Exxel-Atmos, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1024 (N.L.R.B. 1992)

1024
309 NLRB No. 165
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We adopt the judge’s finding (at one point designated an ‘‘alter-
native finding’’ by the judge) that the Respondent violated Sec.
8(a)(1) and (5) of the Act on May 7, 1991, by refusing to meet with
the Union’s full bargaining committee to engage in any ‘‘formal’’
negotiations. We further adopt his finding that it withdrew recogni-
tion by that refusal, together with its refusal to bargain, unless and
until the employees voted in an election. We therefore find it unnec-
essary to pass on the judge’s alternative findings based on actions
subsequent to May 7. We have modified the Order to include a pro-
vision requiring the Respondent to cease and desist from refusing to
meet with representatives of the employees designated by the Union.
The judge inadvertently refers to June 10 and 12, 1990, and July
1990. The correct dates are September 10 and 12, 1990, and July
1991. The judge also misspells the surname ‘‘Appelgate’’ throughout
his decision. The correct spelling is ‘‘Applegate.’’ Finally, the judge
improperly cites the case number for the Respondent’s RM petition.
The correct case number is 22–RM–679. 1 All dates are in 1991 unless otherwise indicated.
Exxel-Atmos, Inc. and United Steelworkers of
America, AFL–CIO. Case 22–CA–17889
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
In this proceeding the Board must determine wheth-
er the Respondent violated Section 8(a)(1) and (5) of
the Act by unlawfully withdrawing recognition from
the Union.
On July 23, 1992, Administrative Law Judge Steven
B. Fish issued the attached decision. The Respondent
filed exceptions to the judge’s decision and a support-
ing brief. The General Counsel filed limited cross-ex-
ceptions.
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,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Exxel-
Atmos, Inc., Somerset, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Add the following as paragraph 1(b) and reletter
the remaining paragraph as 1(c).
‘‘(b). Refusing to meet with the representatives of
the employees as designated by the Union.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT withdraw recognition from or refuse
to meet and bargain collectively with United Steel
Workers of America, AFL–CIO (the Union), as the ex-
clusive bargaining representative of our employees in
the appropriate bargaining unit set forth below.
WE WILL NOT refuse to meet with the representa-
tives of the employees designated by the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed them by Section 7 of the
Act.
WE WILL on request, recognize, meet, and bargain
collectively in good faith with the Union as the exclu-
sive collective-bargaining representative of our em-
ployees in the unit described below, regarding wages,
hours, and other terms and conditions of employment
and, if an agreement is reached, embody it in a signed
contract. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees, quality control employ-
ees, laboratory technicians, and senior laboratory
technicians employed by us at our Somerset, New
Jersey facility, but excluding all office clerical
employees, professional employees, sales employ-
ees, guards and supervisors as defined in the Act.
EXXEL-ATMOS, INC.
Steven Kessler, Esq. for the General Counsel.
Francis J. Connell III, Esq. (Drinker, Biddle & Reath), of
Philadelphia, Pennsylvania, for the Respondent.
Daniel G. Applegate, Staff Representative, of Bethlehem,
Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges and amended charges filed by United Steelworkers
of America, AFL–CIO (Charging Party or the Union), on
August 8, 1991, and September 11, 19911 respectively, the
1025EXXEL-ATMOS, INC.
2 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved herein, my findings are
based on my examination of the entire record, my observation of the
witnesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony. Accordingly, any testimony which is in-
consistent with or contrary to my findings is hereby discredited.
Regional Director for Region 22 issued a complaint and no-
tice of hearing on November 27, alleging that Exxel-Atmos,
Inc. (Respondent), violated Section 8(a)(1) and (5) of the
Act, by in substance withdrawing recognition from and refus-
ing to bargain with the Union.
The trial with respect to the issues raised by the complaint
was held before me in Newark, New Jersey, on March 16
and March 27, 1991.
Briefs have been filed by General Counsel and Respond-
ent. The certification of service filed with General Counsel’s
brief dated May 29, 1991, indicates that service was made
by certified mail on Respondent’s attorney, and by regular
mail on the parties. Such certification does not indicate how
service was made on the administrative law judge. However,
a cover letter dated May 29, 1991 to me states ‘‘enclosed
please find an original and 3 copies of the General Counsel’s
brief in the above-captioned matter.’’
On June 18, Respondent submitted a reply brief dated June
16, 1991, although it neither asked for nor received permis-
sion to file such a document. In the reply brief, Respondent
contends that General Counsel’s brief was untimely and
should be rejected. Respondent argues that since General
Counsel did not in its papers indicate that service of the brief
to the administrative law judge was hand delivered or made
by fax, the assumption is that the brief was not so served,
and was therefore untimely, since the due date for receipt
was May 29, 1991. Respondent further contends that there-
fore General Counsel had in his possession a copy of Re-
spondent’s brief, and had the opportunity to fashion his argu-
ments in response to Respondent’s brief, an advantage denied
to Respondent.
Respondent in its reply brief then responded to General
Counsel’s brief asserting that General Counsel made various
misstatements of fact and law.
By letter dated June 25, 1991, General Counsel urges that
since Respondent neither asked for nor received permission
to file a reply brief, that the brief be rejected and not consid-
ered. Moreover, with respect to the filing of its own brief,
General Counsel asserts that a copy was hand delivered to
the Division of Judges on May 29, 1991, in a timely fashion,
and the failure to so indicated on the certification of service
was an inadvertent error.
Although General Counsel did not file a supplementary
certification or affidavit of service indicating hand delivery
of the brief on May 29, which would have been appropriate,
I shall accept his assertion in his letter that timely service
was effectuated in that manner. Therefore, I shall deny Re-
spondent’s request to reject General Counsel’s brief.
However, in view of the uncertainty created by General
Counsel’s failure to properly establish timely service, I deem
it appropriate to receive and consider Respondent’s reply
brief notwithstanding its failure to request permission to file
such a document. Accordingly, I shall deny General Coun-
sel’s request to reject Respondent’s reply brief.
Based on my review of the entire record,2 I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a corporation with an office and place of
business in Somerset, New Jersey (Respondent’s facility),
where it has been engaged in the manufacture, sale and ship-
ment of non-gas aerosol delivery systems. During the past
year, Respondent sold and shipped from its facility, products,
goods, and materials valued in excess of $50,000 directly to
points outside the State of New Jersey.
It is admitted and I so find that Respondent is and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted and I find the Union is and has been
at all times material, a labor organization within the meaning
of Section 2(5) of the Act.
II. FACTS
In the summer of 1990, the Union began an organizational
campaign amongst Respondent’s employees. After obtaining
cards from a majority of employees, the Union filed a peti-
tion in Case 22–RC–0360. On August 13, 1990, the parties
entered into a stipulation providing for an election, as well
as a stipulation with respect to eligibility to vote consistent
with Norris Thermador, 119 NLRB 1301 (1958). The list
contained 19 names.
By September 7, 1990, Respondent having concluded that
a majority of employees in the agreed-upon bargaining unit
desired to be represented by the Union, faxed to the Union
an agreement signed by its president, Peter Gould, to recog-
nize it as the exclusive representative of Respondent’s em-
ployees in a unit of production and maintenance employees,
quality control employees, laboratory technicians, and senior
technicians. On the same day, Daniel Applegate, the Union’s
staff representative responded also by fax, accepting recogni-
tion, and requesting that he be telephoned in order to arrange
dates for negotiation.
On the very same day, September 7, 1990, Respondent
laid off five bargaining unit employees, including many of
the Union’s key supporters. Applegate upon being informed
about the layoffs, immediately telephoned Respondent’s at-
torney, Francis Connell III. Applegate complained to Connell
about the layoff of the employees and asked that they be put
back to work. Connell replied that the decision to lay off was
based solely on economic factors and that Respondent was
losing money. Applegate also asked Connell to set up a
meeting to bargain and negotiate a contract. Connell re-
sponded that he would check with Gould about available
dates. Applegate suggested any day during the next week,
commencing September 10.
On checking with his client, Connell discovered that the
only date available for a meeting was Wednesday, September
12. Accordingly, Connell called the Union’s office and left
a message on a tape machine that Respondent would be will-
ing to meet with Applegate and the Union on September 12
at 3:30 p.m. On Monday, September 10, Applegate called
Connell and they confirmed a meeting for September 12 at
3 p.m. at Respondent’s premises. Applegate advised Connell
that he would be bringing with him his assistant director,
Manny Mihrail. Later that morning, Mihrail called Connell
and asked if the meeting could be rescheduled for Thursday
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Although the charges were withdrawn on May 31, I find it likely
that the Union had been notified of the Region’s decision to dismiss
the charges absent withdrawal, and were still deciding whether or
not to withdraw the charges when Applegate made his call.
4 Shiels admitted that he was familiar with the September 7, 1990
agreement by Respondent to recognize the Union, signed by Gould,
Shiels’ predecessor as president.
or Friday, September 13 or 14. Connell replied that he would
be out of town on those days. Mihrail told Connell that he
would change his appointment and be available for the Sep-
tember 12 meeting.
However, at 12:15 p.m. that day, a message was taken at
Connell’s office from Applegate cancelling the meeting. The
message read, ‘‘can’t meet with you on Wednesday. Will re-
schedule.’’ On that same day, September 1, 1990, Michael
Donnelly, one of the employees laid off by Respondent, filed
charges with the Region in Case 22–CA–7244, alleging Re-
spondent had violated Section 8(a)(1) and (3) of the Act by
laying off Donnelly and four other employees because of
their membership and activities on behalf of the Union. On
September 13, 1990, the Union filed a similar charge in Case
22–CA–17253. Later that day, Applegate called Connell and
informed him that the Union had filed charges with respect
to the layoff, and that he had asked the Region to consider
the charges as blocking charges vis a vis the election sched-
uled for October 5, 1990. Connell subsequently telephoned
the Board agent, Eric Shechter, to confirm Applegate’s infor-
mation concerning the election. According to Connell,
Shechter informed him that as far as he (Shechter) knew, the
Union had not asked the Board to block the election, and as
far as he knew, the election would go forward after the un-
fair labor practices were disposed of. At some subsequent
point, undisclosed by the record, the election scheduled for
October 5, 1990, was postponed.
On October 9, 1990, Connell sent a 14-page position paper
to the Region, in connection with the pending unfair labor
practice charges. In that document, Connell asserted that
after the bargaining session was postponed, ‘‘the NLRB sub-
sequently notified the Company that the Union had decided
to refuse the Company’s offer of voluntary recognition.’’
Connell admitted in his testimony that he could not recall the
Board agent specifically stating that the Union was ‘‘refusing
the Company’s offer of recognition,’’ but claims that he
would not have written it in the position paper, had it not
been told to him. Applegate denies that he ever told the
Board agent that the Union was refusing the Respondent’s
offer of recognition. There is no evidence that the Union
ever received or saw a copy of Respondent’s position paper,
submitted to the Board by Connell.
Between September 13, 1990, and May 7, 1991, neither
Applegate nor anyone else from the Union made any efforts
to contact Respondent concerning negotiations or for any
other reason.
The above findings with respect to the events up to May
7, 1991, are based on a synthesis of the credible testimony
of the witnesses, plus my evaluation of documentary evi-
dence submitted by the parties. Thus, I credit Connell, con-
trary to Applegate’s testimony and conclude that a bargain-
ing session had been scheduled for September 12, and was
subsequently canceled by the Union.
In that connection, I rely principally on Connell’s calendar
which included the meeting on that date with a line through
it, Respondent’s phone memo dated September 10, indicating
a message from Applegate to Gould, reading, ‘‘cancel meet-
ing on Wednesday,’’ plus Connell’s memorandum to his file
dated September 11, 1990, which described fully the cir-
cumstances consistent with his testimony. Although Apple-
gate also submitted his calendar which did not have any en-
tries for September 12, I find Respondent’s evidence on this
issue more persuasive, and conclude that Applegate probably
neglected to include the meeting in his calendar for June 12
since it was canceled later on in the very same day, June 10,
1990, that the meeting had been agreed to.
Additionally, I have not credited Applegate’s testimony
that he tried to call Gould once a month, from October 1990
to May 1991, in order to request negotiations and on each
occasion left a message to call back. Rather, I credit the tes-
timony of Respondent’s clerical employees supported by
their examination of Respondent’s phone records, that no
such messages were left, as well as the fact that all calls for
Gould would have been directed to his successor Robert
Shiels, who replaced Gould as president of Respondent in
November 1990. I would also note the Region’s order con-
solidating cases and dismissing petitions which issued on De-
cember 5, 1991. That document asserts that the Union re-
quested Respondent to bargain after (emphasis added) dis-
position of pending unfair labor practice charges. Finally, I
rely on Applegate’s own testimony as to why he did not fol-
low up on his alleged efforts to call Respondent only once
a month. He explained his failure to make a more substantial
effort to contact Respondent, by pointing out that the unfair
labor practice charges were still pending and he was hoping
that the employees would be returned to work as a result of
such charges. I conclude therefore that Applegate and the
Union decided not to make any efforts to negotiate with Re-
spondent, until the disposition of the unfair labor practice
charges. I further conclude that when Applegate called Re-
spondent on May 7, 1991, that he was aware at that time that
the charges were going to be dismissed unless withdrawn,
and that is the reason that he made the call at that time to
attempt to commence negotiations with Respondent.3
On May 7, Shiels returned Applegate’s telephone call. Ap-
plegate requested that Respondent meet with him and his
committee of employees to negotiate a contract. Shiels re-
plied that would agree to meet with Applegate one on one
to discuss what the issues are and for him (Shiels) to find
out ‘‘where we were.’’ However, Shiels also told Applegate
that there would be no formal negotiations unless the em-
ployees voted for representation by the Union in an election.
Shiels added that he wanted the employees to have an oppor-
tunity to pick their bargaining representatives or at lease vote
for their wishes. Shiels emphasized that he felt firmly about
that. Applegate responded that an election was not necessary,
since the Union had the cards and had a written agreement
by Respondent for recognition.4 Applegate would not agree
to Shiels’ request for a one on one meeting, insisting that the
parties commence formal negotiations immediately with the
full bargaining committee present.
On June 17, Applegate and Shiels again spoke by tele-
phone, and the conversation was virtually identical as the
May 7 discussion between them.
I have credited Shiels’ version of the conversations be-
tween him and Applegate. While Shiels recalled that the dis-
cussions took place in early 1991, I find his testimony con-
1027EXXEL-ATMOS, INC.
5 The record does not reflect what Shiels instructed Osuna to say
to Applegate.
6 The three Patels are not related.
7 As noted above, in September 1990, the bargaining unit consisted
of 19 employees.
8 As noted, O’Donnell whose name also appeared thereon, was a
supervisor in July 1991.
9 Leggin’s testimony in this regard was corroborated by Barnes.
cerning dates not to be accurate, in view of the phone logs,
and the other evidence as detailed above, which indicates
that the Union did not call until May when it became aware
that the charges were to be dismissed. I also credit Shiels
that there were two conversations between him and Apple-
gate, which is also supported by Respondent’s phone memo
dated June 17. This memo reflects that on June 17, Shiels
left a message with Jesus Osuna, Respondent’s vice president
that he (Shiels) wants to see Osuna about a phone conversa-
tion between Shiels and Applegate of the Union. I conclude
that this June 17 memo refers to the second conversation be-
tween Shiels and Applegate, wherein Shiels recalled that the
substance of the discussion was identical to his May 7 con-
versation with Applegate.
By letter dated July 16, 1991, to Shiels, Applegate re-
quested that Respondent call him at their earliest conven-
ience to arrange mutually acceptable dates for contract nego-
tiations. On Respondent’s receipt of the July 16 letter on July
17, Shiels instructed Osuna to call Applegate the first thing
next morning.5 On July 18, at 8:49 a.m., Osuna placed a call
to the Union at the telephone number on the Union’s July
16 letter, 908–287–4011. Applegate was not there, so Osuna
left a message with his full name, phone number, and that
he was from Exxel, and asked Applegate to return the call.
Applegate asserts that the message that he received read
only ‘‘Jesus,’’ without any last name, phone number, or
other identification, so he did not know that his call had been
returned by Respondent.
William O’Donnell, who had been a bargaining unit em-
ployee until he was promoted to supervisor in April 1991,
heard talk in July 1991 that Respondent would be commenc-
ing negotiations with the Union. O’Donnell had circulated a
petition on September 11, 1990, when he was a bargaining
unit employee. The petition which he prepared without any
involvement from or knowledge of Respondent’s supervisors,
was entitled ‘‘Petition to keep Union out.’’ It went on to
read, ‘‘We the EMPLOYEES of EXXEL container, DO NOT
want to be represented by the United Steel workers Union
nor any other Union. We do our own talking.’’ O’Donnell’s
signature appeared first, followed by the signature of seven
other bargaining unit employees, Vinny Dao, Nick Rybski,
Robert Barney, Ghanshyam Patel, Thakorbai Patel,
Bhanabhai Patel,6 and Thuy T-Phan. A date of September
11, 1990 appeared next to each of the names. Of the eight
names on the petition, seven of them, (all but Thy Phan) tes-
tified herein and confirmed their signatures on the petition,
and except for employee Rybski, that they had signed the pe-
tition in September 1990.7 O’Donnell testified that he cir-
culated the petition when he found out Respondent intended
to recognize the Union. After obtaining these signatures,
O’Donnell called the NLRB and was allegedly told that ‘‘I
did not follow procedure, that this has no validation, basi-
cally it wasn’t up to me to do this.’’ O’Donnell then placed
the petition in the glove box in his truck, where it remained
until July 1991.
On or about July 24, 1991, O’Donnell after hearing about
the possibility of Respondent negotiating with the Union, de-
cided to inform Respondent about the petition. O’Donnell in-
formed Osuna that he (O’Donnell) had a petition indicating
that the employees didn’t want a union, which was signed
in September 1990, and asked if Osuna wanted to see it.
Osuna replied that he did not know if it would do any good,
but that he would like to see the petition. O’Donnell then
gave the petition to Osuna. Osuna asserts that the receipt of
petition created a doubt in his mind whether the Union had
lost their majority status. At that time, Respondent employed
14 employees, and the list contained 8 signatures, all of
whom were still employed by Respondent.8
After consulting with its attorney, Respondent prepared an
inter office memo dated July 25, and posted it in the plant.
The memo reads as follows:
EXXEL/ATMOS, INC.
INTER-OFFICE MEMO
TO: All Shop Personnel
FM: Bob Shiels
DATE: JULY 25, 1991
SUBJECT: UNITED STEELWORKERS UNION
We want to let you know of recent events concern-
ing the United Steelworkers Union.
We have received a letter from the union demanding
that we bargain and negotiate a contract which would
establish your wages, hours and working conditions.
However, we have also learned that a number of you
signed a petition in September, stating that you do not
want union representation. We’re trying to decide what
to do.
We really believed, when we recognized the Union,
that a majority of you wanted the union. However, in
light of this petition, we are not sure what to do. e plan
to decide soon to make the right decision for all con-
cerned.
If you have any questions, please feel free to ask
Jesus Osuna, Steve Leggin, Gene Paino, or your super-
visors.
Subsequent to the posting of this memo, on July 25, em-
ployee Robert Barney told Respondent’s plant supervisor
Steve Leggin ‘‘I don’t want no Union.’’ Leggin wrote a
memo to this effect dated July 25 at 2:35 p.m., after report-
ing the conversation to Osuna.9
Eugene Paino, Respondent’s vice president of technical
services, testified that on or about August 1, employee Nick
Rybski came to him and expressed antiunion sentiments. Ac-
cording to Paino, Rybski mentioned that he ‘‘wasn’t too fond
of unionism,’’ that he was ‘‘anti-union,’’ and that he ‘‘didn’t
want to see a Union in Exxel.’’ Paino further testified that
he immediately reported the conversation to Osuna, who
wrote a memo dated August 1, stating that Paino had told
Osuna at 1:30 p.m. on that date, that Niels Rybski did not
want a union.’’ Rybski, while admitting that his signature ap-
peared on the 1990 petition, did not recall having signed it,
nor did he recall any conversations with Paino or any other
Respondent official in 1991 where he stated that he did not
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 As noted, none of the Patels are related to one another.
11 As noted however, Ghanshyam on cross-examination indicated
that these events took place in February or March 1991.
12 A copy of this charge was not received by Respondent until Au-
gust 8.
13 Respondent concedes that this number was incorrect, and that
the unit consisted of 14 employees.
want the Union. Rybski did recall complaining to Osuna in
1990 about having to go into the Union because he
‘‘Rybski’’ was a salaried employee. Additionally Rybski’s
affidavit unequivocally denies having spoken to anyone else
about the Union subsequently, and denies further that he had
spoken to Paino, Osuna, or any other representative of Re-
spondent concerning his preferences regarding the Steel-
workers or any other Union.
Additionally, Tomasco testified that on July 26, employee
Ghanshyam Patel approached him and stated that he
(Ghanshyam) didn’t want the Union anymore. Tomasco as-
serts that he reported this to Leggin, and overheard
Ghanshyam tell Leggin that ‘‘he’’ didn’t want the Union,
and that ‘‘we’’ didn’t want the Union, without any further
identification of ‘‘we.’’ Leggin, however, recalls that
Tomasco informed him that Ghanshyam had said to Tomasco
that he (Ghanshyam) and Sudhirnbai, Bhanubhai, and
Thakorbhai Patel did not want a Union.10 Leggin also testi-
fied that when he spoke to Ghanshyam in Tomasco’s pres-
ence, Ghanshyam confirmed that he plus the other three
Patel’s did not want the Union. Ghanshyam on direct exam-
ination confirmed that he had spoke to Tomasco and Leggin
in July 1991, and told them that ‘‘we don’t want a Union.’’
He added that what was meant by ‘‘we’’ was the four Patels,
but he did not testify that he specifically told either super-
visor what he meant by ‘‘we,’’ nor on what basis he asserted
that the four Patels did not want a Union. On cross-examina-
tion, Ghanshyam changed his recollection, and asserted that
his conversation with Tomasco and Leggin about the Union
was before Tomasco became a supervisor, and was to the
best of Ghanshyam’s recollection in February and March
1991.
Leggin and Tomasco also testified that during their con-
versation with Ghanshyam, Ghanshyam suggested that they
speak to the other Patels about the matter. Thus, they assert
that Gunshyam went with them in the shop to Bhanubha
Patel and told Leggin to ask Bhanubhai. Leggin and
Tomasco allege that Leggin replied that the employees were
supposed to have something to tell him. At that point,
Leggin claims that Ghanshyam spoke to Bhanubhai in an In-
dian dialect, that Leggin did not understand. Then according
to Leggin and Tomasco, Bhanubhai told Leggin and
Tomasco that he (Bhanubhai), Sudhirnbai, and Thakorbhai
did not want the Union.11
Bhanuhai and Thakorbai both testified that they signed the
petitions in 1990, because they did not want to ‘‘join the
Union.’’ However, they both deny having any conversations
with Leggin or any supervisor about the Union.
Sudhirnbai Patel, who did not sign the petition, testified
that in July 1991, Leggin approached him in the cafeteria
and asked if he wanted the Union. Sudhirnbai testified that
he replied that he did not want the Union. Leggin gave no
testimony about a conversation with Sudhirnbai, nor was any
memo introduced of that conversation.
Osuna did write a memo dated July 26, 1991, which as-
serts that Tomasco was told by Ghanshyam Patel that, quote,
‘‘me, Bhanna, Sudi and Thako don’t want a Union.’’ The
memo further asserts that this was brought to my attention
on July 26th, Friday at 3:30 p.m.
On July 31, Applegate signed and mailed the charge in the
instant case to the Board, which was filed on August 2,
1991, alleging that Respondent violated Section 8(a)(1) and
(5) of the Act by refusing to bargain collectively with rep-
resentatives of its employees.12
Meanwhile, after receiving the reports from supervisors
concerning employee sentiments, plus a copy of the July
1990 petition, Osuna testified that Respondent in early Au-
gust based on those factors doubted the Union’s majority sta-
tus. Therefore, after consultation with its attorney, Respond-
ent filed an RM Petition in Case 22–RM–679 on August 7,
with a letter from Shiels dated August 5, setting forth the
facts supporting the petition. The following factors were re-
lied upon by Respondent in its letter to support its alleged
doubt of the Union’s majority status.
Exxel no longer believes that the Steelworkers’ Union rep-
resents a majority of the collective-bargaining unit for the
following reasons:
1. Exxel’s management has recently learned that, on
September 11, 1990 (four days after the Company vol-
untarily recognized the Steelworkers), eight members of
the bargaining unit signed a petition stating that they
did not want to be represented by the Steelworkers or
by any other union. A copy of the petition is enclosed.
This petition was not presented to management until
July 1991.
2. Within the past few days, six members of the bar-
gaining unit have advised management, either directly
or indirectly, that they do not wish to be represented by
the Steelworkers or by any other union.
3. Neither the September 11, 1990 petition, nor the
recent anti-union comments were solicited by manage-
ment in any way.
4. The bargaining unit at this time, and for the past
several months, consists of only thirteen employees. Six
of these thirteen13 employees have recently expressed
their desire not to be represented by the union. At least
one other employee signed the September 11, 1990 pe-
tition.
5. The Company was advised by the Board in Sep-
tember or October of 1990 that the union had refused
the Company’s offer of voluntary recognition, and the
union in fact made no effort to bargain with the Com-
pany at any time between September 7, 1990 and July
17, 1991 .
Based on the foregoing factors, we seriously doubt
that the Steelworkers Union currently represents a ma-
jority of the employees in the bargaining unit. e believe
that the only way to determine the true wishes of the
majority of our employees is to do so through a Board-
supervised election.
On or about August 6, Applegate telephone Osuna. After
a discussion about why Applegate had not returned Osuna’s
July 18 call, Applegate informed Osuna that he had filed un-
1029EXXEL-ATMOS, INC.
14 I note that Respondent was not represented by counsel in May
1991 when Shiels took this position.
fair labor practice charges against Respondent, and Osuna
told Applegate that Respondent was filing a petition with the
Board for an election.
The instant complaint was issued on November 27. On
December 5, the Region issued an order consolidating Case
22–RC–10360 and Case 22–RM–629, and dismissing both
petitions because of the issuance of the complaint, but adding
that the petitions are subject to reinstatement after disposition
of the unfair labor practice case.
III. ANALYSIS
The applicable legal principles necessary to decide the in-
stant matter are succinctly summarized by the Board in Royal
Coach Lines, 282 NLRB 1037, 1987, enf. denied on other
grounds 838 F.2d 47 (2d Cir. 1988).
The Board has consistently held that where, as here,
an employer has validly extended voluntary recognition
to a union, the union is entitled to an irrebuttable pre-
sumption of majority status until a reasonable time for
bargaining has elapsed. Rockwell International Corp.,
220 NLRB 1262, 1263 (1975); Keller Plastics Eastern,
157 NLRB 583, 587 (1966). A reasonable time is not
measured by the number of days or months spent in
bargaining, but by what transpired and what was ac-
complished in the bargaining sessions. Brennan’s Cad-
illac, 232 NLRB 255 (1977). Once a reasonable time
for bargaining has elapsed, the union enjoys a rebutta-
ble presumption of majority status. This presumption
can be rebutted by the employer’s showing that at the
time of its refusal to bargain, the union did not have
majority status in fact, or that the employer had a good-
faith doubt of the union’s majority status based on ob-
jective factors. See generally Bartenders Assn. of Poca-
tello, 213 NLRB 651 (1974); Cain’s Generator Co.,
237 NLRB 1198 (1978). [Id. at 1038.]
Here, there is no dispute that Respondent voluntarily rec-
ognized the Union as the collective-bargaining representative
of its employees on September 7, 1990. The next question
to be determined is whether or not a reasonable time for bar-
gaining had elapsed when Respondent withdrew recognition
from the Union. However, before resolving that issue, it must
be determined when Respondent actually withdrew recogni-
tion from the Union.
In that regard, General Counsel contends that Respondent
withdrew recognition from the Union by virtue of Shiels’ re-
sponse to Applegate’s request for bargaining on May 7,
1991. Respondent disagrees, contending that this conversa-
tion did not amount to a withdrawal of recognition, and that
recognition was not not withdrawn until August 1991. I am
in agreement with General Counsel’s analysis of Shiels’ re-
mark, and find that while Shiels did not use the words with-
drawal of recognition in his response, no other reasonable in-
terpretation of his words is warranted. Thus, while he did
agree to meet with Applegate on a ‘‘one on one’’ basis, to
discuss what the issues were, Shiels made absolutely clear to
Applegate that he did not wish to meet with the Union’s full
bargaining committee, and that he would not engage in ‘‘for-
mal’’ negotiations with the Union, unless and until the em-
ployees voted in an election. Shiels told Applegate that he
wanted the employees to have an opportunity to pick their
bargaining agent, and added that he ‘‘felt firmly’’ about that.
Thus, I conclude that the totality of Shiels’ remarks amount-
ed effectively to a withdrawal of recognition. Paramount
Poultry, 294 NLRB 867 (1989); Lexington Cartage Co., 259
NLRB 55, 56–58 (1981). (Employer attended four negotia-
tion sessions with the Union, and at each one made no coun-
terproposals, and stated that it was the position of the em-
ployer that the Union did not represent a majority of employ-
ees, and therefore it was not obligated to bargain with the
Union. Held that the employer withdrew recognition at first
meeting that it made the above statements.)
Respondent argues that Shiels never actually foreclosed
subsequent bargaining sessions with the Union, and that his
request for an initial get acquainted meeting with Applegate
was not unreasonable, nor did it constitute a withdrawal of
recognition. I do not agree. In my view, if Shiels’ intent as
contended by Respondent was to engage in future negotia-
tions with the Union and its full committee after his ‘‘get ac-
quainted’’ meeting with Applegate, it was incumbent upon
him to make that position clear. Not only did Shiels not do
so, but his other remarks that he would insist on an election
among Respondent’s employees, notwithstanding its prior
recognition of the Union, clearly demonstrates Respondent’s
position. I conclude that Shiels was obviously unhappy with
the decision of his predecessor as chief executive of Re-
spondent, to recognize the Union, and that he did not con-
sider himself bound by that action.14 Thus, Shiels was agree-
ing to meet with Applegate as a courtesy to see what the
issues were, at the same time he was clearly informing the
Union that he did not consider Gould’s agreement to recog-
nize the Union binding upon him or Respondent, and that he
would require the Union to demonstrate its majority status by
winning an election, before commencing actual bargaining.
This position amounts to a withdrawal of recognition and I
so find.
Having so found, the question of reasonable time for bar-
gaining becomes largely irrelevant, since Respondent does
not even argue, as well it should not based on this record,
that it doubted the Union’s majority on May 7, 1991, nor
that it was aware of any basis for taking such a position.
Thus as noted in May 1991, Respondent was not aware of
the petition signed in September 1990, and had not been in-
formed by any employees about their dissatisfactions with
the Union until July 1991. In such circumstances, Respond-
ent’s withdrawal of recognition in May 1991, prior to its
having any doubt of the Union’s majority, must be found
violative of Section 8(a)(5) of the Act. It is well settled and
not disputed by Respondent, that Respondent cannot rely on
expressions of antiunion sentiment that came to its attention
after the withdrawal of recognition, in order to justify such
prior withdrawals of recognition. Manna Pro Partners, 304
NLRB 782, 788 (1991); Republic Engraving & Designing
Co., 236 NLRB 1150, 1156 (1978); Odd Fellows Rebekah
Home, 233 NLRB 143, 144 (1977).
Accordingly, I conclude that Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by withdrawing recognition
from the Union on May 7, 1991.
While I need not go any further in my analysis in order
to dispose of the instant matter, I do deem it appropriate to
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
make additional alternative findings. Thus, since the question
of whether Respondent’s conduct in May 1991 constituted a
withdrawal of recognition is not totally free from doubt, I
shall analyze the matter further, on the alternative assump-
tion, as argued by Respondent that the withdrawal of rec-
ognition did not take place until August 1991, when Re-
spondent filed its RM petition and formally withdrew rec-
ognition from the Union.
However, such an analysis does not preclude assessing
whether Respondent’s conduct in May and June 1991, al-
though not amounting to a withdrawal recognition has other-
wise violated the Act. In my judgment Respondent’s position
on meeting with the Union, as expressed by Shiels in May
and again in June 1991, even if not construed as a with-
drawal of recognition, does establish a violation of Section
8(a)(1) and (5) of the Act. I note initially that Section 7 of
the Act gives employees the right to bargain through rep-
resentatives of their own choosing. Generally speaking, an
employer has no right to dictate to a Union who its rep-
resentatives may be during bargaining, unless it establishes
‘‘a clear and present danger to the collective bargaining proc-
ess,’’ or that the presence of the objected to party would cre-
ate ill will and make bargaining impossible. Milwhite Co.,
290 NLRB 1150, 1151 (1988), Dilene Answering Service,
257 NLRB 284, 291 (1981). Here, while Shiels agreed to
meet with the Union, he insisted on a one on one meeting
with Applegate, despite Applegate’s protestations that his
bargaining committee be present as well. Neither Shiels nor
Respondent have asserted that the presence of the Union’s
bargaining committee presented a clear and present danger to
the bargaining process or would create ill will or make bar-
gaining impossible. Thus, Respondent’s insistence on meet-
ing only with Applegate is violative of Section 8(a)(5) of the
Act. Dilene, supra.
Moreover, Section 8(d) of the Act requires that the Em-
ployer ‘‘meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and conditions
of employment, or the negotiation of an agreement or any
question arising thereunder, and the execution of a written
contract incorporating any agreement reached.’’ Thus, Re-
spondent does not satisfy its obligations under the Act by
merely agreeing to meet with the Union, or to listen to the
Union’s assertions of ‘‘what the issues are or where we are.’’
Respondent must agree to ‘‘confer’’ and to negotiate an
agreement with the Union and to execute a written contract
incorporating any agreement reached. Respondent cannot
simply sit and listen to the Union’s proposals, make no coun-
terproposals, all the while insisting that the Union dem-
onstrate its majority status by winning an election, before it
engages in ‘‘formal’’ negotiations. Lexington Cartage, supra.
See also Southern Lumber Co., 229 NLRB 187, 191 (1986)
(fact that employer offers to bargain on one condition of em-
ployment, layoff procedure, is no defense to a charge of re-
fusing to bargain over other mandatory subjects of bargain-
ing).
It seems to me that Respondent did not offer to fulfill its
obligations to bargain collectively with the Union by Shiels’
imposition of the above-described conditions for a meeting,
and that the Union was amply justified in refusing to meet
in such circumstances. Respondent, as noted, argues that
Shiels was merely suggesting an initial get-acquainted meet-
ing with Applegate, and did not foreclose subsequent meet-
ings wherein full bargaining could take place. However, as
I have observed above, Shiels did not give any indication
that he contemplated such future meetings and bargaining,
and to the contrary insisted on an election before any such
bargaining could occur.
Accordingly, based on the foregoing, I make the alter-
native finding that even if Respondent’s position in May, and
reaffirmed in June, is not construed as a withdrawal of rec-
ognition, it nonetheless establishes a refusal to meet and bar-
gain with the Union in violation of Section 8(a)(1) and (5)
of the Act.
This brings me to the question of whether a reasonable
time for bargaining had elapsed in August 1991, when Re-
spondent admittedly withdrew recognition from the Union.
Respondent argues that a reasonable time had expired by Au-
gust 1991, since nearly 11 months had expired since Re-
spondent voluntarily granted recognition to the Union. Citing
Tajon, Inc., 269 NLRB 327 (1984), and Brennan’s Cadillac,
231 NLRB 225 (1977), where the Board found periods of 2-
1/2 to 4 months, respectively, to be reasonable amounts of
time, Respondent contends that the instant case should be
treated similarly. Respondent further asserts that the Union
was entirely to blame for the failure of the parties to meet
and bargain, and that Respondent should not be blamed for
the delay. I do not agree.
As noted, the test for determining what is and what is not
a reasonable time is determined by what ‘‘transpires during
the time period under scrutiny rather than the length of time
elapsed.’’ King Soopers, Inc., 295 NLRB 35, 37 (1989). Var-
ious factors considered by the Board in making such a deter-
mination include whether the parties are bargaining for a first
contract; whether the employer engaged in a meaningful
good-faith negotiations over a substantial period of time; and
whether an impasse in negotiations had been reached.
Gerrino Restaurant, 306 NLRB 86, 88–89 (1991); VIP Lim-
ousine, 276 NLRB 871, 877 (1985).
Based on the above criteria, it is clear that a reasonable
time had not elapsed when Respondent formally withdrew
recognition in August, notwithstanding the fact that 11
months had expired since recognition was granted. VIP Lim-
ousine, supra at 877. The parties were bargaining for a first
contract, there was no negotiations over a substantial period
of time, and of course no impasse had been reached. Indeed,
there was in fact no negotiations at all during this period.
Gerrino, supra at 89.
Nor do I agree that the blame for the failure of negotiating
sessions to have occurred can be attributed solely or even
primarily to the Union’s dilatory tactics, as Respondent con-
tends. It is true that the Union did cancel the one negotiation
session that had been scheduled in September 1990, and
thereafter decided to postpone further efforts to reschedule a
meeting, pending resolution of the unfair labor practice
charges that it filed concerning Respondent’s layoff of em-
ployees. However, while this decision of the Union resulted
in no attempts to set up a meeting for a period of 8 months,
since the layoffs involved a substantial number of employees
in the unit (over 25 percent), I do not find it unreasonable
for the Union to postpone bargaining until the charges were
resolved and the number of employees in the unit was deter-
mined. In any event, Respondent cannot contend that the
Union abandoned its interest in the employees, since it was
vigorously processing the unfair labor practice charges with
1031EXXEL-ATMOS, INC.
15 In fact, as noted, Shiels testified that he believed that these con-
versations took place in January 1991, shortly after he became presi-
dent. However, as also noted, I have concluded based on other more
objective evidence that he was mistaken as to the dates of these con-
versations with Applegate, and they occurred on May 7 and June 17.
16 Indeed, Shiels did not testify at all about the matter.
the Board. Greater New Orleans Artificial Kidney Center,
233 NLRB 1467, 1468 (1977); Unoco Apparel, 215 NLRB
89, 91 (1974) .
More significantly, I note that Respondent made no objec-
tion to the Union’s apparent decision to postpone further bar-
gaining until the resolution of the charges. Respondent made
no effort to attempt to schedule another meeting during the
period, apparently acquiescing in the Union’s desire to re-
solve the charges first. Indeed, as of November 1990, when
Shiels replaced Gould as president, it is obvious from Shiels’
own testimony that any attempts to bargain by the Union to
meet with Respondent from that time on, would have been
met with the same unlawful response made by Shiels in
May; i.e. Respondent would meet only with Applegate, but
would not engage in any bargaining unless and until the
Union won an election.15 In such circumstances, Respondent
cannot rely on the Union’s delay in scheduling bargaining to
establish that a reasonable time for bargaining had elapsed.
Driftwood Convalescent Hospital, 302 NLRB 586, 587, 589
(1991).
Moreover, once the Union did make attempts to schedule
negotiation sessions in May, June, and July, Respondent un-
lawfully refused to agree to do so, clearly demonstrating that
the failure to have bargaining sessions from May to August
was primarily attributable to this unlawful conduct of Re-
spondent. In this connection, Respondent relies on the fact
that Osuna did attempt to telephone Applegate in response to
the Union’s July written request for negotiations, and that
due to an error in the Union’s transmission of the message,
Applegate did not return the call. However, I place little or
no significance on this error by the Union, since there the
record is not clear as to what Osuna intended to say to Ap-
plegate. I note that Respondent adduced no testimony as to
the content of the conversation between Shiels and Osuna,
when Shiels instructed Osuna to call Applegate.16 Thus,
there is no basis to conclude that even if Osuna intended to
schedule a meeting with Applegate, that the conditions would
have been any different than they were in May and June,
when Shiels unlawfully conditioned his agreement to meet,
on a meeting with Applegate alone, with further negotiations
to be scheduled only if the Union were successful in the
election.
Accordingly, based on the foregoing analysis and authori-
ties, I conclude that a reasonable time for bargaining had not
elapsed when Respondent formally withdrew recognition
from the Union in August 1991. Having so concluded, it then
becomes unnecessary for me to make any findings on the
sufficiency of Respondent’s objective considerations for
withdrawing recognition since absent a reasonable time for
bargaining having elapsed, evidence of employee dissatisfac-
tion with the Union is irrelevant. Driftwood, supra at 589;
Gerrino, supra at 89.
However, since I have been making alternative findings in
this decision already, I do deem it appropriate to continue
such an approach, and shall analyze further on the assump-
tion that a reasonable time for bargaining had elapsed by Au-
gust, when recognition was formally withdrawn.
In that event, however, it must be noted that I have also
found above, that Respondent’s conduct in May and June of
refusing to meet and bargain with the Union (even assuming
it did not constitute a withdrawal of recognition) was viola-
tive of Section 8(a)(1) and (5) of the Act. Such conduct by
Respondent which strikes at the heart of the Union’s legiti-
mate role as representative of its employees, would likely
have contributed to the Union’s loss of standing among the
unit employees, thereby rendering unreliable any subsequent
employee dissatisfaction with the Union. Midway Foodmart,
293 NLRB 152 fn. 2 (1989). Therefore, the withdrawal of
recognition even if construed as having not being effectuated
until August, was still tainted by these unremedied unfair
labor practices committed by Respondent, and is therefore
unlawful. Lee Lumber & Building Material, 306 NLRB 408,
410 fn. 15 (1992); Bay Area Mack, 293 NLRB 125, 131
(1989); Midway Foodmart, supra.
So, in sum, I have concluded above that (a) Respondent
withdrew recognition from the Union on May 7, when it had
no doubt of the Union’s majority status; (b) even if it was
found that recognition was not withdrawn until August as
contended by Respondent, that a reasonable time for bargain-
ing had not elapsed; and (c) even if a reasonable time had
elapsed by August, that Respondent’s unremedied unfair
labor practices tainted its subsequent withdrawal of recogni-
tion.
Thus, only if all three of the above findings are reversed,
does it become necessary to evaluate the sufficiency of the
objective considerations relied on by Respondent in with-
drawing recognition. although I consider such an eventuality
unlikely, I shall make such an evaluation in keeping with my
decision to make alternative findings.
Respondent, in its letter signed by Shiels, filed in support
of its RM petition, sets forth in substance three reasons as
objective considerations which allegedly formed the basis for
its doubt that the Union represented a majority of its employ-
ees. One of the reasons asserted in that document indicates
that Respondent was ‘‘advised by the Board in September or
October of 1990 that the Union had refused the Company’s
offer of voluntary recognition, and the Union, in fact, made
no effort to bargain at any time between September 7, 1990
and July 17, 1991.’’
Although this assertion appeared in Respondent’s position
paper submitted to the Board in connection with the ULP
charge and in the instant letter, Connell who testified at the
hearing, could not recall the Board agent making this state-
ment to him, but claims that he would not have written it
in the position paper had it not been told to him. Particularly,
where the Union through Applegate has credibly denied ever
making such a statement to the Board agent, I find Connell’s
testimony insufficient to conclude that the Union ever had
refused Respondent’s offer of voluntary recognition. More-
over, I note that no testimony was adduced from either
Shiels or Osuna that in fact Respondent relied on the alleged
refusal to accept recognition by the Union, in concluding that
the Union lost its majority status. Indeed, the only testimony
in any way related to this issue was Osuna’s response that
Respondent understood that the election was postponed as a
result of the unfair labor practice charges that had been filed
against Respondent. Finally, in my view, Respondent is not
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Walker Mfg. Co., supra, cited by General Counsel, is not to the
contrary, as that case deals with well-settled principles involving su-
pervisory participation and involvement with a petition at the time
that the petition was executed by the employees.
18 It is also noteworthy that the petition contained only 8 signa-
tures out of a unit of 19 employees in September 1990, less than
a majority of employees in the unit.
19 For example, Paino testified that Rybski made direct statements
to him concerning his dissatisfaction with the Union. Rybski did not
recall such a conversation and his pretrial affidavit specifically de-
nies having such a conversation. The record also contains substantial
contradictions concerning the purported conversations with the var-
ious Patels which I have described above, which I shall not resolve.
20 The record does reflect according to Sudhirnbai’s testimony, that
he was approached by Supervisor Leggin in the cafeteria and asked
if he wanted the Union. In response to this inquiry, Sudhirnbai testi-
fied that he responded that he did not want the Union. Respondent
entitled to rely upon secondhand advice received from Board
agents as to what the Union allegedly told the agent concern-
ing its recognition desires. Cf. Kuna Meat Co., 304 NLRB
1005 fn. 2 (1991), and cases cited.
Accordingly, I conclude that Respondent cannot place any
reliance on this alleged statement to support its withdrawal
of recognition.
Respondent places its principal reliance upon the petition
executed by eight bargaining unit employees in September
1990, stating they do not want to be represented by the
Union, but not submitted to Respondent until July 1991. The
petition, which in July 1991, contained the names of seven
bargaining unit employees as of that date, was given to Re-
spondent by Supervisor Bill O’Donnell who had prepared
and circulated the petition in September 1990, when he was
a unit employee. General Counsel argues that Respondent
cannot rely on the petition, because it was received from
O’Donnell who was a supervisor at the time he transmitted
to Respondent, and that the petition is therefore tainted by
O’Donnell’s participation in its preparation and circulation.
Walker Mfg. Co, 288 NLRB 888 (1988). I do not agree. The
critical question to be determined is O’Donnell’s status at the
time that he became involved in the preparation and circula-
tion of the petition, not the time that he presented it to higher
officials of Respondent. Since it is clear that O’Donnell was
not a supervisor in September 1990, and there is no evidence
of any supervisory involvement in the petition at that time,
I conclude that O’Donnell’s mere transmission of the petition
to Respondent in July 1991, when he was a supervisor, does
not taint the petition.17
However, I agree with General Counsel’s alternative posi-
tion and citation of authority, that Respondent cannot rely on
the petition, because it was executed at a time that no ques-
tion concerning representation could have been raised. United
Supermarkets, 287 NLRB 119, 120 (1987). Thus, since had
the petition been submitted to Respondent in September
1990, when it was signed, clearly a reasonable time for bar-
gaining would not have expired, and it could not have been
considered as a basis to question the Union’s majority or
withdraw recognition at that time.18 Royal Coach, supra.
Thus, since Respondent could not rely on the petition in Sep-
tember 1990, it cannot subsequently rely on it to justify a
more timely withdrawal of recognition in July 1991. United
Supermarkets, supra; see also VIP Limousine, 276 NLRB at
878.
Respondent attempts to distinguish United Supermarkets,
supra, on the grounds that the case did not involve a vol-
untary recognition, but a certification, which Respondent ar-
gues ‘‘is treated very differently than a case where the one
year certification bar applies.’’ However, while there are dif-
ferences between voluntary recognition and certification in
various respects, I do not believe that there is any difference
with respect to the principles applicable to the question in-
volved here. Thus, in Keller Plastics Eastern, 157 NLRB
583 (1966), the Board held that in a bargaining relationship
‘‘established as a result of voluntary recognition of a major-
ity representative . . . like situations involving certifications,
Board orders, and settlement agreements, the parties must be
afforded a reasonable time to bargain.’’ Id at 587. Thus, the
Board treats all types of recognition similarly with respect to
the requirement that a ‘‘reasonable time to bargain’’ must be
afforded. While in a certification situation, a reasonable time
is defined as at least one year, and in other situations the de-
termination is based on a number of factors, there is no dif-
ference when it comes to evaluating the quantum of evidence
necessary to support an employer’s good-faith doubt, be-
tween a bargaining relationship established by a certification
vis a vis other methods such as voluntary recognition.
Therefore, I conclude that Respondent cannot rely on the
petition executed in September 1990, to support its assertion
that it reasonably doubted the Union’s majority status in July
or August 1991.
That leaves for consideration Respondent’s final conten-
tion, that it received direct and indirect communications from
employees in July 1991, that they did not wish to be rep-
resented by the Union. Since Respondent’s own witnesses, as
well as its letter supporting the RM petition, indicate that at
best 6 employees expressed their dissatisfaction with the
Union, this number constituting less than a majority of the
14 employees in the unit, would be insufficient to establish
a reasonable doubt, even if credited, and even if all of the
statements were deemed sufficient to establish a desire not
be represented by the union. Dy-Dee Wash, 228 NLRB 389,
390 (1977). Therefore, I have concluded that it is unneces-
sary to resolve the confusing and often contradictory testi-
mony of Respondent’s own witnesses, as to what was said
by employees to its supervisors when and by whom concern-
ing union representation.19
Moreover, an evaluation of the statements allegedly made
to Respondent’s supervisors does not permit Respondent to
rely on some of the assertions to establish its alleged reason-
able doubt of majority status. Thus, Respondent concedes
that as to two of the six employees who allegedly expressed
their antiunion sentiments, two of them, Sudhirnbai and
Thakorbai Patel did so only through the statements of other
employees. The Board, supported by the Courts has consist-
ently placed little or no reliance on statements of employees
purporting to represent the views of other employees. Manna
Pro Partners, 304 NLRB at 783; Westbrook Bowl, 293
NLRB 1000, 1001 (1989); Larsen Supply Co., 289 NLRB
295 (1988); Alexander Linn Hospital Assn., 288 NLRB 103,
109 (1988); Bryan Memorial Hospital v. NLRB, 814 F.2d
1259, 1263 (8th Cir. 1987); NLRB v. Wallkill Valley General
Hospital, 866 F.2d 632, 637 (3d Cir. 1989). Therefore, Re-
spondent cannot rely on the statements of the other Patels
(who are not related) to establish the antiunion sentiments of
these two employees.20
1033EXXEL-ATMOS, INC.
cannot rely on this conversation, even if credited to establish its rea-
sonable doubt, since the information emanated from an unlawful in-
terrogation. Hajoca Corp, 291 NLRB 104, 105 (1987), enfd. 872
F.2d 1169, 1176 (3d Cir. 1989). Moreover, since neither Leggin nor
any supervisor testified about this alleged conversation, and no
memo in Respondent’s file referred to it, I conclude that Respondent
did not rely on this fact in making its decision to withdraw recogni-
tion, and cannot rely on it in this proceeding.
21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
22 If 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.’’
Accordingly, the best that can be said for Respondent’s
‘‘objective considerations,’’ comes down to direct statements
from only 4 employees out of a unit of 14 employees, which
indicate dissatisfaction with union representation, which is
far from sufficient to establish a reasonable doubt of the
Union’s majority status.
Therefore, based on the foregoing analysis and authorities,
I find that Respondent has violated Section 8(a)(1) and (5)
of the Act by withdrawing recognition from the Union,
whether it is found that the withdrawal took place in May
as contended by General Counsel and as I have found, or in
August as asserted by Respondent.
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 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By refusing on and after May 7, 1991, to meet and bar-
gain with the Union, and by withdrawing recognition from
the Union at that time as the exclusive majority representa-
tive of its employees in an appropriate unit, Respondent has
violated Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has violated Section 8(a)(1)
and (5) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action necessary to ef-
fectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended21
ORDER
The Respondent, Exxel-Atmos, Inc., Somerset, New Jer-
sey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from and refusing to meet
and bargain collectively with united Steel Workers of Amer-
ica, AFL–CIO (the Union), as the exclusive bargaining rep-
resentative of its employees in the appropriate bargaining
unit set forth below.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, recognize, meet and bargain collectively in
good faith with the Union as the exclusive collective-bar-
gaining representative of its employees in the unit described
below, regarding wages, hours, and other terms and condi-
tions of employment, and if an agreement is reached, em-
body it in a signed contract. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees, quality control employees, lab-
oratory technicians, and senior laboratory technicians
employed by Respondent at its Somerset, New Jersey
facility, but excluding all office clerical employees, pro-
fessional employees, sales employees, guards and su-
pervisors as defined in the Act.
(b) Post at its facility in Somerset, New Jersey, copies of
the attached notice marked ‘‘Appendix.’’22 Copies of the no-
tice, on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.