Pennco, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 716 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pennco, Inc. and Communications Workers of Amer-
ica, AFI,-CIO. Case 9-CA-12040
July 18, 1980
SUPPLEMENTAL DECISION AND
ORDER
On May 23, 1979, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding wherein it found that Respond-
ent Pennco, Inc., had violated Section 8(a)(5) and
(1) of the National Labor Relations Act, as amend-
ed, by refusing to recognize or meet and bargain
with the Union and by refusing to supply the
Union with a copy of one of its two health insur-
ance plans. The Board ordered that Respondent
cease and desist therefrom and take certain affirma-
tive action to remedy the unfair labor practices.
The Board, sua sponte, has decided to reconsider
its original Decision and Order to the extent set
forth below. By letter dated August 15, 1979, all
parties were informed of this decision to reconsider
the original Decision and Order, and were request-
ed to execute a supplemental stipulation. The sup-
plemental stipulation was received by the Board on
October 26, 1979.
In our original Decision, we rejected Respond-
ent's defense that its asserted good-faith doubt of
the Union's majority status rendered its refusal to
bargain lawful. In this regard, Respondent contend-
ed that it had presented evidence of objective con-
siderations sufficient to support its asserted good-
faith doubt including, inter alia, evidence of em-
ployee turnover and evidence that during the eco-
nomic strike some employees, including strike re-
placements and new employees, crossed the union
picket line.
As set forth more fully in our earlier Decision,
the Union began an economic strike on May 18,
1977, at Respondent's Ashland, Kentucky, plant
and established a picket line. As a result of inci-
dents on the picket line the Boyd Circuit Court of
Boyd County, Kentucky, issued a restraining order
in July 1977.
During the last pay period prior to the strike,
Respondent employed 173 bargaining unit mem-
bers. By November 3, 1977, the pay period after
the expiration of the I-year certification period,
there were 257 employees in the bargaining unit on
the payroll, of who 47 had been on the payroll
prior to the strike. All the employees working in
Respondent's plant during the strike had to cross
the union picket line.
Respondent withdrew recognition from the
Union in November 1977. The strike continued
i 242 NLRB No. 73.1
until September 15, 1978, when the Union removed
its pickets and 42 employees unconditionally of-
fered to return to work. At no time between No-
vember 1, 1976, and the time of the hearing in this
case did the Union abandon the bargaining unit or
relinquish its interest in negotiating a collective-
bargaining agreement on behalf of unit employees.
In addition to the facts set forth in our earlier
Decision, the parties have stipulated that 109 em-
ployees failed to report to work upon commence-
ment of the strike and 109 employees remained on
strike when Respondent withdrew recognition.
Further, all of the striking employees-and 25 em-
ployees who left their employment with Respond-
ent between May 18 and November 5, 1977, for
reasons other than the strike-were replaced by
Respondent prior to the withdrawal of recognition.
The parties state that they have no affirmative evi-
dence that any strikers abandoned their status as
strikers as of the time recognition was withdrawn.
In our original Decision, we found that since the
evidence presented by Respondent was insufficient
to support its asserted good-faith doubt of the
Union's majority status, Respondent had not rebut-
ted the Union's continuing presumption of majority
status. Upon reconsideration of our original Deci-
sion and consideration of the further stipulation of
the parties, we reaffirm our previous Decision for
the reasons set forth below.
As stated in our earlier Decision, absent unusual
circumstances, a union is irrebuttably presumed to
enjoy majority status during the first year follow-
ing its certification. 2 Upon expiration of the certifi-
cation year, the presumption of majority status
continues but becomes rebuttable. 3 An employer
who wishes to withdraw recognition from a certi-
fied union after a year may rebut the presumption
in one of two ways: (1) by showing that on the
date recognition was withdrawn the union did not
in fact enjoy majority support, or (2) by presenting
evidence of a sufficient objective basis for a reason-
able doubt of the union's majority status at the time
the employer refused to bargain. 4
The presumption of continuing majority status
essentially serves two important functions of Fed-
Ray Brooks v. N L R. B. 348 US 96, 98-104 (1954)
:1 J Ray McDermott & Cao. Inc v. :L.R.B., 571 F.2d 850 (5th Cir.
1978), enfg 233 NLRB 1087 (1978),; :L.R.B B Windham Community
Memorial Hospital and Hotel Hospital Corporation, 577 F 2d 805 (2d Cir.
1978), enfg 230 NLRB 1070 (1977): NL.R.B. v Frick Company, 423
F.2d 1327 (3d Cir 1970). enfg 175 NLRB 233 (1969); and Celanese Cor-
porarion of America. 95 NLRB 664 (1951). cited with approval in Ray
BrooAks . N.L. R. B. upra.
4 Retired Persons Pharmau, v N L RB.. 519 F 2d 486 (2d Cir 1975),
enfg 210 NLRB 443 (1974); Allied Industrial Workers, AFL-CIO. Local
Union No. 289 [(Cavalir Divion of Seeburg Corporationt v. N L. R B. 476
F.2d 868 (I).C. Cir 197)., enifg 192 NLRB 290 (1971): leirrell Machine
Company v. ,NL.R.B.., 427 F2d I088 (4th Cir 1970), enfg 173 NLRB
1480 (1969).
250 NLRB No. 93
716
I'ENNCO. INC
eral labor policy. First, it promotes continuity in
bargaining relationships. Thus, Section 9 of the Act
gives the Board authority to supervise elections
and to certify as the exclusive collective-bargaining
representative a labor organization which wins an
election and "inherent in any successful administra-
tion of such a system is some measure of perma-
nence in the results. .. ."5 The resulting industrial
stability remains a primary objective of the Wagner
Act, and to an even greater extent, the Taft-Hart-
ley Act.6 Second, the presumption of continuing
majority status protects the express statutory right
of employees to designate a collective-bargaining
representative of their own choosing, and to pre-
vent an employer from impairing that right without
some objective evidence that the representative the
employees have designated no longer enjoys major-
ity support.
As set forth above, the employer after the certifi-
cation year may rebut the presumption of majority
status with less than actual proof that a union lacks
majority support by establishing objective evidence
forming a reasonable basis for a good-faith doubt of
that status. However, in light of the dual policies
underlying the presumption, the employer's burden
is a heavy one. Thus, "it is insufficient ... that the
employer merely intuits nonsupport," 7 and good-
faith doubt "may not depend solely on unfounded
speculation or a subjective state of mind." 8
A corollary of the overall presumption of con-
tinuing majority status is that, again absent evi-
dence to the contrary, new employees are pre-
sumed to support the incumbent union in the same
ratio as those they replace. 9 Respondent contends,
however, that it had sufficient objective evidence
to establish its good-faith doubt of majority status
since its new employees should be presumed not to
support the Union because they crossed the union
picket line. The thrust of this argument is either
that the presumption of majority status does not
extend to employees in the event of a strike, or that
that presumption may be rebutted by the counter-
vailing presumption that Respondent would have
us adopt.
We reject Respondent's contentions. Clearly, Re-
spondent is in error if it is contending that the pre-
sumption of majority status does not apply in the
I N'.L R B x (,Citurv O.Jord M./g, C'orporatlotr , 140) i 2d 541. 542 (2d
Cir 1944), eilfg 47 Nl.RB 83.5 (143).
NV.L R B BroA)k. 20(4 F 2d 899 (9t1h Cir 1953)., enfg 9) NI.Rti )7h
(1952). affd Ruy BroAls .Â¥.L RB ., 148 U.5 96 (1954)
J Ray McD)rmott and Co. Im v .'.I. R B. pra al 8019
N LV R B v! (;ul]i loGnt v lo ,t C(irtlpuan. 162 F 2d 58 (SOtl C ir 19)hh).
cnfg 147 Nl RB 997 (19h4)
' King Radi, Corporantion. 208 Nt R1 578 (1974): /.a tr o.. Piu ll/a tur-
trig Co. 151 Nl R 1482 (1951 See al,,o ., -R H B . 14ahinygtoi, SIlarr
d/h/la Wilahngoni , fut wr .N1r- S ig (C (lcr (,orthi. 51) i: 2d 750) (6th C
19751. cnfg 211 NlIRB 324 (1974)
event of a strike where strike replacements and
other new employees cross a picket line. The
Board has long held that this presumption applies
as a matter of law, and it is incumbent upon Re-
spondent to rebut it even, and perhaps especially,
in the event of a strike. Similarly, Respondent is in
error if it is urging the Board to permit it to rebut
the presumption of majority status with its own
presumption for it "misconceives the nature of the
employer's burden of proof . .. this burden can be
sustained only by objective evidence and presump-
tions do not provide such evidence."' 0 Certainly in
nonstrike circumstances Respondent would be re-
quired to rebut the presumption of majority status
based on objective evidence, and we see no persua-
sive reason to make an exception here.
Indeed, the policies which underline the heavy
burden of proof imposed on an employer in order
to rebut the presumption of continuing majority
status are particularly compelling when a strike is
involved. In this regard, the right of employees to
engage in concerted activities such as economic
strikes is protected, inter alia, by Sections 7 and 13
of the Act, and thus is deeply embedded in the law
we are charged with administering. As the Su-
preme Court has stated, the "presence of economic
weapons in reserve, and their actual exercise on oc-
casion by the parties, is part and parcel of the
system that the Wagner and Taft-Hartley Acts
have recognized."" Although employees have the
right to engage in economic strikes they exercise
this right at the risk of permanent replacement. Re-
spondent, in effect, is asking us to add to this risk
the potential additional loss of the employees' col-
lective-bargaining representative based solely on a
presumption Respondent would have us draw.
Thus, adoption of Respondent's presumption would
allow an employer to withdraw recognition and
eliminate a union as its employees' representative as
soon as an economic strike commences and a
number of employees equivalent to the number on
strike are willing to cross a picket line. Such an ad-
ditional burden on the employees' right to strike
would effectively impair that right, and disturb the
delicate balance of competing weapons which the
Board and the courts have recognized in the labor
relations arena.
Further, the presumption that Respondent urges
us to adopt is not a persuasive one. In this regard,
the Board has held, with court approval, that an
employee's return to work during a strike does not
provide a reasonable basis for presuming that he
has repudiated the union as his bargaining repre-
' 1, R B I H m,,ha,,. (. r,.r.tut tl ll f .t ' . r, I .Jl .. pa ,rr i ,t 1
L ..R I X I? /iri,l ', I', It lwhth ,tt, i/! l iot I ( '10 [Pri
, ittn.l I1Å“,trw, , , I. 31 ( ) 5S 4' I QN ))
717
I)I CISI()NS ()I: NA I()NAI I AI()R RK l A II()NS HBOARD)
sentative. 12 Absent supporting evidence it may
mean no more than that he was forced to return to
work for financial reasons or that he did not sup-
port that particular strike. ': Similarly, the Board,
with court approval, has held that a replacement
hired for a striking employee cannot, without
more, be presumed to reject the union as his bar-
gaining representative. 4 Such a worker also may
be compelled to seek employment, or may disap-
prove of the strike in question, but would support
other union initiatives.' 1 Thus, in light of this un-
certainty as to the reasons employees cross a picket
line, Respondent's presumption alone is clearly not
sufficient to rebut the presumption of majority
status nor its corollary that new employees, includ-
ing strike replacements, are presumed to support
the Union in the same ratio as those they replace.
Finally, we note that Respondent has offered no
other evidence supporting a "presumption" that the
union lost its majority status. Thus, it has not
shown that any of its employees who crossed the
picket line, in fact, did not support the Union.B'
N R /I v / rlui (A C u pra
' Induwirial Worker I.h al/ 289 v N 1. R. II. / upru
14 Roger. ,fanufaciuringo (o ; I R I., 4h. 1: 2d h44 (61h i1r .1973).
cnfg. 197 NI Rll 1264 (1172)
S: See I.. R.. v Willndhur ( ommrnunlty M nmoriul lIo)pial, lipra.
" Althoulgh Rcp..