Aero Engineering Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 176 (N.L.R.B. 1969)

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aero Engineering Corporation and Lodge 1303,
International Association of Machinists and
Aerospace Workers , AFL-CIO. Case 23-CA-3096
June 30, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On December 20, 1968, Trial Examiner Lloyd
Buchanan issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices alleged in the complaint and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner as detailed hereinafter.
As noted in the Trial Examiner's Decision,
evidence was adduced that on August 8 or 9, 1967,
the Union exhibited to the Company a number of
authorization cards it claimed were signed by a
majority of employees in an appropriate unit.
Thereafter, on September 11, 1967, the Company
signed a recognition agreement according the Union
recognition as the sole collective-bargaining agent
for the employees of this unit and the Union
requested bargaining. The record facts, which were
largely stipulated, does not disclose what transpired
immediately after the demand for bargaining but
presumably no bargaining of consequence
transpired, and thereafter on January 23, 1968, the
Union filed a charge in Case 23-CA-2940 alleging a
refusal to bargain. Pursuant to a settlement
agreement approved by the Regional Director on
February 21, 1968, the Company and the Union met
in collective-bargaining sessions on March 6, 21,
and 27, May 29, and July 8, 1968. On August 1,
1968, the Company questioned the appropriateness
of the unit claiming that its merger with the
American Power Stage Company made a single
plant unit inappropriate, and on August 5 it refused
to bargain. Thereafter, the Company also questioned
whether the Union represented a majority of
employees.
Relying on the Board's decision in Josephine
Furniture Company, 172 NLRB No. 22,
Respondent contends that the Union never
affirmatively established that it represented a
majority of employees in an appropriate unit when
it recognized the Union on September 11, 1967, and
that the Union, through the auspices of the General
Counsel, must now establish that fact as a
prerequisite to any finding of a refusal to bargain
here.
The Trial Examiner rejected Respondent's
contention, concluding that the facts here were
distinguishable, and that therefore the principle
expressed in Josephine Furniture is not applicable
here. We agree.
Like the Trial Examiner, we conclude that the
single plant unit originally recognized and bargained
for is an appropriate unit. The only remaining issue
concerns the Union's majority status, and whether
the General Counsel must now affirmatively
demonstrate the Union's majority either at the time
of the original recognition on September 11, 1967,
or as of the refusal to bargain on August 5, 1968.
We conclude that in these circumstances such
demonstration is not required.
While we recognize that invoking a doctrine of
waiver or laches is not normally applicable to the
question of majority status, we are persuaded from
a legal as well as a policy standpoint, that to permit
an Employer to raise a belated challenge to the
Union's majority some 11 months after granting
recognition and subsequent to a settlement
agreement, would be an unstabilizing factor in
bargaining , would unnecessarily undermine the
settlement agreement previously reached, and would
constitute an inducement to "gamesmanship" which
would not effectuate the policies of the Act. In sum,
therefore, we find that by Respondent's recognition
of the Union, its execution of a settlement
agreement in which it agreed to bargain with the
Union, and its subsequent actual bargaining with the
Union, that the Union has established a
presumption of majority.' Respondent did not rebut
that presumption. In fact, Respondent candidly
conceded at the hearing that, apart from the reasons
previously stated, it had no `reason or evidence for
now challenging the Union's majority.
We conclude, therefore, that having failed to
rebut the Union's presumption of majority, the
Respondent's refusal to bargain is violative of
Section 8(a)(5) and (1) of the Act.'
This did not foreclose the Respondent from proving that the Union did
not in fact represent a majority at the time of its original recognition on
September 11, 1967. Here the Respondent is contending that some 11
months after Its original recognition , the Union must now affirmatively
demonstrate its majority For the reasons previously stated , we find that
the burden of proceeding has shifted to the Respondent
'Member Brown agrees that Respondent violated Sec . 8(a) (5) of the
Act Respondent , by executing a settlement agreement, which
acknowledged an obligation to bargain with the Union , assumed an
obligation to bargain for a reasonable period of time thereafter within
which to conclude a contract ; and, in the circumstances herein , Respondent
did not fulfill this bargaining obligation
177 NLRB No. 31
AERO ENGINEERING CORP. 177
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Aero Engineering
Corporation, Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
BUCHANAN, Trial Examiner: The complaint herein
(issued October 10, 1968; charge filed August 8, 1968), as
amended, alleges that the Company has violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, 73 Stat. 519, by refusing since August 5, 1968,
to bargain with the Union as collective-bargaining
representative. The answer, as amended , denies the
appropriateness of the unit, alleges that the Company's
recognition was of a minority union , and denies the
allegations of violation.
The case was tried before me in Houston, Texas, on
October 28 and 29, 1968, no witnesses being heard, as
indicated below. Counsel were heard in oral argument at
the close of the trial.
Upon the entire record in the case, I make the
following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
1. THE COMPANY S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a Texas
corporation, the nature and extent of its business, and its
engagement in commerce within the meaning of the Act
are admitted. I find and conclude accordingly. I also find
and conclude that, as admitted, the Union is a labor
organization within the meaning of the Act.
If. THE ALLEGED VIOLATION OF SECTION 8(AX5) AND (1)
As the issues were defined at the opening of the trial, it
became clear that there was no dispute concerning certain
facts.' Thus it was agreed that:
1. On August 8 or 9, 1967, the Union exhibited to the
Company, but not singly, a batch of cards which it
claimed were signed by a majority of the employees in the
unit alleged.
2. On August 10 and September 11, 1967, respectively,
the Company signed agreements with Lodge 15 of this
International Union and with Lodge 1303, the Charging
Union, in which it accorded recognition as "sole collective
bargaining agent" for the Company' s unit employees.
3. On September 11 the Union requested that the
Company bargain with it.
4. About February 1, 1968, the Company by merger
became associated with American Power Stage Company,
which has employees who perform functions similar to
We shall note below the exclusion of testimony by which the Company
hoped by exploratory questioning to adduce evidence which I ruled would
be inadequate and improperly offered to overcome the effect of the
established facts.
those of the employees in the unit theretofore recognized,
and the relationship between the two companies was
formalized on May 28.
5. Pursuant to a settlement agreement in Case
23-CA-2940, approved by the Regional Director on
February 21, 1968, the Company and the Union met in
collective-bargaining sessions on March 6, 21, and 27,
May 29, and July 8.
6. On August 1 the Company questioned the
appropriateness of the unit as recognized.
7. Since August 5 the Company has refused to bargain.
Agreed upon at the hearing as being in dispute was:
8. Whether, as it claimed, the Company about August 8
or 9 questioned the Union's majority.
9. Whether, as it claimed, the Company at that time
asked to see the cards, which had been displayed or
exhibited as noted above.
10. Whether, as it claimed, the Union at that time
offered to submit the cards for examination by an
impartial third party.
11. Whether the Union had a majority of cards at that
time.
It was further agreed that to be determined as issues of
law were:
12. Whether the recognition agreement of September
11, 1967, was valid, the Company here claiming that there
was no majority when recognition was accorded on either
August 10 or September 11.
13. Whether the unit alleged is inappropriate because it
does not include employees of both the Company and
American Power Stage.
As I informed counsel at the trial, I was not inclined to
receive testimony concerning the Union's majority and
requests to see and offers to submit the cards for
inspection since it appeared that any such questions
merged in and were superseded by the recognition
agreements . Also, such an issue at this time would go
behind the settlement agreement entered into between the
parties and approved by the Regional Director on
February 21. Even if the Company asked to see the cards
on August 8 or 9, 1967, and was refused, it could be
argued with equal persuasiveness or lack thereof, as with
equal vigor, that the Company at that time doubted the
majority or conversely that it did not in good faith
question the majority since it thereafter granted
recognition . There is no basis for now preferring either
position over the other; and this is reason for relying on
the superseding recognition accorded in writing.
But in the light of the Board's opinion in the Josephine
Furniture case,' cited to me by the Company and on
which the Board may here conceivably rely, I stated that I
would receive' testimony on the facts in dispute, leaving it
to the Board to distinguish the cases further should it so
desire. I ruled further, with respect to the question
whether the Union actually had a majority in 1967, that if
any testimony were properly to be received on that point
the burden of going forward with the evidence was on the
Company in view of its various acts which indicated
recognition of the Union.'
'Josephine Furniture Company, Inc, 172 NLRB No 22 I would point
out, as the Board noted, that Keller Plastics Eastern Inc , 157 NLRB 583,
involved a subsequent loss of majority (not here claimed) and a claim by a
rival labor organization (not here claimed).
'The General Counsel's objection to the Company calling his witnesses
lacked merit called by the Company, they would not be his witnesses
'Cf. N L R B v. Sehon Stevenson & Company, Inc.. 386 F 2d 551 (C.A.
4), where the court declared : "Where the employer has conducted his own
investigation, the results of which confirm the union's claim, we think it
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With the General Counsel resting at this point, counsel
for the Company stated as he had earlier that he wanted
to call several union representatives as witnesses. He
declared however that he could only assume that the
Board's Field Examiner on investigation had found that
the Union represented a majority, and that he did not
know what the union witnesses whom he now intended to
call would testify: he assumed that they would claim
majority for the Union.
This is not a case where the Company maintains,
correctly or not, that it is entitled to put the Union to
proof of its majority in a Board -conducted election. The
Company did in fact recognize the Union as majority
representative, and it negotiated with the Union. The
admission that the Company has no proof of the Union's
lack of majority itself supports a finding that it did not
act in good faith when on August 1, 1968, it questioned
that majority. Although as noted above I had declared
that, despite my doubts on that point, I would, because of
conceivable interpretation of the Board' s opinion in
Josephine Furniture requiring proof of majority where
such proof was not earlier produced, receive evidence
concerning the Union's majority, I did not now permit the
Company to call union representatives in that connection
and with respect to the 1967 cards. I advised counsel that
I would not permit him to engage in a fishing expedition.
To receive proof after the burden has shifted is one thing;
it is quite another to permit counsel to explore for
possibilities at the trial.
Beyond that, it is clear that, when the Company
recognized the Union in 1967 and thereafter on August 8,
1968, when it refused to bargain, it did not in good-faith
doubt and it had no knowledge or basis for doubting the
majority concerning which it now sought to explore. The
recognition and concession of majority in September 1967
and February 1968 and in the bargaining sessions between
March and July were not readily to be questioned in
August 1968; and I therefore rejected the Company's
subjectively uncertain attempt to adduce evidence
concerning the 1967 majority. After this ruling, no
testimony was offered to support either the Company's
claim that it had on August 8 or 9, 1967, asked to see the
cards or the Union's that it had offered to submit them to
an impartial third party.
I find and conclude that the Company did not act in
good faith when 10-1/2 months after it recognized the
Union, it questioned the majority and its own recognition.
As for extension of the unit because the Company merged
with another, it would too conveniently set aside its own
agreements . Beyond this, we must bear in mind that it
here raises the question although it continued after the
merger to bargain with respect to unit employees alone.
The Company may not lawfully claim that the unit was
enlarged by the merger. Nor could it refuse unilaterally to
reliably establishes the union ' s majority and the employer's lack of any
good faith doubt of it Resurrection of that doubt , after the investigation,
requires much more than a very general , unspecific and unelaborated
suggestion.. ." In the instant case , the employer did not conduct an
investigation But recognition without further investigation is no less
compatible with acceptance of the Union 's majonty . Here we can in the
quoted statement substitute recognition of the Union for conduct of an
investigation and, paraphrasing Sehon Stevenson , declare- "Resurrection of
that doubt after the long-standing recognition requires much more .. .
- And to say that much more is required is another way of saying that the
burden of going forward with evidence has shifted to the party of whom it
is thus required . As for "a very general , unspecific and unelaborated
suggestion ," the nature and quality of the Company's suggested proof are
noted below
bargain with respect to the employees in the unit which it
had defined.
I find and conclude that the following is an appropriate
unit within the meaning of Section 9(b) of the Act:
All of the Company's production and maintenance
employees, including plant clerical employees, excluding
all administrative personnel, watchmen, guards and
supervisors as defined by the Act.
In the Bernhard-Altmann case,' correctly cited by the
Company as authority for setting aside a
collective-bargaining agreement, it was found that there
had in fact been no majority when the agreement was
executed and that a later change in that circumstance was
irrelevant to the issue. We have the converse in the instant
case: For the reasons noted, the early majority is not now
adequately put in issue; and majority, or lack of it, on
August 1, 1968, when appropriateness of the unit was
questioned, or on August 5, 1968, when bargaining was
refused, is irrelevant to the present issue.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, I
recommend that the Company, Aero Engineering
Corporation, Houston, Texas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Lodge 1303,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative of all
its employees in the appropriate unit with respect to rates
of pay, wages, hours of employment, or other conditions
of employment.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
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, and embody in a signed agreement any
understanding reached.
(b) Post at its place of business in Houston, Texas,
copies of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional
Director for Region 23, shall be posted by the Company,
after being duly signed by its representative, immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicious places,
including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by the
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
'I L.G. W. U v. N L R. B. [Bernhard-Altmann Texas Corporation], 366
U.S. 731.
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
AERO ENGINEERING CORP.
Region 23, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL bargain , upon request with Lodge 1303,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative of
all employees in the bargaining unit described herein
with respect to rates of pay, hours of employment, or
other conditions of employment , and embody in a
signed agreement any understanding reached. The
bargaining unit is:
179
All production and maintenance employees,
including plant clerical employees , excluding all
administrative personnel , watchmen , guards and
supervisors as defined by the Act.
Dated By
AERO ENGINEERING
CORPORATION
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office , 6617 Federal
Office Building , 515 Rusk Avenue , Houston , Texas 77002,
Telephone 713-228-4296.