Bartenders, Hotel, Motel and Restaurant Employers Bargaining Association of Pocatello, Idaho

National Labor Relations Board - Board Decisions

Sep 27, 1974

213 N.L.R.B. 651 (N.L.R.B. 1974)

BARTENDERS ASSOCIATION OF POCATELLO 651
Bartenders, Hotel, Motel and Restaurant Employers
Bargaining Association of Pocatello, Idaho and its
Employer-Members ' and Local 510, Hotel and Res-
taurant Employees and Bartenders International
Union, AFL-CIO. Case 19-CA-6595
September 27, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On February 21, 1974, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, counsel for Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as further explained
herein.
Respondent Association and the Charging Party
have had a long history of collective bargaining, al-
though the Union has never been certified as the ex-
clusive bargaining representative of the employees of
the Association's members as a group or of individual
Association members. The most recent contract be-
tween Respondent and the Union expired on June 30,
1973, and negotiations for a new contract were held
on June 26, July 12, July 23, and August 6, 1973.
Thereafter, by letter dated August 10, 1973, Re-
spondent notified the Union it doubted the Union's
majority, informed the Union an RM petition had
been filed,' asked the Union to participate in the elec-
tion, and stated it would not bargain until the issue of
representation had been resolved. The RM petition
was later dismissed by the Regional Director and,
upon appeal to the Board, the action of the Regional
Director was affirmed.
After Respondent's refusal to bargain, the Union
filed a charge, upon which a complaint subsequently
issued, alleging that Respondent's withdrawal of rec-
ognition and refusal to bargain was in violation of
Section 8(a)(5) of the Act.
Respondent relied on three factors to justify its re-
fusal to bargain with the incumbent Union, and the
Administrative Law Judge, applying the Board's well-
1 As listed in Appendix A of the Administrative Law Judge's Decision.
2 The petition, in fact, was filed on August 13, 1973.
settled principles in this area, correctly rejected each
and found Respondent's refusal to bargain a violation
of the Act. We affirm the Administrative Law Judge's
disposition of this case but, in light of certain com-
ments by our dissenting colleague, we set out at some
length our reasons for doing so.
The underlying legal principles to be applied in
situations where an employer seeks to withdraw rec-
ognition from an established bargaining representa-
tive are well summarized in Terrell Machine Company,
173 NLRB 1480, 1480-81 (1969), enfd. 427 F.2d 1088
(C.A. 4, 1970), where the Board stated:
It is well settled that a certified union, upon expi-
ration of the first year following its certification,
enjoys a rebuttable presumption that its majority
representative status continues., This presump-
tion is designed to promote stability in collective-
bargaining relationships, without impairing the
free choice of employees.2 Accordingly, once the
presumption is shown to be operative, a prima
facie case is established that an employer is obli-
gated to bargain and that its refusal to do so
would be unlawful. The prima facie case may be
rebutted if the employer affirmatively establishes
either (1) that at the time of the refusal the union
in fact no longer enjoyed majority representative
status;' or (2) that the employer's refusal was
predicated on a good-faith and reasonably
grounded doubt of the union's continued majori-
ty status. As to the second of these, i.e., `good
faith doubt,' two prerequisites for sustaining the
defense are that the asserted doubt must be based
on objective considerations 4 and it must not
have been advanced for the purpose of gaining
time in which to undermine the union.i [This sec-
ond point means, in effect, the assertion of doubt
must be raised "in a context free of unfair labor
practices." See Nu-Southern Dyeing & Finishing,
Inc., 179 NLRB 573, fn. 1 (1969), enfd. in part
444 F.2d 11 (C.A. 4, 1971).)
Celanese Corporation of America, 95 NLRB 664, 671-672.
2Id.
3 "Majority representative status" means that a majority of employ-
ees in the unit wish to have the union as their representative for
collective-bargaining purposes. Id.
4See Laystrom Manufacturing Company, 15I NLRB 1482 , 1484, en-
forcement denied on other grounds (sufficiency of evidence) 359 F.2d
799 (C.A. 7, 1966); United Aircraft Corporation, 168 NLRB No. 66
(TXD); N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5,
1966), enfg . 147 NLRB 977. And cf. United States Gypsum Company,
157 NLRB 652.
' C & C Plywood Corporation, 163 NLRB No. 136; Bally Case and
Cooler, Inc., 172 NLRB No. 106.
The above principles set out in Terrell are equally
applicable whether the union has been certified by the
Board, or, as here, recognized as the bargaining repre-
213 NLRB No. 74
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of the employees by Respondent without
Board certification.3 In the latter situation, the exis-
tence of a prior contract, lawful on its face, raises a
dual presumption of majority-a presumption that
the union was the majority representative at the time
the contract was executed, and a presumption that its
majority continued at least through the life of the
contract.' Following the expiration of the contract, as
here, the presumption continues and, though rebutta-
ble, the burden of rebutting it rests on the party who
would do so,' here Respondent.
Applying these principles to the present case,
Respondent's first reason for refusing to bargain, that
the Union had never been certified as the bargaining
representative of the employees, is irrelevant. And,
since Respondent recognized the Union and entered
into bargaining agreements with it, this gives rise to
the presumption that the Union's majority representa-
tive status has continued. General Counsel has thus
made out hisprima facie case that Respondent's refus-
al to bargain was unlawful and it was up to Respon-
dent to demonstrate either that the Union did not in
fact enjoy majority support at the time of the refusal
to bargain 6 or that it had reasonable doubts based on
objective considerations for believing the Union had
lost its majority status when it refused to bargain.'
In support of its refusal, Respondent submitted that
it had evidence that less than a majority of the em-
ployees had signed checkoff authorizations at the time
of the refusal to bargain and that there was employee
disaffection with the Union. The Administrative Law
Judge, however, correctly rejected both these reasons
advanced by the Respondent. Our dissenting col-
league argues the additional point that the total mem-
bership in the Union was less than a majority of the
employees in the unit when Respondent refused to
bargain.
With respect to the dues-checkoff authorizations,
the evidence shows that on August 10, 1973, the date
of the refusal to bargain, less than a majority of unit
employees had executed checkoffs, which, under the
expired contract, were voluntary upon written author-
ization. However, the Board has consistently held,
with court approval, that a showing of actual financial
support of an incumbent union, at least where such
3 See Emerson Manufacturing Company, Inc., 200 NLRB 148 (1972); Cantor
Bros., Inc., 203 NLRB 774 (1973).
Shamrock Dairy, Inc., et al., 119 NLRB 998 (1957), and 124 NLRB 494
(1959), enfd. 280 F.2d 665 (C.A.D.C.), cert . denied 364 U.S. 892 (1960).
5 Barrington Plaza and Tragniew , Inc., 185 NLRB 962 ( 1970), enforcement
denied on other grounds sub nom. N.L.R.B. v. Tragniew, Inc., and Consolidat-
ed Hotels of California, 470 F.2d 669 (C.A. 9, 1972).
6 Respondent does not contend that it has demonstrated this fact.
' It is admitted that this refusal to bargain was raised in a context free of
other unfair labor practices by Respondent.
support is made voluntary, is not the equivalent of
establishing the number of employees who continue
to desire representation by that union.' For, as the
Fifth Circuit has said: "No one knows how many
employees who favored the unions had decided not to
authorize the company to deduct union dues ...." 9
The low number of dues-checkoff authorizations,
therefore, does not establish a reasonable basis for
believing that the Union had lost majority support.1°
Similarly, the Board, with court approval, has held
that a showing that less than a majority of the employ-
ees in the unit are members of the union is not the
equivalent of showing lack of majority support. The
reason is substantially the same as that regarding the
checkoff figures, namely, that no one can know how
many employees who favor union representation do
not become or remain members of the Union." In
spite of this settled principle, our dissenting colleague
relies on and stresses as a justification for the with-
drawal of recognition the fact that the General Coun-
sel stipulated at the hearing that, on August 10, less
than a majority of the unit employees were members
of the Union. His reliance on this stipulation is mis-
placed. As noted above, the stipulation that less than
a majority of the employees in the unit were members
of the Union on the day of the refusal to bargain
cannot serve as a factor demonstrating lack of majori-
ty support. Furthermore, since the information on the
size of the Union's membership on the day of the
refusal to bargain came to Respondent's attention
e Terrell Machine Company, 173 NLRB at 1481 , and Terrell Machine Com-
panN, v. N.L.R.B., 427 F.2d at 1090.
N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588, 591 (C.A. 5, 1966),
enfg. 147 NLRB 997 (1964).
t In so concluding, the Administrative Law Judge cited for authority the
court's decision in Gulfmont Hotel, supra, and the Board's decisions in Terre!!,
supra, and in The National Cash Register Company, 201 NLRB 1034 (1973).
Member Kennedy claims the three cases are clearly distinguishable and that
the Eighth Circuit has denied enforcement in The National Cash Register
Company, 494 F.2d 189 (C.A. 8, 1974). The cases are clearly on point for the
proposition cited . While in Gulfmont and Terrell there were further indicators
of the lack of the employer's good faith , we note that with regard to the
specific issue of lack of majority of employees paying union dues the court
in Terrell said:
A showing that less than a majority of the employees in the bargaining
unit were members of the union or paid union dues was not the equiva-
lent of showing lack of union support . Manifestly, in the absence of a
closed shop agreement . . . many employees are content neither to join
the union nor to give it financial support but to enjoy the benefits of its
representation . Nonetheless, the union may enjoy their support, and
they may desire continued representation by it. [427 F .2d at 1090.1
As support for this proposition , the court cited Gulfmont. These cases are
therefore on point. So, too, is National Cash Register where the court, al-
though it found on the totality of the facts no violation , commented that
"Noncompulsory union checkoff authorizations have been held in other
circumstances not to provide an adequate basis for good faith doubt of
majority status, for employees for various reasons unconnected with their
desire to have a union represent them , may fail to execute the checkoff
authorization" (citing Gulfmont as authority) (494 F.2d at 195). Thus, the
court concluded "there may be little relationship between the checkoff list
and the number of union supporters."
11 N. L. R. B. v. Gulfmont Hotel, 362 F.2d at 591.
BARTENDERS ASSOCIATION OF POCATELLO 653
only at the hearing in this case, it cannot be relied on
to alternately support a reasonably based doubt of
continued majority support.12 As has been stated, "
... when the Board makes this determination [as to
the basis of the Employer's doubt] it is not controlled,
or even guided, by the later ascertained facts of union
adherence and non-adherence. It is rather the ques-
tion of fact whether the company had a reasonable
basis at the time of its refusal to bargain for believing
that majority support of the bargaining union no
longer existed." 13 Thus, because Respondent "did
not know of the actual minority of union members
until after its refusal to bargain, it can not rely on
that data to support a reasonably based doubt of
continued majority support." 14
Respondent is left then with its last assertion that
there was employee disaffection with the Union. The
evidence on this point devolved into a total of 12
complaints by unit employees in a total unit size of
288 on the day of the refusal to bargain.15 This "disaf-
fection," numbering less than 5 percent of the em-
ployees in the unit, hardly constitutes a sufficient
objective consideration warranting a refusal to bar-
gain.16
In sum, viewing Respondent' s reasons for refusing
to bargain singly and together,17 we find the Adminis-
trative Law Judge correctly concluded 18 that Respon-
dent offered no evidence showing the Union in fact
did not enjoy majority status and demonstrated no
objective considerations warranting a reasonably
based doubt as to the Union's continuing majority
status at the time of its refusal to bargain and there-
fore its refusal to bargain violated Section 8(a)(5).
Our dissenting colleague , however, believes that the
Administrative Law Judge used the "wrong" standard
in finding this violation. His argument is that, al-
though there is a presumption of continuing majority
based on the prior contract, if Respondent produces
what is termed sufficient evidence to cast "serious
doubt" on the union's majority status , the presump-
tion is rebutted, and the burden shifts to the General
12 Orion Corporation, 210 NLRB 633 (1974).
13 Gulfmont Hotel, 362 F.2d at 589 (emphasis supplied).
14 Terrell Machine Company v. N.LR.B., 427 F.2d at 1090 (emphasis sup-
plied).
15 No employee testified . This evidence was adduced through
Res6pondent's representatives.
1 See fn . 8 of the Administrative Law Judge's Decision here.
17 As is consistent with the "totality of all the circumstances" approach set
out in Celanese Corporation of America, 95 NLRB 664, 673 (1951).
18 Although the Administrative Law Judge stated only that, once the Gen-
eral Counsel established his prima facie case, Respondent then had the bur-
den of showing that the Union no longer commanded majority support, it
is clear from his decision that the Administrative Law Judge also considered
whether Respondent' s refusal to bargain was predicated on the alternate
permissible base , i.e., a reasonable doubt based on objective considerations
of the Union's continuing majority status raised in a context free of unfair
labor practices.
Counsel to prove that, on the critical date, the Union
in fact represented a majority of the employees. This
the dissent calls the "court-sanctioned" test vis-a-vis
the allegedly incorrect standard used by the Adminis-
trative Law Judge. In this case, the dissent finds the
"serious doubt" standard was met when the General
Counsel stipulated that only a minority of the unit
employees were members of the Union at the time of
the refusal to bargain and the dissent asserts the bur-
den is now on the General Counsel to prove actual
majority on that date. This is incorrect.
The dissent's basis for "serious doubt," i.e., knowl-
edge of the Union's membership size , does not justify
Respondent's withdrawal of recognition under the
Board's settled principles, acquired as it was by Re-
spondent after the refusal to bargain. It is argued,
however, that is no matter since the test that is being
used is the "court-sanctioned" test of "serious doubt"
rather than the test historically employed by the
Board. However, as far as is pertinent here,19 the stan-
dard of "serious doubt" as employed by the courts is
no more or less than the standard the Board sets out
when it states that "reasonably based doubt" must be
based on "objective considerations" and raised in a
context "free of unfair labor practices" and the time
for ascertainment of both must be at the time of the
refusal to bargain, not thereafter, at a hearing, as the
dissent would allow.
Illustrative of the fact that "serious doubt" as em-
ployed by the courts is judged on the same facts as the
"reasonably based" doubt that the Board speaks of is
the decision of the Eighth Circuit in The National
Cash Register Company, 494 F.2d 189, a decision on
which our dissenting colleague relies as indicative of
the "court-sanctioned" test. There, after setting out its
own understanding that a union's majority status is
presumed to continue until, inter alia, the employer
produces "sufficient evidence to cast serious doubt"
on it, the court listed three factors it relied on to find
that "serious doubt" of the Union's continuing major-
ity had, in fact, been raised. Those factors, (1) the
filing of certain decertification petitions, (2) employee
turnover, and (3) union resignations, had, in fact,
been considered by the Board, itself, in determining
whether there was a "reasonably based" doubt of ma-
jority. The fact that the Board and the court came to
r
19 We wish to stress that the following discussion of various courts of
appeals' recitations of the presumption and its rebuttal relates solely to an
analysis of what the courts have meant by their use of the phrase "serious
doubts." This discussion does not focus on a consideration of the courts'
views of the effect on the presumption once "serious doubts" have been
established , i.e., whether the burden then shifts to the General Counsel to
show actual proof of majority. The Board has already stated its nonadher-
ence to such a standard in a case involving further unfair labor practices after
a lawful withdrawal of recognition . See Automated Business Systems, A Divi-
sion of Litton Business Systems, Inc., 205 NLRB 532 (1973) (Member Fanning
disagreeing that the withdrawal was lawful ), enforcement denied 497 F.2d
262 (C.A. 6, 1974). That situation is not before us in this case.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different conclusions as to the sufficiency of the evi-
dence presented does not negate the fact that both the
Board and the court were considering the same facts
to determine the sufficiency of the doubt, whether it
be called a "serious" doubt or a "reasonably based"
one. And, furthermore, it is clear that the facts the
court and the Board were considering were facts
known to the employer before it withdrew recognition
from the union. Thus, whatever test our dissenting
colleague wishes to apply it must be applied to facts
and events known to an employer before it withdraws
recognition and not thereafter. No court has sanc-
tioned anything else.2°
We conclude then that Respondent, in the face of
the presumption of the Union's continued majority
status has not shown either that the Union no longer
commanded majority support or that it, in good faith,
had a reasonably based doubt supported by objective
considerations for believing that the Union's majority
status had ceased. Therefore, in accord with long-
standing court-sanctioned Board principles, we find
20 The other cases cited by our dissenting colleague equally demonstrate
this. In Lodges 1746 and 743, International Association of Machinists and
Aerospace Workers, AFL-CIO [United Aircraft Corporation] v. N. L. R . B., 416
F.2d 809 (C.A.D.C., 1969), the District of Columbia Circuit found sufficient
evidence to cast "serious doubts" on a union 's majority status on a combina-
tion of three factors, all of which the company was aware at the time of its
withdrawal of recognition . And, in N. L.R. B. v. Anvil Products, Inc., 496 F.2d
94 (C.A. 5, 1974), the Fifth Circuit made reference to a decertification peti-
tion which had been filed by the time of the refusal to bargain.
Notwithstanding the above , our dissenting colleague quotes certain lan-
guage in the Sixth Circuit's decision in Automated Business Systems v.
N.L.R.B., 497 F.2d 262 (C.A. 6, 1974), as supposedly indicating support for
his contention that the "court-sanctioned" test is somehow different from the
Board's criteria . As we have noted at In . 19, supra, the issue in Automated
Business Systems was different from the one we are presented with here and,
notwithstanding certain of the language our dissenting colleague cites, it is
clear from the court's decision , read as a whole , that the language our col-
league relies on did not indicate the court 's thoughts on what standard to use
in judging the lawfulness of an initial withdrawal of recognition (the issue in
the instant case) but rather the standard to use in judging the result of further
unlawful acts taken after an initially lawful withdrawal of recognition, an
issue not before us now.
We find our dissenting colleague 's cited language inapplicable since we
note that at the outset of its discussion in Automated Business Systems of the
various presumptions of majority, the Sixth Circuit quoted favorably, and at
length, from its own prior decision in Bally Case and Cooler, Inc., of Delaware
v. N.L.R.B., 416 F.2d 902 (C.A. 6, 1969). It quoted that part of Bally Case
where it had stated : "Absent special circumstances , a union enjoys an irre-
buttable presumption of majority status for one year after certification.
Thereafter the presumption is rebuttable , and an employer who has a reason-
able basis in fact to doubt an incumbent union 's majority status and who asserts
that doubt in good faith may refuse to recognize and bargain with the union. "
(416 F.2d at 904-905, emphasis supplied.) This test is quite clearly and simply
the Board's standard and we note that the Automated Business Systems court
also cited the Fifth Circuit' s decision in Terrell Machine and the District of
Columbia Circuit's decision in United Aircraft as agreeing with the rationale
in Bally Case. We have already demonstrated that the courts in Terrell
Machine and United Aircraft used the same test as the Board has followed
on the issue before us in this case.
Thus it is clear that the language cited by our dissenting colleague referred
to a further issue in Automated Business Systems not before us here . To find
otherwise would be to find that the court mistakenly quoted from Bally Case
(which we note in turn relied on the Board 's decision in Celanese Corp.) and
then incorrectly cited United Aircraft and Terrell Machine. We conclude,
therefore that our colleague 's reliance on the language he cites is misplaced.
that Respondent's withdrawal of recognition and re-
fusal to bargain was in violation of Section 8(a)(5) of
the Act 21 and we therefore affirm the Administrative
Law Judge.22
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Bartenders, Hotel, Motel
and Restaurant Employers Bargaining Association of
Pocatello, Idaho and its Employer-Members, its offi-
cers , agents , successors , and assigns , shall take the
action set forth in the said recommended Order.
MEMBER KENNEDY, dissenting:
Respondent Association has had a long history of
amicable collective bargaining with the Union, al-
though the latter has never been certified as the exclu-
sive bargaining representative of the employees of
Association members as a group or of individual As-
sociation members. The most recent collective-bar-
gaining contract between the Union and the
Association terminated on June 30, 1973. Negotia-
tions for a new contract commenced in June 1973 and
continued at sessions in July and early August. On
August 10, 1973, the Association notified the Union
that it doubted the Union's majority, advised that it
had filed an RM petition with the Board, and invited
the Union's cooperation in holding an election to re-
solve the question concerning representation, stating
that it would not proceed with further negotiations
21 This is the teaching of Celanese, supra, a case which is now over 23 years
old and which has been cited approvingly by the Supreme Court . See Ray
Brooks v. N.LR.B., 358 U.S. 96, 104, fn. 18 (1954). We are constrained to
add that our dissenting colleague confuses the issue by his recitation of
certain language in Stoner Rubber Company, Inc., 123 NLRB 1440 (1959), as
establishing the guiding principles in this case . The thrust of that language,
which in any event was subscribed to by only two of the five members signing
Stoner Rubber, was directed to a situation where ( 1) it was proved that the
employer did have a reasonably based doubt sufficient to justify withdrawing
recognition , and (2) the employer after the events giving rise to its doubts of
majority status committed some act which would have been a violation if,
in fact, the union was still the bargaining representative . The language the
dissent sets out relates to point (2) of that case . With regard to point (1),
which is the only issue here , all the members in Stoner Rubber stated their
adherence to Celanese. Celanese, as we have amply demonstrated, allows an
employer to withdraw recognition , regardless of whether the union has ma-
jority status, in fact, if the employer can prove reasonably grounded doubt
of that status based on objective considerations free of unfair labor practices.
Therefore citation to Stoner Rubber in a situation like the instant one is ill
founded.
22 Our dissenting colleague also asks why the Union objected to an election
and intimates that , as a matter of course, once the election was sought by
Respondent the Union should have acquiesced in that election and was
remiss in not doing so. He therefore puts the burden on the Union to explain
its actions . He misplaces the burden . The presumption, that of continuing
majority status , ran toward the Union . It was the Respondent who had to
come forward with sufficient evidence as to why it wished an election. It did
not do so and the petition was correctly dismissed.
BARTENDERS ASSOCIATION OF POCATELLO
until that issue was resolved . Subsequently , the Re-
gional Director dismissed the RM petition , and, upon
appeal to the Board , the Regional Director's dismissal
was sustained . I dissented from the ruling which sus-
tained the dismissal of the RM petition.
In support of its RM petition , Respondent asserted
that its doubt as to the Union 's continued majority
status was based on the following objective consider-
ations : ( 1) the Union had never been certified as the
bargaining representative of the employees in any ap-
propriate unit of Respondent's employees ; (2) of 288
employees in the appropriate unit as of August 10,
1973, only 101 employees had authorized checkoffs;
and (3 ) employee dissatisfaction had been voiced to
Association members. The Regional Director held
that these were inadequate objective considerations to
justify conducting an election on the petition of Re-
spondent . The Administrative Law Judge and the
Board majority now hold that these were also inade-
quate objective considerations to justify conducting
an election on the petition of Respondent . The Ad-
ministrative Law Judge and the Board majority now
hold that these were also inadequate justifications for
Respondent 's refusal to bargain. I disagree.
In reviewing the facts of this case , I cannot refrain
from asking why did the Union object to an election
as requested by Respondent? Respondent committed
no unfair labor practices which would make a free
election impossible . A consent election could have
been held without delay to determine whether the
Union in fact had the support of a majority of the unit
employees . All evidence indicates that if the Union
had won the election the parties could have quickly
resumed their negotiations. Instead of taking this ex-
peditious course , the Union filed unfair labor practice
charges. More than a year has elapsed without bar-
gaining . There is a good chance that another year will
expire before the issue is finally settled in the courts.
Why has the Union chosen to follow this course? The
suspicion is strong , it seems to me, that the Union
knows that it does not represent a majority of the unit
employees and knows or suspects that it cannot win
an election . 23 Therefore , it has resorted to an unfair
23 Highly relevant are the observations of the Seventh Circuit in N LR B
v Laystrom Manufacturing Co, 359 F 2d 799 (C A 7, 1966), denying enforce-
ment of Laystrom Manufacturing Co, 151 NLRB 1482 ( 1965). The court
stated at 801.
We add that with respondent's long-time good faith dealing with the
Union, there is no basis for a reasonable inference that it abruptly
changed its course of conduct and for the first time acted in bad faith
in raising the issue as to the Union 's majority Good faith is not a
one-way street The Union's refusal, when challenged, to submit the issue
to an election where each employee would be permitted in secrecy to make
his choice, leads to the inescapable inference that it, too, was doubtful and
fearful of the result As the Trial Examiner stated-
"And it is equally reasonable to speculate that a union may prefer to
let the Board handle its hot chestnuts with tongs of technicalities instead
of going to an election A suspicion is not alien in the setting described
655
labor practice proceeding, with its accompanying de-
lay, to force upon the employees a bargaining repre-
sentative which they would reject in a freely
conducted secret election.
That this is not fanciful speculation is evidenced by
a stipulation of the parties in the present proceeding.
According to this stipulation, on June 30, 1973, the
date of expiration of the last collective-bargaining
contract, the Union had 115 members, and on August
10 it had only 111 among Respondent's employees,
including those on checkoff and those who paid dues
directly to the Union. On the same dates, there were
308 and 188 employees, respectively in the unit. In
other words, on the date when Respondent refused
further to bargain with the Union, the latter counted
among its membership approximately one-third of the
unit employees despite the fact that the recently ex-
pired contract contained a maintenance-of-member-
ship clause? 4 The Union submitted no other evidence
indicating employee support for representation pur-
poses.
The Administrative Law Judge used the wrong
above that perhaps the Union doubts that it could win an election today "
Respondent places much reliance upon Stoner Rubber Co, Inc, 123
NLRB 1440 Of course , this case can be distinguished on the facts, as
the Board does, but the reasoning is pertinent The Board stated.
"An employer can hardly prove that a union no longer represents a
majority since he does not have access to the union 's membership lists and
direct interrogation of employees would probably be unlawful as well as of
dubious validity Accordingly, to overcome the presumption of majority
the employer need only produce sufficient evidence to cast serious
doubt on the union's continued majority status."
If the Union had assented to an election as it had on previous occa-
sions or had used any other means available by which it could have
established its continuing majority status, there is little doubt on this
record but that respondent would have acceded to its bargaining re-
quest, and this extended and expensive litigation in all probability would
have been avoided . [Emphasis supplied ]
24 The Administrative Law Judge cites three cases for the proposition that
this evidence is not sufficient to establish lack of majority support. N L R.B
v Gulfmont Hotel, 362 F 2d 588 (C A. 5, 1966), Terrell Machine Company, 173
NLRB 1480 ( 1969), enfd 427 F 2d 1088 (C.A 4, 1970), cert denied 398 U S.
929 (1970); The National Cash Register Company, 201 NLRB 1034 (1973)
Apart from the wrong test used by the Administrative Law Judge, see infra,
the National Cash Register case was denied enforcement , The National Cash
Register Company v. N LR B, 494 F 2d 189 (C A 8, 1974), and the other two
cases are clearly distinguishable . In Gulfmont, the union had won an election
by a close vote and been certified Shortly before the expiration of the initial
collective -bargaining contract , the employer refused to bargain further as-
serting that it had a good -faith doubt of the union 's majority, relying exclu-
sively on the number of employees on checkoff . In the present case , there has
never been a certification and the evidence casting doubt on the Union's
majority status is based not only on the number of unit employees on dues
checkoff, but the number of union members as well . In Terrell, there also was
a certification of the union Further, there was affirmative evidence of bad
faith on the part of the employer in refusing to bargain Thus the court stated
(427 F.2d at 1090)•
Although Terrell publicly stated that it was refusing to bargain only until
the union 's majority status was proved , it refused to consider the union's
proffer to exhibit its record of members and authorizations as evidence
of its legitimacy . Terrell never petitioned the Board for a new election, and
its unilateral grant of a wage increase in August , 1967, after its previous
statement made before it withdrew recognition that it could not consider
a wage increase until October, are further evidence of bad faith . [ Empha-
sis supplied].
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standard in finding a violation of Section 8(a)(5). Ac-
cording to the Administrative Law Judge, once the
General Counsel had established a prima facie case of
majority representation, the burden shifted to Re-
spondent to establish by objective considerations that
the Union no longer represented a majority of the unit
employees. The Administrative Law Judge has con-
fused the burden of going forward with the ultimate
burden.
It is elementary that in a refusal-to-bargain case the
General Counsel has the ultimate burden of proving
the union's majority on the critical date 25 Where he
relies on a Board certification following an election,
the certificate creates an irrebuttable presumption of
majority status during the year following certification.
After the certification year, the General Counsel may
still rely on the certification to prove majority status,
but at this time the presumption based on the certifi-
cation is rebuttable. To prove prima facie case, the
General Counsel may also rely on a course of dealing
as in this case , on the theory, as stated by Wigmore,
that where the existence of a fact "at a given time is
in issue, the prior existence of it is in human experi-
ence some indication of its probable persistence or
continuance at a later period." 26 In other words, once
it has been established that a union represented a
majority, it will be presumed on the basis of experi-
ence that, in the absence of evidence to the contrary,
the union's majority status continued. This presump-
tion, like that following the certification year, is also
rebuttable. There is a fundamental difference, howev-
er, qualitative as well as quantitative, between the two
kinds of presumptions. The irrebuttable presumption
is in reality a rule of substantive law, whereas the
rebuttable presumption merely shifts the burden of
going forward with the evidence27 Thus, during the
certification year the employer must bargain with the
union even though the union has lost its majority; the
latter is immaterial. On the other hand, the rebuttable
presumption deals with a real fact problem. It is not
itself evidence of majority representation. It serves
only to make out a prima facie case and thus shifts the
burden of going forward on the issue of majority rep-
resentation to the employer.21 If the latter produces
sufficient evidence to cast serious doubt on the
union's majority status, the presumption is rebutted
and "the burden shifts to the General Counsel to
prove that, on the critical date, the union in fact repre-
25 N.LR.B. v. Dayton Motels, Inc., d/b/a Holiday Inn of Dayton, 474 F.2d
328 (C.A. 6, 1973); Stoner Rubber Company, Inc., 123 NLRB 1440, 1445
(1959).
26 2 Wigmore , Evidence § 437 (3d ed. 1940). See also I Jones , Evidence 3:1
(6th ed. 1972).
27 See 2 Wigmore, Evidence §§ 2490, 2492 (3d ed. 1940); McCormick,
Evidence pp. 803, 807, 832 (2d ed. 1972).
28 McCormick, Evidence p. 821 (2d ed. 1972).
sented a majority of the employees." 29
Instead of using the court-sanctioned test for de-
termining the effectiveness of the rebuttable presump-
tion,30 the Administrative Law Judge shifted to
Respondent the burden of proving that the Union did
not in fact represent a majority of employees in the
appropriate unit. This is an impossible task, for, as
stated in Stoner Rubber: 31
An employer can hardly prove that a union no
longer represents a majority since he does not
have access to the union's membership lists and
direct interrogation of employees would proba-
bly be unlawful as well as of dubious validity.
Even though the General Counsel stipulated that only
one-third of the employees in the unit are dues-paying
union members, my colleagues place the burden upon
the Respondent to show that a majority does not want
to be represented by the Union. Of course, if the
Employer interrogates the employees as to their de-
sires about continued representation, my colleagues
would find such interrogation to be violative of Sec-
tion 8(a)(1) of the Act. My colleagues would further
find that the Employer's withdrawal of recognition in
the context of such interrogation to be unlawful. Sure-
ly, the courts will not condone the Board's attempt to
impose a minority union upon the employees in the
29 Lodges 1746 and 743, International Association of Machinsts and Aero-
space Workers, AFL-CIO [United Aircraft Corporation] v. N. L. R. B., 416 F.2d
809, 812 (C.A.D.C., 1969); The National Cash Register Co. v. N. LR.B., 494
F.2d 189 (C.A. 8, 1974); Automated Business Systems v. N.L.R.B., 497 F.2d
262 (C.A. 6, 1974); N.L.R.B. v. Anvil Products, Inc., 496 F .2d 94 (C.A. 5,
1974).
30 The majority 's assertion that the court-sanctioned test of "serious
doubt" is the same as the Board's "reasonably based doubt " is based on a
serious misapprehension. The two tests are different : one is subjective, the
other objective. As stated recently by the court in Automated Business Systems
v. N.LR.B., 497 F.2d 262 at fn. 7:
In Celanese, the Board applied a good faith doubt that in determining
whether an employer was justified in refusing to bargain with the union.
The Board held that a good faith doubt of the union's majority was a
complete defense to § 8(a)(5) unfair labor charges , regardless of the
actual majority status of the union. While the Board indicated that some
basis in fact must exist to support the employer's doubt, the test was
largely subjective . In Stoner, emphasis was placed on the production of
evidence to cast a serious doubt on the union ' s majority status. This test
is substantially an objective test . Since the test is objective and governed
by the evidence produced by the employer rather than the employer's
intent, there appears to be no reason for adopting a different test for
rebutting the presumption of majority status than for withdrawing rec-
ognition . . . . However , a resolution of a serious doubt concerning
majority status by the Board , absent some independent unfair labor
practices, would be ignoring the election process as the best means of
determining employee sentiment . We find the Stoner rationale to be
persuasive and to be the better rule and the one adopted by the courts
.... The General Counsel is in a much better position to prove the
majority status of the union than is the employer.
Since , under the court-sanctioned objective test , the issue is not the
employer's state of mind but the majority status of the union, the stipulation
as to the membership in the union was plainly relevant and admissible.
11 Stoner Rubber Company, Inc., 123 NLRB 1440, 1445 . This case has been
cited with approval by various circuit courts of appeals decisions. See cases
cited in fn . 29, supra.
BARTENDERS ASSOCIATION OF POCATELLO 657
Association unit. In my opinion , it is legally indefensi-
ble for this Board to refuse to run the RM petition
mandated by Section 9(c)(1)(B) of the Act and then
require the Employer in this unfair labor practice pro-
ceeding to offer evidence which could be obtained
only by unlawful interrogation.
When the General Counsel stipulated that only a
minority of the unit employees were dues -paying
members, that created a serious doubt as to the
Union's majority status.32 If the General Counsel or
the Union had other evidence of majority representa-
tion, they should have come forward with such evi-
dence . I recognize that it is possible that employees
who were not dues-paying members may have desired
to be represented by the Union. I believe it more
probable , however , that employees who did not pay
dues did not want to be represented by the Union.
Congress intended this kind of uncertainty to be re-
solved by an election as sought by Respondent.
In Gissel, 33 the Supreme Court said:
That provision [ Sec. 9(c)(1)(B)] was not added, as
the employers assert, to give them an absolute
right to an election at any time; rather, it was
intended, as the legislative history indicates, to al-
low them, after being asked to bargain, to test out
their doubts as to a union 's majority in a secret
election which they would then presumably not
cause to be set aside by illegal antiunion activity.
[Emphasis supplied.]
And more recently in Truck Drivers Union Local No.
413 v. N.L.R.B., 487 F.2d 1099 , 1111 (C.A.D.C.,
1973), the court of appeals said:
Indeed it was the premise of the Taft -Hartley
Amendment to § 9(c )(B) that employers could
test out their doubts as to a union ' s majority
status by petitioning for an election . In ignoring
that opportunity , the Board ignores the very in-
tent behind the statutory provision.
I am convinced that the Regional Director erred in
dismissing the RM petition and that the Board major-
ity erred in upholding that dismissal. The legislative
history of Section 9(c)(1)(B) shows that it was intend-
ed as a counterpart to Section 9 (c)(1)(A).34 The Board
stated in United States Gypsum Company, 157 NLRB
652, 656 ( 1966), that Congress did not intend Section
9(c)(1)(B) to be a device "by which an employer act-
ing without a good -faith doubt of the union 's status
could disrupt collective bargaining and frustrate the
policy of the Act favoring stable relations ." In Gyp-
sum, the union had been certified as the bargaining
representative of the employees of the employer's pre-
decessor . The employer purchased the predecessor's
business , using the same work force in the same busi-
ness, and shortly thereafter filed an RM petition. The
Board concluded that the filing of the RM petition
was merely a tactic of disruption ; that the employer
did not really have any basis for doubting the union's
continued majority status . By contrast in the present
case , the stipulation of the parties casts serious doubt
on the Union ' s majority status. And there seems no
question but that Respondent 's purpose in seeking an
election was not to frustrate collective bargaining, but
to encourage it by quickly and definitively resolving
that doubt.
In this case , Respondent followed the filing of its
RM petition with an indication that it was agreeable
to a consent election and did nothing to prevent the
employees from freely and secretly indicating their
desires as to a bargaining representative . Accordingly,
I would find that Respondent had lawfully refused to
bargain with the Union and I would dismiss the com-
plaint.35
33 In Otto Klein, et a!, d/b/a Artiste Permanent Wave Company, 172 NLRB
1922 (1968 ), the union's admission of lack of majority with only seven dues-
paying members was a decisive factor in the Board 's dismissal of the 8(a)(5)
complaint Similarly, in Hayworth Roll and Panel Company, 130 NLRB 604
(1961), the Board dismissed the 8 (a)(5) complaint because the union had
checkoff cards from less than a majority of the employees
33 N L R.B v Gissel Packing Co., Inc, 395 U S. 575, 599 (1969)
341 Leg Hist . 416-417, 867 (1947), 11 Leg. Hist 1066, 1077, 1496, 1523,
1627 (1947).
35 George Braun Packing Co, 210 NLRB 1028 (1974)
DECISION
STATEMENT OF THE CASE
IRVING RocosIN, Administrative Law Judge: The com-
plaint, issued on October 10, 1973, alleges that since on or
about August 13, 1973, and at all times thereafter, Respon-
dent Association, and Respondent Employers,' through the
Association, have refused to recognize and bargain with the
Union as the exclusive representative of employees in an
appropriate unit described in the complaint, and have re-
fused to bargain further with the Union concerning wages,
hours and working conditions for said unit employees,
thereby engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.' Respondent
Association's answer admits the procedural and jurisdic-
tional allegations of the complaint; alleges that no election
has ever been conducted at the business of any individual
employer-member or in the multi-employer unit, and that
the Union has been voluntarily recognized and contracts
1 As listed on "Appendix A"
2 Designations herein are as follows The General Counsel, unless other-
wise stated or required by the context, his representatives at the hearing,
Bartenders , Hotel, Motel and Restaurant Employers Bargaining Association
of Pocatello , Idaho, Respondent Association, the Association or the Employ-
er, Local 510, Hotel , and Restaurant Employees and Bartenders Internation-
al Union, AFL-CIO, the Charging Party or the Union; the National Labor
Relations Act, as amended, (61 Stat . 136, 73 Stat 519, 29 U S.C. Sec 151,
et seq ), the Act, the National Labor Relations Board, the Board . The charge
was filed and served on August 17, 1973 Unless otherwise indicated, all
events occurred in 1973
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been negotiated, without regard to the actual desires
of the employees and without an opportunity to express
such desires in a secret ballot election; that Respondent has
reasonable grounds to believe that the Union has lost what-
ever majority status it may have had, and that it no longer
represents a majority of the employees in the multi-employ-
er unit, as demonstrated by objective evidence; and further
denies that the Union does now, or did on June 30, 1973,
actually represent the majority of the employees in the mul-
ti-employer unit; admits the execution of a collective-bar-
gaining agreement between Respondent and the Union on
about November 3, 1972, for the period July 1, 1972, to July
30, 1973; further admits that on about April 27, 1973, the
Union served each of Respondent Employers with notice of
intent to reopen the 1972-73 contract; that on about April
30, 1973, Respondent Employers, through Respondent As-
sociation, notified the Union of their intent to terminate
said collective-bargaining agreement; and that Respondent
Association and the Union met on June 26, July 12, July 23
and August 6, 1973, for the purpose of negotiating a collec-
tive-bargaining agreement.
Further answering, Respondent alleges that on August
10, 1973, Respondent Association notified the Union that
the employer-members of the Association entertained a
good faith doubt of the Union's majority status; that it had
filed an RM petition and invited the Union's cooperation
to permit an early election; that Respondent Association
would not proceed with further contract negotiations until
the question of representation had been resolved; that Re-
spondent was prepared to recognize the Union and contin-
ue negotiations if the Union were certified as the exclusive
representative of the unit employees following an election;
and that on said date Respondent Association filed an RM
petition on August 10, 1973, (Case 19-RM-1086); and de-
nies the remaining allegations of the complaint , including
those alleging a refusal to bargain.
Pursuant to due notice, a formal hearing was held before
me on November 29, 1973, at Pocatello, Idaho. The General
Counsel was represented at the hearing by his attorneys;
Respondent Association, by a labor relations consultant,
and one of the employer-members of the Association, the
Bannock Motor Inn, by counsel. All parties were afforded
full opportunity to be heard, to examine and cross-examine
witnesses, to introduce oral and documentary evidence rele-
vant and material to the issues, to argue orally and to file
briefs and proposed findings of fact and conclusions of law.
At the close of the General Counsel's case, Respondents
moved to dismiss the complaint for failure of proof. The
motion was denied and not renewed. The General Counsel
and the representative of the Association argued orally at
the close of the hearing, and, pursuant to permission grant-
ed at the hearing, filed briefs on December 17, 1973. No
proposed findings of fact or conclusions of law have been
filed by any of the parties.
Upon the entire record in the case, and based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have been carefully considered, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent Association's answer
admits, and it is hereby found that Bartenders, Hotel, Motel
and Restaurant Employers Bargaining Association of Poca-
tello, Idaho, Respondent Association herein, was formed on
June 18, 1972, and exists for the purpose, among others, of
representing its members in collective bargaining in a multi-
employer unit with labor organizations, including the
Union.
The complaint also alleges, and Respondent
Association's answer admits, that Respondent Employers
are engaged in operating various hotels, motels, and restau-
rants in Pocatello, Idaho, and vicinity, and are all members
of Respondent Association.
It is further alleged, and admitted, that in the course and
conduct of their aggregate business operations, Respondent
Employers realize an annual gross income exceeding
$500,000, and purchase goods and services from outside the
State of Idaho valued in excess of $50,000 annually.
On the basis of the foregoing, including the admissions in
Respondent's answer, it is hereby found that, at all times
material herein, Respondent Association and Respondent
Employers have been employers within the meaning of Sec-
tion 2(2), engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 510 , Hotel and Restaurant Employees and Barten-
ders International Union , AFL-CIO, the Union herein, is,
and at all times material herein has been , a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the Union represented a majority of the em-
ployees in an appropriate unit on about April 27, 1973,
when the Union requested Respondent to meet and bargain
collectively with regard to a new contract.
2. Whether Respondent entertained a good faith doubt
of the Union's majority, based upon objective consider-
ations, since about April 27, 1973, justifying its refusal to
bargain with the Union.
3. Whether, by withdrawing recognition from the Union
on about August 13 , 1973, and thereafter refusing to meet
for the purposes of collective bargaining with regard to a
new contract, Respondent has failed and refused to bargain
in good faith within the meaning of Section 8(aX5) of the
Act.
B. Introduction
Although the Association existed for the purposes of col-
lective bargaining on behalf of hotel and restaurant employ-
ers in the Pocatello, Idaho, area, prior to 1972, it was not
BARTENDERS ASSOCIATION OF POCATELLO 659
formally organized until about July 1972. Admittedly, there
has been a long history of collective bargaining between
employer-members of the Association and the Union over
a period of years prior to 1972. The Union, however, has
never been certified as the exclusive representative of the
employees in the appropriate unit or of any individual em-
ployer-member of the Association. The most recent con-
tract between the Association and the Union, executed on
about November 3, 1972, became effective on July 1, 1972,
for a term of one year, expiring June 30, 1973, automatically
renewable annually thereafter in the absence of specified
notice. The contract contained provisions for maintenance
of membership and voluntary checkoff upon written au-
thorization. Timely notice was given by each of the parties
to the other of intention to terminate the contract. Negotia-
tions for a new contract were commenced, and meetings
were held on June 26, July 12, July 23 and August 6, 1973.3
By letter, dated August 10, 1973, Respondent notified the
Union that the employer-members of the Association enter-
tained a good faith doubt of the Union's majority, advised
that it had filed an RM petition with the Board, and invited
the Union's cooperation in holding an election to resolve
the question of representation, stating that it would not
proceed with further negotiations until that issue had been
resolved. The RM petition, filed on August 13, 1973, was
dismissed by the Regional Director and, upon appeal to the
Board, the action of the Regional Director was sustained.
In response to a request from the Regional Office, Re-
spondent Association submitted a letter, on August 20,
1973, purporting to set forth objective considerations in
support of the RM petition, and enclosed payroll and other
information, including lists of employees of Association-
members, indicating the number of employees who had
authorized checkoffs, as well as statements from employers
purporting to indicate employee dissatisfaction with the
Union.
The objective considerations upon which Respondent re-
lies may be stated as follows:
1. The Union has never been certified as the collective
bargaining representative of the employees in an appropri-
ate unit.
2. Of the total of 288 employees in the appropriate unit,
as of August 10, 1973, only 101 constituted employees who
had authorized checkoffs.
3. Employer-members of the Association had been noti-
fied of employee dissatisfaction with the Umon.
Although the record does not disclose the manner in
which the Union achieved initial recognition, there was no
contention or showing that such recognition had been ob-
tained through coercive or any other unlawful means.
It is well-settled that an election and certification are not
the only means by which a union may achieve recognition
as exclusive bargaining representative. Where voluntary
recognition has been accorded to a union by an employer,
without any unlawful conduct on the part of the union or
assistance or domination on the part of an employer, such
recognition is as valid as if obtained through an election and
certification of the Board. The presumption of majority, at
least, for the duration of the contract, is as valid as if the
Union's majority were established by a Board certification.
The principle is equally applicable whether the Union has
been certified by the Board or recognized by the employer
as the bargaining agent of the employees without Board
certification.4
Having voluntarily recognized the Union, and negotiated
successive contracts and, considering the "long history of
collective bargaining between the employer-members of the
Association and the Union extending back for many
years," 5 Respondent cannot now be heard to challenge the
Union's majority status on the ground that it had never been
certified as the exclusive representative of the unit employ-
ees. This is especially so in the absence of any evidence that
the Union achieved its majority status by unlawful means.
It is thus evident that the General Counsel has established
a prima facie case of majority representation, shifting to
Respondent the burden of establishing by objective consid-
erations that the Union no longer commands a majority of
Respondent's unit employees. Respondent's withdrawal of
recognition based upon the absence of any certification
was, therefore, insupportable.
It has been stipulated, and the documentary evidence
establishes, that, as of the last pay period in June 1973, there
was a total of 308 employees in the appropriate unit, of
whom 96 had signed checkoff authorizations. As of August
10, 1973, the total number of unit employees had been
reduced to 288, of whom 101 had executed checkoffs. The
evidence reveals that 96 out of 308 employees (31 percent)
had checked off their union dues as of June 30, 1973, and
101 out of 288 (35 percent) had done so as of August 10,
1973. These factors, Respondent contends, coupled with the
other asserted grounds, constituted objective considerations
sufficient to create a good faith doubt of the Union's majori-
ty status. It is undeniable that, in each instance, considera-
bly less than a majority of the unit employees had
authorized a checkoff. This, however, is insufficient to es-
tablish lack of majority union support 6 This contention is
rejected as without merit.
The evidence of alleged employee disaffection with the
Union is based on testimony of several witnesses for Re-
spondents. According to Michael Baron, manager of the
Bannock Inn, of a total complement of 64 employees, 21 of
whom had authorized dues checkoffs, 7 employees had, in
one way or another, expressed dissatisfaction with the
4 Cantor Bros, Inc, 203 NLRB 774 (1973), and cases cited
5 See Respondent's brief page 1, II, paragraph 2
6 N L R B v Gulfmont Hotel Company, 362 F 2d 588 (C.A. 5, 1966), in
which authorizations of voluntary checkoffs of between 69 and 77 of a total
of 186 employees (39-41 percent), accompanied by a slim union victory by
a margin of 111 to 106, and in which 13 employees notified the employer that
they no longer desired to be represented by the union, together with the
evidence of a substantial number of terminations , was found insufficient to
constitute objective considerations supporting an employer's good faith
doubt of the union's majority. See also, Terre!! Machine Company, 173 NLRB
1480 (1969), enfd 427 F 2d 1088 (C A 4, 1970), cert denied 398 U.S. 929
(1970), in which the Board held that the following objective considerations
were insufficient to raise a good faith doubt of the union's majority status,
where (1) 41 out of 90 employees (46 percent) were dues-paying members of
the union under a voluntary checkoff, (2) supervisors had reported that three
union members had refused to honor a strike, (3) rumors from unidentified
sources of unrest and dissatisfaction with the union had surfaced, and a
7 According to the allegations in the complaint and the admission in Re- business representative had incorrectly stated the size of the unit See also The
spondent Association's answer National Cash Register Company, 201 NLRB 1034 (1973)
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union.
1. Barbara Hopkins complained to Baron personally that
she considered that she had been forced to join the Union,
and reported to Baron that Helen Woodbury had a similar
complaint.
2. Rand Howell and Brad Prescott had expressed a desire
to withdraw from the Union, if possible.
3. Bob Rubel had attempted to withdraw from the Union
because he had only worked a few hours a week.
4. Lenore Oliviera likewise expressed a desire to with-
draw from the Union.
5. Mary Burdette told Baron that she was disgusted with
the Union and wanted to get out.
Maurice Schaffer, one of the owners of Holiday Inn,
which employed approximately 80 employees, 45 of whom
had authorized checkoffs, as of June 20, 1973, and 79 unit
employees, of whom 36 had authorized checkoffs, as of
August 17, 1973, testified that:
1. Two busboys, Dwight Morimoto and Chris Hender-
son, who were no longer employed as of August 17, 1973,
expressed displeasure over being pressured by union mem-
bers to join the Union.
2. Four female laundry department (nonunit) employees,
expressed antiunion sentiments. Schaffer testified that these
employees had been interrogated regarding their union atti-
tudes, though not by him.
3. Chef John Guyer complained of inability to obtain
kitchen help through the Union.
All these complaints were reported to Schaffer by Inn-
keeper Jerry Seiber.
Finally, Rex Parris, owner of the Fifth Avenue Restau-
rant, employing 32 unit employees, 10 of whom were having
their dues deducted as of June 16, 1973, testified that:
1. Gayle Shappert questioned him as to whether she
should attend a union meeting. Rhonda Parker similarly
questioned Parris, remarking that she knew nothing about
the Union.
2. Cindy Craig, manager of the restaurant, a supervisor
and nonunit employee, criticized the Union's policing of
the contract, but related no employee dissatisfaction with
the Union.
3. Edith Peck expressed some antiunion sentiment but
the date of her comment is in question. In Respondent's
exhibit, this date appears as some time in August 1973. In
Parris' pretrial affidavit, the time is fixed as subsequent to
the filing of the RM petition. On cross-examination, he
testified that his affidavit was incorrect and that Peck had
made the statement to him several times prior to the filing
of the RM petition.
The only direct antiunion statement by an employee of
this employer was one made to Parris by Martha Evans.
Thus, of a total of 32 unit employees, of whom 10 were
on checkoff at this Employer's restaurant, there is, at most,
only one unit employee who expressed anything like disaf-
fection with the Union.
Disregarding the four laundry workers, employed at Hol-
iday Inn, the statement of the manager, and the innocuous
statements of the workers at the Fifth Avenue Restaurant,
the evidence reveals, at most, 12 complaints by employees
out of a total of 308 unit employees, as of the last pay period
in June 1973 (288 as of August 10). This constitutes less than
4 percent of the unit employees.?
Thus, the evidence of employee dissatisfaction on which
Respondent seeks to rely is insufficient to constitute objec-
tive considerations, justifying it in asserting a good faith
doubt of majority and a refusal to bargain.
It is, therefore, found, on the basis of the foregoing, and
upon the entire record, that Respondent did not have a
sufficient good faith doubt of the Union's majority status
among the unit employees at the time of the Union's de-
mand for reopening the contract or thereafter.
C. The Refusal to Bargain
1. The appropriate unit
The complaint alleges, Respondent's answer admits, and
it is hereby found that:
All restaurant, bar and fountain employees, includ-
ing maids, carhops and bellmen in hotels and motels,
employed by Respondent Employers in Pocatello, Ida-
ho, excluding office clerical employees, registration
desk employees, professional employees, guards and
supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. The Union's majority status
The Union's majority status has been established by the
collective-bargaining agreement between Respondent Asso-
ciation, Respondent Employers and the Union, effective
from July 1, 1972, to June 30, 1973, and the series of antece-
dent agreements. As has been previously stated, even in the
absence of a Board certification, there is a presumption that
a contracting union continues as majority representative of
the unit employees. While this presumption is rebuttable,
the clear and convincing proof required to establish that the
Union had ceased to be the bargaining agent of the unit
employees has not been persuasively demonstrated here.
It is, therefore, found, on the basis of the foregoing, and
upon the entire record, that, at all times material herein, the
Union has been the exclusive representative of the employ-
ees in an appropriate unit within the meaning of Section 9(a)
of the Act.
3. The demand for recognition ; the refusal to bargain
The complaint alleges , Respondent 's answer admits, and
it is hereby found that, on or about April 27, 1973, the
Union served notice upon Respondent Employers of re-
opening of the collective-bargaining agreement , and re-
quested them to bargain concerning the terms and
r It should be noted that none of the disaffected employees testified the
evidence being adduced through employer-members of the Association or
their supervisors.
8 See Valley Nitrogen Producers, Inc., 208 NLRB 208 (1973). See also, San
Luis Obispo County and Northern Santa Barbara County Restaurant and Tav-
ern Association; et al, 196 NLRB 1082 (1972).
BARTENDERS ASSOCIATION OF POCATELLO
conditions of employment of the unit employees. It is fur-
ther alleged, and admitted, that Respondent Association, as
collective-bargaining representative of Respondent Em-
ployers, met with the Union on June 26, July 12, 23 and
August 6, 1973, for the purpose of negotiating a collective-
bargaining agreement.
It is undisputed that, by letter, dated August 10, 1973,
Respondent Association notified the Union that the em-
ployer-members of the Association entertained a good faith
doubt of the Union's majority status, that it had filed an
RM petition, and refused to further bargain with the Union
until the issue of representation had been resolved.
For all the foregoing reasons, including the insufficiency
of objective considerations, it is found that Respondents did
not, on and after August 10, 1973, entertain a good faith
doubt of the Union's majority status, and that its withdraw-
al of recognition from the Union and refusal to bargain
thereafter, were not made in good faith.
It is further found, on the basis of the foregoing, and upon
the entire record that, by withdrawing recognition from,
and refusing to recognize and bargain with the Union, on
and after August 10, 1973, Respondent has failed and re-
fused to bargain with the Union as the exclusive representa-
tive of the employees in an appropriate unit , thereby
engaging in unfair labor practices within the meaning of
Section 8(a)(5), and interfering with, restraining and coerc-
ing employees in the exercise of rights guaranteed in Section
7, in violation of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents, set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relation 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 Respondents have engaged in unfair
labor practices within the meaning of Section 8(a)(5) and (1)
of the Act, by the conduct previously detailed, it will be
recommended that they be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. It has been found that
Respondents have unlawfully withdrawn recognition from
the Union, and have failed and refused, upon demand, to
bargain collectively with the Union as exclusive representa-
tive of the employees in an appropriate unit. It will, there-
fore, be recommended that Respondents be required to
recognize, and, upon request, bargain with the Union as
exclusive representative of the employees in an appropriate
unit.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, the undersigned makes the
following:
CONCLUSIONS OF LAW
1. Bartenders, Hotel, Motel and Restaurant Employers
661
Bargaining Association of Pocatello, Idaho, and its employ-
er-members, whose names are listed in "Appendix A" an-
nexed hereto, Respondent Employers herein, collectively
are, and at all times material herein have been, an employer
within the meaning of Section 2 (2), engaged in commerce
and in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 510, Hotel and Restaurant Employees and Bar-
tenders International Union, AFL-CIO, the Union herein,
is, and at all times material herein has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. At all times material herein, the following has been an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All restaurant, bar and fountain employees, includ-
ing maids, carhops and bellmen in hotels and motels,
employed by Respondent Employers in Pocatello, Ida-
ho, excluding office clerical employees, registration
desk employees, professional employees, guards and
supervisors as defined in the Act.
4. At all times material herein, the Union has been, and
now is, the exclusive representative of the employees in the
appropriate unit described above, for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
5. By withdrawing recognition from the Union, as exclu-
sive representative of the employees in an appropriate unit,
on August 10, 1973, and thereafter failing and refusing to
bargain with the Union, Respondents have engaged in un-
fair labor practices within the meaning of Section 8(a)(5) of
the Act.
6. By the foregoing conduct, Respondents have inter-
fered with, restrained, and coerced employees in the exer-
cise of rights guaranteed in Section 7, thereby engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record, and pursuant to
Section 10(c) of the Act, the undersigned hereby issues the
following recommended:
ORDERS
Bartenders, Hotel, Motel and Restaurant Employers Bar-
gaining Association of Pocatello, Idaho, and its Employer-
Members, their respective officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Failing and refusing to recognize and bargain collec-
tively with the Union as the exclusive representative of all
9In 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.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in the appropriate unit, described above, with Eva's Lunch
regard to rates of pay, wages, hours of employment, and 307 East Center
other terms and conditions of employment. Pocatello, Idaho
(b) In any like or similar manner, interfering with, re-
straining, or coercing their employees in the exercise of their
right to self-organization , to form labor organizations, to
join or assist the Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing or to engage in other protected concerted activities
for the purposes of mutual aid or protection or to refrain
from any and all such activities , as guaranteed by Section
7 of the Act, as amended, except to the extent permitted in
the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action, which, it is
found, will effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with Local 510, Hotel and Restaurant Employees and Bar-
tenders Union, AFL-CIO, as the exclusive representative of
all employees in the appropriate unit, described above, with
regard to rates of pay, hours of employment, and other
terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed
agreement.
(b) Post at their respective places of business in Pocatel-
lo, Idaho, and vicinity, copies of the attached notice marked
"Appendix B."10 Copies of said notice on forms provided
by the Regional Director for Region 19, shall, after being
duly signed by Respondents' respective authorized repre-
sentatives, be posted immediately upon receipt thereof, and
be maintained by them for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondents to ensure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of receipt of this decision,
what steps Respondents have taken to comply therewith.
IU 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX A
Bannock Motor Inn
105 South Arthur
Pocatello, Idaho, 83201
Green Triangle
North of City
Pocatello, Idaho
Bernie's Lounge
117 South Main
Pocatello, Idaho
Buddy 's Pizza
626 East Lewis
Pocatello, Idaho
Holiday Inn
Pocatello Creek
Pocatello, Idaho
Husky House Cafe
3945 Hiway West
Pocatello, Idaho
Fifth Avenue Cafe
3246 South Fifth Avenue
Pocatello, Idaho
Silver Dollar Bar
2227 1/2 Hiway West
Pocatello, Idaho
Stauffer's Cafe
1032 North Main
Pocatello, Idaho
Forde Johnson Truck Stop Cafe
2251 South Fifth Avenue Yellowstone Hotel,
Pocatello, Idaho Cafe & Lounge
230 West Bonneville
Pocatello, Idaho
Ginza Cafe & Lounge
390 Yellowstone
Pocatello, Idaho
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to recognize and, upon
request, bargain with Local 510, Hotel and Restaurant
Employees and Bartenders International Union, AFL-
CIO, as the exclusive representative of our employees
in the appropriate unit described below.
WE WILL NOT in any like or similar manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form labor orga-
nizations, to join or assist said Union or any other labor
organization, to bargain collectively with representa-
tives of their own choosing, or to engage in other pro-
tected concerted activities for the purposes of mutual
aid or protection, or to refrain from any or all such
activities, as guaranteed by Section 7, except to the
extent permitted by the proviso to Section 8(a)(3) of the
Act, as amended.
WE WILL, upon request, bargain collectively with the
Union as the exclusive representative of all employees
in the appropriate unit described below, with regard to
rates of pay, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment. The appropriate unit is:
All restaurant, bar and fountain employees, in-
cluding maids, carhops and bellmen in hotels and
motels , employed by Employer-Members of Barten-
ders, Hotel, Motel and Restaurant Employers Bar-
gaining Association of Pocatello, Idaho, excluding
office clerical employees, registration desk employ-
ees, professional employees, guards and supervisors
as defined in the Act.
BARTENDERS , HOTEL, MOTEL
AND RESTAURANT EMPLOYERS
BARTENDERS ASSSOCIATION OF POCATELLO
Dated
Dated
Dated
Dated
Dated
Dated
Dated
By
By
By
By
By
By
By
BARGAINING ASSOCIATION OF
POCATELLO, IDAHO
(Association)
(Representative) (Title)
BANNOCK MOTOR INN
(Employer)
(Representative) (Title)
BERNIE 'S LOUNGE
(Employer)
(Representative)
BUDDY'S PIZZA
(Employer)
(Title)
(Representative ) (Title)
EVA'S LUNCH
(Employer)
(Representative) (Title)
FIFTH AVENUE CAFE
(Employer)
(Representative) (Title)
FORDE JOHNSON TRUCK STOP
CAFE
(Employer)
(Representative) (Title)
GINZA CAFE & LOUNGE
(Employer)
Dated By
(Representative) (Title)
GREEN TRIANGLE
(Employer)
Dated By
Dated By
Dated By
Dated By
Dated By
Dated By
663
(Representative) (Title)
HOLIDAY INN
(Employer)
(Representative ) (Title)
HUSKY HOUSE CAFE
(Employer)
(Representative) (Title)
SILVER DOLLAR BAR
(Employer)
(Representative) (Title)
STAUFFER'S CAFE
(Employer)
(Representative) (Title)
YELLOWSTONE HOTEL, CAFE &
LOUNGE
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 10th Floor-Republic Building,
1511 Third Avenue, Seattle, Washington 98101, Telephone
206-442-7542.