Buck Knives, Inc.

National Labor Relations Board - Board DecisionsApr 20, 1976

223 N.L.R.B. 983 (N.L.R.B. 1976)

BUCK KNIVES, INC. Buck Knives, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 506 and Buck Knives Employee Association , Party in Interest. Case 21-CA-13625 April 20, 1976 DECISION AND ORDER BY MEMBERS JENKINS , PENELLO, AND WALTHER Upon a charge filed on May 12, 1975, by Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 506, hereinafter called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, is- sued a complaint and notice of hearing on July 8, 1975, against Buck Knives, Inc., hereinafter called the Respondent. The complaint alleged that the Re- spondent had engaged in, and was engaging in, un- fair labor practices within the meaning of Section 8(a)(1) and (2) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended, by conduct hereinafter specified. Respondent filed an answer in which it denied the commission of the alleged unfair labor practices. On November 18, 1975, the parties executed a stip- ulation of facts by which the parties waived a hearing before an Administrative Law Judge and the is- suance of an Administrative Law Judge's Decision and recommended Order, and agreed to submit the case to the Board for findings of fact, conclusions of law, and Order, based on a record consisting of the motion to transfer the proceedings to the Board, the stipulation of facts, and the exhibits attached thereto. On January 5, 1976, the Board approved the stipu- lation of the parties and ordered the case transferred to the Board, granting permission for the filing. of briefs. Thereafter, both the General Counsel and the Respondent filed briefs. 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. Upon the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the following: FINDINGS OF FACT 1. JURISDICTION The Respondent is a corporation engaged in the manufacture of knives, with facilities located at 1717 983 North Magnolia Avenue, 8051 Wing Street, and 396 North Raleigh Street, El Cajon, California. In the normal course and conduct of its business opera- tions, Respondent annually sells and ships goods val- ued in excess of $50,000 directly to customers located outside the State of California. Respondent admitted, and we find, that Buck Knives, Inc., is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended. If. THE LABOR ORGANIZATION INVOLVED The Respondent admitted, and we find, that the Union and the Buck Knives Employee Association, hereinafter called the Association, are both labor or- ganizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Briefly stated, the stipulated facts indicate that on May 19, 1972, the Association, operating under the name of the Buck Knives Employee Committee, was certified by the Board in Case 21-RC-12649 as the exclusive representative of the Respondent's produc- tion and maintenance employees.' On November 1, 1973, pursuant to a Stipulation for Certification Upon Consent Election executed by the Respondent and the Union, and approved by the Regional Direc- tor for Region 21 of the National Labor Relations Board, an election was held among the Respondent's production and maintenance employees to determine whether or not those employees desired to be repre- sented for the purposes of collective bargaining by the Union. The Association did not participate in this election. Following the Union's loss in a very close election,2 the Regional Director, on January 7, 1974, certified in Case 21-RC-13436 that a majority of the valid ballots had not been cast for the Union. In October 1974, the Union commenced an orga- nizational campaign among the Respondent's pro- duction and maintenance employees involved in the preceding year's election. It was stipulated that dur- ing that month the Union succeeded in securing 67 signed union authorization cards from employees of the Respondent by soliciting employees at the exits of the Respondent's parking lots, and by leafleting employees on two occasions at the parking lot exits. 1 The Petitioning labor organization, Buck Knives Employee Committee, received 73 out of the 123 valid ballots cast in the election which was con- ducted on May 11, 1972. 2 The Union received 98 out of the 200 valid votes counted. 223 NLRB No. 144 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 21, the Respondent issued a letter to its employees to discourage their interest in a union and to remind them that the Company was "pledged to high standards of individual treatment and respect for all employees." By letter dated November 5, 1974, the Union advised the Respondent that four named employees were serving as voluntary organiz- ers for the Union and that they, as such, were enti- tled to all the rights and privileges under Federal la- bor laws. On or about November 11, 1974, the Association notified the Respondent that it, the Association, claimed to represent a majority of all the Respondent's hourly employees.' The Association's claim was based on signed authorization cards. In order to confirm its claim of majority status, the As- sociation, on or about November 14, 1974, submitted the authorization cards it had obtained to an agreed- upon neutral third party, Father Joe Carroll of Our Lady of Grace Catholic Church, for verification and determination of the Association's majority status. On the same date, Father Joe Carroll found, after examining the cards and comparing them against the payroll records of the Respondent, that 170 of the 278 employees in the unit described herein in foot- note 3 had designated the Association as their exclu- sive collective-bargaining representative. The Union was never notified of this card check. Immediately after being informed of the results of the card check, the Respondent extended recognition to the Associa- tion as the exclusive collective-bargaining representa- tive of the Respondent's employees in the unit de- scribed herein. On or about November 27, 1974, the Respondent executed a collective-bargaining agree- ment with the Association, effective from November 27, 1974, to January 1, 1978, covering the employees in the appropriate unit. That agreement was being maintained and enforced at the time that the stipula- tion of facts was entered into on November 18, 1975. A. Contentions of the Parties The General Counsel contends that the facts dem- onstrate that the Respondent , by recognizing, bar- gaining, and executing an agreement with the Associ- ation at a time when there was in existence a question concerning representation , breached its duty of strict neutrality under the Midwest Piping doctrine,4 and thus violated Section 8(a)(2) and (1) of 3 The unit description is as follows : All hourly employees of the Employer at its facilities located at 1717 North Magnolia Avenue , 8051 Wing Street. and 396 North Raleigh Street, El Cajon, California , including production and maintenance employees , Buck toolmakers, packer-shippers , and inspec- tion employees ; excluding probationary employees , supervisors, foremen, assistant foremen , office and clerical, engineering , and administrative em- ployees. Midwest Piping & Supply Co., Inc., 63 NLRB 1060 ( 1945). the Act. In support of this position, the General Counsel argues that the Respondent's letter of Octo- ber 21, 1974, to its employees with regard to the "ad- vantages of being unrepresented" clearly indicates that the Respondent was indeed aware of the Union's organizational campaign at the time it recog- nized the Association based on a card check. In addi- tion, the General Counsel argues that the Respon- dent was put on notice of the Union's organizational campaign when it received the Union's letter of No- vember 5, 1974, advising Respondent that four em- ployees were serving as voluntary organizers for the Union. In a moreover argument, the General Coun- sel contends that the fact that the Union had ob- tained 67 authorization cards, and that it had been involved in an election involving the same employees only 1 year before and had lost by only 4 votes, makes it clear that the Union's claim was not clearly unsupportable or lacking in substance. Respondent, on the other hand, contends that there was no question concerning representation at the time it recognized the Association as the exclu- sive bargaining representative of its employees and executed the collective-bargaining agreement re- ferred to hereinabove. Specifically, the Respondent argues that there is no evidence that the Respondent had knowledge of any organizational efforts by the Union subsequent to the unsuccessful 1973 election other than the letter sent by the Union to the Re- spondent alleging that four of the Respondent's em- ployees were organizing on behalf of the Union. In addition, it asserts that at no time subsequent to the 1973 election did the Union make any claim that it represented any of the Respondent's employees. Fi- nally, the Respondent argues that its decision to rec- ognize the Association was proper in view of the clear and convincing evidence that the Association represented a majority of its employees in the unit in question. B. Analysis and Conclusions Under the Board's doctrine established in Midwest Piping & Supply Co., Inc., supra, "an employer faced with conflicting claims of two or more rival unions which give rise to a real question concerning repre- sentation may not recognize or enter into a contract with one of these unions until its right to be recog- nized has finally been determined under the special procedures provided in the Act." I If an employer ignores this doctrine and improperly recognizes one of the unions involved, it violates Section 8(a)(2) and (1) of the Act. It is well established that the sole re- 5 The Boy's Markets, Inc., 156 NLRB 105, 107 (1965). BUCK KNIVES, INC. quirement necessary to raise a real question concern- ing representation within the meaning of the Midwest Piping doctrine is that the claim of the rival union must not be "clearly unsupportable or specious, or otherwise not a colorable claim." 6 Here, the Respondent, faced with a real question as to which labor organization, the Union or the As- sociation, was entitled to represent the Respondent's employees in the unit described above in footnote 3, recognized and signed an agreement with the Associ- ation without waiting for the Board to determine the Association's right to be recognized. The Union, which commenced its organizational campaign in October 1974, was not a new labor organization on the scene but had been involved just 1 year before in an election among the Respondent's employees and lost by only four votes. It was stipulated that during the month of October, the Union secured 67 signed authorization cards, not by waging its campaign in areas far removed from the Respondent's premises, but by openly soliciting and leafleting employees at parking lot exits. We further note that by issuing a letter to its employees dated October 21, 1974, with regard to the advantages of being unrepresented, the Respondent indicated its awareness of and its con- cern about the Union's organizational campaign. Furthermore, the Respondent was put on notice of the Union's campaign when it received the Union's letter of November 5, 1974, advising the Respondent that four named employees were serving as voluntary organizers for the Union. Under these circumstances, it cannot be said that the claim of the Union was "clearly unsupportable or specious, or otherwise not a colorable claim." Instead of submitting to the Board the question of which labor organization, the Union or the Association, was entitled to represent the employees involved herein, the Respondent en- gaged in a card check. In light of all of the above factors, we do not view the card check made by Fa- ther Joe Carroll to be an accurate barometer of em- ployees' sentiments since, in our opinion, such cards do not ultimately reflect the choice of the employees' bargaining agent.' Accordingly, we find that, by recognizing, bargain- ing, and executing a collective-bargaining agreement with the Association at a time when a real question concerning the representation of the employees in- volved herein existed, the Respondent unlawfully as- sisted the Association in violation of Section 8(a)(2) and (1) of the Act. 6American Can Company , 218 NLRB 102 (1975); Playskool, Inc., a Divi- sion of Milton Bradley Company, 195 NLRB 560 (1972), enforcement denied 477 F.2d 66 (C.A. 7, 1973); The Boy's Markets, Inc., supra. 7 Novak Logging Company, 119 NLRB 1573 ( 1958). CONCLUSIONS OF LAW 985 1. Buck Knives, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica (UAW), Local 506, and Buck Knives Employee Association are labor organizations within the mean- ing of Section 2(5) of the Act. 3. By recognizing the Association, by executing a collective-bargaining agreement with the Associa- tion, and by maintaining in effect and enforcing the provisions of said contract, at a time when a question concerning the representation of its employees ex- isted, the Respondent has rendered and is rendering unlawful assistance and support to the Association in violation of Section 8(a)(2) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY We have found that the Respondent has engaged in certain unfair labor practices, and thus we shall order it to cease and desist therefrom and to take certain action designed to effectuate the policies of the Act. We have found that the Respondent recognized the Association and thereafter entered into an agree- ment with it on November 27, 1974, all during the pendency of a genuine question concerning represen- tation of the employees covered thereby. By such conduct, the Respondent has interfered with, re- strained, and coerced its employees in the exercise of their right freely to select their own bargaining repre- sentative and has accorded unlawful assistance and support to the Association, in violation of Section 8(a)(2) and (1) of the Act. In order to dissipate the effect of Respondent's unfair labor practices, we shall order the Respondent to withdraw all recogni- tion from the Association and to cease giving effect to the aforementioned agreement, or to any renewal, modification, or extension thereof, until such time as the Association shall have been certified by the Board as the exclusive representative of the employ- ees in question. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Buck Knives, Inc., El Cajon, California, its officers, 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agents , successors , and assigns, shall: 1. Cease and desist from: (a) Assisting or contributing support to the Buck Knives Employee Association, or to any other labor organization, by recognizing such labor organization as the exclusive representative of any of its employ- ees for the purpose of collective bargaining at a time when there exists a real question concerning repre- sentation , or in any other manner. (b) Giving effect to, performing, or in any way en- forcing the collective-bargaining agreement executed with the above-named labor organization on Novem- ber 27, 1974, or to any modification, extension, re- newal, or supplement thereto, unless and until the said labor organization has been certified by the Na- tional Labor Relations Board as the exclusive bar- gaining representative of such employees ; provided, however, nothing herein shall require the Respon- dent to vary or abandon any wage, hours, seniority, or other substantive features of its relations with its employees which have been established in the perfor- mance of this agreement or to prejudice the assertion by employees of any rights they may have thereun- der. (c) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from the Buck Knives Employee Association, as the repre- sentative of its employees for the purpose of collec- tive bargaining unless and until the said labor organi- zation has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Post at 1717 North Magnolia Avenue, 8051 Wing Street, and 396 North Raleigh Street, El Cajon, California, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms pro- vided by the Regional Director for Region 21, after being duly signed by Respondent's representatives, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 21, in $ In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. MEMBER WALTHER, concurring: I concur in the finding of the majority that Re- spondent violated Section 8(a)(2) and (1) of the Act by recognizing and executing a contract with the As- sociation, and I agree with the nature of the remedy imposed by them for this violation. However, in doing so, I find it unnecessary to consider the appli- cation of Midwest Piping & Supply Co., Inc., 63 NLRB 1060 (1945). The Buck Knives Employee Committee, otherwise known as the Association, received certification by the Board on May 19, 1972. Over a year later, on November 1, 1973, the Union lost another election in which the Association refused to participate. The stipulation of the parties in this case is silent as to the subsequent representation history, if any, of the em- ployees of the Respondent. Apparently, employees were unrepresented until the latter part of 1974. During October 1974 the Union began organizing the employees of Respondent, securing 67 authoriza- tion cards by soliciting employees at the exits of Respondent's parking lots. Further, the Union's agents leafleted the employees of Respondent at the parking lot exits on two occasions during October. By letter dated November 5, received by Respondent November 7, the Union advised Respondent of the employees who were serving as the union organizers. There can be little doubt Respondent was well aware of these organizing efforts, and, in fact, on October 21 Respondent issued to its employees a let- ter stating Respondent's opposition to union repre- sentation of its employees. Nevertheless, despite its avowed opposition to union representation, and disregarding the lack of any known representational efforts by the Associa- tion in over 2-1/2 years, Respondent recognized the Association on November 14, and on November 27 executed a collective-bargaining agreement with the Association. It is clear that Respondent has here actively dis- criminated in favor of one labor organization against another. Respondent has favored and assisted the Association by immediately, without notification to the Union which Respondent was on notice was or- ganizing its employees, granting preferred treatment to the Association, by the closed card-check recogni- tion and execution of a collective-bargaining agree- ment. The Act guarantees to the employees the right to select their own collective-bargaining representa- tive. Neither the Employer nor the Union can inter- fere or distort the selection process in violation of the Act. The Respondent failed to treat equally compet- BUCK KNIVES, INC. ing labor organizations by granting favored treat- ment or assistance to one. In my view , Respondent cannot defend on the grounds of the authorization cards . In October alone the Union had secured signed authorization cards from 67 employees . The Respondent cannot ignore such concurrent activities of one union and bestow favored treatment on another . By refusing to accom- modate the Union to the same extent that it had ac- commodated the Association, e.g., checking the au- thorization cards secured by the Union against those of the Association , Respondent has precluded itself from reliance on cards which may or may not have been signed for both the Association and the Union by the same employees . Further , it is likely that some employees will have taken to heart Respondent's in- volvement into the organizing efforts by its admoni- tion in the letter of October 21 that "here at Buck Knives we do not have a union and further believe that a union would be a bad thing for all of us." In my view , Respondent has unlawfully assisted a preferred labor organization , in this case the Associa- tion. The Board cannot sit by and see its primary pur- pose , the furtherance of Section 7 rights through fair selection procedures of bargaining representatives, destroyed by such preferred treatment in violation of Section 8(a)(2). APPENDIX 987 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assist or contribute support to the Buck Knives Employee Association, or any other labor organization , by recognizing, or con- tracting with, such labor organization as the ex- clusive representative of our employees for the purpose of collective bargaining at a time when there exists a real question concerning represen- tation , or in any other manner. WE WILL NOT give effect to our November 27, 1974, agreement with the Buck Knives Employ- ee Association , or to any renewal , extension, modification , or supplement thereof , unless and until said labor organization has been duly certi- fied by the National Labor Relations Board as the exclusive representative of our employees, but nothing herein shall be construed to require that we vary or abandon any existing term or condition of employment. WE WILL NOT in any like or related manner interfere with , restrain , or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL withdraw and withhold all recogni- tion from the Buck Knives Employee Associa- tion , as the collective-bargaining representative of our employees unless and until said labor or- ganization has been certified as such by the Na- tional Labor Relations Board. BUCK KNIVES, INC.