March 1984
961
quent conversation in mid-February, Homan asked
Ratcliff to return to the Respondent the pamphlet
it had furnished him in 1983. Ratcliff shortly there-
after returned the pamphlet, but retained a photo-
static copy of the sample evidence-of-interest lan-
guage which he thereafter used in soliciting signa-
tures on a petition. During this same period of
time, Homan also told employee James Menees
that Hirsch was "trying to get things started" and
later told him that Hirsch had been "on her again
about getting something started." On 24 February
1984 Hirsch conducted a meeting with all the
Peoria employees2 during which he told them he
thought they were mature enough to work out any
differences they had with the Respondent without
a "third party," a clear reference to the Union. Im-
mediately after the meeting , Ratcliff commenced
soliciting signatures for the showing-of-interest pe-
tition at the Peoria facility which he used to sup-
port a decertification petition filed with the Board
on 28 February.3
We agree with the judge that Homan's unsolic-
ited remarks to Ratcliff were, in essence, a renewal
of Hirsch's earlier expressed request that Ratcliff
file a decertification petition and that her unsolic-
ited comments to Menees4 as well as Hirsch's com-
ment to the employees at the 24 February meeting
constituted 8(a)(1) encouragement to employees to
file a decertification petition.5 Thus, the evidence
establishes that the idea of decertification was im-
planted in the employees' minds by the Respond-
ent. We find that, under the circumstances of this
case, the Respondent's unsolicited involvement
with the showing-of-interest petition constituted far
more than mere ministerial aid and violated Section
8(a)(1).6 Silver Spur Casino, 270 NLRB 1067 (1984).
2 The bargaining unit herein encompasses three different facilities lo-
cated in Peoria , Moline, and Arlington Heights , Illinois In early 1984,
approximately 16 of the 22 bargaining unit employees were employed at
the Respondent 's Peoria lab
8 In his decision the judge inadvertently misquoted the body of the
employee petition, which states, in part, " we believe a majority of
employees in our unit no longer want to be represented by the above
Union " (Emphasis added )
4 In reaching this conclusion regarding Homan's conduct , we rely on
the uncontradicted testimony of Ratchff and Menees We do not rely on
fn 7 of the judge's decision wherein he drew an adverse inference against
the Respondent resulting from Homan's failure to testify As Homan was
present at the hearing , it is clear that she was equally available to both
sides and , therefore, no adverse inference can be drawn against either
party for not calling her as a witness Plumbers Local 40 (Mechanical Con-
tractors Assn), 242 NLRB 1157, 1160 fn 10 (1979) Nor do we find it
necessary to rely on the judge's conclusion that the Respondent had
placed Ratcliff in a position of apparent authority to solicit signatures
6 We find that Hirsch' s statements at the meeting on 24 February vio-
late Sec 8(a)(1) as an aspect of the Respondent 's unlawful sponsorship
and encouragement of the decertification petition, relying particularly on
the context in which such statements were made
6 Ratcliff's testimony regarding whether he would have filed the de-
certification petition in the absence of Homan's request was not clearly
presented, and we do not rely on it to support our finding of unlawful
sponsorship and encouragement
274 NLRB No. 143
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, the Respondent could not rely on the
tainted showing-of-interest petition in asserting a
good-faith doubt concerning the Union's majority
status, and its withdrawal of recognition from the
Union and refusal to bargain and to provide the
Union with necessary and relevant information vio-
lated Section 8(a)(5).7 Texas Electric Coop, 197
NLRB 10 (1972); Craftool Mfg. Co., 229 NLRB 634
(1977).
The judge's conclusion that the showing-of-inter-
est petition was the product of flagrant and repeat-
ed interference with protected rights was apparent-
ly based on his additional findings that the Re-
spondent independently violated the Act by prom-
ising benefits to employees if they should vote to
decertify the Union, by soliciting employees to
present grievances directly to the Respondent, and
by engaging in individual bargaining with employ-
ees, regarding the subject of employee health insur-
ance. We find merit in the Respondent's exceptions
to each of these findings.
The judge's findings in this regard are based on
comments made by Homan and controller David
Lloyd during the meeting with the Peoria lab em-
ployees on 24 February and also during a later
conversation they had with employee Menees.
During the meeting of 24 February Homan stated
that she had been asked by some unspecified em-
ployees what pension and insurance benefits they
would receive in the event of decertification.8 In
response to an inquiry made by an employee,
Homan explained her own pension benefits without
specifying dollar amounts. Lloyd explained to the
employees that there were several different pension
plans that "could be looked into" in the event of
decertification, and he mentioned a K-401 plan and
IRAs. The value of such benefits was not dis-
cussed. In early March, Lloyd asked Menees what
the "biggest hang up" was in connection with the
decertification.9 Menees responded that the em-
ployees did not trust Hirsch and that the union-ad-
ministered health plan required the employees to
pay $750 deductible whereas the Respondent's
health plan required a $1250 deductible. Lloyd told
Menees that there was a "possibility" the Respond-
ent could "look into" self-insuring the difference in
the two deductibles.
7 The Respondent concedes that there are no facts in dispute regarding
its refusal to bargain with the Union or its refusal to provide the Union
with necessary and relevant information We do not adopt the judge's
comments in fn 8 of his decision regarding the Respondent 's involvement
of the Union in its decision to grant employees a pay increase
8 The parties ' collective-bargaining agreement provided for the Re-
spondent to pay into union-administered health insurance and pension
trust funds on behalf of its employees
9 At the time of their conversation the decertification petition had al-
ready been filed by employee Ratcliff Menees testified he understood
Lloyd's comment as referring to an anticipated election
The judge found that by these statements the Re-
spondent violated Section 8(a)(l) by promising ben-
efits to employees if they should vote to decertify
the Union. He also found that the Respondent vio-
lated Section 8(a)(5) and (1) by soliciting employ-
ees to bypass the Union and present grievances di-
rectly to the Respondent and that it bypassed the
Union and bargained directly with individual em-
ployees.
Contrary to the judge, we find neither the state-
ments made by Lloyd and Homan during the 24
February meeting nor Lloyd's statement to Menees
to be violative. It is clear from the record that em-
ployees were never promised increased benefits if
they decertified the Union. Indeed, the employees
were told by Hirsch during the 24 February meet-
ing that there are "no guarantees in life" in re-
sponse to an inquiry whether the Respondent could
guarantee the employees a 40-hour per week work
schedule in the absence of union representation.
The statements expressed by Lloyd during the 24
February meeting merely informed employees that
there are alternative pension plans to the one ad-
ministered by the Union, without making any refer-
ence to the level of benefits under such alternate
plans. Similarly, Lloyd's comment to Menees in
early March constitutes, at most, a lawful promise
to maintain the status quo. El Cid, Inc., 222 NLRB
1315 (1976). Nor do we find the pension plan state-
ments to be an 8(a)(5) solicitation to employees to
bypass the Union and present grievances directly
to the Respondent. The fact that these statements
were made at times when the employees were rep-
resented by the Union is of no legal significance
since the statements were all in reference to what
may occur subsequently in the absence of union
representation. Further, the Respondent never so-
licited grievances during the meeting regarding ex-
isting benefits or employment conditions. Similarly,
Lloyd's statement to Menees that the Respondent
could "look into" the possibility of providing the
employees with comparable health insurance cov-
erage in the event of decertification cannot be con-
sidered individual bargaining as it, too, was predi-
cated on the absence of union representation. Ac-
cordingly, we reverse the judge's findings that the
Respondent promised additional benefits to em-
ployees, engaged in the solicitation of grievances in
an effort to bypass the Union, or individually bar-
gained with its employees. 1 ° We dismiss those por-
tions of the consolidated complaint. l1
i° Member Dennis would find that the Respondent unlawfully solicit-
ed grievances when Controller Lloyd asked employee Menees what the
"biggest hang up" was in connection with the decertification
i i In his recommended Order , the judge provided that the Respondent
shall cease and desist "by any other means or in any other manner" from
Continued
WEISSER OPTICAL CO 963
ORDER
The National Labor Relations Board orders that
the Respondent, Weisser Optical Company, Peoria,
Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Withdrawing recognition from and refusing
to bargain collectively in good faith with Local
853, United Optical Workers Union, as the exclu-
sive collective-bargaining representative of its opti-
cal laboratory employees.
(b) Refusing, on request, to furnish the Union the
wage rates of unit employees or any other informa-
tion which is relevant to the Union's responsibility
as bargaining representative.
(c) Sponsoring the filing of a decertification peti-
tion or unlawfully urging employees to support the
decertification of the Union as their bargaining
agent.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative actions which
are designed to effectuate the purposes and policies
of the Act.
(a) Recognize and bargain collectively in good
faith with respect to wages, hours, and terms and
conditions of employment with Local 853, United
Optical Workers Union, as the exclusive collective-
bargaining representative of all of the Respondent's
optical laboratory employees, exclusive of superin-
tendents, managers, and other supervisors as de-
fined in the Act, and, if agreement is reached,
embody the same in a written, signed document.
(b) Furnish the Union with a complete and cur-
rent list of all bargaining unit employees, together
with their individual rates of pay before and after
30 April 1984.
(c) Post at its Peoria, Arlington Heights, and
Moline, Illinois laboratories copies of the attached
notice marked "Appendix."12 Copies of the notice,
on forms provided by the Regional Director for
Region 33, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT withdraw recognition froln Local
853, United Optical Workers Union, as the exclu-
sive collective-bargaining representative of our lab-
oratory employees at our Peoria, Moline, and Ar-
lington Heights laboratories. WE WILL bargain col-
lectively with that Union as the exclusive collec-
tive-bargaining representative of those employees
and, if an agreement is reached, we will embody
that agreement in a written, signed document.
WE WILL NOT sponsor the filing of a decertifica-
tion petition. WE WILL NOT unlawfully urge. bar-
gaining unit employees to support the decertifica-
tion of the Union as their bargaining agent.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act. These rights include the right to form,
join, or assist labor organizations, to bargain collec-
tively through representatives of their own choos-
ing, and to engage in other concerted activities for
their mutual aid and protection. ,
WE WILL furnish the Union with data pertaining
to the wage rates of bargaining unit employees
both before and after 30 April 1984, and WE WILL
NOT refuse to furnish the Union with any requested
data which is relevant to its responsibility as bar-
gaining agent for our employees.
infringing on employee rights guaranteed in Sec 7 of the Act However,
we have considered this case in light of the standards set forth in Hick-
mott Foods, 242 NLRB 1357 (1979), and have concluded that a broad re-
medial order is inappropriate inasmuch as the Respondent has not been
shown to have engaged in egregious misconduct demonstrating a general
disregard for employees' fundamental statutory rights Nor has there been
any showing that the Respondent has a proclivity to violate the Act
12 If this 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 read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
WEISSER OPTICAL COMPANY
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, JR, Administrative Law
Judge This case came on for hearing before me at
Peoria, Illinois, on a series of unfair labor practice com-
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaints,' issued by the Regional Director and the Acting
Regional Director of the National Labor Relations
Board for Region 33 and consolidated for hearing, which
allege that Respondent Weisser Optical Company2 vio-
lated Section 8(a)(1) and (5) of the Act. More particular-
ly, the consolidated complaints allege that Respondent
solicited employees to file a decertification petition and
did so by promising to continue benefits and job security,
solicited grievances directly from employees, and by-
passed the Union by offering to arrange for coverage of
the deductible portion of the Company's hospitalization
insurance, refused to meet with the Union for the pur-
pose of negotiating a new contract, withdrew recogni-
tion frgm the incumbent collective-bargaining representa-
tive, and refused to furnish the Union with information
requested for the purpose of collective bargaining. Re-
spondent denies that it solicited employees to file a de-
certification petition, that it made any promises of benefit
respecting its conduct in the event that employees should
decertify the incumbent union , or that it improperly re-
fused to bargain with the Union Respondent maintains
that it withdrew recognition because it had objective evi-
dence that the Union had lost its majority status On
these contentions, the issues herein were joined.3
FINDINGS OF FACT
A. The Unfair Labor Practices Alleged
Respondent both manufactures and sells at retail eye-
glasses and related products . It operates three laboratory
facilities located at Peoria, Moline, and Arlington
Heights, Illinois, as well as 57 retail stores located in var-
ious cities in Illinois It has, from time to time, opened
temporary satellite manufacturing facilities during the
summer to meet short -term seasonal demands. The unfair
labor-practices at issue in this case pertain only to Re-
spondent 's -production facilities, where, during the spring
of 1984 , it employed about 22 people. The principal facil-
ity is at Peoria.
I The principal docket entries in these cases are as follows
Charge filed herein by Local 853, United Optical Workers Union (the
Union ) against the Respondent in Case 33 -CA-6864 on February 29,
1984, complaint issued by the Regional Director for Region 33 against
Respondent in Case 33-CA-6864 on April 10 , 1984, Respondent 's answer
in Case 33 -CA-6864 filed on April 20, 1984 , charge filed by the Union
against Respondent in Case 33-CA-6915 on April 30, 1984, complaint
issued by the Acting Regional Director for Region 33 against Respond-
ent in Case 33-CA-6915 on May 23 , 1984, Respondent 's answer filed in
Case 33-CA-6915 on June 4, 1984 , charge filed by the Union against Re-
spondent in Case 33 -CA-6933 on May 24 , 1984, complaint issued by the
Regional Director for Region 33 against Respondent on June 8, 1984,
along with an order consolidating for trial all outstanding complaints
against Respondent , Respondent ' s answer filed June 12 , 1984, hearing
held in Peoria, Illinois , on June 13, 1984, briefs filed with me by the Gen-
eral Counsel and Respondent on or before August 6, 1984
2 Respondent admits , and I find , that it is an Illinois corporation with
offices and places of business located , inter alia at Peoria , Moline, and
Arlington Heights, Illinois, where it is engaged in the manufacture and
retail sale of eyeglasses During the preceding 12 months , in the course
and conduct of its business operations , Respondent derived gross reve-
nues in excess of $500 ,000 and purchased directly from points and places
located outside the State of Illinois goods and materials valued in excess
of $50 , 000 Accordingly, Respondent is an employer engaged in com-
merce, within the meaning of Sec 2 (2), (6), and (7) of the Act The Union
is a labor organization within the meaning of Sec 2 (5) of the Act
3 Certain errors in the transcript are noted and corrected
Since 1970, the Union has represented and bargained
for all of 'Respondent's optical shop workers and stock
department employees Its most recent contract with the
Respondent was a 1-year agreement , concluded in the
spring of 1983, which expired on April 30, 1984
Before the execution of this agreement, Respondent's
owner, Philip Hirsch, called employee Ken Ratcliff into
the office of Laboratory Director Sallie Homan for a
talk. Ratcliff, a former plant superintendent, was then
and is now employed as foreman of the finish room, a
position which all parties agree is nonsupervisory despite
its title. Hirsch told Ratcliff that "we have to do some-
thing. The Union is killing me. I can't compete " Hirsch
then asked Ratcliff to circulate a decertification petition
among the employees. Ratcliff demurred, asking Hirsch,
in effect, why Hirsch was picking on him. Hirsch replied
that he was seeking Ratcliff's assistance because he felt
that Ratcliff had better rapport with the employees. He
gave Ratcliff a booklet to assist in the decertification
effort. The booklet was later identified as a portion of a
tract or treatise called "Union Decertifications" written
by Washington, D C Attorney Francis T. Coleman of
the firm of Venable, Baetjer, Howard, and Civiletti The
excerpt in question included a form which could be used
as the pattern for a showing-of-interest petition to ac-
company the filing of a decertification petition. Ratcliff
took the booklet home with him. Shortly thereafter, he
attended an informal meeting of Respondent's laboratory
employees held at the home of employee Frank Lewis.
During this meeting, the group reached a consensus that
they would not support decertification at that time
The insulated period for the filing of representation pe-
titions prior to the expiration of a contract expired in this
case on February 29, 1984. Sometime in January 1984,
during an informal conversation in Sallie Homan's office,
Homan told Ratcliff that she had talked with Phil Hirsch
and told Ratcliff that " it was getting to be close to that
time " Both of them understood her reference to be to
the period in which a representation petition could be
filed prior to the expiration of a contract. In mid-Febru-
ary, they spoke again about decertification during an-
other informal conversation in Homan's office. On this
occasion, Homan asked Ratcliff if he still had the decerti-
fication booklet he had been given the previous year.
Ratcliff said he thought he did. She asked him to bring it
to the plant and give it to her. Ratcliff was able to locate
it at his home and, a few days later, brought it in.
Homan directed him to give it to Comptroller David
Lloyd and Ratcliff complied with the request, detaching
from the booklet the showing-of-interest pattern form
which he then filled out and circulated. Ratcliff also con-
tacted the NLRB Regional Office in Peoria. Ultimately,
he went to the Board 's Office and obtained some repre-
sentation petition forms. When at the Board's Office, he
was assisted by the information officer in filling out the
form.
During this same period of time, Homan had a conver-
sation in her office with employee James Menees con-
cerning decertification. She told Menees that Hirsch had
been on her back to get a decertification petition started
On a later occasion, she again spoke with Menees in her
WEISSER OPTICAL CO
office The latter asked her why she was so "down in the
dumps" and she replied that Hirsch was on her back to
get something started leading to decertification of the
Union She said there was not much time left and that, if
she could hold off a little longer , it would be too late to
file
In the afternoon of February 24, 1984 , a meeting of all
of the Peoria lab employees was held in the lab . Hirsch,
Homan, and Lloyd were present . On the morning before
this meeting , Hirsch had contacted his attorney in Chica-
go to seek advice as to what he was legally authorized to
say at such a meeting and what he might be forbidden to
say Among the things he was told by his attorney was
that he could not tell employees to go to the NLRB be-
cause that was their decision . He was also advised that
he could not tell employees what they would get if the
Union were to be voted out , but he could inform them as
to what nonunion members were receiving in wages and
benefits
Hirsch opened the meeting by thanking employees for
their past efforts . He also stated that, while he could not
make any guarantees , he hoped there would always be a
lab in Peoria He told them that what happened in the
future depended on the growth of the Company Homan
told employees that she had received some questions as
to what would happen to pension and insurance benefits
if the Union was voted out She said that Hirsch and
Lloyd were the people who could answer those ques-
tions . Lloyd informed the gathering that there were sev-
eral different plans which Respondent could look into,
including an R-401 plan and IRAs as well as a number
of others . He stated that employees could qualify for a
"401" pension plan if they got out of the Union and
other management spokesmen said that Respondent
could provide them with insurance directly if they elect-
ed to leave the Union
One employee asked Hirsch if he could guarantee
them a 40-hour week if they voted the Union out Hirsch
said that there were no guarantees in life but reminded
employees that there were in existence various laws
which prevented arbitrary firings. He ended the meeting
by telling employees that he felt that they were mature
enough to work out any differences with him without
the intervention of a third party. In the assessment of
Ratcliff, Hirsch either stated or inferred that he wanted
employees to sign a decertification petition.
Shortly thereafter , Ratcliff began to circulate a show-
ing-of-interest form in support of a decertification peti-
tion . During the afternoon of February 24 and again the
following week , he approached Peoria employees at
their work stations or maintained the form at his desk for
this purpose . He phoned employees at the Arlington
Heights and Moline plants from Homan 's office, indicat-
ed what he was doing , and told them that he was send-
ing over showing-of-interest forms for their signatures
He urged them to return the forms promptly because the
filing deadline was drawing near . He then forwarded the
forms to the other labs through the Company 's interof-
fice delivery system and received them back in the same
manner On February 28, Ratcliff went to the Board's
Office and filed a decertification petition along with
signed showing -of-interest forms (Case 33-RD-394) On
965
the following day, the Union filed the first of three
charges in this case
While these activities were in progress, the Union was
making an effort to begin negotiations for a new con-
tract On February 17, Union President and Business
Agent John R Disselhorst wrote Respondent a so-called
60-day letter in which he asked to begin collective bar-
gaining for a new agreement and requested Respondent
to schedule a meeting for negotiations. On February 24,
the same day that Hirsch was meeting with lab employ-
ees, Company Attorney Lawrence M Cohen sent Dissel-
horst a reply asking him to contact Cohen to arrange the
time and place for a bargaining session.
On March 2, Respondent mailed a letter to all of its
lab employees which was signed by Hirsch, Lloyd, and
Homan. The letter read:
On Thursday, March 1, 1984, we received a peti-
tion from the National Labor Relations Board. This
petition was filed by employees who wish to decer-
tify the Optical Workers Union as their representa-
tive The National Labor Relations Board will now
schedule a secret ballot election to give you a
chance to vote In the election, you will have the
right to vote for or against the Optical Workers
It has always been our opinion that you do not
need a union-period. The union will tell you that
you will lose everything that you now have if you
vote the union out. THAT'S NOT TRUE, we have
no intention of cutting your pay or taking away any
of your benefits Many of our non- union employees,
such as Sallie, have as good, if not a better, package
of pay, benefits and security protection as you have
The real questions you must now decide are- Has
the union done enough for me to be worth the big
dues I must pay them? Can I trust John Disselhorst
and the union to represent me fairly and deal with
me honestly?
Between now and the secret ballot election there
will be much for you to consider and discuss. We
will provide you with all the facts You can then
decide for yourself if the Optical Workers deserve
your support.
On March 13, Respondent sent a second letter to its
labor employees over Hirsch's signature . This letter read•
Several employees have expressed their concern
as to what I will do if the Union is voted out. I
have absolutely no intention of changing your
wages, hours, or working conditions. ' '
I PROMISE YOU that if the Union is voted out:
I Weisser will maintain your current hours,
2. Weisser will maintain comparable insurance
and retirement benefits; and
3. Weisser will maintain our policy that no one
will be discharged without just cause.
My lawyer has told me that employer policy
statements may be enforced as contracts I have
signed the bottom of this letter as I have signed the
bottom of union contracts
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I believe that the Weisser Lab deserves a chance
to work with you without the Optical Workers
Union.
Early in March, Menees happened to have a conversa-
tion in the plastic surface room with Lloyd in the pres-
ence of Homan and one other person. Lloyd asked
Menees if he had received a recent letter from the Com-
pany. When Menees replied that he had, Lloyd asked
him if he had any questions concerning its contents
Menees said he had none Lloyd then asked Menees
what was the biggest hangup concerning the decertifica-
tion effort. Menees replied that a lot of employees did
not trust Hirsch and did not believe they could work for
him without a union. They went on to discuss insurance.
It came out that the union health insurance plan which
then covered employees had a $750 deductible while the
company plan which was in effect for supervisors had a
$1250 deductible When this disparity was brought to
Lloyd's attention, he told Menees that possibly the Com-
pany could provide self-insurance to cover the differ-
ence.
Without objection there was received into evidence a
six-page document identified by Lloyd as a document
which he received from Homan before April 4, 1984.
There is no other explanation as to how it came into his
possession 4 The first page consists of an unsigned, un-
dated paper, presumably from the Regional Office but
bearing no Board stamp, letterhead, or other identifying
mark. It states that it is a receipt for a showing of inter-
est in support of a decertification petition in Case 33-
RD-394 reflecting that 18 employees in the unit support
the petition Following that page are five additional
pages, each of which bears the same legend at the top
which was apparently copied from the booklet given by
Hirsch to Ratcliff. The legend reads:
The undersigned employees of the (name of compa-
ny) presently represented by (name the union and
the identification of the local that now represents
you) wish to have the National Labor Relations
Board conduct an election, since we believe a ma-
jority of employees in our unit want to be repre-
sented by the above union.
On two of the pages, the format varies slightly since the
name "Weisser Optical" and "United Optical Workers
Union, Local #883" were filled in in place of the paren-
theses which appear above. Three of the papers have the
words "Peoria Lab" written by hand at the top. The
other two have "Moline Lab" and "Arlington Lab "
Lloyd testified that the names appearing on the pages
were the names of employees in Respondent's labs. None
of the signatures appearing on any of the documents
were authenticated. One of the pages, bearing the date
February 27, 1984, contains a list of signatures, occupa-
tions, and handwritten entries showing the date of Feb-
ruary 29, 1984, the day after the RD petition was filed.
Some of the other papers are dated and some are undat-
ed Some of the papers bear signatures which were ap-
parently duplicated on other papers. The reason for this
duplication was not explained on the record
On April 4, Disselhorst forwarded to Cohen an initial
list of union bargaining demands, including a wage in-
crease, additional sick days, more holidays, and increases
in insurance and pension trust contributions. On April 5,
Homan sent a letter to employees which read as follows-
As you know, the Union filed a charge with the
Labor Board claiming the decertification petition
was not properly filed. The Labor Board has now
decided to hold a hearing. The hearing will not be
held for a long time, Then it will be many more
months, or even years, until the Labor Board issues
a decision. Until the hearing is held and a decision
is issued, the decertification election cannot be held.
We are confident that the Labor Board will
decide that there should be an election. We want
you to have a choice. Unfortunately, there is noth-
ing we can do to make an election take place.
Unless the union withdraws the charge, it will be a
long time until this matter is resolved.
We will keep you informed as we learn more.
On April 10, the Board notified Ratcliff that it was is-
suing a complaint against Respondent because of miscon-
duct associated with the filing of the decertification peti-
tion and that it was dismissing the petition. Ratcliff did
not appeal the dismissal in the time allowed by the
Board's Rules and Regulations On the same day, Cohen
wrote Disselhorst a letter refusing to bargain with the
Union because Respondent had received a valid decerti-
fication petition supported by a majority of the bargain-
ing unit and, on the basis of this evidence, asserted a
good-faith doubt as to the Union's continued majority
status. The Union's response to Cohen's letter was a re-
newed demand for bargaining, issued this time by the
Union's attorney William F Lennon Lennon also asked
that Disselhorst be allowed to continue to come onto
company property for the purpose of meeting with em-
ployees and servicing the contract.
On April 27, Cohen sent another letter to Disselhorst
in which he reiterated the Company's belief that the
Union had lost its majority status. He also contended
that the charge filed by the Union was blocking a repre-
sentation election and that, as a result, all wages and
working conditions had to be frozen.5 Cohen went on to
state that a wage freeze would work a substantial hard-
ship on lab employees and proposed that, as of April 30,
they be given an across-the-board increase of 5 percent.
He said that, by making this proposal to the Union, Re-
spondent was not thereby recognizing the Union as the
bargaining representative of its lab employees but indi-
cated that Respondent would not make the increase
without the Union's consent because it did not want to
5 While the pendency of an 8(a)(5) charge or complaint blocks the
conduct of an election and such blockage cannot be removed even by a
4 Ratcliff testified that, at some point in time, he told Homan that 18 union request to proceed with the election, as of this point in time the
employees had signed the decertification petition showing-of-interest election petition had been dismissed and the time for appealing that dis-
form but he did not tell her who had signed the form missal had expired
WEISSER OPTICAL CO
render itself liable for an additional unfair labor practice
charge should its doubt of the Union's majority status ul-
timately be determined to be unfounded Cohen also
wrote to the union attorney, stating that Disselhorst
would be permitted to visit the plant to speak with em-
ployees during nonworking hours but would have to
report to the office first before making any visits
On May 1, Disselhorst wrote to Cohen, agreeing to an
immediate across-the-board wage increase of 5 percent.
He also took the occasion to request from Respondent a
list of the names of all bargaining unit employees, togeth-
er with their present wage rates and the new rates fol-
lowing the wage increase. By letter, dated May 18,
Cohen denied Disselhorst's request for information, again
reiterating Respondent's doubt of the Union's majority
status.
B. Analysis and Conclusions
Since its decision in Celanese Corp. of America, 95
NLRB 644 (1951), the Board has held in a consistent line
of cases that a longstanding contractual relationship be-
tween an employer and a collective-bargaining agent
gives rise to a presumption of continued majority status
on the part of the union, even after the end of the certifi-
cation year or the expiration of the term of a collective-
bargaining agreement. Laystrom Mfg. Co., 151 NLRB
1482 (1965); Terrell Machine Co., 173 NLRB 1480 (1969),
enfd. 427 F 2d 1088 (4th Cir 1970), cert. denied 398 U.S.
929 (1970); Davis & Hemphill, Inc, 177 NLRB 282
(1969), Barrington Plaza & Tragniew, 185 NLRB 962
(1970); Emerson Mfg. Co., 200 NLRB 148 (1973). To
avoid an obligation to bargain in such a circumstance, an
employer must be able to establish that he had a good-
faith doubt of the union's continued majority representa-
tive status.6 This doubt must be reasonably based and
factually supported, and may not be asserted in the con-
text of employer unfair labor practices aimed at causing
employee disaffection from the union King Radio Corp.,
208 NLRB 578 (1974), Harpeth Steel, 208 NLRB 545
(1974). The filing by employees of a decertification peti-
tion does not, in and of itself, provide an employer with
a sufficient factual basis for avoiding a bargaining obliga-
tion based on the assertion of a good-faith doubt. South-
west Chevrolet Corp, 194 NLRB 975 (1972), Dayton Town
& Country Furniture Shop, 172 NLRB 955 (1968); Univer-
sal Gear Service Corp, 157 NLRB 1169 (1966), enfd 394
F 2d 396 (6th Cir. 1968), Allied Industrial Workers Local
289 v. NLRB, 476 F.2d 868 (D.C Cir. 1973). In some
circumstances, the filing of a decertification petition,
coupled with evidence that the petition is supported by
over 50 percent of the employees in the bargaining unit,
has been held to provide an employer with a reasonable
basis on which to predicate a good-faith doubt of an in-
cumbent union's continued majority status GAF Corp.,
195 NLRB 169 (1972), WAPI-TV, 197 NLRB 885 (1972).
However, as with any other factual circumstance, such a
contention will not be honored, even in the face of a de-
6 As the Board pointed out in Terrell Machine Co , supra, in 3, majori-
ty representative status means that a majority of employees in the unit
wish to have the union as their representative for collective-bargaining
purposes
967
certification petition supported by a majority of employ-
ees in the bargaining unit , if at the same time the em-
ployer is attempting unlawfully to use its influence to
cause employees to repudiate the union. Boren Clay Prod-
ucts Co, 174 NLRB 895 (1969), enfd. 419 F.2d 387 (4th
Cir 1970), Fremont Newspapers, 179 NLRB 390 (1969),
Firestone Synthetic Rubber & Latex Co, 173 NLRB 1179
(1969); Texas Electric Coop., 197 NLRB 10 (1972), Rogers
Mfg. Co., 197 NLRB 1264 (1972)
Of critical importance in the resolution of this case is
the status of Ken Ratcliff. At one time he was a superin-
tendent of the plant. At the time of the events here in
question, he was a nonsupervisory foreman. The term
commonly used to describe such positions is leadman
The question at issue is whether he was a nonsupervisory
agent, for whose actions Respondent was vicariously re-
sponsible, when he circulated a showing-of-interest peti-
tion and filed a decertification petition.
The Supreme Court said long ago in an analogous situ-
ation that:
The employer . . may be held to have assisted
the formation of a union even though the acts of
the so-called agents were not expressly authorized
or might not be attributable to him on strict applica-
tion of the rules of respondeat superior . We are deal-
ing here not with private rights nor with technical
concepts pertinent to an employer 's legal responsi-
bility to third persons for acts of his servants, but
with a clear legislative policy to free the collective
bargaining process from all taint of an employer's
compulsion , domination , or influence . The existence
of that interference must be determined by careful
scrutiny of all the factors, often subtle, which re-
strain the employees' choice and for which the em-
ployer may fairly be said to be responsible. Thus,
where the employees would have just cause to be-
lieve that solicitors professedly for a labor organiza-
tion were acting for and on behalf of the manage-
ment, the Board would be justified in concluding
that they did not have the complete and unham-
pered freedom of choice which the Act contem-
plates. [Machinists Local 35 (Serrick Corp.) v. NLRB,
311 U.S 72 , 80 (1940).]
What has been said with respect to employer responsibil-
ity for interference in support of a union's effort to
achieve recognition is equally applicable to employer re-
sponsibility for interference aimed at thwarting or de-
priving a labor organization of the status of bargaining
representative See Broyhill Co, 210 NLRB 288 (1974);
Helena Laboratories Corp., 225 NLRB 257 (1976), enfd.
557 F 2d 1183 (5th Cir 1977).
In this case, the Respondent's president asked Ratcliff
to circulate a decertification petition and gave him a
booklet containing instructions and a form to assist in
this effort. Ratcliff initially declined the request Later,
Hirsch, acting through Supervisor Homan, in effect re-
newed his original request At the time of the second re-
quest, Ratcliff was more accommodating Ratcliff testi-
fied that he would not have gone to the Board and filed
the petition but for the request made to him by Homan.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ratcliff prepared and circulated the showing-of-inter-
est petition on company time and with the assistance of
company facilities, including its telephone and its inter-
plant communications system. At the same period of time
Ratcliff was performing this chore, Respondent held an
employee meeting at a critical point in time, which could
have no other meaning or purpose than to urge employ-
ees to support the decertification effort Not only was
Ratcliff placed in a position where employees could rea-
sonably believe that he was acting to carry out a man-
agement effort, he was actually requested to do what he
did in filing the petition in Case 33-RD-394 According-
ly, I conclude that, in performing these acts, Ratcliff was
a nonsupervisory agent of Respondent, so the latter was
as responsible for what Ratcliff said and did in this
regard as much as if Hirsch had circulated the showing-
of-interest form personally
It is axiomatic that an employer may not sponsor the
decertification of a labor organization. As Ratcliff's
entire course of conduct constituted a decertification
effort for which the Respondent was vicariously respon-
sible, it follows that such conduct constituted a violation
of Section 8(a)(1) of the Act NLRB v Brown Specialty
Co, 436 F 2d 372 (7th Cir 1971) Since the circulation of
the showing-of-interest form and the filing of the petition
brought about a situation which Respondent itself cre-
ated, Respondent cannot rely upon either of these ele-
ments in claiming that its doubt of the Union's majority
status was asserted in good faith Indeed, its professed
doubt was nothing more than an expression of bad faith
which characterized its activities and permeated its rela-
tionship with the Union throughout this entire period of
time, during which Respondent was professing to bar-
gain with the Union for a new contract at the same time
it was actively seeking to undermine the Union's status
as bargaining agent Such action in and of itself is a vio-
lation of Section 8(a)(5) of the Act.
The evidence is uncontradicted' that, on two occa-
sions, both within the period of limitations, Homan had
occasion to speak with Ratcltff on the subject of the de-
certification petition On the second such occasion, she
asked him if he still had the excerpt from the how-to-do-
it manual on decertification which Hirsch had given him
the previous year. When he said he thought he did, she
asked him to bring it On both occasions, which took
place within an 8-week period before the petition was ac-
tually filed, she reluctantly but effectively urged him to
start circulating a showing-of-interest petition and to file
a decertification petition. By engaging in such conduct,
Respondent violated Section 8(a)(1) of the Act. During
the same period of time, Homan conducted similar con-
versations with Menees and for the same purpose. Those
conversations also violated Section 8(a)(1) of the Act
On February 24, the same day that Ratcliff began the
circulation of a decertification showing-of-interest peti-
tion, Hirsch held a meeting of employees. The timing of
the meeting to coincide with the circulation of the peti-
' Homan was present at the hearing but was not summoned to testify
Under well-established rules of evidence, I conclude that, had she testi-
fied, her testimony would have corroborated the General Counsel's wit-
nesses
tion can hardly be said to be coincidental, especially in
light of previous direct requests made by Homan to two
employees to undertake this effort before the February
29 deadline Among the things Hirsch told employees
was that he felt that they were mature enough to work
out any differences they might have without the inter-
vention of a union. This combination of circumstances
makes it clear that Ratcliff's assessment of the meeting
was not merely a subjective opinion but that Hirsch so-
licited and encouraged employees to support the decerti-
fication effort By Hirsch's action Respondent violated
Section 8(a)(1) of the Act
The statements of Homan and Lloyd at this meeting in
outlining what pension plans might be available to em-
ployees in the event they abandoned union representa-
tion went far beyond a promise to continue existing ben-
efits in the event of deunionization. They constitute a
discussion of new or different benefits, undertaken direct-
ly with employees at the time the employees were repre-
sented by a recognized bargaining agent. Lloyd engaged
in the same type of conduct a few days later in a discus-
sion he initiated with Menees After interrogating
Menees as to the latter's lack of enthusiasm for the de-
certification effort, Lloyd learned of Menees' concern
about the wide disparity between the deductible portion
of the health insurance policy which covered superviso-
ry employees and the policy which then covered bar-
gaining unit employees Lloyd told Menees that possibly
the Company could provide from its own resources a
sum of money which would make up the difference in
deductibles. This discussion also constituted direct bar-
gaining with an employee over terms and conditions of
employment at a time when the employee was represent-
ed by a recognized bargaining agent This effort at un-
dermining the bargaining agent was consistent with and
fitted well into the decertification effort for which Re-
spondent was also responsible for undertaking Both of
the above-recited actions on the part of Respondent's
agents constituted violations of Section 8(a)(5) of the
Act.
On April 10, the same day that the Regional Office
dismissed Ratcliffs decertification petition, Respondent's
counsel wrote the Union a letter in which he flatly re-
fused to bargain with the Union. This letter was fol-
lowed by another one, dated April 27, in which he with-
drew recognition from the Union The basis for both of
these actions was Respondent's doubt of the Union's con-
tinued majority status as evidenced by the filing of a de-
certification petition and a showing-of-interest petition
signed by a majority of unit employees. As of the date of
the initial letter, the decertification petition was in the
process of being dismissed. As of the date of the second
letter, the dismissal was final as no timely appeal from
the Regional Director's action had been taken by the Pe-
titioner With respect to the showing-of-interest petition,
it was, as discussed fully above, the product of flagrant
and repeated employer interference with protected
rights. Accordingly, Respondent had no warrant in rely-
ing upon it Thus, by refusing to bargain with the Union
WEISSER OPTICAL CO
and by withdrawing recognition from it,8 Respondent
herein violated Section 8(a)(1) and (5) of the Act.
Having been treated as a de facto bargaining agent by
Respondent over the question of an across-the-board pay
increase, the Union seized upon this opening by agreeing
to the increase and, at the same time, requesting informa-
tion from Respondent concerning the wage rates of unit
employees Such information is plainly relevant to a
union's responsibilities as bargaining agent 9 About May
17, Respondent declined this request, again on the basis
that it doubted that the Union was still the bargaining
agent of its employees. As the major premise of Re-
spondent's position was invalid, its action was a further
violation of Section 8(a)(5) of the Act. I find and con-
clude
On the foregoing findings of fact and on the entire
record herein considered as a whole, and pursuant to
Section 10(c) of the Act, I make the following
CONCLUSIONS OF LAW
1. Weisser Optical Company is now and at all times
material herein has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2 Local 853, United Optical Workers Union, is a labor
organization within the meaning of the Act.
3. All optical shop workers and stock department em-
ployees employed by the Employer at its facilities in
Peoria, Moline, and Arlington Heights, Illinois, exclud-
ing managers, superintendents, and all other supervisors
within the meaning of the Act constitute a unit appropri-
ate for collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of all of the employ-
ees in the unit found appropriate in Conclusion of Law 3
for the purpose of collective bargaining within the mean-
ing of Section 9(a) of the Act.
8 In withdrawing recognition from the Union, Respondent was plainly
walking on its tiptoes Late in April, Respondent in effect bargained with
the Union over a 5-percent across-the-board pay increase for unit em-
ployees at the same time it was asserting that it had no obligation to bar-
gain and was not even recognizing the Union as a bargaining agent One
thing the Act clearly frowns upon is this kind of carrying water on both
shoulders
9 See Brooklyn Union Gas Co, 220 NLRB 189 (1975), and cases cited
therein at 191, 192
969
5 By purporting to bargain collectively with the
Union while it was attempting to undermine its status as
bargaining representative by sponsoring a decertification
petition, by soliciting employees to bypass the Union and
present grievances directly to the Company; by bypass-
ing the Union and bargaining directly with individual
employees on the subject of the amount of deductible
payments on health insurance, by refusing to bargain
with the Union and by withdrawing recognition from
the Union as the bargaining representative in the unit de-
scribed above in Conclusion of Law 3; and by refusing
to furnish the Union with information relevant to the
performance by the Union of its function as bargaining
representative, namely, the wage rates of unit employees,
Respondent herein has violated Section 8(a)(5) of the
Act
6. By the conduct described above in Conclusion of
Law 5; by soliciting and encouraging employees to file a
decertification petition; and by promising benefits to em-
ployees if they should vote to decertify the Union, Re-
spondent herein violated Section 8(a)(1) of the Act.
7 The unfair labor practices set forth in Conclusions
of Law 5 and 6 have a close, intimate, and adverse effect
on the free flow of commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent herein has committed
various unfair labor practices, I will recommend that it
be required to cease and desist therefrom and to take
other affirmative actions designed to effectuate the pur-
poses and policies of the Act Since the violations of the
Act. found herein were calculated, repeated, and perva-
sive, and demonstrate on the part of this Respondent a
disposition to behave in total disregard for the rights of
its employees, I will recommend to the Board a so-called
broad 8(a)(1) remedy designed to suppress any and all
violations of the Act Hickmott Foods, 242 NLRB 1357
(1979) I will recommend that Respondent be required to
recognize and bargain collectively in good faith with the
Union as the representative of its optical lab employees
and, if an agreement is reached, to embody that agree-
ment in a signed, written document I will also recom-
mend that Respondent post the usual notice, advising its
employees of their rights and of the results of this case.
[Recommended Order omitted from publication I