Central Ohio Warehouse Co., Inc.

National Labor Relations Board - Board Decisions

May 18, 1970

182 N.L.R.B. 482 (N.L.R.B. 1970)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Ohio Warehouse Co , Inc and Cletus E Cline
and United Rubber , Cork , Linoleum and Plastic Work
ers of America , AFL-CIO-CLC, Party of Interest
United Rubber , Cork, Linoleum and Plastic Workers
of America, AFL-CIO-CLC (Central Ohio Warehouse
Co , Inc and Central Ohio Industrial Park , Inc) and
Cletus E Cline Cases 8-CA-5514 and 8-CB-1397
May 18, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On January 30, 1970, Trial Examiner George A Down-
ing issued his Decision in the above-entitled proceeding,
finding that Respondent Union, with respect to the
employees of Central Ohio Industrial Park, Inc , had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision No
exceptions to this aspect of the case were filed With
regard to the employees of Respondent Central Ohio
Warehouse Co , Inc , the Trial Examiner further found
that said Respondent and Respondent Union did not
engage in certain other unfair labor practices alleged
in the complaints and recommended dismissal as to
them The General Counsel, thereafter, filed exceptions
to this part of the Trial Examiner's Decision and a
supporting brief, and Respondent Employer filed an
answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with these cases to a three-member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions, the briefs, and the entire record in
these cases, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations i
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGF A DOWNING, Trial Examiner These pro-
ceedings under Section 10(b) of the National Labor
Relations Act as amended were heard at Mansfield,
Ohio, on November 13, 1969 i Separate complaints were
issued based on charges filed on June 24 and September
29 in Case 8-CA-5514 and on June 24 in Case 8-CB-1397
and were consolidated for hearing by order of the Region-
al Director on October 8 The complaint in Case
8-CA-5514 alleged in brief that Respondent Company
engaged in unfair labor practices proscribed by Section
8(a)(1), (2), and (3) of the Act by recognizing the Union
on April 14 and by executing and thereafter maintaining
in effect a collective-bargaining agreement with it on
May 13, at times when the Union did not represent
an uncoerced majority in the recognized bargaining unit
The complaint in Case 8-CB-1397 alleged in brief that
Respondent Union engaged in unfair labor practices
proscribed by Section 8(b)(1)(A) and (2) of the Act
by executing and maintaining the aforesaid contract,
by threatening employees of Respondent Company (Cen-
tral Warehouse herein) and of Central Ohio Industrial
Park, Inc (Industrial Park herein) with loss of employ-
ment because they were not members of Respondent
Union in good standing, by requesting payment of dues
and initiation fees from employees of said Companies
and by attempting to cause Central Warehouse to termi-
nate employees who were not members of Respondent
Union in good standing Respondents filed separate
answers in which they denied the unfair labor practices
as alleged
Upon the entire record in the case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS, THE LABOR ORGANIZATION
INVOLVED
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended , the National Labor Relations
Board hereby adopts at its Order the Recommended
Order of the Trial Examiner , and orders that the
Respondent Union, United Rubber , Cork, Linoleum and
Plastic Workers of America , AFL-CIO-CLC, its officers,
agents, and representatives , shall take the action set
forth in the Trial Examiner ' s Recommended Order
' As no exceptions were filed to the Trial Examiner s findings relative
to the employees of Central Ohio Industrial Park Inc we adopt
his Decision in this regard
I find on admitted allegations of the complaints that
Central Warehouse and Industrial Park are both engaged
in commerce within the meaning of Section 2(6) and
(7)2 of the Act and that Respondent Union is a labor
organization within the meaning of Section 2 (5) of the
Act
All events herein occurred in 1969
' Central Warehouse an Ohio corporation receives annually revenues
in excess of $50 000 for warehouse services performed for corporations
which ship to extrastate points products valued in excess of $50 000
Industrial Park an Ohio corporation receives gross rentals in excess
of $100 000 annually from leasing buildings which it owns in Shelby
Ohio $25 000 or more of which it received from concerns who are
engaged in interstate commerce
182 NLRB No 70
CENTRAL OHIO WAREHOUSE 483
II THE UNFAIR LABOR PRACTICES
A Introduction and Issues
The central issue in these cases is whether Respondent
Union represented a majority of the employees of Central
Warehouse at the time it was recognized by that company
and at the time of the execution on May 13 of a
collective -bargaining agreement which contained a Union
security provision requiring membership in the Union
as a condition of employment The time of recognition
is also in issue , with the General Counsel contending
it occurred on April 14 and with Respondents contending
it occurred on April 8
The case against the Union also involves its conduct
vis-a-vis employees of Industrial Park as to whom oral
agreement was reached by the Respondents herein that
the terms of the aforesaid agreement would also apply
B The Evidence
On March 14 , Respondent Union filed with the Region-
al Director a representation petition under Case
8-RC-7442 specifying a unit of Central Warehouse
employees and on April 8 representatives of the parties
met with Board Agent Nora Friel and entered into
a stipulation for certification upon consent election in
the unit sought by the Union An election was scheduled
for May 16 and the payroll period for eligibility was
specified as the one ending April 5
Respondent Union had filed with the Regional Office
on March 14 some 40 signed cards , and Central Ware-
house submitted at the conference on April 8 a list
of employees numbering 77 on its payroll as of March
18, including five leadmen whose status as supervisors
was in issue After some checking of the cards it was
found that at least four of them were signed by employees
of Industrial Park and the Hearing Officer separated
them from the others However, the Union was in
possession as of April 8 of 12 additional cards signed
by employees of Central Warehouse , all bearing dates
prior to March 18 except for one undated card Thus
as of the time of the conference the Union held a
total of 48 cards signed by Central Warehouse employees
in a (maximum) unit of 77 employees or of 72 if the
5 leadmen (noncard signers ) were eliminated as supervi
sors
The fact of actual majority was assumed by all parties
at the April 8 conference and the General Counsel
concedes that majority status actually existed at that
time The General Counsel contends , however, that
the majority was lost prior to April 14 when contract
negotiations began and had not been regained by May
13 when a contract was reached which contained among
other things provisions for union security as a condition
of employment
Though the parties assumed that majority status con-
tinued throughout the negotiations , the evidence estab-
lished that a turnover of employees resulted , through
natural attrition , in a loss of majority prior to April
14 Thus as of the latter date Central Ohio ' s payroll
records showed that the unit had increased to 80 (again
including 5 disputed leadmen), and that there were only
34 card signers in the unit The spread was even wider
on May 13 for by then further hirings had increased
the unit to 92 (or 97 ) employees
The evidence is somewhat equivocal concerning the
date on which recognition was first accorded to the
Union Thus Charles D Newkirk , field representative
of the Union , called by the General Counsel , testified
that there was discussion during the hearing on April
8 of recognizing the Union as the bargaining agent
and that on the 14th when negotiations actually began
the parties agreed that the negotiations would cover
employees of both Central Ohio and Industrial Park
Recalled by the Union , Newkirk testified further that
as the hearing broke up on April 8 , Jack Berger , president
of Central Warehouse , suggested that they "get together
and work out a contract ," that he in turn agreed to
enter into negotiations , and that they agreed to meet
on April 14 for that purpose On cross-examination
Newkirk stated that in his opinion recognition was actual
ly extended on April 8 , because , "[W]e agreed to sit
down and bargain "
Berger , also called as a General Counsel ' s witness,
testified that on April 14 , the Company "agreed to
negotiate with the Union if this is recognition,"
but his further testimony reflected an understanding
on his part that recognition occurred when the contract
"was finalized and signed " on May 13 Berger was
not questioned about the posthearing discussion on April
8, to which Newkirk testified
Following several bargaining sessions a contract was
reached on May 13, containing , as previously noted,
union security provisions of a conventional type requiring
union membership as a condition of employment It
was also orally agreed that the contract would be applied
to employees of Industrial Park though the latter corpora-
tion , a separate entity, was not a party to the negotiations
and did not sign the contract 3
The evidence showed further that the Union sought
to require compliance by employees of both companies
with the Union security provisions of the contract Thus,
Newkirk admitted that he prepared a letter dated June
23, later sent out by the Union to all employees of
both companies (including Cletus Cline , an employee
of Industrial Park) who had not paid their union dues
The letter quoted the union security provisions of the
contract with Central Warehouse and stated that employ-
ees would not be retained in the Company ' s employ
upon notice from the Union that the employee was
in default in meeting the requirements of the contract
The employees were directed to submit their signed
membership applications and a checkoff for union dues
On July 5, Kirk Saville , temporary president of Local
876, wrote Central Warehouse reminding it of the Union
security provisions of the contract and stating that all
employees who were eligible for in the Union and had
3 Though the Union s organizational attempts extended to Industrial
Park no showing was made of the extent of representation and it
was not a party to the representation proceedings
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed to become members by July 3 "must terminate
their employment with the Company until membership
is validated."
Though Respondent Union denied responsibility for
Newkirk's conduct the evidence showed that he repre-
sented it at the Board hearing on April 8, that he
signed the stipulation for consent election on its behalf,
that he was its representative in the contract negotiations
and that he signed the contract on its behalf. The Union
is therefore plainly to be held accountable for Newkirk's
conduct in seeking to enforce the contract.4
C. Concluding Findings
The issues in this case turn chiefly on the question
whether it is controlled by the Supreme Court's decision
in International Ladies' Garment Workers' Union v.
N.L.R.B. (Bernhard-Altmann Texas Corp.), 366 U.S.
731. The General Counsel contends that the facts herein
parallel the circumstances of that case, whereas
Respondents contend that Bernhard-Altmann is distin-
guishable on the same basis as in Keller Plastics Eastern,
Inc., 157 NLRB 583.
The gist of Bernhard-Altmann is that the extension
of recognition to, and the execution of a contract with,
a union by an employer in the bona fide belief that
the union represented a majority of the employees when
the union did not represent a majority is violative of
Sections 8(a)(2) and 8(b)(1)(A) of the Act by the employer
and union, respectively. Conceding here the goodfaith
intentions of the parties, the General Counsel urges
that such intentions are irrelevant, as held by the
Supreme Court in the following languages:
To countenance such an excuse would place in
permissibly careless employer and union hands the
power to completely frustrate employee realization
of the premise of the Act-that its prohibitions
will go far to assure freedom of choice and majority
rule in employee selection of representatives. We
find nothing in the statutory language prescribing
scienter as an element of the unfair labor practice
here involved. The act made unlawful by Section
8(a)(2) is employer support of a minority union.
Here that support is an accomplished fact. More
need not be shown, for, even if mistakenly, the
employees' rights have been invaded. It follows
that prohibited conduct cannot be excused by show-
ing of good faith. supra, p. 738-739
The critical date for determining majority status is,
of course, the date of recognition, for as the Board
held when Bernhard-Altmann was before it, 122 NLRB
1289, 1291, "The vice of such action is the extension
of recognition."
The parties are at odds, however, concerning the
date on which recognition was actually extended, the
General Counsel contending it occurred on April 14,
" I find it unnecessary to resolve a similar issue concerning Saville's
authority to bind the Union because of my conclusions reached infra
concerning the validity of the contract vis-a-vis employees of Central
Warehouse
when negotiations actually began, and Respondents con-
tending it occurred on April 8, when under- Newkirk's
testimony the Company broached the subject of meeting
"to work out a contract"and agreed to begin'negotiations
on April 14. As Berger made no denial of Newkirk's
testimony and as his own testimony concerning "recogni-
tion" was based on his layman's interpretation of the
term, I find that on April 8 the Company extended
recognition to the Union by agreeing to meet with it
for the purpose of negotiating a contract: On that date
the Union represented a clear majority of 48 employees
in a unit which did not exceed 77, and the continuing
existence of a majority was assumed at all times there-
after. Indeed, the General Counsel takes no issue with
asserted good-faith beliefs of the parties that the majority
continued.
On these facts the case is distinguishable in no material
respect from Keller Plastics, supra, where recognition
was extended at a time when the union represented
a majority of the company's employees but where the
majority was lost at the time a contract was reached
after some 3 weeks of negotiations. There as here the
parties were unaware of the loss of majority and the
company did nothing to cause it.
The Board distinguished Bernhard-Altmann on the
ground that recognition was invalidly granted whereas
in Keller recognition was validly granted. It found con-
trolling instead the principles established in such familiar
precedents as Ray Brooks v. N.L.R.B., 348 U.S. 96,
98; Franks Brothers Co. v. N.L.R.B., 321 U.S. 702,
705-706; and Poole Foundry and Machine Co., 95 NLRB
34, 36, enfd. 192 F.2d 740 (C.A. 4), 'cert. denied 342
U.S. 954. The Board stated in Keller Plastics, supra,
p. 587:
With respect to the present dispute which
involves a bargaining status established as the result
of voluntary recognition of a majority representa-
tive, we conclude that, like situations involving
certification, Board orders, and settlement agree-
ments, the parties must be afforded a reasonable
time to bargain and to execute the contract resulting
from such bargaining. Such negotiations can suc-
ceed, however, and the policies of the Act can
thereby be effectuated, only if the parties can nor-
mally rely on the continuing representative status
of the lawfully recognized union for a reasonable
period of time.
Finding further that the 3-week period of negotiations
was reasonable, the Board held that the Union remain
the statutory bargaining representative and that no viola-
tion of the Act was involved in executing the contract
or by including a union security provision.
I find similarly here that the 5 weeks which intervened
between April 8 and May 13 was a reasonable period
within which to negotiate and that the parties were
entitled to rely on the continuing representative status
of the Union during such negotiations. Cf. Universal
Gear Service Corporation, 157 NLRB 1169, 1171, where
a gap of over 2 months was involved.
The foregoing conclusions effectually dispose of all
issues herein save those surrounding the Union's
CENTRAL OHIO WAREHOUSE
attempts to enforce the union security provisions against
employees of Industrial Park for which the record shows
no legal basis. Industrial Park, a separate entity, did
not participate in the negotiations, was not mentioned
in the contract, and did sign it. Furthermore no showing
was made that the Union represented a majority of
its employees. Even were it assumed that an oral agree-
ment of the present type might be lawfully enforced
under other circumstances, the evidence here does not
establish that Industrial Park was itself a party to the
agreement.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Central Ohio Warehouse Co., Inc.,
did not engage in unfair labor practices proscribed by
Section 8(a)(1), (2), and (3) of the Act as alleged in
the complaint in Case 8-CA-5514.
2. By threatening Cletus E. Cline and other employees
of Central Ohio Industrial Park, Inc., with discharge
and by requesting the payment of dues and initiation
fees by said employees as a condition of employment,
Respondent Union engaged in an unfair labor practice
proscribed by Section 8(b)(1)(A) of the Act.
3. Respondent Union did not engage in an unfair
labor practice proscribed by Section 8(b)(2) as alleged
in the complaint in Case 8-CB-1397.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent Union engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain affirma-
tive action as specified below which I find necessary
to remedy and to remove the effects of the unfair
labor practices and to effectuate the policies of the
Act. Though there was no evidence that as of the
time of the hearing the Union had collected dues and
initiation fees from any employees of Industrial Park,
it is possible, of course, that payments have since been
received. My recommended order will therefore include
a provision that the Union refund to employees of
Industrial Park any dues or initiation fees collected
or received by it from said employees since May 13,
1969.
Upon the foregoing findings of fact and conclusions
of law and the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
United Rubber, Cork, Linoleum and Plastic Workers
of America , AFL-CIO-CLC, its officers, agents, and
representatives, shall:
1. Cease and desist from:
485
(a) Threatening employees of Central Ohio Industrial
Park, Inc., with discharge or requesting the payment
of dues and initiation fees from said employees as
a condition of employment.
(b) In any like or related manner restraining or coerc-
ing employees of Central Ohio Industrial Park, Inc.,
in the exercise of rights guaranteed in Section 7 of
the Act except to the extent that such rights may be
affected by an agreement requiring of said employees
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act.
2 Take the following affirmative action:
(a) Refund to employees of Central Ohio Industrial
Park, Inc., any dues or initiation fees collected or
received from said employees since May 13, 1969.
(b) Post at its business office at Akron, Ohio, and
at the business office of its Local Union No. 876 at
Shelby and Mansfield, Ohio, copies of the attached
notice marked Appendix.-' Copies of said notice to be
furnished by the Regional Director for Region 8 shall,
after being duly signed by Respondent Union's represent-
ative, be posted immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter
in conspicuous places including all places where notices
to members are customarily posted. Reasonable steps
shall be taken to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Forward signed copies of said Appendix to the
Regional Director for posting, Central Ohio Industrial
Park, Inc., being willing, at all locations where notices
to its employees are customarily posted.
(d) Notify the Regional Director for Region 8, in
writing, within 20 days from receipt of this decision
what steps Respondent has taken to comply herewith.'
In the event no exceptions were filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 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
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 "
M1 If this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify said Regional Director for Region
8, in writing , within 10 days from the date of this Order, what steps
'Respondent has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees of Central
Ohio Industrial Park, Inc., with discharge or request
486 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
the payment of dues and initiation fees by said
employees as a condition of employment
WE WILL NOT in any like or related manner
restrain or coerce employees of Central Ohio Indus
trial Park, Inc , in the exercise of rights guaranteed
in Section 7 of the Act except to the extent that
such rights may be affected by an agreement requir
ing membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a)(3)
of the Act
WE WILL refund to employees of Central Ohio
Industrial Park, Inc , any dues or initiation fees
which we have collected or received from said
employees since May 13 1969
UNITED RUBBER, CORK,
LINOLEUM AND PLASTIC
WORKERS OF AMERICA,
AFL-CIO-CLC
(Labor Organization)
Dated By
(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 directed to the Board's
Office, 1695 Federal Office Building, 1240 East Ninth
Street, Cleveland, Ohio 44199, Telephone 216-522-3715