Gentzler Tool & Die Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 881 (N.L.R.B. 1985)

GENTZLER TOOL & DIE CORP.
Gentzler Tool & Die Corp . and Freight Drivers,
Dock Workers and Helpers, Local Union No.
24, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America. Case 8-CA-17532
28 June 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 December 1984 Administrative Law
Judge Thomas A. Ricci issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed an an-
swering brief.
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 only to' the extent, consistent with this
Decision and'Order.
At issue here is whether the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing
recognition and refusing to bargain with the Union
in January 1984. The judge dismissed the complaint
on the ground that any remedy he would order for
such a violation would be duplicative of the
remedy ordered in a 1983 Board decision which
found 8(a)(5) violations by the Respondent.I We
reverse the judge and shall order the Respondent
to recognize and bargain with the Union. -
The relevant facts are undisputed. The Union
was certified by the Board 'in August 1981 as the
exclusive bargaining representative of the Respond-
ent's employees. The parties bargained for an initial
contract between September 1981 and May 1982.
On 25 November 1983 the Board affirmed the ad-
ministrative law judge's findings that during the
time the parties were engaged in negotiations the
Respondent violated Section 8(a)(5) by bypassing
the Union and dealing directly with employees and
by making unilateral changes in terms and condi-
tions of employment. It also violated Section
8(a)(5) by refusing to sign an agreed-upon contract
in June 1982.2 The Respondent did not comply
with the - Board's Order, and the Board's petition
for enforcement of its Order is pending before the
U.S. Court of Appeals for the Sixth Circuit.
In March, April, and May 1983, the Union sent
letters to the Respondent requesting that it sign the
June 1982 contract-which had a 31 May 1983 -ex-
In dismissing this complaint the judge stated , sec 111 ,3, par 10
This decision is not to be taken as a finding that the Respondent
did not violate Section 8(a)(5) of the Act in January of 1984 It holds
only that procedurally it was an error to have issued the complaint
2 268 NLRB 330 (1983)
881
piration date-and begin negotiations on a new
contract. The Respondent did not respond to these
requests. Neither did it answer the Union's 29 No-
vember 1983 letter asking that it sign the contract.
On 17 and 20 January 19843 the Union requested
that the Respondent bargain with it on a new con-
tract. At a 24 January meeting with the -Union, the
Respondent again refused to sign the contract and
stated that it was refusing to bargain because the
Union had lost its certification by failing to contact
the Respondent since May or June 1983. The Re-
spondent also asserted that the Union had lost the
majority support of unit employees, and announced
that it would bargain only if the -Union petitioned
for and won a new Board election. .
The Union held a meeting for unit employees on
27 January. Of the approximately 20 employees in
the unit, 15 attended and 14 of those signed new
authorization cards. Four of the remaining five em-
ployees signed cards within the next few days. The
Union subsequently filed a petition for. a represen-
tation election with the Board's - Regional Office.
On 2 March the Union learned that the Region in-
tended to dismiss the petition. Several days later
the Regional Director approved the Union's re-
quest that the , petition be withdrawn. The Re-
spondent failed to reply to the Union's 2 and 26
March letters seeking bargaining, and during two
'subsequent telephone conversations with the
Union's president, the Respondent adhered to its
position that it would not negotiate because the
Union had "lost" its certification.
We find that the Respondent violated Section
8(a)(5) by its January withdrawal of recognition
from the Union. At the time of the withdrawal the
Union was the certified incumbent representative
of the unit employees. Even after expiration of the
certification year, it enjoyed at least a rebuttable
presumption of continued majority status.4 Assum-
ing rebuttability of the presumption, the Respond-
ent must still affirmatively establish either that the
Union in fact no longer enjoyed majority status at
the time of the refusal to bargain or that the refusal
stemmed from a good-faith and reasonably ground-
ed doubt of the Union's continued majority status
based on objective considerations. Further, the as-
serted doubt must be advanced in a context free of
unfair labor practices.5
Here, -the Respondent has offered no evidence to
rebut the presumption of continued majority status.
Contrary to the Respondent's contention, the
Union has not been inactive with -respect to the
2 All subsequent dates are in 1984 , unless otherwise indicated
4 Terrell Machine Co., 173 NLRB 1480 (1969), enfd 427 F.2d 1088 (4th
Cir 1970), cert denied 398 U S 929
5 Terrell, supra.
275 NLRB No. 124
882 DECISIONS OF NATIONAL.LABOR RELATIONS BOARD
unit employees. The Union reasserted its represent-
ative status in March, April, May, and November
1983, as well as several times in January-1984 prior
to the Respondent's withdrawal of recognition.
Any hiatus in bargaining was the result of the Re-
spondent's repeated refusals to bargain, its past un-
remedied unfair labor practices, and its challenge
to the decisions of the judge and the Board in 1983.
In addition, the Respondent's unsupported assertion
of a loss of majority support occurred in the con-
text of the unremedied 8(a)(5) violations, found in
the earlier case. •, -
The judge -erred in finding that enforcement of
the Board's 25 November 1983 Order in the prior
case would remedy the complaint allegations in
this cases The Board's Order in that case does not
expressly require recognition and bargaining, but
rather requires execution of the June 1982 contract,
retroactive application of that contract, and that
the' Respondent cease and desist from dealing di-
rectly - with - employees - and making unilateral
changes in terms and conditions of employment.
The Respondent's January 1984 refusal to bargain
constituted a general challenge to the Union's ma-
jority status; this is a clearly different matter than
was involved in'the earlier case.7 Accordingly, we
find that the Respondent's withdrawal of recogni-
tion in January 1984- was a separate violation not
contingent on the holding or outcome of the prior
case.8
CONCLUSIONS,OF LAW,'
,By withdrawing recognition from- the Union on
24 January. .1984, -and, by refusing since that date to
bargain . with the Union as ,the exclusive collective-
bargaining representative of employees in' the. ap-
propriate ' unit, • the - Respondent- has `engaged -in
unfair- labor practices affecting' commerce ' within
e The judge stated , sec 111 , 1, par 1
Were I to find an unfair labor practice was committed in January
1984, as alleged in this complaint , and as' in fact it was committed,
the parties would be in no different position than they find them'
selves without , this proceeding ever) having, arisen " The remedy
would remain unchanged-to bargain with the Union
7 Even if the court' does not enforce the Board 's Order in the prior
case ,. the Respondent ', still would, be 'required , to, recognize and bargain
with the Union.
a We'find no 'ment 'to the judge's - assertion that the 'Regional Director
should have , held an electwii' on'the Union's -petition , and that the Re-
spondent was privileged . to.condition bargaining oa,the Union 's winning
.that election In! this case itns clear that the . Union would. not have filed
the petition 'but for the Re'spondent 's unlawful withdrawal of recogrirtwn
Member Hunter disavows ' any suggestion 'that'a' certified mdumbent
umon^caanot raise a'questioa coacernmg' representation ' by- filing a peti-
tion 'for;an election - In appropriate circumstances the Regional .Director
,should process such a - petition On the facts here, however, Member
Hunter finds that even if the Union's petition raised a question concern-
ing representation and, should have been processed , the Respondent still
would have been obligated - to recognize the Union See RCA Del Canbe,
;Inc; 262 NLRB-963 (1982). ;,, a -' ., - . , , • _ .
the meaning of Section 8(a)(5) and ( 1), and Section
2(6) and (7) of the Act. -
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union and, if- an understanding is reached, to
embody the understanding in a signed agreement.
ORDER
The National Labor Relations Board, orders that
the Respondent, Gentzler' -Tool & Die Corp:,
Greensburg, Ohio, its officers, agents, successors,
and assigns, shall _ ` , , '
1. Cease and desist from
(a) Refusing to recognize and bargain with
Freight, Drivers, Dock Workers and Helpers, Local
Union No. 24, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive, bargaining
representative of the employees in the bargaining
unit. - ' -
(b) • In any like - or= related manner interfering
with,, restrainiiig, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act. '
'2. Take the following 'affirmative action neces-
sary to effectuate the'policies of the Act..
'(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on` terms and conditions of
employment'--and, if an understanding is reached,
embody-the understanding in a signed agreement: -
All full-time and regular part-time production
and maintenance employees excluding office
clerical employees and professional employees,
guards' and supervisors as defined in the Act,
and all other employees.
(b) Post at,, its facility in Greensburg, Ohio,
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the'•Re-
gional' Director for Region 8, after being signed by
-the Respondent's authorized representative, shall be
posted by ' the'-Respondent. immediately upon re-
ceipt.and maintained for 60 'consecutive days in
conspicuous places including-'all places where no-
tices to employees are customarily posted. Reason=
ab'le' steps' shall, be' taken'' by the Respondent to
9 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 "
GENTZLER TOOL & DIE CORP.
ensure that the notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us,to post and abide by this notice.
WE WILL- NOT refuse to recognize and bargain
with Freight Drivers, Dock Workers and Helpers,
Local Union No. 24, affiliated with International
Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and ' Helpers of America, as the exclusive rep-
resentative of the employees in the bargaining unit.
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 with the Union as
the exclusive representative of the employees in the
following appropriate unit concerning terms and
conditions of employment and, if an understanding
is reached , embody the understanding in a signed
agreement:
All full-time and regular part -time, production
and, maintenance employees excluding office
clerical employees and professional employees,
guards and supervisors ' as defined in the Act,
and all other employees.
GENTZLER TOOL & DIE CORP.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci , Administrative Law Judge. A hear-
ing in this proceeding was held at Akron, Ohio, on Octo-
ber 17, 1984, on complaint of the General Counsel
against Gentzler Tool & Die Corp . (the Respondent - or
the Company). The complaint issued on July, 10, 1984,
on a charge filed on May 2 , 1984, by Freight Drivers,
Dock Workers and Helpers , Local Union No. 24, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union or the Charging Party). The sole question present-
ed is whether the Respondent , in January 1984, -refused
to bargain with the Union in violation of Section 8(a)(5)
of the Act. Beefs were filed by all parties.
On the entire record and from my observation of the
witnesses , I make the following
FINDINGS OF FACT
883
1. THE BUSINESS OF THE RESPONDENT
This Company, an Ohio corporation, is engaged in the
stamping of metal parts at its sole facility in Greensburg,
Ohio. Annually, in the course of its business , it ships
goods valued in excess of $50,000 directly to out-of-state
locations . I find that the. Respondent is engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint in this case should not have been
issued , and I shall therefore recommend dismissal.
It is an undisputed fact that in January 1984 the Union
requested of the Respondent recognition and bargaining,
and that the Respondent refused to recognize its majori-
ty representation status . It demanded that the Union first
prove its majority status in a Board election. It is also a
fact-established by official Board records-that at that
time the Respondent was under Board order to recog-
nize the Union's majority status and to bargain with it in
good faith.
In August 1981 the Union was certified' by the Board
as exclusive representative of the Company's employees.
Between that date and June 1982 the Respondent com-
mitted a number of violations of Section 8(a)(5) of the
Act-bypassing the Union by dealing unilaterally with
its employees, 'changing conditions of employment with-
out discussing the changes with the Union, and refusing
to sign a contract after agreement had been reached with
the -Union. Those findings were made by the administra-
tive law judge ' in his decision issued on March' 21, 1983.
On November 25, 1983, the Board - adopted those find-
ings . 268 NLRB 330 (1983); In addition to its regular
cease-and-desist order , the Board ordered the Respond-
ent to execute the collective-bargaining contract agreed
to between the parties in June 1982 . With the Respond-
ent failing to comply with the Board 's Order, that case
was taken to the United States Circuit Court for enforce-
ment . At the time of the hearing herein , the earlier case
was awaiting decision by the circuit court.
A. The Case-at-Bar in the Light of the Pending
Enforcement Proceeding - '
An employer who is_ subject to an affirmative Board
bargaining order commits. an ,unfair labor practice every
single time it refuses to bargain with the union . until the
day it has completely fulfilled its duty to bargain in -good
faith as ' the statute commands . Had this 'Union, every
Monday nioming ;from :June , 1982. to today; called upon
the Respondent and requested bargaining , and been re-
fused each time , it would have been a violation of Sec-
tion 8(a)(5) of the statute by the Respondent on each and
every occasion . Had this Union , or any union awaiting
,circuit court enforcement of- a, Board. order of this kind,
filed separate, multiple charges of continuing refusals to
884 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
bargain with it, what purpose would have been served
by processing such charges, and issuing repetitive com-
plaints based upon such charges? None. Were I to find
an unfair labor practice was committed in January 1984,
as alleged in this complaint, and as in fact it was commit-
ted, the parties would be in no different position than
they find themselves without this proceeding ever, having
arisen. The remedy would remain unchanged-to' bar-
gain with the Union. How often has the Board, in the in-
terest of administrative expedience and economy, ig-
nored an additional unfair labor practice allegation be-
cause the eventual remedial order to be issued would not
change one wit?
At-this hearing the Respondent's representatives made
the implicit argument that because the' earlier ' Board
order required it to sign an agreed upon contract which
by its terms was to expire in May 1983, it, the Company,
was free to ignore the. Union after that date, and never
mind the reality of the bargaining order. The position is
without merit. An order of the Board directing an em-
ployer to sign a contract with a union-regardless of
what kind of contract or for.whatever period of time-is
by its very nature an order to recognize the union as' ex-
clusive bargaining, agent. The very act of signing" any
collective-bargaining agreement ' is literal acknowledg-
ment that the union is-not was-the .statutory bargain-
ing agent. This is, exactly what the. Respondent refused
to do in January 1984, while the order` was still in effect
and binding upon it.
Of course, if the case be viewed in' this light, i.e.,inex-
tricably joined with the earlier unfair labor practice case,
one must consider the possibility that the circuit court
might - deny enforcement' of the Boaid's earlier Order,
and conclude- that the Respondent did not commit; any
unfair labor practices during 1981 and` 1982..'In' 'that
event, it could not be said that every unilateral action
taken .4y the Respondent 'in the interval, any refusal 'to
bargain that may have occurred on successive Mondays,
was illegal . But again, if the duty to recognize: the Union
in :January 1984' as _ based, on the earlier- Board finding,
this entire proceeding appears pointless-and- `cau'se for
dismissal -of the complaint.
B' Tile Case-at-Bar in Isolation"
The General Counsel started his case-in-chief by; offer-
ing evidence about the contract having ,been agreed.upon
by the Union and the. Company in-, 1982, {what -he- then
called background. But, apparently , aware of ,the, weak-
ness of; his position; when the two -cases are. viewed. to-
gether, as he, went along: he argued,that•the first, case has
nothing toy do with ,this one. Repeatedly he objected to
the Respondent's attempts -to show what happened be-
tween the parties with respect to. the pending enforce-
ment proceeding. If we look at the' facts as though that
entire case had never come into being, as the General
Counsel suggests, the only relevant facts are as follows:
The Union was certified in August 1981. The parties
met and bargained until June 1982. No agreement was
reached.' Seventeen months later,_ in November 1983,
the Union again asked the Respondent to sign the con-
tract that had been negotiated in June 1982. The Re-
spondent ignored that request. But, whether or not the
Respondent was required to execute that particular con-
tract has nothing to do with this case, under the General
Counsel's theory that the two proceedings are not relat-
ed. The Union did not request bargaining in its letter of
November 1983.
In January 1984, the Union approached the Company
and requested recognition and collective bargaining. The
Respondent questioned its majority status and asked that
it go to a Board election. The Union agreed to do that,
and immediately .thereafter assembled 'the employees at
the union hall where 14 of the 15 present signed-authori-
zation cards.
The foregoing are the-only facts put into the evidence
by the General Counsel in support of this complaint. The
question therefore becomes. Has the -General Counsel
proved, affirmatively,-'by a preponderance of the evi-
dence, that the Respondent committed an unfair labor
practice when, not having heard from the Union for 19
months it asked for a Board .election? I think not. The
presumption- of continued majority following a Board
certification does not continue after 10 months of fruit-
less- bargaining, throughout 19 months of silence by the
Union.
C. The Union's Request for a Board-Conducted
Election
As stated-above, the Union's immediate reaction to the
Company's,demand that it prove its majority status in a
Board election was to file a regular petition with the
Board'ss Regional Office requesting such an election.
When Rector,- for the Company, on January 24 told the
Union it had to. go to an election, John Mozena, the
Union's ,president, "immediately", called his lawyer,
Vasko, who advised him to file an,RC petition. Three
days., later the ;Union called an employee meeting where
practically all of the employees signed union cards. I do
not , know on what - day the petition was filed, . but
Mozena said_it was filed "quickly." The Regional Office
held-the petition for a month, and on March 2 advised
the Union's lawyer it would not hold the election be-
cause there-was no question concerning representation.
This was another way of saying the Union had to file an
unfair' labor practice charge instead. The result was con- .
tinued litigation, this -very proceeding.
In. my considered judgment, based upon 40 years of
experience' drafting decisions and orders for successive
Board Members and writing hearing examiners' interme-
diate reports, I think it was error to have refused to hold
the election which the Union desired. The pertinent
statement of congressional policy, unchanged in the stat-
ute since its inception in 1935, reads as follows:
to at that time But, sticking to the General Counsel's theory of this case,
that question is irrelevant. Surely there is no testimony here on that
entire subject of whether or not a contract was really made That the
' At this hearing the company negotiators said no agreement was Board found, in 1983, that there was a final contract is one of the facts
reached in 1982, while the union officers said a final contract was agreed that the General Counsel says must not be ignored
GENTZLER TOOL & DIE CORP.
It is hereby declared to be the policy of the United
States to eliminate the causes of certain substantial
obstruction to the free flow of commerce and to
mitigate and eliminate these obstructions when they
have occurred by encouraging the practice and pro-
cedure of collective bargaining and by protecting
the exercise by workers of full freedom of associa-
tion, self-organization, and designation of represent-
atives of their own choosing, for the purpose of ne-
gotiaiing the terms and conditions of their employ-
ment or other mutual aid or protection.
The critical phrase here is "encouraging the practice
and procedure of collective bargaining." It is one thing-
when an employer, having violated the statute by refus-
ing to bargain with a certified majority representative,
and already subject to an affirmative Board bargaining
order, requests a second election. He may not do that,
for it would make a mockery of the entire statute. By an
employer such a request to the Board is no more than a
stalling tactic, aimed at further delaying the collective-
bargaining process. But it is entirely a different story
when the union itself is willing, and itself requests a new
election. Its purpose is to accelerate the day when it can
sit down and talk directly with the employer in a
common effort to resolve whatever disagreement there
may be between, the two. This is the fundamental objec-
tive of the statute, plainly shown above. There can be no
doubt as to the Union's purpose-when it files its petition.
Not to- assist it in that objective is to discourage, rather
than to encourage, the collective-bargaining process. To
deny the Union that right is to deny it the right to seek
to achieve the ultimate purpose of the Act itself. There is
no question but had the election been held, as it could
have been very quickly, the Union would have won, for
virtually every .employee who attended the union meet-
ing on January 27 signed. cards. Indeed, four others of
the remaining five also signed cards just a few days later.
The man who really understood the Union's desire,
and problem, in January 1984, was Vasko, -its lawyer,
who was also present at this hearing. Had the Union
simply waited 'until the earlier litigation was completed,
i.e., until the circuit court has made up its mind, in addi-
tion to the privilege of bargaining it would have had the
right to the benefits of the contract which by its terms
was to, expire in May 1983. But it no longer cared .for
that part of the remedy, the old contract, if only because
the passage of time, and continuing inflation, made the
economic - terms of that agreement worthless. Yes, it
would have had the right to bargain, but, as' we all
know, the longer the time a union must wait for. that
privilege, the less it is worth. The Union wanted to;ne-
885
gotiate the appropriate ,conditions of employment now,
not later. With the Respondent's representative saying
they would bargain as soon as the Union won an elec-
tion, without waiting until the first case, was resolved,
and with the Union having all those signed authorization
cards in his hands, all that stood as an obstacle was the
Regional Office.
And that the Union's desire was to start new negotia-
tions could not be clearer. As early as March 1983 it
wrote to the Company of its intent "to reopen" the old
contract, "so that arrangements can be made for negotia-
tions ." Again in April 1983 it wrote of its desire to "set
up negotiations as soon as possible." And even in May
1984, after the charge in the case-at-bar.,was filed, the
Union wrote to the Company that it was "willing- to
meet with you or your representatives . . . for the pur-
pose of reopening negotiations."
The Union 's counsel also knew in January 1984, as we
all know, that this Company may have been asking for
an election as a ploy to continue to avoid bargaining at
all. After all, it had flagrantly flouted the'statute before;
certainly it might well do it again. But what the lawyer
really appreciated is that all laws-like the morality prin-
ciples set out in the Bible-are but dreams of men for a
better world, statements of hope that the governed will
abide by the rules established by the majority. The Re-
spondent's representatives said they would bargain if the
Union won in a Board election. The chances that this
Company would tomorrow comply with the law should
not be arbitrarily discarded.
And finally, most important of all, what Vasko also
knew is that even in the very unlikely event that the
Union lost in a Board election that day, this Company
would still be bound to recognize the Union as majority
representative and bargain with it the day the circuit
court enforces the order in the earlier proceeding. In
Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944), the court
considered a Board holding that a union's "lack of ma-
jority" after the unfair labor practices had been commit-
ted "was not the determinative of the remedy to be or-
dered," and agreed with its decision that "a requirement
that union membership be kept intact during delays inci-
dent to hearings would result in permitting employers to
profit from their own unlawful refusal to bargain." This
means that , no matter what happens, or might have hap-
pened in a Board election in the spring of 1984, this
Company must still bargain in good faith with this Union
when the earlier proceeding prevails in the circuit court.
This decision is not to be taken as a finding that the
Respondent did not, violate Section 8(a)(5) of the Act in
January 1984. It holds only that- procedurally it was an
error to have issued the complaint.