Crest Containers Corp.

National Labor Relations Board - Board Decisions

Apr 7, 1976

223 N.L.R.B. 739 (N.L.R.B. 1976)

CREST CONTAINERS CORP.
Crest Containers Corporation and District 65, Distrib-
utive Workers of America and Textile Workers
Union of America , AFL-CIO, Party in Interest
Crest Containers Corporation and Glass Bottle Blow-
ers Association of the United States and Canada I
and Textile Workers Union of America, AFL-CIO,
Party in Interest . Cases 4-CA-7362 and 4-CA-
7309
April 7, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On November 26, 1975, Administrative Law Judge
Arthur Leff issued the attached Decision in this pro-
ceeding . Thereafter , Respondent and Textile Work-
ers Union of America , AFL-CIO, filed exceptions
and 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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings , findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Crest Containers Corpora-
tion, Millville, New Jersey, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
said recommended Order.
1 The name of this party appears as amended at the hearing.
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge: Upon a charge
in Case 4-CA-7362 filed by District 65, Distributive Work-
ers of America ("District 65") on April 24, 1975, and a
charge in Case 4-CA-7309 filed by Glass Bottle Blowers
Association of the United States and Canada ("GBBA")
on March 24, 1975, and amended on May 5, 1975, the
General Counsel of the National Labor Relations Board
739
issued a consolidated complaint, dated June 30, 1975,
against Crest Containers Corporation, herein the Respon-
dent. The complaint alleged in substance that Respondent
had engaged in, and was engaging in, unfair labor practices
affecting commerce within the meaning of Sections 8(a)(l)
and (2) and 2(6) and (7) of the National Labor Relations
Act, by granting recognition to, and entering into a collec-
tive-bargaining contract with, Textile Workers Union of
America ("TWUA") as the exclusive bargaining represen-
tative for a unit of Respondent's employees, at a time when
TWUA did not represent a majority of the employees in
the employee unit. Copies of the charge in Case 4-CA-
7362 and of the consolidated complaint were also duly
served on TWUA. Respondent and TWUA each filed an
answer denying the commission by Respondent of the al-
leged unfair labor practices. A hearing was held at Phila-
delphia, Pennsylvania, on September 22, 1975. Briefs were
filed by the General Counsel, Respondent, and TWUA on
October 20, 1975.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is engaged at Mill-
ville, New Jersey, in the manufacture and distribution of
paper products. During the past year, Respondent pur-
chased goods of a value in excess of $50,000 that were
delivered to its Millville, New Jersey, plant from points
outside the State of New Jersey. Respondent and TWUA
admit, and it is found, that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
TWUA, District 65, and GBBA are labor organizations
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Relevant Facts
Respondent's employees were unorganized prior to the
events here in question. In early March 1975, TWUA inau-
gurated a campaign to organize Respondent's production
and maintenance employees. About the middle of April,
perhaps earlier, District 65 began soliciting Respondent's
maintenance and production employees to sign cards de-
signating it as their bargaining representative. There is no
evidence in the record that Respondent was aware of
Distrct 65's organizational effort on April 18, 1975. On that
date, Respondent granted recognition to TWUA as the ex-
clusive bargaining representative of Respondent's employ-
ees in the bargaining unit described in the marginal note,'
a unit which I find to be appropriate for the purposes of
"All [Respondent's] employees-but excluding supervisors, professional
Continued
223 NLRB No. 110
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining . On April 20 , 1975, Respondent en-
tered into a collective-bargaining agreement with TWUA
covering the employees in the appropriate unit.
It was stipulated at the hearing that on April 18, 1975,
the date of recognition , there were 60 employees in the
appropriate unit and that TWUA then had in its posses-
sion 36 uncoerced authorization cards that had been exe-
cuted by employees in that unit . The stipulation expressly
provided , however, that it was not to be construed as an
admission by the General Counsel that on April 18, 1975,
TWUA had a valid majority for purposes of recognition.
At the hearing, the General Counsel called as witnesses 6
of the 36 employees who had signed TWUA designation
cards, and established through their testimony, supported
by documentary evidence, that prior to April 18, 1975,
each of these employees had also executed a card authoriz-
ing District 65 to act as his exclusive bargaining representa-
tive . In each instance , the employee's designation of Dis-
trict 65 postdated his designation of TWUA. The following
summary shows the names of the six dual card signers and
the dates when they respectively signed TWUA and Dis-
trict 65 cards:
Card Signer TWUA Dist. 65
- _Gary Caulder 378775 54 71 77
Norman Henry, Jr. 4/16/75 4/17/75
Judith Sherkovsky 4/8/75 4/16/75
Fred Frederico 4/7/75 4/17/75
James Williams 3/5/75 4/16/75
Linford House 4/6/75 4/16/75
Respondent and TWUA, during their cross-examination
of the dual card signers, were allowed , over the objection
of the General Counsel , to inquire into the subjective intent
of these employees in executing the dual cards .2 Five of the
six employee witnesses-Caulder, Henry, Sherkovsky, Wil-
liams, and House-testified that when they signed designa-
tions for TWUA and for District 65, they did so because
they were interested-two of them said "mainly interest-
ed"-in obtaining "a" union , or "some".union , to repre-
sent them in the plant . They further acknowledged that
Respondent's recognition of TWUA was "consistent" with
their "interest" or "desire" at the time they signed TWUA
cards to have union representation.
The further testimony of each of these witnesses leaves
little doubt, however , that once they signed the District 65
designation , that union , rather than TWUA, became the
union of their preferred choice as an exclusive bargaining
representative , and continued to remain so up to the time
of Respondent's recognition of TWUA. Thus , Caulder tes-
tified that he signed up with District 65 because "I had
found out there was a better union and I wanted them to
represent me." Henry, although agreeing that his "main in-
terest" was to obtain union representation , made clear in
his testimony that his personal preference up to the time of
recognition was to be represented by District 65; he re-
fused to admit that his objective for union representation
was "satisfied" by Respondent's recognition of TWUA.
Sherkovsky, while agreeing that Respondent 's recognition
of TWUA was "consistent" with her desire for union rep-
resentation when she signed for TWUA, insisted that it
nevertheless did make a difference to her which of the two
unions was recognized , explaining that she regarded the
hospital benefits offered by District 65 to be superior to
those she might expect from TWUA. Williams testified that
he initially signed with TWUA because it was then the
only union on the scene , but that when District 65 came
along, he signed up with District 65 because he preferred it
to TWUA, and that he intended by his District 65 designa-
tion to "forfeit" his earlier TWUA designation . Williams
conceded that , notwithstanding his preference for District
65, he was "glad" to have TWUA recognized , but stated
that this was so only because he felt that representation by
TWUA was better than having no representation at all.
House testified that, although his main objective when he
signed for TWUA was to get some union to represent the
employees , he preferred District 65 when presented with a
choice between the two unions , and that Respondent's rec-
ognition of TWUA did not satisfy his desire for representa-
tion.
Frederico, the remaining dual card signer, was not ques-
tioned along the same lines as the others . Respondent
brought out on cross-examination of Frederico that the
person who solicited his signature to the District 65 card
told him that the card "would go to the Labor Relations
Board to get an election ." Frederico further testified, how-
ever, that he was also told at that time that the card was for
recognition of District 65. There is nothing in his testimony
to show that it was represented to him in words or sub-
stance that the only purpose of the card was to obtain an
election , or that he signed the card with that under-
standing. On these facts , I find no merit in Respondent's
contention that "Frederico 's District 65 card was not an
attempt to designate District 65 as his bargaining represen-
tative and cannot be considered a `dual' card ." See, Levi
Strauss & Co., 172 NLRB 732 (1968).
and clerical employees, guards , and watchmen as defined in the Act, as
amended."
2 The stated purpose of this inquiry was to clear up the ambiguity generat-
ed by the dual cards and to show that the dual card signers . or at least some
of them , desired to be represented by TWUA at the time of recognition. To
support its contention that such an inquiry was relevant and permissible.
Respondent at the hearing relied principally on the Board 's decision in
Wavecrest Home For Adults, 217 NLRB No. 17 (1975), to which further
reference will be below . Respondent in its brief additionally cites Ace Sam-
ple Card Co., 104 NLRB 1076 (1953), and International Metal Co., 104
NLRB 1076 (1953), as authority for the proposition that in dual card situa-
tions specific evidence as to employee desires is allowable for the purpose of
determining whether one of the dual cards may validly be counted.
B. Analysis and Concluding Findings
Section 9 (a) of the Act makes it a prerequisite for the
lawful recognition of a union as an exclusive employee bar-
gaining representative that the union "be designated or se-
lected for the purposes of collective bargaining by the ma-
jority of the employees in the unit appropriate for such
purposes." The central issue in this case is whether the
TWUA designation cards that were signed by the six em-
ployees who also signed cards for District 65 may properly
be considered and counted as effective and valid designa-
CREST CONTAINERS CORP.
tion of TWUA as of April 18, 1975, the date of recognition.
Obviously, if none of these cards is counted , the remaining
30 designation cards which were in TWUA's possession on
April 18, 1975, would be I less than a majority, requiring,
under well-settled principles of law a finding that Respon-
dent violated Section 8(a)(1) and (2) of the Act, by extend-
ing recognition to TWUA at a time when it did not com-
mand a majority?
The general rule applicable in dual card situations is
clear. The Board has held in numerous cases that where an
employee signs an authorization card for each of two
unions, the card of neither union will be regarded as a valid
designation that may be counted toward majority, as it is
not then possible to determine from the cards which of the
two unions the employee has selected as an exclusive bar-
gaining agent .4 Respondent is correct in asserting that the
general rule is not an inflexible one that must be applied on
a per se basis . But to justify a deviation from the general
rule, the evidence must be of sufficient reliability and pro-
bative force to clearly dissipate the ambivalence as to in-
tent that is inherent in dual card designations and to leave
no doubt that , at the time material to the determination of
the issue of majority status, the dual card signer intended
only one of his dual cards-and which of them-to evi-
dence his designation of a bargaining agent .' It is doubtful
that testimony by dual card signers as to their subjective
intent may , without more, be considered of sufficient relia-
bility and probative force to overcome the ambiguity creat-
ed by dual cards and justify a departure from the general
rule. But that is a question on which I need not pass now.
On all the evidence in the record, I think it clear that no
such departure is warranted in this case, and certainly not
one that would warrant a finding that at the time of
TWUA's recognition the dual card signers intended their
designation cards for that union, rather than those for Dis-
trict 65, to reflect their choice of an exclusive bargaining
agent.
Respondent and TWUA stress in their argument that
Respondent's recognition of TWUA was "consistent" with
the dual card signers' intent at the time they executed their
designation cards for that union . But that fact does not
serve to dissipate the ambiguity that was created when the
7 International Ladies' Garment Workers' Union, AFL-CIO v. N.L.R.B.,
366 U .S. 731(1961 ); Intalco Aluminum Corporation v. N.L.R.B., 417 F.2d 36,
39 (C.A. 9, 1969).
° See, e .g., Yankee Department Stores, 211 NLRB 306 (1974); Hi Temp,
Inc., 203 NLRB 753 (1973); Allied Supermarkets, 169 NLRB 927 (1968);
J. W. Motrell Company, 168 NLRB 435, 453 (1967); Bendix- Westinghouse
Automatic Air Brake Co., 161 NLRB 789, 798 (1966); Ace Sample Card
Company, 46 NLRB 129, 130-131 (1942).
3 The only cases cited to me , or which I have been able to uncover
through my own research , in which the Board deviated from the general rule
is Wavecrest Home For Adults, 217 NLRB No. 17 (1975). In that case, the
Board upheld the finding of an Administrative Law Judge that cards might
validly be counted toward a union 's majority even though the employees
who had signed the cards had some 3 weeks earlier signed cards for another
union . The evidence in that case showed that the union whose cards the
employees had first signed had been dilatory in pressing for recognition,
leading the employees who were anxious for prompt representation to
switch their allegiance to another union which acted quickly and obtained
recognition . The Board emphasized that it was basing its decision on the
"special circumstances " of the case , which it found were sufficient to sup-
port a finding that the employees intended when they signed cards for the
second union to repudiate the cards they had previously signed.
741
same employees later also signed designation cards for Dis-
trict 65. To hold otherwise would render meaningless the
Board's rule relating to dual cards, for in virtually every
dual card situation the employer's recognition of a union is
"consistent" with the dual card signer's evident intent in
signing one of the dual cards.
Nor does it help Respondent's position that the dual
card signers, or at least some of them, were primarily inter-
ested in obtaining representation by a union, or by some
union. Under Section 9(a) of the Act, it is not enough that
a majority of employees in an appropriate unit may desire
representation by a labor organization or by some labor
organization; it is essential that a majority designate a spe-
cific labor organization in order to have that labor organi-
zation qualify for recognition as an exclusive bargaining
representative. Moreover, the majority designation of that
labor organization must be extant at the time of recogni-
tion. In this case, the dual card signers' testimony as to
their subjective intent, even if deemed to have probative
value, quite clearly does not support a finding that these
employees intended their TWUA cards, and not their con-
flicting District 65 cards, to govern their choice of a bar-
gaining representative at the time of recognition. To the
contrary, the employees' testimony as to their preference
between the two unions, coupled with the fact that they
executed the District 65 cards after they executed their
TWUA cards, points in the opposite direction.
I find, for the reasons stated above, that the six TWUA
designation cards executed by the dual card signers may
not be considered and counted as valid TWUA designa-
tions on April 18, 1975, and that TWUA, therefore, was
not a majority designated union when Respondent recog-
nized it as an exclusive bargaining representative.
It is no aid to Respondent that it may have honestly
believed that TWUA had a valid majority when it granted
that union recognition. The Supreme Court's decision in
International Ladies' Garment Union v. N.L.R.B., supra,
leaves no doubt that an employer's good faith cannot ex-
cuse his invasion of employee statutory rights in recogniz-
ing a minority union as an exclusive employee bargaining
representative. As was stated by the Court in that case, at
p. 739:
We find nothing in the statutory language prescribing
scienter as an element of the unfair labor practices
here involved. The act made unlawful by § 8(a)(2) is
employer support of a minority union. Here that sup-
port 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 a showing of good faith.
This conclusion, while giving the employee only the
protection assured him by the Act, places no particu-
lar hardship on the employer or the union. It merely
requires that recognition be withheld until the Board-
conducted election results in majority selection of a
bargaining representative.
Nor does it aid Respondent that there is no showing in
this case that Respondent knew when it recognized TWUA
that District 65 was on the organizational scene. Such
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge, or the want of it, comes into play as a relevant
consideration only in a so-called Midwest Piping 6 type of
situation , where the majority card count of the union
granted recognition is either established or is assumed, and
the theory of the alleged violation is that the employer has
acted unlawfully within the meaning of Section 8(a)(1) and
(2) by extending recognition to one of two competing
unions at a time when he was on notice that a question
concerning representation existed . But in a situation where
it has been established , as I find it has here , that the union
granted recognition was a minority union , nothing further
must be shown to support a finding of a statutory viola-
tion . For majority designation is a sine qua non to lawful
recognition of an exclusive bargaining agent under the stat-
ute.
Accordingly , for the reasons stated above , I conclude,
and find, that, by granting recognition to TWUA as an
exclusive bargaining representative of the employees in the
appropriate unit on April 18, 1975, although TWUA was
not then the designated or selected representative of a ma-
jority of the employees in the appropriate unit, and by en-
tering into a collective-bargaining agreement with TWUA
as such exclusive bargaining representative on April 20,
1975, Respondent violated Section 8(a)(l) and (2) of the
Act.
CONCLUSIONS OF LAW
1. By recognizing TWUA as the exclusive bargaining
representative of its employees in the appropriate unit
found above, when that union did not represent a majority
of the employees in that unit, and by thereafter executing
and maintaining a collective -bargaining contract with that
union , Respondent has rendered , and is rendering , unlaw-
ful assistance and support to TWUA, and has thereby en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(2) of the Act.
2. By the foregoing conduct Respondent has also inter-
fered with, coerced, and restrained employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, and
has thereby engaged in , and is engaging in, unfair labor
practices within the meaning of Section 8(a)(l) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent , in violation of Section
8(a)(l) and (2), recognized and, on or about April 20, 1975,
entered into a collective -bargaining agreement with
TWUA, I shall recommend that Respondent , to dissipate
the effects of its unfair labor practices , withdraw and with-
hold all recognition from TWUA and cease giving effect to
6 Midwest Piping Supply, Inc., 63 NLRB 1060 (1945).
the aforementioned collective -bargaining agreement, or to
any renewal , modification , or extension thereof , until such
time as TWUA shall have been certified by the Board as
the exclusive representative of the employees in question.
Nothing herein shall require Respondent, however , to vary
or abandon any wages , hours , seniority , or other substan-
tive features of its relations with its employees which have
been established in the performance of its agreement with
TWUA, or to prejudice the assertion by employees of any
rights they may have acquired thereunder.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
Respondent, Crest Containers Corporation, Millville,
New Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Assisting or contributing support to Textile Workers
Union of America, AFL-CIO, or any other labor organiza-
tion, by recognizing such labor organization as the exclu-
sive representative of any of its employees for the purpose
of collective bargaining at a time when such labor organi-
zation does not represent the majority of employees in an
appropriate unit.
(b) Giving effect to, performing, or in any manner en-
forcing the collective-bargaining agreement executed with
the aforesaid labor organization on or about April 20,
1975, or any modification, extension, renewal, or supple-
ment thereto, or any superseding agreement, unless and
until the said labor organization has been certified by the
Board as the exclusive bargaining representative of em-
ployees in the appropriate bargaining unit; provided, how-
ever, that nothing herein shall require Respondent to vary
or abandon any wages, hours, seniority, or other substan-
tive features of its relation with its employees which have
been established in the performance of such agreement, or
to prejudice the assertion by employees of any rights they
may have acquired thereafter.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Withdraw and withhold any recognition from Tex-
tile Workers Union of America, AFL-CIO, as the repre-
sentative of its employees for the purposes of collective
bargaining, unless and until said labor organization has
been duly certified by the Board as the exclusive represen-
tative of its employees.
(b) Post at its plant at Millville, New Jersey, copies of
the attached notice marked "Appendix." 8 Copies of said
r In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
8 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
CREST CONTAINERS CORP. 743
notice, on forms provided by the Regional Director for
Region 4, after being duly signed by Respondent, shall be
posted immediately upon receipt thereof in conspicuous
places, and be maintained by it for a period of 60 consecu-
tive days. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
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."
APPENDIX
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 Textile
Workers of America, AFL-CIO, or any other labor
organization , by recognizing any such labor organiza-
tion as the exclusive representative of our employees
for the purpose of collective bargaining at a time when
such labor organization does not represent a majority
of our employees in an appropriate bargaining unit.
WE WILL NOT give effect to the collective-bargaining
agreement which we entered into, on or about April
20, 1975, with Textile Workers Union of America,
AFL-CIO, or to any renewal, modification, or exten-
sion thereof, unless and until that labor organization
has been duly certified by the National Labor Rela-
tions Board as the exclusive representative of our em-
ployees; but nothing herein shall be construed to re-
quire us to vary or abandon any wages, hours,
seniority, or other substantive terms and conditions of
employment that have been established in the perfor-
mance of that agreement, or to prejudice the assertion
by our employees of any rights they may have ac-
quired thereunder.
WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed in Section 7 of the Act.
WE WILL withdraw and withhold all recognition
from Textile Workers Union of America, AFL-CIO,
as the collective-bargaining representative of our em-
ployees, unless and until said labor organization has
been certified as such by the National Labor Relations
Board.
CREST CONTAINERS CORPORATION