Powell Electrical Manufacturing Co. And Process Systems, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1987

287 N.L.R.B. 969 (N.L.R.B. 1987)

POWELL ELECTRICAL MFG CO 969
Powell Electrical Manufacturing Company and Proc-
ess Systems , Inc. of Houston and International
Brotherhood of Electrical Workers, Local
Union No. 716, AFL-CIO. Cases 23-CA-10144
and 23-CA-10239
30 December 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, STEPHENS, AND
CRACRAFT
On 13 May 1987 Administrative Law Judge
Burton S. Kolko issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited cross-excep-
tions and a supporting brief. The Respondent filed
an answering brief to the General Counsel's limited
cross-exceptions. The Charging Party filed an an-
swering brief and brief in support of the judge's de-
cision.
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,2
and conclusions and to adopt the recommended
Order as modified.3
1. We agree with the judge, for the reasons
stated by him, that no impasse was reached by the
parties prior to the Respondent's unilaterally imple-
menting the terms and conditions of its second con-
tract proposal.
' The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
The Respondent has excepted to the judge's order to reinstate all 62
employees listed in the complaint and Order (Appendix A) According to
the Respondent, among the 62 are persons who either did not strike, have
since died, resigned, accepted other employment, or have returned to
work As is customary, we leave to the compliance stage a final determi-
nation of those discnmmatees entitled to the relief granted in the Order
The General Counsel has requested a visitatorial clause in the Order
The request is denied
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
9 The General Counsel, in her limited exceptions to the judge's deci-
sion, excepted to the failure of the judge to order that the employees
who appear in Appendix A of the decision be made whole An examina-
tion of par 2(d) of the recommended Order convinces us that the judge
has provided the requisite relief However, the language of the notice is
deficient and is corrected by the substituted notice
In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput-
ed at the "short-term Federal rate" for the underpayment of taxes as set
out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ac-
crued prior to I January 1987 (the effective date of the 1986 amendment
to 26 U S C § 6621) shall be computed in accordance with Florida Steel
Corp, 231 NLRB 651 (1977)
In urging reversal on the issue of impasse, the
Respondent relies on Lou Stecher's Super Markets,
275 NLRB 475 (1985), and Bell Transit Co., 271
NLRB 1271 (1984), revd. 788 F.2d 27 (D.C. Cir.
1986). Assuming the continued viability of Stecher's
and Bell Transit, we find these cases factually dis-
tinguishable.
In Stecher's the finding of impasse was based on
the parties' contemporaneous understanding of the
state of the negotiations Their statements of "no
way" to "get together" coupled with the subse-
quent failure to meet were found to establish that
each acknowledged the futility of further bargain-
ing. Here, on the contrary, the judge found and the
record supports that the parties were not yet at the
stage of bargaining where either could reasonably
believe that impasse had occurred. The Respondent
relies on the superficial similarity of statements in
Stecher's and the instant case while ignoring the
different contexts, which lead us to conclude that
serious bargaining on substantial issues was still
possible in the instant case.
In Bell Transit the Board found that the parties,
having negotiated over the "critical" issue of
wages, understood that they were either at im-
passe, or had an agreement over wages, a core
issue of a collective-bargaining agreement. The
case involved a unique set of facts and the Board
analysis in Bell Transit was rejected by the court of
appeals. See Teamsters Local 175 v. NLRB, 788
F.2d 27 (D.C. Cir. 1986).
Here, although the union representative indicat-
ed the parties were far apart, he clearly intended to
continue bargaining and saw room for movement.
This is evidenced by his solicitation of Mediator
Chandler's assistance in arranging further bargain-
ing sessions. The parties had yet to bargain exhaus-
tively over core economic issues. The relatively
limited discussions engaged in do not provide a
basis for the Respondent's alleged belief that fur-
ther bargaining would have been futile. See McCor-
mick-Shires Millwork, 286 NLRB 754 fn. 2 (1987).
2. Although the judge correctly found the Re-
spondent could not lawfully withdraw recognition
based on an employee petition because of other
unfair labor practices, the judge also found that be-
cause there was no employer misconduct in pro-
curing the petition for decertification of the Union
as bargaining representative, it was untainted and
the Respondent was privileged to rely on the peti-
tion as a basis for a good-faith doubt of the Union's
continued majority status. Contrary to the judge,
when, as here, an employer, prior to the signing of
a petition, engages in conduct designed to under-
mine employee support for, or cause their disaffec-
tion with, the union, the petition is tainted and the
287 NLRB No. 100
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer will be precluded from relying on it as a
basis for questioning the union's majority status and
withdrawing recognition from that labor organiza-
tion. Hearst Corp., 281 NLRB 764 (1986). Because
of its unlawful unilateral changes, the Respondent
was precluded from using the petition as a basis for
a good-faith doubt of the Union's continued majori-
ty status. Thus, it is unnecessary to rely on the
judge's analysis referred to above on the "taint"
issue.
3. We agree with the judge's conclusion that the
Respondent' s unilateral implementation of its
second contract proposal prior to impasse convert-
ed the economic strike into an unfair labor practice
strike. The causal connection between the Re-
spondent's unfair labor practice and the prolonga-
tion of the strike was established. The Union had
knowledge of the Respondent's unilateral imple-
mentation of its last contract proposal. The Union
informed striking employees of the Respondent's
actions at the 23 August 1985 meeting and those
present voted to continue the strike as an unfair
labor practice strike. Further, we note that the Re-
spondent's implementation of its last contract offer
did adversely affect the employees' terms and con-
ditions of employment. Indicative of this is the im-
plementation or limitation on both grievances and
the grievance and arbitration procedure. Thus, we
find that when striking employees voted to contin-
ue the strike in protest of the Respondent's con-
duct, there was a change in the nature of the strike.
See GSM, Inc., 284 NLRB 174 (1987). Moreover,
as the judge noted, the Respondent's withdrawal of
recognition of the Union clearly prolonged the
strike and provided a separate basis for finding that
the strike was converted to an unfair labor practice
strike. See Brooks & Perkins, 282 NLRB 976 (1987);
Vulcan Hart Corp. v. NLRB, 718 F.2d 269 (8th Cir.
1983).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that Respondents Powell Electri-
cal Manufacturing Company and Process Systems,
Inc., Houston, Texas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order, except that the attached Appendix B is
substituted for that of the administrative law judge.
APPENDIX B
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT withdraw and withhold recogni-
tion from and refuse to bargain with International
Brotherhood of Electrical Workers, Local No. 716,
AFL-CIO, as the collective-bargaining representa-
tive of.
All production and maintenance employees
and crew leadermen in the Employers' plant,
excluding office and clerical employees, fore-
men and assistant foremen, engineers and
draftsmen, timekeepers, guards and watchmen.
WE WILL NOT change wage rates or other terms
and conditions of employment of employees in the
above-described bargaining unit without prior noti-
fication to and bargaining with International Broth-
erhood of Electrical Workers, Local No. 716,
AFL-CIO as the representative of those employ-
ees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain collectively with
International Brotherhood of Electrical Workers,
Local No. 716, AFL-CIO as the exclusive bargain-
ing representative of all employees in the above-de-
scribed bargaining unit , respecting rates of pay,
wages, hours of employment, or other terms and
conditions of employment, and, if any understand-
ings be reached, embody such understandings in a
signed agreement.
WE WILL, on request by International Brother-
hood of Electrical Workers, Local No. 716, AFL-
CIO reinstate any terms of employment of employ-
ees in the above-described bargaining unit that
were unilateral changes following our unlawful
POWELL ELECTRICAL MFG CO 971
declaration of impasse in bargaining on 22 August
1985.
WE WILL make you whole for any losses of ben-
efits that you have sustained because of our unilat-
eral changes in your terms of employment follow-
ing our unlawful declaration of impasse in bargain-
ing on 22 August 1985, with interest paid on the
amounts owed.
WE WILL make you whole for any loss of earn-
ings resulting from our failure to reinstate you after
17 October 1985 when we received your uncondi-
tional offer to return to work.
WE WILL reinstate the following employees as of
17 October 1985, discharging where necessary em-
ployees hired to replace them:
Knotts, Johnny P.
Gonzales, Joe P.
Limon, Dario L
Grizzoffi, Alfred L.
Rincon, Ramon
Lira, Francisco
Solis, Tony
Chessher, Lester D.
Ho, Can Vinh
Stovall, Mary B
Ho, Ky V
Nguyen, Ut T.
Nguyen, Louis N.
Salazar, Antonio
Nguyen, Hue
Tran, Xuong P.
Dean, M. Diane
Randle, Iowine
Faltesek, Leon F.
Mumphord, Jr.,
Clarence A
Vance, Stephen A
Dixon, Jo Ann K
Moore, Fern M
Harger, Donald E.
Lira, Frank J.
Barron, Robert O.
Trinh, Phuong V.
Arredondo, Jose G.
Venturi, Juan E.
Rion, Mary B.
Huynh, Quang C.
Jones, Cleo C.
Nguyen, Tho M.
Tran, Thuyet V.
So, Kim
Holt, Kenneth A
Ly, Luong
Quach, Peter
Ortiz, Pedro A
Camarillo, Ramon G.
Shane, David W.
Turberville, Danny P.
DePrima, Jr., Ellis C.
Nguyen, Bang N.
Nguyen, Cuong Q
Garmany, George P.
Faltesek, Michael L.
Lang, Xuong S.
Diep, Phat V.
Tran, Trong
Phan, Lieu D.
Ly, Luong P.
Ly, Hieu V
Nguyen , Chau T.
Chang, Frank
Do, John T.
Mosby, John A.
Harris, James L.
Herrin, Scott L.
Kysar, Betsy
Cu, Len V.
Tran, Kien T.
POWELL ELECTRICAL MANUFACTUR-
ING COMPANY AND PROCESS SYS-
TEMS, INC. OF HOUSTON
John A. Ferguson Jr., Esq, for the General Counsel
James J. Loeffler, Esq. (Chamberlin, Hrdlicka, White,
Johnson & Williams), of Houston , Texas, for the Re-
spondent.
Patrick M. Flynn, Esq. (Watson, Flynn & Bensik), of
Houston, Texas, for the Charging Party
DECISION
STATEMENT OF THE CASE
BURTON S KOLKO, Administrative Law Judge. In the
midst of bargaining for a contract to replace the expired
one the Union called a strike. The Company declared
that the bargaining was at an impasse, it implemented
portions of what it had offered during bargaining, it re-
placed those workers who were striking, and it refused
further to recognize the Union as the employees' bar-
gaining representative The General Counsel's complaint
alleged that in doing these things the Company violated
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, 29 U S C § 158 The Company denied that it
violated the Act I agree with the General Counsel, as
discussed below i
1. THE BARGAINING AND THE STRIKE
Powell Electric Manufacturing Company is a Dela-
ware corporation. Process Systems, Inc is a Utah cor-
poartion. They jointly maintain an office and place of
business in Houston, Texas, where they manufacture and
sell electrical, distribution, and process control equip-
ment (the Company).
The Company was in a collective-bargaining relation-
ship with the International Brotherhood of Electrical
Workers, Local Union No. 716, AFL-CIO that dates
back three decades. The latest contract was to expire on
5 August 1985. In July, the parties started bargaining for
the next contract. They met on 17 and 31 July, on 1-2,
20, and 22 August, and on 4 September Just before the
22 August meeting the Union began its strike During the
22 August meeting the Company declared an impasse
and announced implementation of its own terms and con-
ditions of employment On 23 August the Union declared
that its economic strike had been converted by the Com-
pany to an unfair labor practice strike. On 17 October
the Union presented the Company with an unconditional
offer to reinstate all the striking employees, which ac-
cording to the complaint the Company has failed to do
The central issue that these facts present is whether
the Company was correct in declaring on 22 August that
the parties were at an impasse in their bargaining, for if
so then the Company would have been within its rights
in establishing terms and conditions of employment with-
out further bargaining or even consultation with the
Union, so long as the unilateral implementation was con-
sistent with what had been bargained about NLRB v.
Katz, 369 U S. 736 (1962)
I The first charge was filed on 23 August 1985 The complaint first
issued on 8 November 1985 The hearing was held in Houston, Texas, 6-
9 May 1986 Briefs were filed on 27 June 1986
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
An impasse in bargaining is a tough bear to wrestle be-
cause it requires the Board to look back and determine
nunc pro tunc whether one party was "warranted in as-
suming . . . that further good-faith bargaining . .
would have been futile ." Alsey Refractories Co., 215
NLRB 785, 787 (1974). See Taft Broadcasting Co, 163
NLRB 475, 478 (1967), affd 395 F 2d 622 (D C. Cir
1968). Thus, we must start our inquiry by looking at the
bargaining, although not in detail because there is no al-
legation of bad-faith bargaining But we must understand
where the parties were in their bargaining to find wheth-
er Powell's negotiators reasonably concluded that it was
fruitless to bargain further and that, therefore, Powell
was entitled to implement its bargaining proposal with-
out still further bargaining with the Union.
A The Bargaining
The contract was in effect until 5 August 1985. On 3
March 1985 the Union gave timely notice of its intent to
open the contract for negotiations After an exchange of
letters the parties began negotiating on 17 July 1985, in a
session lasting 2 hours. The Union's assistant business
manager and chief negotiator, Benny Reynolds, proposed
numerous changes from the existing contract, going
through them and the contract article by article In re-
sponse, the Company's attorney, James Loeffler, replied
that the Company had not had the time to prepare its
proposal, but that it would be ready before the next ses-
sion.
The next session was 2 weeks later, on 31 July 1985,
lasting for 2-1/2 hours The Company's president, Art
Chamberlain, described Powell's economic plight The
Company was losing money, was facing increased com-
petition, and had cut some salaries The Company's posi-
tion would be one of hard bargaining in good faith based
on its increased competition and decline in business
After that opening Loeffler presented to Reynolds the
Company's first contract proposal, which did not follow
the structure of the current contract It was a very dif-
ferent proposal than the Union's The Company had
costed out the Union's proposal, and was stung by its
conclusion that the added cost in the first year alone
would have been over $800,000. The Union's economic
proposals headed in the opposite direction from the
Company's. The Union wanted the Company to pay the
full cost of the group insurance plan, automatic rather
than merit wage increases, and improvements in the
COLA formula. The Union also sought increased vaca-
tion benefits, increased sick leave days, additional break
periods, overtime after 8 hours, required overtime, and
shift differentials. For its part, the Company's proposal
included an expanded management-rights article, a most-
favored-nations clause, a work rule and discipline article,
expanded no-strike language, elimination of seniority as a
factor in promotions and transfers, a merit wage increase
change, a cut in paid jury days, proof of necessity for fu-
neral leave, and a change in the shift differential from 6
percent to a set 50 cents an hour The essence of this
meeting was that the Company's proposal was presented,
with the Union flipping through it and asking questions
The third bargaining session was held the next day, I
August 1985, for 2 hours At this meeting, Union Attor-
ney Patrick Flynn orally presented several counterpro-
posals The parties also discussed the subjects of bulletin
boards, rest periods, and union labels. The Union stated
that its initial proposals on these subjects remained un-
changed With respect to the Company's work rules pro-
posal, Reynolds stated that the Union would submit spe-
cific language on work rules and disciplinary procedures
at a subsequent bargaining session The Union also pre-
sented a dues-checkoff proposal and a political action
committee checkoff proposal Loeffler asked Flynn to
submit a package proposal summarizing the Union's oral
and written proposals Reynolds responded that the
Union would prepare a full written proposal and present
it sometime after 2 August, the date of the next sched-
uled bargaining session
The fourth bargaining session was held on 2 August
during the afternoon. It concluded at approximately 5
p m At this meeting the parties went over the Union's
information request The Company provided some the
information that the Union had requested. Loeffler then
asked Reynolds specifically what the Union's position
was on the Company's first contract proposal. Reynolds
responded by telling Loeffler that "all those proposals
that were not incorporated into counterproposals by the
Union, addressed in our counterproposals, or direct pro-
posals and were not under discussion, we rejected."
Before the meeting concluded, Reynolds asked Loeffler
if he had any objections to having a Federal mediator
attend the next bargaining session. Loeffler responded
that he had no objection
On 5 August, the Union held a meeting of its mem-
bers, and a majority of the members voted to strike.
Reynolds testified that he told the membership that he
felt the negotiations were progressing slowly, and that he
wanted to be able to put pressure on the Company to
move at a faster pace. A second vote was taken to give
the Union's negotiating committee authority to call a
strike if needed during the negotiations
On 8 August, Reynolds hand-delivered to the Compa-
ny's manufacturing manager, Tony McKeon, a copy of
the Union's promised first full draft written contract pro-
posal Reynolds did not discuss with McKeon any of the
specifics of the Union's proposal on 8 August He gave
McKeon copies of the proposal, stating that it constitut-
ed a full draft of the proposals that had been promised.2
The fifth bargaining session began in the afternoon of
20 August and concluded at approximately 4:45 p in.
Federal Mediator Jim Chandler was present pursuant to
Reynolds' invitation At this meeting, the Union present-
ed a slightly revised version of the Union's first full draft
proposal. The parties went over it article by article
Flynn pointed out certain language on which the parties
had previously agreed. The remainder of the meeting
was spent going over the Company's second contract
proposal, which had been handed to the Union with a
cover letter from Loeffler. (Jt Exh. 18 )
Reynolds marked out certain language that the Com-
pany agreed to delete. The parties agreed to accept artl-
2 I credit Reynolds over McKeon that Reynolds said on 8 August that
he was presenting the Union's "full draft" of the promised proposals,
rather than the "final draft "
POWELL ELECTRICAL MFG CO 973
cle II, section 2 as the complete management-rights
clause. The parties discussed other sections, but did not
reach agreement on the majority of these other items.
Reynolds noted that article XXVII "Hourly Wages" was
the first wage proposal submitted by the Company. It
called for a wage freeze the first year and a 3-percent in-
crease the second and third years The Union responded
that it would return with a counterproposal on wages.
There was no further discussion on wages at this meet-
ing
After the parties had finished going over the Compa-
ny's second contract proposal, Loeffler asked Reynolds
when the Union was going to strike, and he requested
the Union's position on the Company's proposals Reyn-
olds again responded that "if we had not addressed them,
didn't have them under consideration or discussion, that
we were rejecting their proposals as submitted."
On 22 August at approximately 1 30 p m. the Union
commenced its economic strike The sixth bargaining ses-
sion had previously been scheduled to begin at this time,
but because of the strike, did not begin until about 1 50
p m It lasted only until about 3 p m. McKeon was not
present at this session, as he was occupied with the
strike
The meeting began with Loeffler immediately request-
ing a position from the Union on the Company's propos-
als Flynn responded by requesting the Company's posi-
tion on the Union's proposals The parties agreed to
caucus to consider their positions
The Union returned from its caucus with a modified
proposal, which Reynolds and Flynn detailed item by
item The Company responded only to item 4, and a no-
tation was made by Flynn that agreement had been
reached on this item. According to Reynolds, the Com-
pany did not respond to any of the other items, and did
not present any counterproposals to the Union at the 22
August meeting As Reynolds testified, "The Company
did not seem to be interested that day in negotiating "
Loeffler stated that he believed the Union's proposal
was too expensive and workable Loeffler then proceed-
ed to describe the various subjects on which he believed
the parties were still far apart. These subjects included,
inter alia, work stoppages, stewards, probationary period,
layoff and recall rights, training, seniority, vacations,
leadermen, jury duty pay, sick leave, holidays, discipline,
rest periods, hours of work, overtime, shift differentials,
severance pay, benefit plans, supervisors working with
tools, merit increases, dues checkoff, and wages and
COLA
Loeffler concluded by stating that it was unfortunate
that the "Union had chosen to go to war" and that the
Company would replace all striking employees and
would implement certain articles and sections of the
Company's second contract proposal3 Loeffler again
The Company effectuated for 1 year its wage proposal made on 20
August, in effect a wage freeze Also implemented were other items from
its 20 August "second contract proposal" dealing with management
rights, employee freedom and security, promotions, filing of vacancies,
and layoffs, hours of employment and overtime, work rules and employ-
ee attendance, merit wage increases, shift differentials, report and call-in
or call-back pay, jury service, funeral leave, supervisor, safety, physical
examinations and company right to search, approved leave of absence,
stated that it was unfortunate the Union had "gone to
war," and that in his opinion "we had reached impasse "
On 23 August the Union held a meeting of its mem-
bers Flynn and Reynolds both spoke at this meeting.
Reynolds testified that he told the members that in his
opinion "the Company had implemented the provisions
of their last offer prior to reaching impasse, and we felt
we had an unfair labor practice strike . due to the
fact that the Company had taken the action that they
did," and he asked them "if they wanted to continue this
strike as an unfair labor practice " The approximately 92
members present then voted unanimously to continue the
strike as an unfair labor practice strike The Union's
picket signs were changed to add language indicating
that the strike was an unfair labor practice strike.
B Impasse Vel Non
The Board does not lightly find an impasse It requires
that the parties must have reached "that point . in ne-
gotiations when the parties are warranted in assuming
that further bargaining would be futile "4 Futility is what
must appear, not some lesser level of frustration, discour-
agement, or apparent gamesmanship I cannot conclude
that futility was apparent when the Company declared
an impasse in negotiations. What the Company was,
doing was fighting fire with fire, gamesmanship with
gamesmanship, by sensing a tactical mistake in the
Union's strike and exploiting the Union's error by forc-
ing its own terms and conditions of employment on the
workplace The Company was meeting the Union's hard
bargaining and economic weaponry with its own This
was economic warfare, hence the metaphor, but it was
generated not by any impasse in the bargaining but by
conscious decisions to "augment" the bargaining process
with actions away from the bargaining table. I infer this
from the timing both of the Union's strike and the Com-
pany's declaration of impasse
The strike occurred to hasten the pace of negotiations,
and not without reason for the parties had been doing no
more than sparring with each other. The Union was ne-
gotiating from a posture of business as usual, a shopping
list of add-ons to the existing contract The Company for
the first time was using an attorney to do its bargaining,
and the attorney made it clear that the Company was not
going to let the Union call the shots So what consumed
the first four meetings was merely posturing. It was not
until the fourth meeting, on 8 August 1985, that the
Union presented to Powell the first full draft of the pro-
posals that until then the Union was making orally and
piecemeal. And it was not until the fifth meeting, the last
before the Union struck and the Company declared an
impasse, that the Company responded to the Union's full
draft with its second contract proposal On this company
document was its first wage proposal, a wage freeze in
the first year followed by a 3-percent increase in the
second and third years.
military service, holidays, vacations, sick leave, benefit plans, grievance
and arbitration procedure, job classifications and hourly wage rates, and
general work rules and regulations
4 Old Man's Home of Philadelphia, 265 NLRB 1632, 1634 (1982), quot-
ing from Patrick & Co, 248 NLRB 390, 393 (1980)
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As Attorney Loeffler put it in the following meeting
when he declared an impasse, by following its first look
at the Company's wage proposal with a strike instead of
the promised counterproposal the "Union had chosen to
go to war " And the Company decided to react in kind
But to say that the fifth meeting created an impasse that
was reinforced by the strike is to jump the gun I find
that it was to soon in the process, with the full proposals
from both sides having only just been exchanged in
meeting five, for an impasse to have occurred in that
meeting or in the sixth Let us again look at meeting
number 5, held on 20 August, recalling in the prior meet-
ing (8 August) the Union's oral proposal's were for the
first time presented in writing
At the 20 August meeting the Union presented a
slightly revised version of the written proposals that it
had handed out at the prior meeting, and the parties
went over that document article by article Then they
went over the document that the Company handed out,
which was its second contract proposal. That document
for the first time mentioned wages, on which the Union
promised a counterproposal at the next meeting Then
Loeffler asked Reynolds when the Union was going to
strike and what the Union 's position was on the Compa-
ny's proposals (the Company's first contract proposal
had been made at the second meeting on 31 July) Reyn-
olds said, as he had done in the meeting on 2 August,
that "if we had not addressed them, didn't have them
under consideration or discussion, that we were rejecting
[them] as submitted "
Respondent rests heavily on these statements and on
the slim list of agreed-to items to justify its declaration of
impasse. At the time the Union struck and Powell retali-
ated by-declaring impasse, Attorney Loeffler was not in-
correct in describing the various subjects on which he
believed the parties were still far apart- work stoppages,
stewards, probationary period, layoff and recall rights,
training , seniority, vacations, leadermen, jury duty pay,
sick leave, holidays, discipline, rest periods, hours of
work, overtime, shift differentials, severance pay, benefit
plans, supervisors working with tools, merit increases,
dues checkoff, wages, and COLA This is, indeed, an im-
pressive list, but all it showed was how little the negotia-
tors had come past the posturing and sparring that pre-
ceded the strike and the ensuing declaration of impasse
As for Reynolds' statements of "rejection," I find that
it strains credulity that with his acumen and experience
Loeffler took what he heard seriously Reynolds on the
stand impressed me as one who enjoyed the posturing of
negotiating, and it strikes me that he was playing his
own version of hardball with Loeffler. The latter was
doing the same right from the start, and he maneuvered
Reynolds to again "reject" the Company's proposals,
thus precipitating the Company's declaration of impasse
on 22 August. As Reynolds testified, "the Company did
not seem to be interested that day in negotiating " What
the Company was interested in was to turn the Union's
strike to its own advantage, the route to which was
opened through the declaration of an impasse that, I
find, did not exist What Reynolds and Loeffler were
competing for was control of the agenda The Union
wanted to follow the format of the old contract; the
Company in effect wanted to start from scratch What
Reynolds was conveying to Loeffler was "let's do it my
way," hardly the language of impasse when serious ne-
gotiating had only just begun.
The Company counters "the strike was in itself clear
evidence that an impasse had been reached," citing Bi-
Rite Foods, 147 NLRB 59 (1964) That being the case, it
argues, its bargaining position was enhanced when
during the 22 August meeting it learned that less than
one-half of the employees were striking, with that en-
hanced position the Company "was free to use its in-
creased bargaining strength to its advantage," apparently
by unilaterally imposing on the bargaining unit the terms
and conditions of employment that it had offered the
Union.
Whether a strike may cause an impasse or be evidence
that an impasse existed, here it is neither The strike was
undertaken out of frustration with the pace of bargain-
ing. Any "impasse" was caused by the Company's seiz-
ing the opportunity of apparent union weakness to de-
clare that the bargaining was at an end and that it would
go on its own way It is bootstrapping for the Company
to use the strike and its reaction to it as proof of an im-
passe.
This is not being pollyanish That there was no im-
passe when the Company declared one is not to suggest
that if the parties continued their sluggish bargaining in-
definitely there would have been agreement on a new
contract. Such a finding is not needed, nor could it be
made without extra-record speculation, to find on this
record that when the Company declared an impasse
there was not one, even as far apart as the parties were.
They had most of their work ahead of them, and judging
by the opening sessions clearly had different goals in
mind for a contract. Whether their differences ever
would have been resolved cannot be known, but that is
the nature of the process. It is for the parties through
earnest, strenuous, tedious, frustrating, and hard bargain-
ing to solve their mutual problem-getting a contract-
together, not to quit the table and take a separate path
Although the Company said that it needed to go its own
way in order to run its business, that takes us nowhere.
Of course the Company must run its business, and "busi-
ness justification" as a defense under the Act is not un-
known But the Company's need to run its business is a
piety absent any further justification that passes muster
under the Act. It merely reflects the Company's attitude
in bargaining, that its economic condition required
changes in work rules and wages. Bargaining with this
position is one thing (and there is no allegation of bad-
faith bargaining), unilaterally implementing it is another,
and in so doing the Company violated Section 8(a)(5)
and (1) of the Act. NLRB v. Katz, 369 U S 736.
ii THE COMPANY'S WITHDRAWAL OF RECOGNITION
At the behest of the Federal mediator the parties met
again on 4 September Loeffler informed the Union that
the Company had a good-faith doubt that the Union con-
tinued to represent a majority of the employees and that
the Company could not continue to recognize or to bar-
gain with the Union The mediator then left, there was
POWELL ELECTRICAL MFG CO 975
limited discussion about the basis for the Company's
statement, and the meeting ended. The witnesses differed
on whether Loeffler specifically mentioned a petition or
merely referred to "external evidence " In any event, we
know from the record that it was an employee petition
that impelled the Company's action, albeit a petition that
the Company did not show to the Union.
It is well settled that an employer may not lawfully
withdraw recognition from an incumbent union because
of an asserted doubt about the union's continued majori-
ty status (or as here the presumption of majority status
following the expiration of its collective-bargaining
agreement) Guerdon Industries, 218 NLRB 658 (1975).
However, the employer may so act if the assertion of
doubt is based on objective considerations sufficient to
afford the employer a reasonable ground for believing
that its employees no longer desire to be represented by
the Union Celanese Corp., 95 NLRB 664 (1951); Terrell
Machine Co., 173 NLRB 1480 (1969). Decertification pe-
titions may be sufficient to cast doubt on a union's con-
tinued majority status if signed by a majority of the em-
ployees, and "will afford an employer a reasonable basis
for withdrawing recognition from a labor organization,
provided that, prior thereto, the employer has not en-
gaged in conduct designed to undermine employee sup-
port for, or cause their disaffection with, the union."
Hearst Corp, 281 NLRB 764 (1986). Dresser Industries,
264 NLRB 1088 (1982)
The first evidence that the Union might not be repre-
senting a majority of the employees came during the 22
August meeting, when the Company learned through its
count that only 45 percent of its employees were partici-
pating in the strike Standing alone, employees' nonsup-
port of a strike does not give rise to a presumption that
they no longer desire union representation. Cutten Super-
market, 220 NLRB 507 (1975). More usable evidence
was received on 4 September, before the meeting sched-
uled that day, when employee Frank Reed handed to the
Company's then president, Art Chamberlain, an employ-
ee petition signed by 52 percent of the employees stating
their desire no longer to be represented by the Union
Chamberlain testified that on 26 August 1985 employ-
ee Greg Andrews accosted Chamberlain on the shop
floor and asked him "what they could do on the shop
floor to get rid of this union." Chamberlain told An-
drews he would get back to him, and then called Attor-
ney Loeffler, who told him that the requirement was for
a petition with employees' signatures greater than 50 per-
cent of the bargaining unit Loeffler also gave Chamber-
lain "some language that could head up and be the lan-
guage for the petition." Chamberlain testified that he
"wrote it down and went back out into the shop and
gave it to Greg, and said that this is the language that
should be at the heading, and the names should be added
to the list for the those that were interested. And I said,
But I can't get involved in it."
On 4 September 1985 truckdriver Frank Reed brought
a petition to Chamberlain that had the heading language
on it that Loeffler had given to Chamberlain who, in
turn had given it to employee Andrews, stating that
"We, the undersigned employees of Powell Electrical
Mfg. Co and Powell Process Systems Inc. no longer
wish to be represented by the International Brotherhood
of Electrical Workers Local Union 716 " (U. Exh R 1 )
There followed, according to Chamberlain, "[ s]ome-
where around 160, 161 [names] something like that"
which represented "a little better than 52 percent" of the
employees. After receiving the petition, on Loeffler's
advice Chamberlain had McKeon verify the signatures
"with signed job files, to look and see if the signatures
looked like those that were employees that had signed up
for work." Satisfied, Chamberlain notified Loeffler, who
informed the Union that afternoon in the bargaining ses-
sion that had been scheduled by the mediator
The Union's brief sums up its own sentiments and
those of the General Counsel's nicely (pp 6-7):
Respondent, although it had the burden of proof on
this issue, presented no testimony from any wit-
nesses [about] who obtained the signatures; when
the signatures were obtained; how the signatures
were obtained; and what was said to the signers.
Only the first page of the petition states that the
"undersigned employees" no longer wish to be rep-
resented by the Union. . The petition's further
unreliability is demonstrated from the last page
which has a series of un-numbered signatures.. . .
Respondent offered no testimony from the employ-
ee or employees who obtained the signatures and no
testimony from any of the signers themselves No
employees testified that they did not wish to be rep-
resented by the Union. Moreover, no member of
management testified that any employees expressed
dissatisfaction with the Union to management, prior
to the withdrawal save one. [Chamberlain testified
that employee Greg Andrews asked how to get rid
of the Union.]
But the issue is not a narrow one of evidence to sup-
port a factual change in employee sentiments. It is one of
bona fides, the Company's, in using the petition to form
and harbor a good faith doubt that it was dealing with a
union that no longer represented the wishes of a majority
of the bargaining unit employees.5 Nothing in Chamber-
lain's testimony establishes employer misconduct that
would taint the petition, and neither the General Counsel
nor the Union through evidence, testimonial or real,
even attempted to establish employer involvement ex-
tending beyond a lawful response to an employee's in-
quiry Where there is no management taint, the Board
has accepted that an employer is "privileged to rely on
[an informal] petition signed by a majority of its employ-
ees as a basis for a good-faith doubt of the Union's con-
tinuing majority status." Johns-Manville Sales Corp., 282
NLRB 182, 183 (1986). Accordingly, I find that the
Company was privileged to rely on the petition as a basis
for forming its good-faith doubt of the Union's majority
status.
The next question, then, is whether the Company on
the basis of its good-faith doubt lawfully withdrew rec-
5 Here I draw the same distinction between a factual and good-faith
basis for doubt as the Board did in Guerdon Industries, supra, 218 NLRB
at 660
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ognition from the Union. As noted earlier, an employer's
good-faith doubt on a union's continued majority status,
"will afford an employer a reasonable basis for with-
drawing recognition from a labor organization, provided
that, prior thereto, the employer has not engaged in conduct
designed to undermine employee support for, or cause their
dissatisfaction with, the union." Hearst Corp., supra, em-
phasis added
It strikes me that an employer that (1) declares an im-
passe in contract negotiations and (2) implements unilat-
erally terms and conditions of employment that differ
from those that had previously bargained for by the
Union is acting in a manner "as to either affect the
Union status, cause employee disaffection, or improperly
affect [a] bargaining relationship itself" Guerdon Indus-
tries, supra, 218 NLRB at 661. An employer's action
taken unilaterally rather than in consultation with the
employees' bargaining representative shows that repre-
sentative to be ineffectual, a showing that can be a pre-
cursor to the employees' attempt to "get rid of the
Union." In the instant context when the Employer's uni-
lateral action is found to be an unfair labor practice and
precedes the employees' petition by 2 weeks, the proxim-
ity of the former to the latter causes me to infer that the
Employer's reliance on the employees' petition is tainted
by its unfair labor practice. Therefore, I conclude that
the Company's withdrawal of recognition of the Union is
a violation of Section 8(a)(1) and (5) of the Act
All production and maintenance employees and
crew leadermen in Respondents' plant, excluding
office and clerical employees, foremen and assistant
foremen, engineers and draftsmen, timekeepers,
guards and watchmen.
4. The Union has been and is the exclusive representa-
tive of all the employees in the unit for collective bar-
gaining the meaning of Section 9(a) and Section 8(a)(5)
of the Act.
5. On 22 August 1985 Respondents unilaterally imple-
mented new terms and conditions of employment with-
out agreement having been reached with the Union,
thereby violating Section 8(a)(1) and (5) of the Act
6. The strike that began on 22 August 1985 was con-
verted to an unfair labor practice strike by the unfair
labor practice strike described in paragraph 5, and was
prolonged by that and by the unfair labor practice de-
scribed in paragraph 7
7. On 4 September 1985 Respondents withdrew recog-
nition from the Union without a valid basis for doing so,
and thereafter refused to bargain with the Union, thereby
violating Section 8(a)(1) and (5) of the Act
8. Respondents have failed to reinstate as of 17 Octo-
ber 1985 the striking employees listed in Appendix A,
thereby violating Section 8(a)(1) and (3) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
III CONVERSION OF THE STRIKE
For similar reasons, the Company's unilateral imple-
mentation of its contract proposals converted the eco-
nomic strike to an unfair labor practice strike. That
action did more than "seriously imped[e] the success of
the negotiations," Walker Die Casting, 255 NLRB 212,
225 (1981), it cut them off. When they resumed at the
mediator's request, the Company quickly cut them off
again by withdrawing its recognition of the Union. The
employees had, therefore, ample reason on 23 August to
change the nature of their strike 8 Accordingly, Re-
spondent had a duty to reinstate immediately all the
unfair labor practice strikers as of 17 October, the date
of the Union's unconditional offer to return to work
CONCLUSIONS OF LAW
1 Respondents are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.7
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3. The appropriate unit for collective bargaining
within the meaning of Section 9(b) of the Act is:
6 In any event, the Company's unlawful withdrawal of recognition of
the Union on 4 September is the type of conduct that the Board "has
invariably concluded prolongs a dispute and thus converts an eco-
nomic strike into an unfair labor practice strike " Brooks & Perkins, 282
NLRB 976, 981 (1987)
r During 1985 Respondents purchased and received at their Houston,
Texas facility products, goods, and materials valued in excess of $500,000
directly from points and places located outside the State of Texas
ORDER
The Respondents , Powell Electrical Manufacturing
Company and Process Systems, Inc., Houston , Texas,
and its officers , agents, successors , and assigns, shall
1 Cease and desist from
(a) Withdrawing and withholding recognition from
and refusing to bargain with International Brotherhood
of Electrical Workers, Local Union No. 716, AFL-CIO,
as the exclusive bargaining representative of employees
in the following bargaining unit:
All production and maintenance employees and
crew leadermen in Respondent's plant , excluding
office and clerical employees , foremen and assistant
foremen, engineers and draftsmen , timekeepers,
guards and watchmen.
(b) Changing terms and conditions of employment of
employees in the bargaining unit without notifying or
bargaining with the Union.
(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.
8 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
POWELL ELECTRICAL MFG CO.
(a) On request, bargain with the Union as exclusive
representative of the employees in the unit described
above concerning terms and conditions of employment
and, if an understanding is reached, embody ,the under-
standing in a signed agreement.
(b) On request by the Union, reinstate any term and
condition of employment of employees in the bargaining
unit that it unilaterally changed after unlawfully declar-
ing an impasse in negotiations on 22 August 1985.
(c) Make employees in the bargaining unit whole for
any loss of benefits resulting from the unilateral changes
in their terms and conditions of employment.
(d) Reinstate the employees listed in Appendix A to
their former jobs or, if such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, discharging if necessary any replacements hired
after 21 August 1985; and make such employees whole
for any loss of earnings resulting from the failure to rein-
state them on 17 October 1985 with interest thereon to
be computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977), see generally Isis Plumbing Co., 138
NLRB 716 (1962). Employees for whom no employment
is immediately available shall be placed on a preferential
hiring list for employment as positions become available
and before other persons are hired for such work. Priori-
ty for placement on such list is to be determined by se-
niority or some other nondiscriminatory test.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its place in Houston, Texas, copies of the
attached notice marked "Appendix A "9 Copies of the
notice, on forms provided by the Regional Director for
Region 23, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
977
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) 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 A
Knotts, Johnny P.
Gonzales, Joe P
Limon, Dario L.
Grizzoffi, Alfred L
Rincon, Ramon
Lira, Francisco
Solis, Tony
Chessher, Lester D.
Camarillo, Ramon G
Stovall, Mary B.
Turbeville, Danny P.
DePrima , Jr., Ellis C.
Nguyen, Louis N.
Salazar , Antonio
Garmany, George P.
Faltesek, Micahael L.
Dean , M. Diane
Randle, lownie
Faltesek, Leon F.
Mumphord, Jr.,
Clarence A.
Vance, Stephen A.
Dixon, Jo Ann K.
Moore, Fern M
Harger , Donald E.
Lira, Frank J.
Barron , Robert 0
Trinh, Phuong V.
Arredondo, Jose G.
Venturi, Juan E.
Rion , Mary B.
Huynh, Quang C.
Jones, Cleo C
Nguyen, Tho M.
Tran, Thuyet V.
So, Kim
Holt, Kenneth A.
Ly, Luong
Quach, Peter
Ortiz, Pedro A.
Ho, Can Vinh
Shane, David W.
Ho, Ky V.
Nguyen, Ut. T.
Nguyen, Bang N.
Nguyen, Cuong Q.
Nguyen, Hue
Tran, Xuong P.
Lang, Xuong S.
Diep, Phat V.
Tran, Trong
Phan, Lieu D.
Ly, Luong P
Ly, Hieu V.
Nguyen, Chau T.
Chang, Frank
Do, John T.
Mosby, John A.
Harris, James L.
Herrin, Scott L.
Kysar, Betsy
Cu, Len V.
Tran, Kien T.