Wilder Construction

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 977 (N.L.R.B. 1985)

WILDER CONSTRUCTION -. 977
Wilder Construction and General Teamsters Local
No. 231 , a/w International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America . Case 19-CA-16367
which issued on January 24, 1984, and was amended at
the hearing, alleges that Wilder Construction (the Com-
pany or Respondent) violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
' 30 September 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 11 September .1984 Administrative Law
Judge Richard D. Taplitz issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
sweringbrief. '
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings , findings, and
conclusions' and to adopt the Y recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Wilder Con-
struction, Bellingham, Washington, its officers,
agents, successors , and assigns,.shall take the action
set forth in the Order.
' In affirming the judge 's conclusion that the Respondent lacked a rea-
sonable, objective basis for doubting the Union's majonty status, we rely
solely on his findings that the Respondent has not shown that any of the
original complement of 14 employees rejected continued representation
by the Union We accordingly find it unnecessary to pass on his discus-
sion regarding a presumption under Pennco, Ine, 250 NLRB 716 (1980),
supplementing 242 NLRB 467 (1979), enfd 684 F.2d 340 (6th Cir 1982),
as to the sentiments of the 12 permanent sinker replacements Even as-
suming they objected to continue representation by the incumbent, this
would be an inadequate basis in these circumstances to justify the Re-
spondent 's' withdrawal of recognition
Ronald J. Knox and Martha A. Barron, Esqs., of Seattle,
Washington, for the General Counsel.
Bruce Bischof, Esq. (Bischof and Hungerford), of Sunriver,
Oregon, for the Company. -
Bruce Heller, Esq. (Davies, Roberts, Reid, Anderson and
Wacker), of Seattle, Washington, for the Union.
DECISION -
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
This case was tried in Seattle, Washington, on June 14,
1984. The charge was filed on December 14, 1983, by
General Teamsters Local No. 231, a/w International.
Brotherhood of Teamsters,. Chauffeurs,' Warehousemen
and Helpers of America. (the Union). The complaint,
Issues
1. The primary issue is whether the Company refused
to bargain with the Union in violation of Section 8(a)(5)
of the Act by withdrawing recognition from the Union
after the expiration of a collective-bargaining agreement
at a time when the Company did not have a good-faith
reasonably based doubt that the Union continued to rep-
resent the majority of its employees.
2. If the Company had a continuing duty to bargain
with the Union, whether the Company further violated
Section 8(a) (5) of the Act by failing to honor the Union's
request for certain information concerning employees in
the bargaining unit.
3. Whether an economic strike was -converted to an
unfair labor practice strike.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs. Briefs,
which have been carefully considered,. were filed on
behalf-of the General Counsel and the Company.
- Upon the entire* recordI of the case and from my ob-
servation of the witnesses and, their demeanor, I make
the following
FINDINGS OF FACT
1. JURISDICTION
The Company, a Washington State corporation with
an office and place of business in Bellingham , 'Washing-
ton, is in the construction industry.. During the 12
months immediately preceding issuance of complaint, the
Company had gross sales of goods and services valued/in
excess of $500,000. During the same period of time,,the
Company purchased and caused to be transferred and de-
-livered to its facilities within Washington goods and ma-
terials valued in excess of $50,000 directly from sources
outside of Washington, or from suppliers within Wash-
ington which in turn obtained such goods and materials
directly from sources outside of Washington. The Com-
pany is an employer' engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Agreed- Upon Facts
At the commencement of the hearing all parties en-
tered into the following stipulation of facts:
I The quality of the transcript is extremely poor However, most of the
critical facts were stipulated to in writing The General Counsel filed a
motion to correct the transcript dated July 20, 1984 On July 25, 1984, 1
received a revised transcript from the reporter. The General Counsel's
motion is geared to the original and not the revised transcript There is
no opposition to the motion and in his brief the General Counsel requests
that the motion be granted Though the motion appears to be somewhat
meaningless, as it is addressed to the original - rather than to the revised
transcript , in the absence of any objection it is granted The motion and
related papers have been added to the exhibit file as G C Exh 6
276 NLRB No. 104
978 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The following employees of Respondent (the
Unit) constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All employees employed by Respondent in the clas-
sifications described in Appendix 1 of the 1980-1983
Building , Heavy and Highway Construction Labor
Agreement between Respondent and the Charging
Party Union.
The above-described 1980-1983 Building, Heavy
and Highway Construction Labor Agreement is at-
tached hereto as Joint Exhibit 1(b). [G.C. 2(b).]
2. Since on or about 1974, and at all times materi-
al herein, until October 11, 1983, the Union has
been the designated exclusive collective bargaining
representative of the Unit and since 1974, until Oc-
tober 11, 1983,-the Union has been recognized as
such representative by Respondent. Such recogni-
tion has been embodied in successive collective-bar-
gaining agreements, the most recent of which was
effective by its • terms for the period June 1, 1980
through May 31, 1983.
- 3. At all times material herein, until October 11,
1983, the Union, by virtue of Section 9(b) of the
Act, has been the exclusive representative of the
Unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employ-
ment , and other terms and conditions of employ-
ment.
4. By letter dated October 11, 1983, Respondent
withdrew recognition of the Union as the represent-
ative of the employees in the Unit. The letter is at-
tached hereto as Joint Exhibit 1 [G.C. 2(c).] Since
October 11, 1983, Respondent has refused to recog-
nize the Union as the representative of the employ-
ees in the Unit and has refused the Union's requests
to meet and bargain.
5. It is Counsel for the General Counsel' s allega-
tion and position that Respondent's October 11,
1983 withdrawal of recognition was invalid, that the
Union's majority status and representative status has
continued from 1974 and is continuing , and that Re-
spondent has a duty to bargain with the Union. It is
Respondent's position that its October 11, 1983
withdrawal of recognition was valid and, as of that
date, it no longer had a duty to bargain with the
Union: - -
6. At the time the strike began on August 29,
1983 the Unit consisted of 14 employees, all of
whom initially went out on strike. Between August
29, 1983 and October 11, 1983 three of the,striking
employees -crossed the picket line and returned to
-work , and Respondent hired 12 permanent replace-
ments.
7. On November 18, 1983 the Union,• on behalf of
the striking employees , made an unconditional offer
to return to work. Respondent notified the.striking
employees to inform Respondent' if they wanted to
be placed on a preferential hiring list. Five of the
striking employees responded in the affirmative and
were placed on a preferential hiring list.
8. On May 11 , 1984, the Union wrote to Warren
Bestwick , president of Respondent requesting cer-
tain information about bargaining unit employees.
That letter is attached hereto as Joint Exhibit 1(d).
[G.C. 2(d).] Since May. 11, 1984 Respondent has
failed and refused to provide the requested informa-
tion . Counsel- for the General Counsel hereby
amends the Complaint to include an allegation that
Respondent 's failure and refusal to provide the re-
quested information violates Section 8(a)(5) of the
Act. Respondent denies that allegation.
In addition , during the -course of the hearing , the par-
ties entered into stipulations which -established the fol-
lowing facts : The 14 employees in the bargaining unit, all
who went out on strike on August 29 , 1983, were mem-
bers of the Union . The Union initially went on strike be-
cause the parties were unable to reach a full agreement
on the terms of a collective-bargaining agreement. Once
recognition was withdrawn by the Company, the Com-
pany foreclosed the possibility of entering into a signed
collective-bargaining agreement.
There is no allegation by the Union that employees on
the preferential hiring list were denied preferential recall
rights . Though the Company contends that there was
substantial violence on the picket line during the strike,
there is no contention that any individual striker was dis-
qualified from employment by strike misconduct.
The final stipulation was that there were negotiating
sessions between the Company and the Union between
June and September 27, 1983.
There is no contention by the Company that the
Union was disqualified from representing the employees
because of any strike misconduct . There is also no con-
tention by the Company that at the time it withdrew rec-
ognition from the Union , the Union in fact failed to rep-
resent a majority of the ' employees . The Company con-
tends in substance that it withdrew recognition on the
basis of its reasonable , objectively based belief that the
Union no longer represented a majority of the employ-
ees. In support of that position the Company adduced
evidence relating to strike misconduct , various state-
ments made by employees to company officials concern-
ing their lack of desire to be represented by the Union,
and the abandonment by certain individuals of their em-
ployee status. -
The General Counsel rested on the basis of the stipula-
tions and the testimony of Marvin Eggert, the secretary-
treasurer of the Union . He, credibly testified that the
strike would have ended if the parties had reached a col-
lective-bargaining agreement.
B. The Company's Defense
1. The strike violence
During the first 2 weeks of the strike -there were a
number of incidents on the picket line. After 2 weeks the
Company obtained an injunction in a state court pro-
ceeding: Video tapes taken by the Company during that
time, which were received in evidence , in general sub-
WILDER CONSTRUCTION 979
stantiate the testimony of Company Dispatcher Rick
Niebruege who testified to the following incidents that
he saw: a striking teamster named Dick Willsey? threw
an egg at a truck; there were a number of threats; strik-
ers hit dump trucks with picket signs; strikers yelled at
truckdrivers and gave them the finger; and pickets yelled
many obscenities.
Though Niebruege saw trucks coming into the compa-
ny' premises with broken windshields, he could not testi-
fy to his own knowledge how the windshields were
broken. Picketers followed the automobiles of strike-re-
placements. Though Niebruege never saw Marvin
Eggert, the secretary-treasurer of the Union, on the
picket line, he did see that union official's brother and
son on the picket line. -
R. J. La Plante , an airplane pilot for the Company,
credibly testified that on the third day of the strike
Chuck Eggert, the son of Secretary-Treasurer Marvin
Eggert, threatened to kill him- and threatened to sabotage
his airplane. There were no strike replacements present
during that -conversation and La Plante did not tell any
of the strike -replacements about the incident.
James Anderson, vice president of the Company, gave
an'affidavit which was used in obtaining the state court
injunction . The information in that affidavit was given to
him personally by the people involved in the incidents.
Though the affidavit was hearsay with regard to the
truth of the matters set forth in the affidavit, the fact that
the information was given to Anderson, who was a party
to the decision to withdraw recognition, was admissible
to indicate Anderson's state of mind in connection with
the "good faith doubt" defense. The affidavit indicated
that pickets threw eggs at company vehicles; there was
mass picketing which forced employees and customers to
avoid their normal route and swerve around ' the scene;
drivers of vehicles were told "you are dead meat" and
"we are going to get you and your family"; there was
gross profanity; the antenna was broken off the car of
employee Ted Fisher and his windows were hit by a
picket sign; coffee was-thrown in the window of his car
by pickets Ken Eggert and Pete Sanders; pickets Chuck
Eggert and Doug McClintock forced a truck to stop and
hit the truck with a pick or wooden ax handle; two vehi-
cles driven by union members stopped in front of a com-
pany truck and forced the driver to flee; an employee's
car tires were slashed at his home on September ,6, 1983;
on September 7 picket Doug McClintock approached a
company truck with a sledge hammer; on September 7
an employee of the Company had his car struck as he
was leaving , work; on the same day union member Wade
Anderson threatened a company. employee by' saying
"You are dead when, it's dark"; Anderson physically
threatened to assault other employees; members of the
picketing group threatened to bum down the residences
of company employees; rocks and eggs were thrown at
company trucks; and company employees were harassed
at home and going to and from work. - • ,
About the'third week of the strike Dick Willsey was rehired by the
Company as a truckdriver and he was still working at the time of the
trial. .
2. Statements -by employees about union
representation
Gale Schwiesow is operations manager for the Compa-
ny's Washington division. He was directly involved in
hiring the .12 strike replacements. All 12 replacements
were hired within the 2-1/2- to 3-week period after the
strike began. When they were hired Schwiesow told all
of them that there was a strike in progress. , A number of
the new hires asked what would happen to them if the
Company reached an agreement with the Union and
many of them said that as far as they were concerned
they owed nothing to the Union. Schwiesow spoke to a
number of the strike replacements at various times. Most
of them told, him that they were satisfied with the condi-
tions they were operating under , and that they were ex-
ceptionally dissatisfied with the harassment they were
going through on a daily basis for the first 2 or 3 weeks
of the strike. A number of the strike replacements said
they hoped the Company never came to any, kind -of
conclusion or reached an agreement. Schwiesow,partici-
pated with other company officials in deciding to with-
draw recognition. He told the other company officials
that his feeling , based on- what the replacements told
him, was that it would be ridiculous to assume that the
Union was in any way representing those employees.
3. The three strikers who allegedly retired
Company Vice President James Anderson credibly tes-
tified that in November 1983 he was notified by the in-
surance carrier 'who ran the Company's pension plan that
three individuals had requested disbursement of the pen-
sion plan funds. Those individuals were employees
Metsner, Martin, and Bailey. Anderson testified that he
received the information that those three employees
were retiring during the period of the strike but he did
not recall the' day he received it. He was not informed
by; the men themselves if they. had retired. The strike
lasted from August 29 to November 18, 1983, and the
withdrawal of recognition occurred on October 11, 1983.
Anderson's testimony was far too equivocal to establish
that he -knew that those three employees were retiring at
the time recognition was withdrawn on October 11.
Moreover, Anderson. gave the Board an affidavit in
'which he detailed the reasons that the Company with-
drew recognition. The retirement of those employees
was not mentioned ' as one of those reasons . In addition,
Anderson testified that for an employee to take his
money from the pension plan he must notify the insur-
ance carrier of either his retirement or his termination
from the Company - but that an employee can say he is
retired and then change his mind and return to work.
The evidence is insufficient to establish that those three
employees either lost their 'status as employees or as
strikers as of the date that the Company withdrew rec-
ognition.
4. The employment of a striker by another -
employer
Gale Schwiesow, the Company's operations 'manager,
testified that one of the, Company's truckdrivers, Rod
980 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
Bruland, went to work for- a different employer while
the strike was still on or shortly thereafter and that Bru-
land was still working for that employer shortly before
the trial; There is no ind: _"tion ' whether that employ-
ment was temporary or permanent or whether Bruland
accepted that employment before or after recognition
was withdrawn. - The Company has failed to establish
that Bruland should not be' counted as a company erh-
ployee as of the date of the withdrawal of recognition.
C. Analysis and Conclusions
1. The withdrawal of recognition
Upon expiration of a collective-bargaining agreement;
an employer may not withdraw recognition and refuse to
bargain - with an incumbent - union unless certain circum-
stances exist . As the Board held in Robertshaw Controls
Co., 263 NLRB 958 (1982):3
. . . we agree with the Administrative Law Judge
that Respondent violated Section 8(a)(5) by refusing
to bargain with the Union. We have consistently
held that a union enjoys a presumption of continu-
ing majority status. In order to rebut that presump-
tion, an employer- must either show that the union
in fact no longer retains majority support, or that its
refusal to bargain was based on a reasonably
grounded doubt as to the union's majority status. As
to.a reasonably grounded doubt, the doubt must be
based on objective considerations and must be
raised in a context free of unfair labor practices.
Sierra Development. Company d/b/a Club Cal-Neva,
231 NLRB 22, 23 (1977), enfd. 604 F.2d 606 (9th.
Cir. 1979).
The Company performs work in the construction indus-
try. As certain contracts are lawful, even in the absence
of majority status by the union in that industry, the pre-
sumption of continued majority does not always apply.
However, in the instant case, the parties clearly had a
contract to which Section 9 of the Act applied. The par-
ties so stipulated. In addition, they stipulated that at the
time of the strike all of the employees were members of
the Union. The existence of the recently expired contract
therefore does require the presumption of continued ma-
jonty.
The Company does not contend nor has it offered any
proof that the Union in fact lost its majority status. It did
present evidence in support of its contention that it had
an objective basis for reasonably doubting the Union's
continued majority. Such a defense can be raised in a
context free of unfair labor practices. Here, there is no
indication that the Company engaged in any unfair labor
practices prior to the withdrawal of recognition. Howev-
er, the Company has a difficult burden in.rebutting the
presumption of the Union's continued majority. As the
Board held in Pennco, Inc., supra, 250 NLRB at 717:
".. . the employer's burden is a heavy one. Thus, `it is
3 See also I T Services, 263 NLRB 1183 ( 1982), Pennco, Inc, 250
NLRB 716 (1980), supplementing 242 NLRB 467 (1979), enfd. 684 F 2d
340 (6th Cir 1982), Beacon Upholstery Co, 226 NLRB 1360, 1367 (1976);
Bartenders Assn. of Pocatello, 213 NLRB 651 (1974)
insufficient .. . that the employer merely intuits nonsup-
port,'. and 'good-faith doubt `may not depend solely on
unfounded speculation or subjective state of mind."'
In order to determine any question relating to majority
status, a computation must be made as to the total
number of employees. That number must include both
the stnkers and the strike replacements. Crimptex, Inc.,
211 NLRB 855, 856 (1974), enfd. 517 F.2d 501.(lst Cir.
1975); Cantor Bros., 203 NLRB 774, 779 (1973), enfd. 86
LRRM 2572 (9th Cir. 1974).
When the strike began on August 29, 1983, there were
14 employees in the bargaining unit, all of whom were
members of the Union and all of whom went out on
strike. Between August 29 and October 11, 1983, when
the Company withdrew recognition, 3 of the striking em-
ployees crossed the picket line and returned to work,
and Respondent hired 12 permanent replacements. The
total work force at the time of the withdrawal of recog-
nition was therefore 14 and 12 or a total of 26. In order
to prevail, the Company would have to establish by
credible evidence that it had a reasonable, objectively
based belief that 13 or more employees did not want the
Union to represent them.
Under controlling Board law replacements are pre-
sumed to support an incumbent union in the same ratio
as the employees they replaced. The presumption, is re-
buttable, but it. cannot be rebutted merely by showing
that strike replacements crossed the union picket line. I T
Services, supra, 263 NLRB at .1186; Pennco, Inc., supra,
250 NLRB at 717.
As indicated in the statement of facts above, the Com-
pany appears to rely on four separate matters for its posi-
tion that it had a reasonable, objectively based doubt as
to the Union's continued majority as of the date of with-
drawal of recognition. In effect, the Company contends
that it could reasonably assume that strike replacements,
against whom pickets directed violent activity, would
not want the Union who represented the pickets to also
represent them; that statements by employees about their
distaste for the Union indicated a lack of majority; that
three stnkers who retired should not be counted in the
employee complement; and that one striker should not be
counted as an employee because he 'accepted employ-
ment for another employer.
The last two contentions require little discussion. As is
set forth in more detail above, there was no probative
credible evidence as to when the three strikers retired or
when the striker accepted employment elsewhere. The
strike continued well after the Company's withdrawal of
recognition and the Company has not established that
the events in question took place before the withdrawal
.or that the Company relied on those events in deciding
to withdraw recognition. The Company has the burden
of _producing evidence to rebut the presumption of con-
tinued majority and, at least in this regard, it has failed
to do so. Even if it were not for the question of critical
date, the Company would have failed in meeting its
burden. There is no showing that any of those employees
permanently severed their employment relationship or
abandoned their strikers' status. Such proof must be un-
equivocal. Harowe Servo Controls, 250 NLRB 958, 964
WILDER CONSTRUCTION 981
(1980); S & M Mfg. Co., 165 NLRB 663 (1967); cf. Coca-
Cola Bottling Co. of Memphis, 269 NLRB 1101 (1984).
The Company has also failed to establish that a majori-
ty of the employees informed company officials that they
did not want the Union to represent them. There were
26 employees in the bargaining unit as of the critical
date. Company Operations Manager Schwiesow spoke to
some of the 12 strike replacements who told him that
they owed nothing to the Union; that they were satisfied
with the conditions they were operating under; that they
were exceptionally dissatisfied with the harassment they
were going through from the pickets; and that they
hoped the Company never reached an agreement with
the Union. He did not testify to the actual number of em-
ployees he spoke to, but there were only 12 strike re-
placements and he spoke to only some of them. As the
Board held in Thomas Industries, 255 NLRB 646, 647
(1981), enfd. as modified 687 F.2d 863 (6th Cir. 1982):
Rejection and/or criticism of the bargaining repre-
sentative by a minority of the unit employees is in-
sufficient to support a reasonable doubt of the
Union's continued majority status.
The statements of displeasure with the Union by a mi-
nority of employees could not establish that a majority
of the employees no longer wanted the Union to repre-
sent them . Carmichael Construction Co., 258 NLRB 226,
230 (1981), enfd. 728 F.2d 1137 (8th Cir. 1984); Nevada
Lodge, 227 NLRB 368, 376 (1976), enfd. 584 'F.2d 293
(9th Cir. 1978).
There are some situations where special circumstances
are sufficient to rebut the presumption that strike re-
placements desire representation in the same proportion
as other employees. Such situations arise where there is
an extreme conflict of interest between'-the strikers and
the replacements. In Beacon Upholstery Co., 226 NLRB
1360 (1976), the Board held that the presumption was re-
butted in a situation where all the striking employees had
been lawfully discharged, the interests- of those dis-
charged strikers were diametrically opposed to those of
the strike replacements, and the strike replacements
would have lost their jobs if the strikers returned to
work.
In Pennco, supra, 250 NLRB at 718 fn. 16, the Board
held that violence on the picket line was one factor that
could be considered with regard to rebutting the pre-
sumption . The Board stated:
. .. in view of the speculative nature of the em-
ployees' reasons for crossing the picket line, the oc-
currence of some violence on the picket line is, at
best, one factor weakening the presumption of ma-
jority status but not alone rebutting it.
In I T Services, supra , 263 NLRB at 1183 fn. 17, the
Board relied in part on picket line violence for finding
that an employer had a good-faith doubt as to the union's
majority. The Board there held:
We agree with the Administrative Law Judge
that Respondent had an adequate objective basis to
support a good-faith doubt of the Union's majority.
Our agreement, however, is predicated on all of the
factors on which he relied, including the. Union's
demand that the replacements be discharged, the
statements by replacements that they did not want
the Union to represent them, and the violence di-
rected against them.
In the instant case, there was no showing that the Union
sought to have the strike replacements discharged. In ad-
dition the evidence with regard to employee disillusion-
ment with the Union in the I T Services case was much
more substantial than that adduced in the instant case.
Also, in the I T Services case the violence continued
throughout the course of the strike. In the instant case
the strike began on August 29, 1983; and the striking em-
ployees made an unconditional offer to return to work
on November' 18, 1983. The violence and name-calling
on the picket line occurred during the first 2 or 3 weeks
of the strike.4
In the instant case the violence on the picket line was
somewhat limited, the indications of employee discontent
were somewhat vague, and there is no evidence that the
Union demanded that the -strike replacements be dis-
charged. The I T Services case is distinguishable and the
Company has not adduced evidence to rebut the pre-
sumption that the strike replacements desired representa-
tion in the same proportion as the employees they re-
placed.
. Moreover, even if that presumption had been rebutted,
the Company would be in difficulty because of the num-
bers involved. There were 26 employees in the bargain-
ing unit. Only 12 of those were strike replacements. The
14 strikers were all union members; 11 of those strikers
remained on the picket line and there can be no question
about their union loyalty.-Three of the strikers returned
to work. However, there is no indication that they
dropped out of the Union. Strikers can be forced by eco-
nomic circumstances to cross their own picket line and
return to work even where they ardently desire union
representation. As is discussed above, the fact that an
employee crosses a picket line does not establish that the
employee desires to be free of union representation. The
three union members who crossed the picket line were in
a very different position from the strike replacements. It
is not uncommon for strike replacements to be dis-
charged at the conclusion of a strike when the strikers
return to work. The Company would have to almost
double the available jobs to keep both the strikers and
the replacements working at the same time. However,
with regard to strikers who returned to work, that prob-
lem does not exist. There is no replacement who has to
* Though the violence was serious in that it involved threats, name-
calling, and some damage to equipment , there was no evidence that
anyone was physically injured As was held in I T Services at 1187
In order to put the matter in perspective , some consideration must
be given to the nature and extent of violence While some people
when hit on one cheek may be able to turn the other cheek and love
their aggressor, it is likely that the love will vary in inverse propor-
tion to the strength of the blow
In that case the strike lasted from November 1979 to October 1980 and
during that entire ' time the violence and threats directed by pickets
against replacements was ubiquitous
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave to make room for the returning striker. The striker
who returns has a much greater assurance of continued
employment than - the strike replacement. The striker
who returns to work also benefits from any improved
contract the union is able, to obtain from the-company at
the termination of the strike. In short there is no basis for
assuming nor is there any evidence that the three strikers
who-returned to work no longer wanted the Union to
represent them. Thus, even if it could be assumed that all
12 of the replacements wanted to be free of union repre-
sentation, there were still. 14 union members who did
want representation out of the employee complement of
26. The Company had no reasonable basis for doubting
that those 14 employees, which constituted a majority of
the bargaining unit, continued to want union representa-
tion. Its defense must therefore fall. I find that the Com-
pany violated Section 8(a)(5) of the Act by withdrawing
recognition from the Union on October 11, 1983.
the collective-bargaining agreement . It was an economic
strike. On October 11, 1983, the Company unlawfully
withdrew recognition from the Union. By that time 12
strike replacements had been hired and 3 strikers had re-
turned to work. The strike continued until November 18,
1983, when the Union, on behalf of the striking employ-
ees, made an unconditional offer to return to work. The
General Counsel contends that the unlawful withdrawal
of recognition on October 11, 1983, converted the eco-
nomic strike to an unfair labor practice strike. Union
Secretary-Treasurer Marvin Eggert credibly testified that
the strike would have ended if the parties had reached a
collective-bargaining agreement. • Once. recognition was
withdrawn by the Company, the Company foreclosed
the possibility of entering into such a collective-bargain-
ing agreement . The General Counsel's position is well
taken. As the Board held in Pennco, Inc., 242 NLRB 467,
469 (1979):5
2. The refusal to furnish information
The controlling _ law was set forth in the New York
Times Co., 270 NLRB 1267, 1273 (1984), in which the
Board adopted the decision of Administrative Law
Judge Howard Edelman which held: -
An employer has a duty to provide upon request
information relevant to bargainable issues. The law
in this area is clear and well settled. NLRB v. Truitt
Mfg. Co:, 351 U.S. 149, 153 (1956); NLRB v. Acme
Industrial Co., 385 U.S. 432, 435-436 (1967). Where
the requested information concerns wage, rates, job
descriptions, and other information relating to em-
ployees in the bargaining unit , the information is
presumptively relevant to bargainable issues. Faw-
cett Printing Corp., 210 NLRB 964 (1973); Curtiss-
Wright Corp., 145 NLRB ' 152 (1963), enfd. 347 ' F.2d
61, 69 (3d Cir. 1965); 'Timken Roller Bearing Co.,
138 NLRB 15 (1962), enfd. 325 F.2d 746, 750 (6th
Cir. 1963), cert. denied 376 U.S. 971 (1964).
In the instant case the parties stipulated and I.found
that the Union requested certain information about bar-
gaining unit employees. The Union's letter, which is
dated May 11, 1984, requests a list of names of unit em-
ployees together with their social security numbers, hire
and termination dates, and addresses. That information is
presumptively relevant to bargainable issues and there
was no evidence offered to rebut that presumption. It
was stipulated and I find that since May 11, 1984, the
Company has failed and refused to provide the requested
information. As found above, the Company's withdrawal
of recognition was in violation of Section 8(a)(5) of the
Act and the Company had a continuing duty to bargain
with the Union. It follows that the Company further re-
fused to bargain in violation of Section 8(a)(5) of the Act
by failing to furnish the requested information. -
3. The conversion of the economic strike to an
unfair labor practice strike
The Company's employees went out on strike on
August 29,-1983, because the Company and the Union
were unable to reach a full agreement on the terms of
. .. although there can be no certitude that a col-
lective-bargaining contract would have been agreed
upon had Respondent not refused to bargain, such
refusal to recognize or meet and bargain with the
Union clearly precluded any possibility of reaching
agreement on a contract and tended to impede any
possible settlement of the strike. Accordingly, we
agree with the General Counsel that Respondent's
refusal to bargain converted the Union's economic
strike into an unfair labor practice strike as of No-
vember 5, 1977. Therefore, on that-date, the strikers
assumed the status of unfair labor practice strikers.
I find that the economic strike was converted 'to an
unfair labor practice strike on October 11, 1983.
In the instant case there is no allegation that any unfair
labor practice striker was wrongfully denied reinstate-
ment upon his, application to return to work. The parties
stipulated that on November 18, 1983, when the striking
employees made an unconditional offer to return to
work, the Company asked which of them wanted to be
placed on a preferential hiring list. Five of the striking
employees responded in the affirmative and were placed
on a preferential hiring list. There is no contention that
any strike replacement had to be removed to make room
for a'returning unfair labor practice striker. All the strike
replacements were hired before the economic strike was
converted to an unfair labor practice strike. The usual
Board order in the case of unfair labor practice strikers
requires an employer to reinstate, upon unconditional re-
quest, all strikers who were not permanently replaced
before the date the unfair labor practice strike began, dis-
charging if necessary any replacement hired after that
date. Such an order does not seem applicable in-the in-
stant situation. The usual order also requires the employ-
er to place employees for whom no employment is avail-
able upon a preferential hiring list based upon seniority
or some other nondiscriminatory test, for employment if
his job becomes available.6 The Company has already
5 See also Whisper Soft Mills, 267 NLRB 813 (1983)
6 The reinstatement rights of the unfair labor practice strikers are those
set out in Whisper Soft Mills, supra
WILDER CONSTRUCTION 983
done that and there is no contention that the Company is
ignoring the preferential hiring list. It thus appears that
no specific order with regard to the unfair labor practice
strikers is needed. -
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit is appropriate for the purpose of
collective bargaining within the meaning of Section 9(b)
of the Act:
All employees employed by the Company in the
classifications described in Appendix I of the 1980-
1983 Building, Heavy and Highway Construction
Labor Agreement between the Company and the
Union.
4. At all times material herein the Union was the ex-
clusive bargaining representative of the Company's em-
ployees in the above-described bargaining unit.
5: By withdrawing recognition on October 11, 1983,
and by refusing to recognize or bargain with the Union
since that date, the Company has violated Section 8(a)(5)
and (1) of the Act.
6. By refusing to supply the Union with requested in-
formation concerning employees in the bargaining unit,
the Company has violated Section 8 (a)(5) and ( 1) of the
Act.
7. The strike which began on August 29, 1983, was
converted to an unfair labor practice strike on October
11, 1983, the date the Company unlawfully withdrew
recognition and refused to bargain with the Union.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Company engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Company violated Section
8(a)(5) and (1) of the Act by unlawfully withdrawing
recognition from the Union and by refusing to bargain
with the Union as the exclusive representative of its em-
ployees in the aforesaid appropriate unit, I recommend
that the Company be ordered to recognize and, upon re-
quest, to bargain in good faith with the Union as the ex-
clusive representative of its employees in that unit.
Having found that the Company violated Section
8(a)(5) and (1) of the Act by refusing to furnish the
Union with the information relating to employees in the
bargaining unit, I recommend that the Company be or-
dered to furnish that information.
As is set forth above, I found that the Company's un-
lawful withdrawal of recognition converted the econom-
ic strike to an unfair labor practice strike on October 11,
1983. For the reasons stated above, no further order is
needed in that regard.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
The Respondent, Wilder Construction, Bellingham,
Washington, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain in good faith
with General Teamsters Local No. 231, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the exclusive
representative of its employees in the following bargain-
ing unit:
All employees employed by the Company in the
classifications described in Appendix I of the 1980-
1983 Building, Heavy and Highway Construction
Labor Agreement between the, Company and the
Union.
(b) Refusing to furnish the Union with information re-
quested on bargaining unit employees which relates to
their names, social security numbers, hire and termina-
tion dates, and addresses.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith
with the Union as the exclusive representative of its em-
ployees in the unit described above, and if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Furnish the Union with information requested on
bargaining unit employees which relates to their names,
social security numbers, hire and termination dates, and
addresses.
(c) Post at its Bellingham, Washington facility copies
of the 'attached notice marked "Appendix."8 Copies of
the notice, on forms provided by the Regional Director
for Region 19, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent' immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
7 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
8 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 "
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain in good
faith with General Teamsters Local No. 231, affiliated
with the International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America as the ex-
clusive representative of our employees in the following
bargaining unit:
All • employees employed by our company in the
classifications described in Appendix I of the 1980-
Labor Agreement between the Company and the
Union.
WE WILL NOT refuse to furnish the Union with the in-
formation it requested on bargaining unit employees
which relates to their names , social security numbers,
hire and termination dates , and addresses.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act. -
WE WILL recognize and, on , request, bargain in good
faith with the Union as the exclusive representative of
our employees in the unit described above , and if an un-
derstanding is reached , embody such understanding in a
signed agreement.. - .
WE WILL furnish the Union with the information it re-
quested on bargaining unit employees which relates to
their names , social security numbers , hire and termina-
tion dates , and addresses.
1983 Building, Heavy and Highway Construction WILDER CONSTRUCTION