Dy-Dee Wash, Inc.

National Labor Relations Board - Board Decisions

Feb 22, 1977

228 N.L.R.B. 389 (N.L.R.B. 1977)

DY-DEE WASH, INC. 389
Dy-Dee Wash, Inc. and Teamsters Local 344, Sales
and Service Industry, affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case 30-
CA-3623
February 22, 1977
DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO, AND
WALTHER t
On November 26, 1976, Administrative Law Judge
John P. von Rohr issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent both filed exceptions and a supporting
brief. The General Counsel also filed an answering
brief to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Dy-Dee Wash, Inc., Milwaukee, Wisconsin, its
officers, agents, successors , and assigns, shall take the
action set forth in the said recommended Order as so
modified:
Add the following as paragraph 1(b):
"(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act "
I
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
The Administrative Law Judge found it to be undisputed that Respondent
refused to recognize and bargain with the Union on or after April 1, 1976.
Respondent, however, in its brief to the Board, argues for the first time in
these proceedings that the critical date was not April 1, but April 14, the day
a union representative called Respondent's president and was informed that
there was no further need to negotiate as the contract had expired on March
31. The extension of the date of withdrawal of recognition by 2 weeks would
enable Respondent to rely on additional conversations with its employees
about their antiunion feelings so that arguably there would have been
sufficient objective considerations for a reasonably based doubt as to the
228 NLRB No. 46
Union's majority status and therefore justification for Respondent's with-
drawal of recognition.
However, we find no merit in Respondent 's argument that such an
extension of the critical date is warranted . Respondent president 's testimony
at the hearing clearly shows that the withdrawal of recognition occurred
upon the expiration of the contract on March 31 . Further, Respondent
argued in its brief to the Administrative Law Judge that April 1 was the date
that recognition was withdrawn and it would stretch the imagination too far
to accept Respondent's explanation that its position before the Administra-
tive Law Judge was the result of typographical errors in setting down the
proper date in its brief. Finally, Respondent in its answer denied that
paragraph of the complaint which alleged that recognition was withdrawn on
or about April 14.
We also find it necessary to clarify the Administrative Law Judge's
holding regarding Charles Wildrick who, at the time he started working on
March 24, 1976, or shortly thereafter , had a conversation with his supervisor,
Todd Mainville, indicating his desire not to be affiliated with the Union. The
Administrative Law Judge did not resolve the question of whether Wildrick's
views came to Respondent's attention prior to the critical date. We note,
however, that it is unlikely that they did considering that the record reveals
that Mainville did not become a supervisor until April 1, 1976, which would
place the conversation sometime after Respondent withdrew recognition
from the Union.
2 The Administrative Law Judge inadvertently omitted from his recom-
mended Order the language used in 8 (axl) and (5) unfair labor practice
cases
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on May 4, 1976, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 30 (Milwaukee, Wisconsin), issued a complaint
on July 13, 1976, against Dy-Dee Wash, Inc., herein called
Respondent or the Company, alleging that it had engaged
in certain unfair labor practices violative of Section 8(a)(1)
and (5) of the Act. Respondent filed an answer denying the
allegations of unlawful conduct alleged in the complaint.
Pursuant to notice , a hearing was held before me on
September 9, 1976, in Milwaukee, Wisconsin . Briefs were
received from the General Counsel and Respondent on
October 12, 1976, and they have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Wisconsin corporation with its principal
place of business and facilities in Milwaukee, Wisconsin,
where it is engaged in providing diaper service . Respondent
concedes, and I find, that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local 344, Sales and Service Industry, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The issue in this case is whether Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing recogni-
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the Union as the employees' bargaining agent and
by allegedly engaging in certain other unilateral action.
A. The Withdrawal of Recognition
For approximately 30 years Respondent has recognized
the Union as the collective-bargaining agent for its employ-
ees in a bargaining unit consisting of all route salesmen and
regular relief drivers, excluding sales supervisors and the
sales manager . Having also maintained a contractual
relationship throughout this period, the latest collective-
bargaining agreement was effective from April 1, 1973, to
March 31, 1976. Although two collective-bargaining meet-
ings were held prior to the expiration date , it is undisputed
that Respondent refused to recognize and bargain with the
Union on and after April 1, 1976.1
Respondent defends its refusal to recognize the Union on
the aforesaid date on the ground that it had a reasonable
basis for believing that the Union no longer represented a
majority of the employees . In support of this contention,
Respondent states in its brief that "Four employees, out of
seven in the bargaining unit , independently came to
management on or before March 31, 1976, and said they
didn't want to join the union or they were dissatisfied with
the union." (Emphasis supplied.) Unfortunately for Re-
spondent, the evidence does not sustain this allegation of
fact.
That there were a total of seven employees in the unit at
the times material hereto is not in dispute . It is also
undisputed that three of them; namely, employees Ken
Kosmatka, Bernie Rendfleisch and Robert Ellicson, were
members of the Union at all times material hereto.
Respondent deducted their dues until March 31, 1976, and
it is clear that none of these employees ever indicated to
Respondent any dissatisfaction with the Union. On the
other hand, it is clear that at least two of the remaining
employees were known by Respondent, prior to the critical
date, not to be in favor of the Union. Lawrence Keis was
hired as a route salesman in the latter part of February
1976. The record reflects that, shortly after being hired,
Keis informed Hellerman that he had been previously
affiliated with Local 344, the Charging Union , that he was
dissatisfied with it, and that he did not wish to become a
member. Notwithstanding that the then current collective-
bargaining agreement contained a valid union-security
clause, the fact is that Keis never became a member of the
Union and union dues were never deducted on his behalf.
The second employee , Lowell Peters, was employed by
Respondent for 5 years. He also never became a member of
the Union . Dues were never deducted on his behalf and he
never was covered by the Union's health and welfare plan.
On at least one occasion during this period, Peters let it be
known to Karl Hellerman , Respondent's president, that he
did not wish to join the Union.
' The complaint alleges , and the answer admits , that negotiations
between the parties were held on March I I and 26, 1976. However, no
evidence was adduced concerning the substance of these negotiations.
2 Although the record does not reflect whether the Union was initially
recognized by Respondent on the basis of a Board certification, it may be
presumed that it enjoyed a majority status at that time . Accordingly, the
same legal principles are applicable.
3 Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801 (1973); Ray
Charles Wildrick, the sixth unit employee under discus-
sion, was hired by Respondent on March 24, 1976.
Although the record reflects that Wildrick, during a
conversation with Hellerman at the end of the first week in
April 1967, told Hellerman that he was not for the Union,
there is a question as to whether Respondent was in fact
apprised of Wildrick's union views prior to the withdrawal
of recognition on May 1. Thus, Wildrick testified that "at
the time [he] started or shortly thereafter" he told Todd
Mainville, the route supervisor, that he had previously been
affiliated with Local 344 but that he would prefer to avoid
joining it. Hellerman testified that the foregoing was
conveyed to him by Mainville, but he did not relate just
when this occurred. Departing for the moment from
Wildrick, I turn now to the seventh employee, Arthur
Tracy . Tracy began his employment with Respondent on
March 25, 1976. Concerning this employee , although he
testified that he ultimately told Hellerman that he did not
want to join the Union , the fact of the matter is that by his
own testimony this did not occur until 2 or 3 weeks after he
was hired. Accordingly, this obviously occurred after
Respondent had declined recognition.
Turning to my conclusions , the legal principles relating to
withdrawal of recognition of a bargaining representative
are well settled . Absent special circumstances , a union
enjoys an irrebuttable presumption of majority status for 1
year after certification.2 Thereafter the presumption contin-
ues, but becomes rebuttable upon a sufficient showing to
cast serious doubt on the union 's continued majority status.
At that point, the burden shifts to the General Counsel to
prove that, on the critical date, the union in fact represented
a majority of the employees.3 To recapitulate, in the instant
case the evidence reflects that , of the seven employees in the
unit, only two (Keis and Peters) may be said to have
definitely apprised Respondent of their dissatisfaction with
the Union prior to the critical date . With respect to
Wildrick, in view of the uncertainty of his testimony as to
just when he advised his supervisor concerning his unwill-
ingness to join the Union, the fact of whether Respondent
was apprised of this expression prior to the critical date is at
least open to question . In any event, and assuming arguendo
that Wildrick's views did come to Respondent 's attention
prior to the critical date , this would still provide a showing
that only three of the seven employees expressed their
dissatisfaction of the Union prior to the critical date. This
expression of a minority group of Respondent's employees
does not, under established Board principles , constitute a
sufficient basis for supporting any alleged good -faith doubt
of the Union's majority status.4 Moreover, and although
there is absent the type of union animus usually found in
these cases, the unrefuted testimony of Robert Ellicson
establishes that in early March 1976 Respondent Vice
President Lorraine Hellerman told this employee that "she
would like to work a year without the Union, to see how it
Brooks v. N.LR.B., 348 U .S. 96 (1954); Celanese Corporation ofAmerua, 95
NLRB 664 (1951).
4 As I read the Board's decision in Automated Business Systems, a Division
of Litton Business Systems, Inc., 205 NLRB 532 (1973), the decisive test in
determining the issue in this case is whether Respondent in fact held a good-
faith doubt as to the Union 's majority status at the time it declined
recognition , not whether the Union in fact held a majority status at that time.
DY-DEE WASH, INC. 391
would work out." Clearly, an expression of this nature in
advance of Respondent' s subsequent action is further
reason to question the objectivity of Respondent's motiva-
tion in withdrawing recognition . Accordingly, and in view
of all the foregoing, I find that Respondent's withdrawal of
recognition from the Union on or about April 1, 1976,
violated Section 8 (a)(5) and (1) of the Act.
B. Alleged Unilateral Action
The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the Act by, on March 25, 1976, "starting
an employee at a wage rate contrary to the collective-
bargaining agreement, without first giving the Union notice
of an opportunity to bargain about the matter."
With reference to the starting rate, article XIV, section 4,
of the contract provides simply that "Inexperienced route
salesmen shall receive a salary of at least seventy-five
dollars ($75) per week during their probationary period of
employment ...." It is undisputed that on March 25,
1976, as well as on several preceding occasions, Respondent
hired employees at salaries in excess of $75 per week. In
disposing of this matter summarily, suffice it to note that
the proviso of "at least" $75 per week obviously does not
restrict the beginning salary to a minimum of $75. Beyond
the foregoing, the General Counsel's brief also alludes to
the fact that the beginning salary paid to one of the drivers
appears also to be above the basic weekly salary set forth in
section 1 of article XIV. This, however, is not the theory
alleged in the complaint. I might add, moreover, that it is
not a function of the Board to police every alleged violation
of a collective-bargaining agreement. In the instant case,
one of Respondent's employees served as a union steward
at the plant and undoubtedly a business agent also was
assigned to handle the affairs of the Local. In situations
such as this, it would appear that the purported violation in
question should have been discovered by the Union, at
which time appropriate action could have been initiated
under the grievance and arbitration procedures of the
contract. In any event, for the reason stated earlier, it is
recommended that this allegation be dismissed.
The complaint further alleges that about early April 1976
Respondent unilaterally offered employees Blue Cross-
Blue Shield insurance in order to influence them to reject
the Union as their bargaining representative in violation of
Section 8(a)(1) and (5) of the Act.
Preliminarily, it is noted that the collective-bargaining
agreement provides that unit employees are to be covered
by the Union's own health and welfare plan and that the
employer is obligated to contribute the employees' premi-
um therefor.5 As to the unrepresented employees, these are
covered by a Blue Cross plan which has been in effect at
Respondent's plant for many years prior to the collective-
bargaining agreement.
One witness , Arthur Tracy, was called by the General
Counsel in support of the allegation in question. Tracy, who
was hired in latter March or early April 1976, testified that
2 or 3 weeks later he broached Hellerman to see about
insurance . According to Tracy, Hellerman replied that he
[Tracy ] had the option of either taking the Union plan if he
joined the Union, or Blue Cross if he did not. In a context
that is not entirely clear from Tracy's brief testimony, Tracy
testified that he advised Hellerman that he did not want to
join the Union, that he preferred the Blue Cross plan.
Further, according to Tracy, Hellerman thereupon stated
that he would send for some brochures.6 In view of the fact
that it was Tracy who initiated this conversation, and
further in view of the vagueness and what I regard as the
unreliability of Tracy's entire testimony on the subject,? I
find that Tracy's testimony does not prove the allegation set
forth above.8 Accordingly, it is recommended that this
allegation be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices violative of Section 8(a)(5) and (1) of
the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby make the
following recommended:
5 The plan is tied in with the union-security clause , i.e., that premium
contributions be made for employees who have been employed for 30 days.
6 Tracy testified that he received the brochures 2 or 3 weeks later.
7 Not satisfied with Tracy 's testimony, the General Counsel produced
Tracy's prehearing statement and submitted it to him for the stated purpose
of impeaching Tracy, his own witness.
8 Charles Wildnck, called as Respondent's witness, also testified that he
spoke to Hellerman about insurance . However, Wildnck's testimony
concerning this subject is also too confusing and unreliable to support a
finding of the violation alleged.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDERS
Dy-Dee Wash , Inc., Milwaukee , Wisconsin, its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain , upon request , with the Union as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All route salesmen, regular relief drivers, excluding all
route foremen, sales supervisors , and the sales manager.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of the employees in the
appropriate unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment.
(b) Post at its facility in Milwaukee, Wisconsin, copies of
the attached notice marked "Appendix." 10 Copies of said
notice on forms provided by the Regional Director for
Region 30, after being duly signed by Respondent's
authorized representative, shall be posted by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations not specifically
found herein.
B In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively with
Teamsters Local 344, Sales and Service Industry,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive representative of all employees in
the appropriate bargaining unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement. The appropriate bargaining unit is:
All of our route salesmen, regular relief drivers,
excluding our route foremen, sales supervisors,
and the sales manager.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their organizational rights guaranteed under the Na-
tional Labor Relations Act, as amended.
DY-DEE WASH, INC.