Brown & Root U.S.A.

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1206 (N.L.R.B. 1992)

1206
308 NLRB No. 177
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the judge’s finding that the Respond-
ent’s captive-audience speeches to employees, and the suspension of
an employee, were lawful.
Brown and Root U.S.A., Inc. and United Paper-
workers International Union, AFL–CIO, CLC,
and Local 162. Cases 17–CA–15292, 17–CA–
15397, and 17–RC–10579
September 30, 1992
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 4, 1992, Administrative Law Judge David
G. Heilbrun issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this deci-
sion.
The Respondent has excepted to the judge’s finding
that it violated Section 8(a)(5) and (1) by withdrawing
recognition from the Union on September 4, 1990, and
by subsequently unilaterally changing certain terms
and conditions of employment. We find merit to these
exceptions.
The pertinent facts, as more fully set forth in the
judge’s decision, are as follows. On September 4,
1990, the Respondent received at its corporate head-
quarters a letter from an attorney representing the
Brown and Root Employees Group, a group of em-
ployees at the Valliant plant who had previously filed
a petition to decertify the Union. The September 4,
1990 letter demanded that the Respondent withdraw
recognition from the Union. Enclosed with the letter
were copies of individual forms signed by 139 of the
Respondent’s 270 employees, each requesting that the
Respondent withdraw recognition, and stating that the
employee did not wish to be represented by the Union.
The Respondent compared the names on the forms
against a list of current employees and, in a few in-
stances, called the Valliant plant management to verify
that the individual named on a form was currently
working at that facility. When this comparison re-
vealed that the forms apparently included the signa-
tures of a majority of unit employees, the Respondent
faxed to the Union a letter immediately withdrawing
recognition. This letter was transmitted by approxi-
mately noon of the same day that the forms were re-
ceived.
On September 5, 1990, the Brown and Root Em-
ployees Group withdrew the decertification petition.
On or about September 7, 1990, the Respondent an-
nounced a wage increase, increased the rate at which
vacation time was accrued, and implemented a 401(k)
plan and a new, enhanced medical plan. These changes
all were effective on or about September 10, 1990.
On September 24, 1990, the Union filed a represen-
tation petition for the Valliant plant. On October 11,
1990, an election was conducted in which 114 votes
were cast for and 145 votes were cast against the
Union, with 1 challenged ballot, a number insufficient
to affect the results. The Union filed objections to the
election which were based on the same conduct alleged
to have constituted unfair labor practices in the instant
complaint.
The judge found that the Respondent’s withdrawal
of recognition was unlawful because it was motivated
by ‘‘malice and cunning,’’ rather than a good-faith be-
lief that the Union no longer represented a majority of
unit employees. Notwithstanding the Respondent’s
showing that it had received forms signed by a major-
ity of unit employees requesting that the Respondent
withdraw recognition and stating that the employees no
longer wished to be represented by the Union, the
judge found that the withdrawal of recognition was un-
lawfully motivated based on the following: (1) the Re-
spondent withdrew recognition a few hours after re-
ceiving the forms, a period of time which the judge
viewed as insufficient for the Respondent’s claimed
verification of the 139 signatures; (2) the Respondent’s
headquarters staff violated the request of the employ-
ees’ attorney that their names not be disclosed to man-
agement at the plant; and (3) the Respondent’s head-
quarters staff did not ask the plant management if they
knew of any facts which would indicate that the Union
in fact was still the majority representative.
It is well-settled that an employer may lawfully
withdraw recognition from a union that no longer has
majority status, or where the employer has a reason-
able good-faith doubt, based on objective consider-
ations, of the union’s majority status. Laidlaw Waste
Systems, 307 NLRB 1211 (1992); Market Place, 304
NLRB 995 (1991). Here, it is undisputed that the Re-
spondent received written statements indicating that
139 of its 270 unit employees demanded that it with-
draw recognition from the Union and stating that the
employees did not want the Union to represent them.
Moreover, we note that the judge rejected the General
Counsel’s assertion that the Respondent had engaged
in unfair labor practices prior to the withdrawal of rec-
ognition and no party has excepted to these findings.1
Under the circumstances present in this case, these
facts, without more, are sufficient to establish at least
a reasonably grounded good-faith doubt, based on ob-
jective considerations, of the Union’s majority status.
See generally A. W. Schlesinger Geriatric Center, 304
1207BROWN & ROOT U.S.A.
2 As indicated above, the judge also noted that the Respondent’s
headquarters staff, who received the written statements, disclosed the
names of some of the signers to officials at its plant in violation of
a request by the employees’ attorney that the Respondent keep their
identity confidential. The Respondent asserts that this was done to
determine whether those individuals were still employed in the unit.
The judge provides no rationale for his conclusion that these actions
demonstrate that the subsequent withdrawal of recognition was un-
lawful, and we perceive none.
NLRB 296 (1991) (employer received several pages of
petition signed by employees and saw others; total
number of signatures constituted a majority of unit em-
ployees). Accordingly, we find that the Respondent’s
withdrawal of recognition was lawful.
The judge’s conclusion that the Respondent’s with-
drawal of recognition was not ‘‘bona fide’’ appears to
rest on circumstantial evidence that he viewed as indi-
cating that the withdrawal of recognition was moti-
vated by union animus. Even assuming arguendo that
such evidence is indicative of animus and that the Re-
spondent’s subjective motivation is relevant to a deter-
mination of whether its withdrawal of recognition was
lawful in the circumstances here, the Board has not
found that conduct such as that relied on by the judge
establishes that an employer’s withdrawal of recogni-
tion is not lawful. See A. W. Schlesinger Geriatric
Center, above (employer lawfully withdrew recognition
the day after it received the petition); Harley-Davidson
Co., 273 NLRB 1531 (1985) (employer not required to
verify signatures which appear valid on their face be-
fore withdrawing recognition).2 Likewise, the General
Counsel has cited no case in which the Board has
found that an employer presented with a petition seek-
ing withdrawal of recognition must affirmatively
search for contrary evidence of union support before
withdrawing recognition. See Atwood & Morrill Co.,
289 NLRB 794 (1988) (employee expressions of union
support do not negate subsequent written statements
that employees no longer desire union representation).
Nor, for that matter, does any party contend that such
evidence exists. Accordingly, we will dismiss the com-
plaint. In light of our finding the complaint allegations
to be without merit, we shall also reinstate the petition,
overrule the objections which are based on the same
conduct as that alleged in the complaint, and certify
the results of the election.
ORDER
The complaint is dismissed.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for United Paperworkers Inter-
national Union, and that it is not the exclusive rep-
resentative of these bargaining unit employees.
national Union, and that it is not the exclusive rep-
resentative of these bargaining unit employees.
Francis A. Molenda and Stephen E. Wamser, for the General
Counsel.
Walter W. Christy and Howard S. Linzy (Kullman, Inman,
Bee, Downing & Banta), of New Orleans, Louisiana, for
the Respondent.
Donald Hearn, International Representative, of Fort Smith,
Arkansas, for the Union as the Charging Party and the Pe-
titioner.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This
consolidated case was heard at Hugo, Oklahoma, over a
course of 4 trial days comprising April 2–5, 1991, inclusive.
The charge in Case 17–CA–15292 was filed November 5,
1990, by United Paperworkers International Union, AFL–
CIO, CLC (the Charging Party or the Union). Pursuant to
this charge a complaint was issued December 20, 1990, and
a subsequent order consolidating cases issued January 3,
1991, in which timely objections to election filed by the
Union in an associated representation proceeding, Case 17–
RC–10579, were deemed to ‘‘encompass related matters’’ of
the then-recently issued complaint, and for that reason were
consolidated with it for purposes of hearing, ruling and deci-
sion. Subsequently the charge in Case 17–CA–15397 was
filed January 14, 1991, by the Union jointly with its affili-
ated Local 162. Pursuant to this second charge a consolidated
complaint and second order consolidating cases was issued
February 27, 1991 (amended on March 7, 1991, to complete
case caption).
The primary issues arising from the consolidated com-
plaint are whether Brown and Root U.S.A., Inc. (Respond-
ent), unlawfully (a) promised its employees wage increases
and improved terms and conditions of employment if they re-
jected representation by the Union, (b) threatened its employ-
ees with loss of jobs and performance bonus if they selected
the Union for representation, (c) withdrew recognition from
the Union; then granted wage and benefit increases to em-
ployees, and (d) otherwise suspended then reassigned its em-
ployee Michael (Mike) Winters because of his concerted pro-
tected activities and because he gave testimony to the Board
in prior cases, and by these enumerated actions violated Sec-
tion 8(a)(1), (3), (4), and (5) of the National Labor Relations
Act.
In the representation case a petition was filed September
24, 1990, by the Union, seeking to again represent a unit of
all full-time and regular part-time maintenance employees of
Respondent. Pursuant to this petition, and a stipulated elec-
tion agreement approved October 5, 1990, a secret-ballot
election was conducted on October 11, 1990. Of approxi-
mately 264 eligible employee voters, 114 votes were cast for
the Union and 145 were cast against. The single challenged
ballot resulting from this election was not sufficient to affect
its results. The Union then filed several timely objections,
however on December 21, 1990, it withdrew Objection 3.
The Regional Director’s investigation of the remaining
unwithdrawn objections resulted in the first order consolidat-
ing cases and referral of these objections to an administrative
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates and named months hereafter are in 1990, unless other-
wise indicated.
law judge for disposition. These remaining unwithdrawn ob-
jections comprised the following:
1. The Employer threatened employee [sic] with loss
of jobs if the Petitioner won the election.
2. The Employer implied the employees would gain
benefits if the Petitioner lost the election.
. . . .
4. By the above and other acts and conduct, the Em-
ployer destroyed the laboratory conditions necessary for
a fair and open election.
FINDINGS OF FACT
I. JURISDICTION
Weyerhaeuser Paper Company (Weyerhaeuser) is a cor-
poration with an office and place of business in Valliant,
Oklahoma, where it is engaged in the manufacture of paper
products. At all times material, Respondent, a Delaware (or
Texas) corporation with an office and place of business lo-
cated at Weyerhaeuser’s Valliant, Oklahoma facility, has
been engaged in the performance of maintenance and capital
improvement projects for Weyerhaeuser at that facility. Dur-
ing calendar year 1989, Respondent, in the course and con-
duct of such performance, received goods valued in excess
of $50,000 directly from suppliers located outside the State
of Oklahoma. On these admitted or stipulated facts I find
that Respondent is, and at all material times, has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and, as is also admitted, that
the Charging Party is a labor organization within the mean-
ing of the Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introductory Matters
1. Case summary
Insofar as is known, a bargaining relationship between
these parties originated when the Union was certified on Jan-
uary 9, 1989, pursuant to representation proceedings it had
initiated in late 1988. Subsequently, and over the course of
a 1-year period from April 1989 to April 1990, the parties
engaged in 33 bargaining sessions without reaching a labor
agreement. In late 1989 a charge had been filed concerning
involuntary shift transfer imposed on union bargaining com-
mittee member Mike Winters. This was soon resolved by in-
formal settlement agreement calling for a return to his pre-
vious type of shift work, plus minor remedial action.
Then on April 4, 1990, a decertification petition was filed,
and processed toward an election scheduled for July 19 and
20, 1990. This scheduled election was postponed shortly be-
fore it would have occurred, and instead a hearing was held
on August 21, 1990. Respondent’s bargaining position as of
early September 1990 was static, dating from the end of ne-
gotiations the previous April. Respondent had generally
sought concessionary changes, with only a total 1-1/4-percent
top rate increase in its wage proposal over a 3-year contract,
plus fundamental revision of the retirement and saving plan
and elimination of pay for performance. However in early
September 1990 Respondent received signature lists sent by
an attorney for the decertification petitioner, as named the
Brown and Root Employees Group. These signatures were in
support of an unequivocal statement that the signatory did
‘‘no longer wish to be represented by the United Paper-
workers International Union (UPIU),’’ and did ‘‘demand that
[Respondent] cease recognizing’’ the Union as collective-bar-
gaining representative. The Respondent promptly acted on
this material by written notification to an attorney for the
Union that recognition was withdrawn. Significant wage and
fringe benefit increases were also immediately implemented.
The decertification petition was withdrawn on September 5,
1990. This made moot the Decision and Direction of Elec-
tion that by then had issued in the decertification case. As
stated above, the Union soon filed the instant and consoli-
dated representation petition on September 24, 1990, and this
was processed to the October election.
Respondent had conducted a series of campaign meetings
involving small groups of assembled employees both before
the scheduled July election and before the actual October
election. Both sets of meetings are the subject of allegations
in the consolidated complaint, while only the October meet-
ings, these occurring within the period critical to the Union’s
representation petition, is the event implicit in the Union’s
objections to election.
As typically so in consolidated cases of this type, the
Union’s surviving objections dovetail to various allegations
of the complaint. A separate issue, and separate consolidated
CA case, relates to another involuntary shift transfer of Win-
ters following a week-long suspension without pay. This dis-
cipline was based on a late 1990 incident occurring at the
workplace.1
2. Employer identification
The enterprise of which Respondent is a part comprises
various business organizations peaking with an overall entity
that is ‘‘Brown and Root Incorporated.’’ In a course of
modifying the enterprise’s hierarchy and internal corporate
relationships, the entity Brown and Root Industrial Services
(BRIS) was established. For present purposes BRIS may be
thought of as originating at numerous maintenance locations
as of January 1, 1989. The Valliant employees had been
somewhat advised in December 1988 of BRIS being formed;
such advice being disseminated during preelection campaign
meetings conducted by management. Redefinition as a BRIS
facility ordinarily meant some change as to employee com-
pensation and benefits. Such implementation was deferred at
Valliant because of the labor contract negotiations then ex-
pected to begin. This facility is one of approximately 100 lo-
cations, worldwide, where the Brown and Root enterprise has
large scale, industrial maintenance contracts. The Valliant lo-
cation is organizationally within a central region for the
United States.
When withdrawal of recognition occurred effective Sep-
tember 4, BRIS, as a practical matter, was installed as the
employing entity for Valliant. Certain formalities of the
change were deferred until January 1, 1991, ‘‘principally’’
because of tax reasons. For purposes of this decision, the
captioned entity is interchangeable with BRIS, and use of the
term ‘‘Respondent’’ could mean either one depending on
context.
1209BROWN & ROOT U.S.A.
3. Setting
At times material to this case Respondent employed ap-
proximately 300 persons in the maintenance function being
fulfilled for industrial customer Weyerhaeuser. The facility is
a major paper products mill comprised of huge, complicated
machines and equipment operated by Weyerhaeuser’s own
work force. The major manufacturing components are a
wood yard, pulp mill, lime kiln, powerhouse and three enor-
mous papermaking machines, plus related structures, proc-
esses and a general industrial complex. The operation is
heavily dependent on reliable electrical power and sophisti-
cated instrumentation capabilities.
In fulfillment of these integrated production (Weyer-
haeuser) and maintenance (Respondent) functions, consider-
able mingling occurs between employees of the two enter-
prises. A significant reality at the facility is the customer-
provider relationship between the two, and the fact that Re-
spondent operates at the will of Weyerhaeuser and for its
general satisfaction as to quality and reliability of services
rendered. A high degree of interchange and coordination ex-
ists between Weyerhaeuser’s supervisory hierarchy and that
of Respondent. The Weyerhaeuser employees are also, as had
been the case, represented by the Union in a separate bar-
gaining unit. The overall and combined workplace is one in
which wage and fringe benefits are highly comparable as be-
tween the two groups.
4. Terms and conditions of employment
Besides comparable wage rates the employees of both
Weyerhaeuser and Respondent are covered by a group health
plan. This is a contributory plan, which for Respondent’s em-
ployees has typical deductible and limiting features as to
health care coverage. The two work forces also have a retire-
ment savings plan in effect. One significant difference be-
tween these two benefits was Respondent’s contributory
matching option, an enhancement termed the ‘‘Super Saver’’
feature. Nonparticipation in Super Saver by employees did
not affect their regular retirement and savings plan eligibility.
A pay for performance (PFP) plan also exists for both
groups, which essentially amounts to an incentive based prof-
it-sharing plan.
5. Comparative project sites
Among Respondent’s operations at numerous industrial fa-
cilities around the country, the following locations, including
status of wage increases for employees working there and
date of such effectiveness, is shown in the tabulation below.
Customer
Percent of
Wage In-
crease
Date in Effect
Watson Cogen 4.30 May 1, 1990
Champion Paper 5.30 January 1, 1989
3.75 March 5, 1990
Inland Container 3.00 November 28, 1988
2.50 March 4, 1990
Inland Rome 2.50 June 1, 1990
2.00 October 1, 1990
Inland Orange 4.00 May 1989
5.30 March 5, 1990
International Paper 3.00 February 1, 1989
Customer
Percent of
Wage In-
crease
Date in Effect
2.50 March 5, 1990
Temple Inland Submitted
....................
Texas Instruments 5.30 August 1, 1989
Texas Utilities 3.00 May 1, 1990
Weyerhaeuser None
The Inland Container facility is located in Mansfield, Lou-
isiana, an estimated 3-hour drive from Valliant. In compara-
tive terms this facility is particularly important, because dur-
ing their careers employees at one location have worked at
the other, and in some cases relatives of employees are
working at the other facility. This condition leads to a con-
siderable exchange of information about wages, terms, and
conditions of employment at one location versus the other,
or at least perceived features of employment. Additionally,
there have been instances when temporary, special assign-
ment took Valliant employees to project sites in California
and Washington, where BRIS was in place and the settled
features of BRIS employment policy were either learned or
became the subject of aroused curiosity among persons so as-
signed.
B. Credibility
1. Preliminary
The credibility evaluations that follow are based primarily
on demeanor; and, where pertinent, consideration of affidavit
or other written statements made by a particular witness as
to relevant happenings. Where a witness of basically normal
demeanor is not credited as to a specific issue of the case,
that shall be specially noted.
2. General Counsel’s witnesses
(a) Donald Hearn—This witness, who also was representa-
tive for the Charging Party during the entire hearing, was ba-
sically credible in regard to his testimony as to chronological
and overall matters that provided case context.
(b) Michael Winters—This witness presented with a de-
meanor that does not permit me to credit him in full. While
a certain degree of earnestness and accuracy is surely present
in Winters’ overall testimony, and more particularly his de-
scription of various episodal matters, I am not satisfied that
he has correctly recalled, or validly conceded, much of the
tone and content of critical happenings that pertain to the
issue in the case involving him. For this reason I generally
extend only limited credibility to his testimony, and other-
wise in quite salient regards discredit what he asserted.
(c) Joanie Stewart—This witness revealed some inconsist-
ency of memory, this having a detrimental effect on much
of what she covered. Her description of observing an open-
ing portion of the Winters’ incident on October 25 is too
generalized to shed light on the issue. I generally discredit
her testimony, in finding little of it with overall value to the
case.
(d) Roy Devon (Hoot) McKeever—This witness testified
with only limited certainty, and I expressly discredit his per-
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ception that neither sarcasm or some form of laughing hap-
pened during the Winters’ incident of late October. I do not
find his version of management’s remarks at an employee
meeting in July to be reliable, largely from the effect of a
successful motion to strike, and reject his description of man-
agement officials nodding in apparent assent to a remark
made at an October meeting. Overall, while I do not particu-
larly doubt his sincerity, I am not persuaded to accept any
meaningful amount of his testimony.
(e) Therrell Dingess—This witness seemed to be particu-
larly straining for accuracy in what he asserted, however I
am not fully satisfied with the result. A mixed characteriza-
tion must be applied, and I specifically reject his recollection
of management’s remarks during the July meeting. On this
basis I essentially discredit Dingess concerning his testimony,
noting however that he earnestly contradicted McKeever
about the head-nodding in October.
(f) James C. (California Jim) McKendrick—This was an
uncommonly candid-seeming witness, who testified with a
demeanor that was a convincingly studied attempt to recall
accurate answers respecting those questions posed to him.
My negative credibility evaluation of both McKeever and
Dingess is influenced greatly by McKendrick’s impressively
correct-sounding description of his unsolicited remark at the
October meeting, and, in contrast, their mutually disparate
and dubiously enlarged version. I readily credit McKendrick
in full concerning his testimony.
(g) Lee Wade Jones Jr.—This witness was very
unimpressive, testifying with a careless-seeming manner and
offering only what seemed a convenient answer, while also
being suggestible in his responses. On this basis I discredit
Jones in full.
(h) Jerry Cunningham—This witness was openly biased
against Respondent, and his testimony appeared driven by re-
sentment as well as peppered with fictionalized claims and
unbelievable renditions almost totally discreditable on their
face. Cunningham’s testimony is rejected in the entirety.
3. Respondent’s witnesses
(a) Walter Lisiewski—This witness testified with a gen-
erally impressive demeanor, and a relatively high degree of
precision and seeming accuracy in what he recalled. My
overall opinion of Lisiewski is to credit him in full regarding
all significant aspects of the case in which he was involved.
(b) Bobby R. Hamrick—This witness, a supervisory em-
ployee of Weyerhaeuser, testified with sufficiently impressive
demeanor characteristics that I credit his limited presentation
in full.
(c) Gregory Glen Dagenhart—This witness testified with
a sincere-seeming manner as to justify belief in his general
recollection. I credit Dagenhart in full.
(d) Donald Dorey—This witness testified with sufficient
sincerity and valid demeanor that I also credit his testimony
in full.
(e) Larry Edward Clay—This witness testified satisfac-
torily about various background matters. I credit his recollec-
tion on the points covered.
(f) Garry Graham—This key witness for Respondent testi-
fied in a manner causing me to be persuaded that he is truth-
ful and reliable in all significant regards. Graham made a
particularly palpable effort at accurately recalling the subtle
happenings during the episode with Winters in which he was
principally involved. On this, and the overall basis of his de-
meanor, I credit Graham in full.
(g) James Kenneth Lee—This witness is involved in the
case rather collaterally, however I am satisfied that the testi-
mony he did offer was truthful and accurate. On this basis
Lee is generally credited.
(h) George Tanley—This witness, who functioned closely
with Lisiewski in regard to case happenings, was comparably
sincere and persuasive in his demeanor as a witness. On this
basis I credit Tanley’s testimony practically in full.
(i) Earl Alvis Le Force—This witness testified with a gen-
erally impressive demeanor, and I am satisfied that he had
no partisan slant to his offerings. On this basis I credit what
he covered, the effect of which is simply to reinforce a dis-
crediting of the General Counsel’s witness Lee Wade Jones
Jr.
(j) Royce Dale Coffee—This witness seemed particularly
weak in delivery, fumbled over his answers, and was uncer-
tain of many facts. Based on this particularly poor demeanor
presentation, I generally discredit Coffee and rely on other
sources regarding the happenings in which he was involved.
(k) James Gary Jones—This witness testified in a rel-
atively smooth, almost glib, manner, however I am not in-
clined to accept the sincerity of what he presented. His testi-
mony was too artifical-sounding, almost rehearsed in its na-
ture. For this reason I discredit Jones as to the integrity of
steps in which he was involved during the fast-breaking dy-
namics that led to Respondent’s withdrawal of recognition
from the Union.
4. Significance
The assorted credibility evaluations above have a signifi-
cance as to each primary issue of the case. Regarding para-
graph 5 of the consolidated complaint, credited testimony de-
termines whether remarks by Respondent’s agents at the July
and October meetings amounted to unlawful promises or
threats. In partial regard this is also true as to the Union’s
surviving objections. Regarding paragraph 6, the credited tes-
timony leads to factual findings upon which the motivating
reasons for discipline of Winters may be evaluated. Regard-
ing paragraph 8(a), the discredited testimony of Respondent’s
witness James Gary Jones affects a legal conclusion as to va-
lidity of recognition being withdrawn from the Union.
C. General Background
During the early months of 1990 considerable comment
and speculation ranged throughout the worksite regarding
Respondent’s future as a maintenance contractor for
Weyerhaeuser, and the status of terms and conditions of em-
ployment then extended by Respondent to its employees.
This agitation was exemplified by anonymously printed
handouts of divergent viewpoint, and by poorly understood
conclusions drawn from Respondent’s periodic employee
publication entitled ‘‘News & Views.’’ A special source of
uncertainty and rumor originated with 1989 year-end retire-
ment and savings plan statements. Here a special, highlighted
notation advised that ‘‘matching company contribution[s] in
1990’’ would not be received by employees, unless they
started contributions under the ‘‘super savings’’ feature of
the plan immediately. Most witnesses to the case agree that
questions abounded throughout the first half of 1990, particu-
1211BROWN & ROOT U.S.A.
larly as to what impact the dimly known BRIS entity would
have on the situation. On a purely operational side the
‘‘bombard[ing]’’ of questions led a high Weyerhaeuser offi-
cial to issue a memorandum of general distribution in which
production and capital improvement assurances were made.
D. July and October Meetings
Against this background Respondent chose to arrange em-
ployee meetings in advance of the scheduled July election,
and it later also did so in October. The format was assem-
bling 5 to 10 employees from alphabetic affinity into a train-
ing room, and plan about a half hour for overhead visual
transparency projections plus an allowance for questions to
follow. Lisiewski, Respondent’s general manager head-
quartered in Dallas, Texas, traveled to Valliant and in con-
junction with Tanley, the project manager at Valliant, made
the presentation to employees.
The July election was postponed when Respondent was at
about the point of the letter ‘‘S’’ in its alphabetic-based call-
ing of employees, and it suspended further meetings at that
point. During ones that had been held the projected trans-
parencies showed organizational set-ups of the Brown and
Root enterprise, and wage increase tabulations as set forth
under ‘‘Comparative Project Sites’’ in section A,5, above.
The transparencies and associated remarks, primarily as done
by Lisiewski, also covered topics of insurance, retirement
and savings plan, and, mostly to clarify questions arising by
October, how Respondent was intending to handle the pay
for performance plan.
On wages Lisiewski relied on the transparency of com-
parative sites, stating that it showed the facts and clarified
questions, but did not signify any promises that Respondent
was extending. At a July meeting one more pointed question
lead Lisiewski to ascertain and report the ‘‘top rate’’ of
$15.63 in effect at Mansfield. On health insurance a trans-
parency was displayed showing coverages, premiums and de-
ductible features, as a measure of the existing Valliant plan
and what was in effect at BRIS locations. Lisiewski empha-
sized the premium columns of this transparency to contradict
an anonymous flyer claim that employees at other sites paid
an additional $196 in monthly health premiums. He coupled
this display with express remarks about not offering the more
appealing BRIS-type coverage if the Union were voted out.
On the retirement and savings plan Lisiewski used a trans-
parency showing total ‘‘R & S’’ balances in future years
based on projections with no employee savings pay-in, ver-
sus a recurring 10 percent employee savings investment. The
subject was also compared to a Weyerhaeuser plan, and these
meetings clarified that the Super Saver plan of partially
matching company contributions was an issue in bargaining.
When this form of meeting was resumed before the Octo-
ber election, and again Lisiewski appeared to lead its presen-
tation, the transparency projector was inoperative so verbal
explanations were done instead. Furthermore, Respondent’s
officials found that questions were fewer, and the meetings
were for this reason shortened to only about a quarter hour.
In the course of the particular October meeting of
midalphabetic surnamed employees, McKendrick, who had
conversed casually with Tanley at the outset, punctuated the
meeting as it ended by a personal statement loud enough for
all present to hear that in his opinion a pulling out of Re-
spondent from the Valliant facility would mean the perma-
nent loss of jobs by all its present employees. I find specifi-
cally that Lisiewski and Tanley, both present and within ear-
shot of the remark, were in fact startled by its ominous na-
ture, but that neither gave any overt indication, by nodding
in assent or otherwise, that they agreed with McKendrick’s
gratuitous prediction.
E. Withdrawal of Recognition
In point of time the originating document as to this subject
was a letter dated September 4 from Tulsa-based attorney
Richard Barnes. On its face as, Respondent’s Exhibit 27, it
appears as an ordinary business mailing of that date to Attor-
ney Howard Linzy at New Orleans. In content the letter
states:
As attorney for the Brown & Root Employees
Group, I hereby demand that your client, Brown &
Root U.S.A., Inc., withdraw its recognition of the
United Paperworkers International Union as the collec-
tive bargaining representative of your client’s employ-
ees at Valliant, Oklahoma. I have in my possession
valid petitions signed by a majority of those employees
withdrawing and terminating the representational status
of the UPIU.
In a second letter of similar appearance from Barnes to
Linzy, also dated September 4 and in the record as, Respond-
ent’s Exhibit 28, the content was:
Pursuant to our telephone conversation this morning,
I am enclosing copies of all of the petitions signed by
a majority of your client’s Valliant employees. Con-
firming your commitment in this regard, the copies will
be used by your office to verify that a majority of those
employees have withdrawn the representational status
of UPIU and you will not disclose the names of the sig-
natories to management at Valliant without my assent.
This second letter transmitted numerous pages constituting a
composite signature list of approximately 140 names express-
ing a desire to discontinue representation by the Union.
James Gary Jones is a senior employee relations represent-
ative and employed by Respondent for the past 14 years. His
duties have included the handling of various labor relations
and legal matters regarding the Valliant site over that time-
span. Jones testified that Attorney Linzy had faxed to him
both of Barnes’ letters early on the morning September 4, a
Tuesday. Jones asserted that he immediately compared the
signatures with an employee list of Valliant employees, a
process done after he had ‘‘contacted the job site’’ to verify
currency of employment in certain instances. He purged a
few names to reduce his employee list to approximately 270,
and then compared signatures using typical employment doc-
uments on file at Respondent’s office.
When the process satisfied Jones that a majority had
signed the composite of petitions, he informed Attorney
Linzy of his conclusion. This led to a letter from Linzy dated
September 4 to Michael Hamilton, attorney for the Union,
with copying to various interested persons. The content of
this letter, including its highlighted manner of transmittal, is:
VIA FAX AND
CERTIFIED MAIL RETURN RECEIPT REQUESTED
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mr. Michael Hamilton, Esq.
3340 Perimeter Hill Drive
Nashville, TN 37221
Re: Brown & Root USA, Inc. Valliant, Oklahoma
Dear Mr. Hamilton:
We have just been informed by the attorney rep-
resenting the Brown & Root Employees Group that a
majority of employees no longer wish to be represented
by the United Paperworkers International Union and
have demanded that the company withdraw recognition.
The company has verified that a majority of the em-
ployees do not wish to be represented by your client
and, therefore, are withdrawing recognition of your
union immediately.
After withdrawing recognition, Respondent immediately
granted an across-the-board wage increase of 9.5 percent to
hourly employees and liberalized the vacation formula. On
this latter subject the entitlement to a week of vacation was
reduced from four years of employment to only one. A
matching 401(k) plan was installed for employees, and a
medical plan drawn from the BRIS benefit package was an-
nounced, with its effectiveness to commence on January 1,
1991. Subsequently, in October, the quarterly pay for per-
formance amount was fixed at 7.8 percent, and paid out to
employees during that month.
F. October 25 Incident
Among Respondent’s functional maintenance services at
Valliant is one organizationally, and by associated job classi-
fication, called Electrical & Instrumentation (E & I). Winters
is an E & I technician with 14 years service, and on October
25 was assigned to shift work. This involved a specially de-
signed work schedule totalling 44 hours per alternate week,
and best permitting full E & I coverage for needs of the fa-
cility outside regular shift times. The shift techniques aug-
mented regular E & I personnel working an established shift
to provide service for a particular area of the facility. Win-
ters is executive vice president of the local union and a
member of its negotiating committee. He was also an ob-
server for the Union at the October election.
On the morning of Thursday, October 25 Winters arrived
at the facility shortly before 7 a.m. He walked into work near
to, and with observation of the presence of, a day-shift E &
I technician named Shelby Brinkley, who normally worked
in Weyerhaeuser’s shipping department. As Winters was
soon picking up job assignments at the number 3 E & I shop
a few minutes after 7 a.m. the telephone rang. It was an-
swered by Garry Graham, the E & I supervisor at that loca-
tion. The caller was Marion Scott, a Weyerhaeuser employee
reporting that the stencilling machine at the shipping location
was in need of repair. Graham handled the entire conversa-
tion during the few minutes it lasted. At one point he spoke
Winters name aloud, and after hanging up turned to Winters
to state the nature of the call and make an instruction that
Winters handle the repair problem. An incident ensued from
this during which Winters delayed getting the repair under-
way in a manner which Graham found insubordinate, particu-
larly to the extent that it was observed by numerous other
employees. Specifically, as based principally on Graham’s
credible testimony, Winters simply grinned, laughed and im-
pudently stalled. The behavior resulted in a mortifying sort
of role for Graham, and this generated a little contagious
laughter from other E & I employees also present. Graham
repeated his instructions, but still no normal obedience fol-
lowed from Winters. Instead he continued to exhibit a recal-
citrant, ‘‘non-verbal’’ refusal to budge, and merely to repeat
the remark that there was a ‘‘day man’’ for the repair prob-
lem. After a third unsuccessful request, Graham turned away
from his immediate efforts with Winters. Within the next ap-
proximately one half hour Graham located Winters’ shift su-
pervisor, Royce Coffee, and the two of them jointly reported
the incident to superintendent Ken Lee. A management deci-
sion followed this to suspend Winters while the full facts
were investigated. The ultimate result was a 1-week suspen-
sion of Winters, coupled with his return to ordinary day shift
work at the express request of Weyerhaeuser Supervisor
Bobby Hamrick.
G. Discussion
1. Alleged promises of July
The credibility evaluations made above dictate how this
issue is to be resolved. Having rejected the testimony of
McKeever and Dingess, and more assuredly that of
Cunningham, I find that Respondent made only permissible
remarks of a preelection campaign nature during the numer-
ous employee meetings held in July. The fact that Respond-
ent’s graphic use of overhead transparencies showed how
comparative nonunion sites had, for the most part, enjoyed
recent wage increases is not in itself a clear cut threat. The
technique employed contrasted sufficiently with similar dis-
play of transparencies projected onto a screen for employees
assembled in meetings in Anderson Co. (ANCO), 305 NLRB
878 (1991). There the explicit accompanying statement of an
official was that employees would ‘‘lose’’ benefits if they se-
lected a union as their representative. The Board found this
gave rise to a tendency for employees to ‘‘hesitate in decid-
ing to vote in favor’’ of such representation, a result for
which Respondent here cannot be held accountable.
On another plane Respondent’s presentation at the July
meetings did not expressly threaten that benefits were condi-
tioned on nonunion status. Again this contrasts with E & L
Plastics Corp., 305 NLRB 1119 (1992), in which a proposed
retirement plan was open to employees, ‘‘except those who
are members of a collective-bargaining unit.’’ On this basis
the Board held, as I decline to do here, that on such a record
there was nothing ‘‘to dispel the message that the loss of
benefits would be the necessary result of choosing union rep-
resentation.’’
General Counsel faults Respondent for not revealing the
facts about BRIS to employees in an orderly fashion prior to
the imminent (as scheduled) July election. A considerable
buildup of rumor and circulation of clandestine literature had
occurred regarding Respondent’s future presence at the facil-
ity, as well as wage increase prospects and the nature of ben-
efit programs then in effect. Lisiewski’s and Tanley’s clari-
fication in regard to employer contributions toward the retire-
ment and savings program was strictly informative and de-
void of any impermissible promising. See Fabric Warehouse,
294 NLRB 189 (1989). On the more general point of the
group meetings themselves it is sufficiently clear that cir-
1213BROWN & ROOT U.S.A.
cumstances justified the use of chosen format, the solicitation
of questions, and the offering of accurately clarifying an-
swers. See Viacom Cablevision, 267 NLRB 1141 (1983). In
sum, I find that allegations of paragraph 5(a) in the consoli-
dated complaint are not supported by probative evidence.
2. Alleged threats of October
A comparable disposition applies to paragraph 5(b) of the
consolidated complaint. Here, too, the General Counsel’s wit-
nesses simply did not convincingly establish that Lisiewski
or Tanley expressed any threats about loss of jobs or per-
formance bonus as contingent on results of the October elec-
tion.
The special aspect of this allegation to which the personal
opinion expressed aloud by ‘‘California Jim’’ McKendrick
applies, is resolved on express grounds that neither Lisiewski
nor Tanley gave any affirming indication of the stated
thought. Furthermore, I emphasize that McKendrick’s words
were, as he and others testified, only that should Respondent
‘‘pull out’’ from Valliant a job loss effecting current employ-
ees would result. The contrary testimony of discredited wit-
nesses to the effect that McKendrick associated this pre-
diction with the way in which employees voted in the elec-
tion is disregarded. Thus, the General Counsel has not shown
that Respondent was under a more stringent duty to repudiate
statements associating directly to the election, and the silence
maintained by Lisiewski and Tanley upon their hearing
McKendrick’s unexpected remarks was not unreasonable
under the circumstances.
The Board has recently acknowledged that ‘‘body lan-
guage’’ can be significant in response to utterances made that
associate to provisions of the Act. Here the nodding that cer-
tain discredited witnesses of the General Counsel discerned
is found not to have occurred, nor by any other ‘‘body lan-
guage’’ did Lisiewski or Tanley reinforce the notion that a
loss of jobs might occur because Respondent may seriously
have been on the verge of discontinuing the maintenance
contract with Weyerhaeuser. Cf. Health Care & Corp. of
America, 306 NLRB 63 (1992).
Paragraph 5(b) of the consolidated complaint also ex-
pressly alleges that Respondent unlawfully threatened loss of
the PFP bonus if employees were to select the Union for rep-
resentation. The facts show (Tanley’s contrary assertion not-
withstanding) that Lisiewski did at least state to employees
in the October meetings how the subject was on hold while
Respondent prepared for the election. Lisiewski conceded
this much, and Stewart’s notes buttress the fact. However
there is no evidence linking the deferral of calculating a reg-
ular item of compensation to the question of employee
choice about the Union, as opposed to the institutional strug-
gle that was focussing on the election. Absent this element,
the alleged threatening nature of Respondent’s conduct does
not have an unlawful character.
3. Withdrawal of recognition
As Respondent would wish this issue viewed, a plain ma-
jority of employee signatures was presented to Respondent
and upon its routine verification of authenticity a logical re-
sult followed. I do not believe this is a correct approach to
the issue.
The originating Barnes’ letter does not on its face show
a faxed transmission to attorney Linzy. The ordinary implica-
tion from this evidence in its present form is that as dated
September 4 it must have been received by Linzy no earlier
than September 5. However for purposes for this analysis I
assume that this letter, as well as the second one from
Barnes ostensibly referencing a telephone conversation of
that very morning, were both faxed between Tulsa and New
Orleans early during the business day of September 4. I also
note, since not particularly crediting James Gary Jones, that
he testified to being an immediate fax recipient in Houston
of all this correspondence simultaneously with its arrival for
Linzy.
Even upon this assumption the entire sequence of activity,
particularly Jones’ role in the process, does not show a req-
uisite good-faith employer belief that would warrant with-
drawing recognition from the representative of a bargaining
unit. The timespan in which it all occurred, and the nature
of communications in the course of the September 4 date,
give every indication of artificiality in the process. There are
three peculiarities which in the aggregate support an inferen-
tial conclusion, well more compelling than mere suspicion,
that the entire process was staged. First there was simply in-
sufficient time for Jones to have undertaken a good-faith as-
similation of the handwriting represented in well over 100
signatures, and effectively compare these to exemplars on
file. Secondly Barnes’ supposed followup letter explicitly di-
rected that no disclosure of names be made to Valliant man-
agement without his assent, a condition as to which Re-
spondent presented no evidence respecting fulfillment. Nota-
bly by Jones’ version of the eventful morning he
unrestrainedly contacted the facility to ascertain from his
people there the employment status of several signatories; the
exact thing Barnes had warned should not be done. Finally
there is no showing that Jones attempted to canvass Re-
spondent’s upper management at the Valliant location to es-
tablish that no objective facts were known to exist as to con-
travene the signatures, many of which were by then over a
month stale.
The Board has approved decisional language regarding
withdrawal of union recognition doctrine in which the con-
cept of ‘‘pretext’’ was utilized as part of evaluating requisite
grounds of ‘‘an objective basis for a good-faith belief regard-
ing the majority status.’’ Midway Golden Dawn, 293 NLRB
152, 156 (1989). As typically so, this decision arose in the
context of employer unfair labor practices causing a ‘‘taint-
ed’’ atmosphere to its action. See Sterling Processing Corp.,
291 NLRB 208 (1988). The more pointed question is wheth-
er a pretextual focus may be applied when no unfair labor
practices have actually occurred at the time withdrawal of
recognition takes place. Cf. Riverside Cement Co., 305
NLRB 815 (1991). I conclude that it may; subject to a realis-
tic assessment of the ‘‘good-faith’’ component in the process.
In U-Save Food Warehouse, 271 NLRB 710 (1984), the
Board adopted a rationale permitting the ‘‘cumulative effect’’
of elements comprising a reasonable doubt regarding contin-
ued desire for union representation to be analyzed. I see no
reason why the converse is not also true; namely that when
cumulative effect of an employer’s course of action permits
and requires an inference that malice and cunning, all less
than unfair labor practice conduct itself, has motivated the
decision, this necessarily shows a lack of good faith. For ex-
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Another of Respondent’s citations, based on Soule Glass & Glaz-
ing Co., 246 NLRB 792 (1979), is too extensively distinguishable
for effective comment. There the reviewing Federal court of appeals
expressed how that case presented ‘‘a virtual compendium’’ of labor
law issues. See Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055
(1st. Cir. 1981).
3 Wright Line, 251 NLRB 1083 (1980); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
4 I expressly discredit Winters’ testimony that Lisiewski invited
him to pursue consideration for a supervisory job. Further, I reject
his claim of having been deliberately ‘‘followed’’ around the facility,
crediting instead Lisiewski to the effect that no scheme of this type
existed nor had Respondent developed any intention that Winters be
discriminated against for his protected activities or with specific ref-
erence to the resolution of Case 17–CA–14573 involving him.
ample in Decor Noel, Inc., 283 NLRB 911, 915 (1987), the
non-relevancy of an invalid employee poll was contrasted
with ‘‘conversations’’ of an unspecified nature with super-
visors as an element in raising reasonable doubt.
Here, Respondent’s actual steps are heavy with suspect
motivation. It gave pro forma attention to the signature lists,
even though ‘‘[proper authentication]’’ of such signatures is
not required when they are ‘‘apparently’’ of those within the
bargaining unit at issue. Guerdon Industries, 218 NLRB 658,
661 (1975). It did not however heed the nondisclosure condi-
tion of the tendering attorney, nor is there any explanation
for the undue haste in making such a critical conclusion. U-
Save Food Warehouse, supra, also involves the noteworthy
adoption by the Board of rationale turning on the
‘‘gestaltist’’ nature of that employer’s action, a word inviting
inferential weighing of factors that might expose an actual
basis of the withdrawal of recognition which rests not on
good faith but instead on manipulativeness. On this basis Re-
spondent’s reliance on Gulfmont Hotel Co., 147 NLRB 997
(1964), and Windham Community Memorial Hospital, 230
NLRB 1070 (1977), is unavailing.2 I comparably reject Re-
spondent’s reliance on Randle-Eastern Ambulance Service,
230 NLRB 542 (1977), where a Board finding of unlawful
withdrawal of recognition was not enforced on appeal; a
holding, nevertheless, which the reviewing Federal Court of
Appeals was constrained to term a ‘‘close case.’’ NLRB v.
Randle-Eastern Ambulance Service, 584 F.2d 720, 729 (5th
Cir. 1978). In sum, I hold that a bona fide withdrawal of rec-
ognition did not take place, and its implementation as done
on September 4 was an unlawful failure to continue honoring
the Union’s 1989 certification. I therefore hold that consoli-
dated complaint paragraph 8(a), read in conjunction with
paragraph 12, is meritorious in establishing a failure to bar-
gain collectively violation under Section 8(a)(5) of the Act.
Relatedly, I find a separate violation rooted in consolidated
complaint paragraphs 8(b), (d), and (e) from these unilateral
changes absent impasse. I exclude paragraph 8(c) from these
holdings, because the PFP bonus was a regular and recurring
component of employee compensation not to be combined
with other, unlawful unilateral changes.
4. Suspension and reassignment of winters
While Respondent’s evidence concerning prior discipline
of Winters is not impressive, I am satisfied that the few sec-
onds, and related moments that followed, of early morning
on October 25 did involve insulting and insubordinate con-
duct on Winters’ part warranting the chosen discipline. It is
not a matter that Winters was right concerning Brinkley hav-
ing in fact handled the necessary repairs, or that in the sev-
eral minutes of fast-breaking events he personally ascertained
this to be the case. Instead it is that a direct order was given,
that when given an apparent need for customer service was
there, and that in any event clever behaviorisms by Winters
were truly, as Respondent contends, an arrogantly disrespect-
ful mocking of Graham which warranted serious discipline.
Respondent acted cautiously to the event, investigating the
subtle circumstances carefully and weighing them with due
consideration to all factors involved. I am impressed with
this evenhanded attention, although discounting the
makeweight arguments now advanced to the effect that ac-
tion taken was merely part of a progression based on past
infractions. Specifically, I reject Respondent’s evidence tend-
ing to show that in January, February, and March Winters
had been derelict in his employee responsibilities as to war-
rant corrective discipline, and, more importantly, that there is
any convincing showing that the recorded dissatisfactions
were even communicated to him. Nor are instances of dis-
cipline against other employees of sufficient comparability as
to assist in the process of evaluation.
Thus the allegation fails under the Wright Line test.3 The
failure is based on an absence of even the prima facie show-
ing that Winters’ protected activities were in any manner a
‘‘motivating factor’’ in the discipline chosen. On the contrary
the motivating factor was purely that of remedial discipline
for a serious and deliberate challenge to legitimate respect to
which supervision is entitled, and a response to the predict-
ably claimed adjustment in personnel presence desired by the
essential customer. There being no other discernable factors,
and considering Winters’ office-holding in the Union, his key
role in the election process, and his standing as a successful
discriminatee in a prior case, the overall result is a failure
of sufficient evidence to support the General Counsel in this
regard.4 Accordingly, I shall recommend dismissal of Para-
graph 6 of the consolidated complaint on the merits.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, a labor organization within the meaning of
Section 2(5) of the Act, is the exclusive representative of
employees in the following appropriate unit within the mean-
ing of Section 9(a) of the Act:
All full-time and regular part-time maintenance employ-
ees, expeditors, planning department employees and
shift leadmen employed by the Employer at the
Weyerhaeuser Paper Company facility in Valliant,
Oklahoma, EXCLUDING office clerical employees,
professional employees, guards, and supervisors as de-
fined in the Act.
3. By withdrawing recognition from the Union, and there-
after refusing to recognize, meet, and bargain with the Union
concerning terms of a collective-bargaining agreement, Re-
spondent engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act.
1215BROWN & ROOT U.S.A.
5 Pursuant to the Board’s usual policy, a new election is to be di-
rected when unfair labor practices served to interfere with exercise
of a free and untrammeled choice in an election. Dal-Tex Optical
Co., 137 NLRB 1782, 1786 (1962).
4. By unilaterally instituting wage increases and benefit
changes Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act.
5. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom, and take certain affirmative action designed to
effectuate the policies of the Act. Affirmatively, I shall rec-
ommend that Respondent again recognize the Union, and
meet and bargain, upon request, in a timely manner concern-
ing the terms of a collective-bargaining agreement. Nothing
in the affirmative provisions of the recommended Order shall
require Respondent to withdraw or eliminate any wage rates
or other benefits, terms or conditions of employment which
have been given to employees subsequent to September 4.
See RJE Leasing Corp., 262 NLRB 373 (1982).
The Representation Case
Having recommended that Respondent reestablish recogni-
tion of the Union, and maintain same for such future period
of time as is necessary to dissipate the effects of its unfair
labor practices, I shall recommend that the Union’s represen-
tation petition now be dismissed. These unfair labor practices
are such that the Union’s objections to election have merit;5
however this is a moot point in view of the controlling rec-
ommendation.
The General Counsel has briefed the point of whether in
this case the critical period in which to view objections may
be extended back to the decertification filing of April 4. I
first observe that under my holding with respect to the em-
ployee meetings in July this point is also moot, and second
that it is problematical whether General Counsel has standing
to press such a point on behalf of the objecting petitioner in
a consolidated case of this type. However on the merits of
the contention, I disagree that an extension could be made.
A definite hiatus occurred in September between the decerti-
fication withdrawal and a new representation filing nearly 3
weeks later. Furthermore the petitioners in this fact situation
are different, let alone representing diametrically opposed in-
terests. For this reason the General Counsel’s reliance on
Monroe Tube Co., 220 NLRB 302 (1975), is unavailing.
[Recommended Order omitted from publication.]