Guerdon Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1975

218 N.L.R.B. 658 (N.L.R.B. 1975)

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guerdon Industries , Inc., Armor Mobile Homes
Division and Firemen & Oilers, Local No. 288.
Case 10-CA-10719
June 19, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 29, 1974, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, counsel for Respondent filed
exceptions and a supporting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings, and
conclusions of the Administrative Law Judge as
modified herein and to adopt his recommended
Order for the reasons further explained below.
The Administrative Law Judge concluded that
when Respondent withdrew recognition from the
Union, on May 9, 1974, Respondent thereby violated
Section-.8(a)(5) and (1) of the Act because Respon-
dent's withdrawal of recognition, although based on
objective considerations, was not accomplished in a
context free of unfair `labor practices. Particularly,
the Administrative Law Judge found that, on May 1,
1974, Respondent had violated Section 8(a)(5) and
(1) 'of the Act by unilaterally announcing and
implementing an incentive wage plan without prior
discussion with or notification to the Union, at a
time when Respondent had no reason to doubt the
Union's majority representative status. The Adminis-
trative Law Judge further found that, on May 1,
1974, Respondent also violated Section 8(a)(1) by
threatening certain of its employees that the incen-
tive plan it had announced would be lost if the
Union negotiated a wage increase. The Administra-
tive Law Judge then found that, because of these
unfair labor practices, Respondent was precluded, on
May 9, 1974, from having a reasonably based doubt
of the Union's majority status and that Respondent
thereby violated Section 8(a)(5) and (1) of the Act by
its withdrawal of recognition.
We agree with these conclusions of the Administra-
tive Law Judge, but, because of various comments
made by our dissenting colleague, and because of our
modification of certain parts of the Administrative
1 The contract provisions and language remained the same during the
contract's duration except for various wage increases.
2 All dates are 1974 unless otherwise noted.
Law Judge's Decision, we wish to elaborate on our
reasons for agreeing with the Administrative Law
Judge's conclusions.
The Administrative Law Judge has set out in some
detail the facts of the instant case and we here
summarize only those facts most pertinent to our
discussion.
The Union was certified as the exclusive bargain-
ing representative of Respondent's employees in-
volved here in September 1967. Thereafter, in
February 1968, Respondent and the Union signed a
contract which, because of various extensions, was
effective until March 31, 1974, expiring on that date
after a final 1-month extension.'
In January 1974,2 the Union had given the Federal
Mediation and Conciliation Service due notice of its
intent to open the contract for negotiation and, in
mid-February, Union Representative Jimmy Walker
had notified Respondent's plant manager that he was
going to meet with the employees and would get
back to the plant manager after receipt of the
employees' proposals. The Union was contacted later
that month by Kenneth Crawford, Respondent's
director of industrial relations, and the parties
agreed, at Walker's request, to extend the contract,
which was set to expire on March 1, to March 31. In
the latter part of March, Walker met with the
employees, worked up proposals, to submit to
Respondent, and then arranged to meet with
Crawford on April 3.
At the April 3 meeting, Walker presented the
Union's proposals and after their subsequent rejec-
tion by Respondent a week later, and the Union's
later rejection of Respondent's counterproposal, and
after further telephone discussions , the parties agreed
to meet again on April 29. By the conclusion of the
April 29 meeting, the parties had reached agreement
on substantially all contract language with the
exception of economic matters.
Thereafter, however, and notwithstanding the
progress the parties had made on April 29 in
negotiating a new contract, on May 1, Respondent's
general manager, Oral Kiphart, held a series of
meetings with the employees to explain an incentive
wage plan, phase one of which, the Administrative
Law Judge found, Respondent implemented immedi-
ately after the May 1 meeting.3 Respondent admits
that the Union had not been consulted before
Respondent announced the plan.
Further, at one of the May 1 employee meetings,
Kiphart, when asked what would happen to the
incentive plan if the employees obtained a raise
3 The Administrative Law Judge has set out in detail the specifics of the
incentive plan , which, we note , was to be unplemented in two phases.
218 NLRB No. 69
GUERDON INDUSTRIES, INC. 659
through the union negotiations, replied that that
occurrence would kill the incentive plan. -
After the April 29 bargaining session and the
various employee meetings on May 1, there were no
further negotiations between Respondent and the
Union. Rather, by letter of May 9, Respondent
informed the Union it was filing a petition for an
election with the Board, and, as the petition was
allegedly supported by a large number of unit
employees, it stated it was refusing to bargain with
the Union pending resolution of the issue by the
Board. An RM petition was thereafter filed with the
Board on May 13 along with an undated employee
petition, allegedly signed by 46 employees, which
stated "we no longer wish to be represented by [the
Union] 994,
Kiphart testified that he had received the employee
petition on May 6 from Production Manager Lamar
Roberts, but Roberts, who testified, gave no testimo-
ny about the petition. The Administrative Law
Judge, however, credited the testimony of an
employee who said that he saw another employee
give Roberts the petition on May 1; he recognized
the petition and had seen it circulating around the
plant; he looked at it when the employee handed it to
Roberts and there were about 35 signatures on it; on
the following day, he saw the petition circulating in
the plant again; and he himself obtained several
additional signatures. The Administrative Law
Judge, in the absence of contrary testimony, thus
concluded that Roberts had first received the
employee petition on May 1, while the employee
meetings were in progress, and that at that time less
than a majority of the employees had signed the
petition. Thereafter, on May 6, when Kiphart
allegedly first received the petition, it appears that a
majority of the unit employees had signed it.
In determining whether Respondent's withdrawal
of recognition violated the Act, the Administrative
Law Judge correctly noted the pertinent standards
by which the Board determines whether an employ-
er's withdrawal of recognition from an incumbent
union in a particular case is permissible. Under these
rules, as set out in the Board's decision in Celanese
Corporation of America,5 a certified union, upon the
A According to the Administrative Law Judge , there were 84 or 85
employees in the unit on May 9.
5 95 NLRB 664 (1951). Celanese has been cited approvingly by the
Supreme Court- See Ray Brooks v. N.LRB., 3481 J.S. 96,104, fn. 18 (1954).
6 See Barrington Plaza and Tragniew, Inc., 185 NLRB 962 (1970),
enforcement denied on other grounds sub nom. N LRB. v. Tragniew, Inc.,
and Consolidated Hotels of California 470 F.2d 669 (C.A. 9, 1972)
T "Majority representative status" means that a majonty of employees in
the unit wish to have the union as their representative for collective-
bargaining purposes . Celanese Corp., supra at 671.
8 N.L.RB. v. Gunt Hotel Company, 362 F.2d 588 (CA. 5, 1966), enfg.
147 NLRB 997 (1964).
9 Nu-Southern Dyeing & Finishing, Inc., and Henderson Combining Co.,
179 NLRB 573, fn. 1 (1969), enfd. in part 444 F.2d 11 (C.A. 4, 1971).
expiration of the first year following its certification,
enjoys a rebuttable presumption that its majority
representative status continues. The presumption
also continues to apply after the expiration of a
collective-bargaining agreements The presumption
may be rebutted, however, by evidence establishing
that the union no longer enjoys majority representa-
tive status.? Also, even without such showing of loss
of majority, an employer may refuse to bargain if he
relies on a reasonably based doubt as to the
continued majority status of the union. As to a
reasonably based doubt, two prerequisites for sus-
taining that defense are that the asserted doubt must
be based on objective considerations and such
doubt must be raised in a context free of unfair labor
practices .9
Applying these principles, it is clear that, after the
contract's expiration on March 31, the presumption
of the Union's majority status continued and it was
Respondent's burden to show either that the Union
had lost majority status in fact or that Respondent
had a reasonably based doubt of that status.
Respondent attempted to defend its withdrawal of
recognition by arguing that (1) the dues-checkoff
figures for March, April, and May 1974 indicated
that less than a majority of the unit employees were
on checkoff in those months; (2) certain statements
made by Union Representative Walker indicated he
doubted the unit employees supported the Union;
and (3) the employee petition Respondent received
on May 6 indicated that a majority of the unit
employees were no longer in favor of the Union.10
We agree with the Administrative Law Judge's
rejection of each of these three defenses for reasons
we note below.
With respect to the dues-checkoff figures, the
Administrative Law Judge correctly noted that,
consistent with both Board" and court 12 precedent,
the fact that less than a majority of the unit
employees were on dues checkoff, in the 3 months
indicated, did not demonstrate that the Union had
lost its majority status or that Respondent could thus
have had an adequate basis for a reasonably based
doubt of that status.13 The simple reason for this
10 There is no allegation that the petition was the result of any unlawful
solicitation efforts by Respondent.
11 See, e.g., Bartenders, Hotel, Motel & Restaurant Employers Bargaining
Association of Pocatello, Idaho, 213 NLRB No. 74 (1974).
12 See, e.g., Terrell Machine Company v. N.LRB., 427 F.2d 1480 (C A. 4,
1970), enfg. 173 NLRB `1480 (1969); and The National Cash Register
Company v. N.LRB., 494 F.2d 189 (C.A. 8, 1974), denying enforcement in
other respects of 201 NLRB 1034 (1973).
13 Although the Administrative Law Judge's rejection of Respondent's
argument was clearly in line with Board precedent, our dissenting colleague
cites the Board 's decisions in Peoples Gas System, Inc., 214 NLRB No. 141
(1974), and Convair Division of General Dynamics Corporation, 169 'NLRB
131 (1968), for the proposition that a small percentage of employees on
checkoff is an indication of objective considerations to support a doubt of
(Continued)
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonreliance on checkoff figures is the fact, as the
Fifth Circuit stated in Gulfmont,14 that "[n]o one
knows how many employees who [favor a union
decide] not to authorize the company to deduct
union dues ...." 15 Thus, the Administrative Law
Judge was clearly correct in his rejection of Respon-
dent's defense based on the dues-checkoff figures.'6
With respect to Respondent 's second defense, i.e.,
that certain statements allegedly made by Walker to
the effect that the unit employees were not support-
ing the Union were also indicators of lack of majority
support or a basis for a reasonably based doubt of
majority status, the Administrative Law Judge did
not credit certain testimony of Respondent's repre-
sentative, Crawford, which would have supported
that contention and we cannot on this record find
further evidence supporting this defense of Respon-
dent and therefore we reject it.17
With respect to Respondent's third defense, the
employee petition, we note that the 46 names on the
petition on May 6 constituted a majority in the unit
but, as the Administrative Law Judge pointed out,
the petition did not establish that the Union had lost
majority status, in fact, since the signatures on the
petition were never properly authenticated nor was it
majority support . His citation to those two cases is incorrect. In both those
cases, on the facts present in each , the Board stressed the decrease, over a
period of years, in the number of unit employees on checkoff as an indicator
of objective considerations. Member Fanning was on neither of those cases
and does not necessarily subscribe to their rationale.
14 Supra, fn. 8.
15 362 F.2d at 591. Notwithstanding our dissenting colleague's contrary
opinion that an employee who wishes to be represented by a union usually
supports it financially, and his statement that we are engaged in sophistry in
failing to so conclude , we prefer to rely on the Fifth Circuit's statement in
Gulfmont as the correct approach in this matter. Of interest, we note that in
Gulfmont, itself, although the union there had received 111 votes in the
election , when the contract in that case became effective, without a
compulsory checkoff clause, only 77 employees authorized checkoff and the
number of employees authorizing checkoff during the year of the contract
never went above that figure of 77.
And while our dissenting colleague attempts to equate the dues-checkoff
authorizations with the membership support the Union had, we note that
Respondent's representative, Crawford, testified that he himself had no
idea, based on the checkoff, of the number of members the Union had, since
he admitted that employees sometimes paid their dues directly to the Union.
Rather, Crawford's doubt of the Union's majority status, before the May 6
employee petition, was based, according to Crawford, on various statements
allegedly made by Walker to Crawford, which statements the Admmistra-
tive Law Judge did not credit as we note below. Therefore, prior to its
receipt of the employee petition on May 6, Respondent clearly could not
have had a reasonably based doubt of the Union's majority status.
16 In so agreeing with the Administrative Law Judge, however, we place
no reliance on his further statement that proof that less than a majority of
the employees were members of the Union would also not demonstrate lack
of majority support While the Administrative Law Judge is correct in his
statement (see N.L.RB. v. Gulont Hotel supra at 591), any such statement
is unnecessary here since it has not been shown, in any event, that the
Union's membership was less than a majority of the unit.
Our dissenting colleague concludes that the Union , in fact, lacked
majority in its membership based on (1) the employee petition of May 6; (2)
a statement allegedly made by Walker to Union Committeeman Stewart;
and (3) a finding that the Union had a maximum of 33 "card signers" out of
a unit of 84 or 85 employees on May 8, the day prior to the withdrawal of
recognition.
We discuss the effect of the employee petition later in our decision. With
ever shown that the employees who signed the
petition were actually in the unit on the date of the
withdrawal of recognition. However, we agree with
the Administrative Law Judge that the petition, with
a majority of the employees apparently having signed
it, could have constituted sufficient reason for
Respondent to have doubted the Union's continuing
majority status,18 and thereby would have sanctioned
Respondent's withdrawal of recognition, if Respon-
dent's action had been taken "in a context free of
unfair labor practices."19 We agree, however, with
the Administrative Law Judge that such a situation
did not exist when Respondent withdrew recognition
from the Union.
Specifically, we agree with the Administrative Law
Judge that Respondent violated Section 8(a)(5) and
(1) of the Act when it unilaterally announced and
then implemented its incentive wage plan without
prior notice to or consultation with the Union. As the
Administrative Law Judge noted, on that date it had
not been shown that the Union, had, in fact, lost its
majority status, nor, on the evidence then before it,
could Respondent have had a reasonably based
doubt the Union had lost that status. In such
circumstances, Respondent was obligated to bargain
respect to the statement Walker allegedly made to Union Committeeman
Stewart, we believe the record supports more than one interpretation of
Stewart's testimony and therefore we do not agree that our dissenting
colleague's interpretation of the record is the only interpretation and, thus,
the necessarily correct interpretation. With respect to our colleague 's finding
that there were a maximum of 33 "card signers" on May 8, he apparently
has added the 24 cards Walker offered to Crawford at the April 29 meeting
with the 9 names the Union offered in its April letter for checkoff This
figure totals 33 but it hardly means that there was a maximum of 33 "card
signers" since it is always incorrect to equate the number of employees on
checkoff with the number of members a union possesses when checkoff is
voluntary. See the discussion above.
17 In rejecting the defense, however, we do not rely on the Admuustra-
tive Law Judge 's legal conclusion that:
Assuming Walker said he was losing support, statements by union
officials that they are not getting sufficient support have been found
insufficient upon which to base a good-faith'doubt, and evidence of
dissatisfaction with the Union must come from the employees
themselves . [Footnotes omitted]
The Administrative Law Judge in fact found that Walker's statement
related to his lack of support in securing proposals from the employees. In
such circumstances, we find the Administrative Law Judge's discussion
quoted above irrelevant to his conclusions.
We have already noted above our refusal to rely on the statement
allegedly made by Walker to Committeeman Stewart as an indicator that
the Union did not have majority support.
We do note that, as a result of Respondent's March 26 letter to the
Union, Walker offered to Crawford at the April 29 meeting between the
parties a number of authorization cards. The number was less than a
majority in the unit. There is no claim, however, that these cards constituted
in fact all the members of the Union in the unit. We note too that Crawford
declined to look at the cards , stating instead "that's alright, I believe you"
and the parties continued to negotiate , with Crawford never questioning the
Union's majority, This is inconsistent with any claims of reasonable doubt
on Respondent's part, at least as of April 29.
18 Cf. American Express Reservations Inc., 209 NLRB 1105 (1974); and
also Faye Nursing Home, Inc. d/b/a Green Oak Manor, 215 NLRB No. 112
(1974).
19 Nu-Southern Dyeing & Finishing Inc, supra, fn. 9.
GUERDON INDUSTRIES, INC. 661
with the Union, the employees' bargaining represent-
ative, over the incentive wage plan, a condition of
employment,20 and its failure to do so was a per se
violation of Section 8(a)(5).2' Also a violation of the
Act was Kiphart's reply in answer to the question as
to the effect of a union-secured wage increase on the
incentive plan. His response, which indicated that
any such wage increase would "kill" the plan, was
clearly a threat of reprisal should the Union obtain a
wage increase and was therefore a violation of
Section 8(a)(1).
Notwithstanding the seriousness of the unfair labor
practices committed by Respondent on May 1, our
dissenting colleague finds them insufficient to taint
the subsequent petition Respondent received from
the employees. To so conclude, he fords Respon-
dent's announcement and implementation of the
incentive wage plan at most a "technical" violation
since it was apparently abandoned before its second
phase was achieved. And with respect to Kiphart's
statement, our dissenting colleague rinds that it was
not "intended" as a threat and was at most a
"borderline" violation. We disagree with both these
conclusions of our colleague.
The implementation of the incentive plan can
hardly be deemed a "technical" violation simply
because the plan may later have been abandoned. To
so categorize such a per se violation of the Act, based
on whether it was, in fact, effective, is to completely
negative the spirit and purpose of the Act.22 The
same result obtains with respect to Kiphart's state-
ment, which our dissenting colleague, without sup-
porting proof, states was not "intended" by Kiphart
as a threat. The statement itself, however, clearly
conveys a coercive message to the employees; is
clearly violative of Section 8(a)(1); and in such
circumstances, under established law, Kiphart's
"intent" in the statement is irrelevant.23
Thus it is clear that the Administrative Law Judge
was correct in fording that Respondent's May 1
20 We agree with the Administrative Law Judge that past practices at the
plant did not establish that the, Union had waived its right to negotiate
regarding incentive wage plans.
21 N.L.R.B. v. Benne Katz d/b/a Williamsburg Steel Products Co., 369
U.S. 678 (1962). In so agreeing with the Administrative Law Judge , we place
no reliance on his discussion of whether Respondent did or did not have a
contract right to institute the incentive plan, because, as the Administrative
Law Judge noted , the contract had in fact expired when Respondent took
its May 1 action and, absent an agreement, Respondent was obligated to
bargain with the Union, the employees' representative , over this condition
of employment.
In agreeing with the Administrative Law Judge, we also place no reliance
on his findings, and attendant discussion thereof, that Respondent's May 1
promulgation of the incentive plan was a device undertaken to undermine
the Union. Rather we predicate our finding of the 8(aX5) violation on
Respondent's failure to notify and discuss this action with the Union, the
employees' majority representative, before implementing the program. It is
not necessary to this conclusion for us to divine the reasons why
Respondent undertook to implement this plan and we make no findings on
this point.
violations precluded the possibility of its later relying
on the employee petition as a basis for withdrawing
recognition from the Union. In so agreeing with the
Administrative Law Judge, however, we stress that it
is not simply because Respondent, in fact, committed
unfair labor practices that we have found its
withdrawal illegal, but rather it is because of the
serious nature of these violations that we have
concluded as we have. Thus we are not applying our
principles concerning this withdrawal of recognition
in a per se manner but, consistent with our promise in
Celanese, 24 we have viewed "the totality of all the
circumstances" surrounding Respondent's withdraw-
al of recognition.
We repeat that, absent the unfair labor practices
we have found Respondent committed on May 1, we
would be constrained to dismiss the complaint
allegation alleging an unlawful withdrawal of recog-
nition by Respondent.25 We would also be con-
strained to dismiss the withdrawal-of-recognition
complaint allegation, even where Respondent, in
fact, had committed other unfair labor practices
prior to its withdrawal of recognition, if it could be
said that those other unfair labor practices were not
of such a character as to either affect the Union's
status, cause employee disaffection, or improperly
affect the bargaining relationship itself. 26 It is clear
here, however, that Respondent's unilateral an-
nouncement and implementation of the incentive
plan and its threat to halt the plan should the Union
negotiate a wage increase were exactly the types of
violations which would improperly affect the bar-
gaining relationship so as to negate the legality of the
later withdrawal of recognition.
In this connection, the unilateral implementation
of the incentive plan, with its promise of possible
higher employee earnings , coupled with the threat of
the plan's demise should the Union gain a wage
increase, graphically portrayed to the employees that
Respondent was in a position to confer or withdraw
22 In a not unsmailiar context, we would hardly dismiss a complaint
against a union, which we found had engaged in an illegal strike, based on
the fact that the strike though illegal was not successful.
23 See, e.g., Magnet Cove Barium Corp., 119 NLRB 1203 (1958). Our
dissenting colleague appears to have lost sight of the fact that "motive" or
"intent" is not the critical element of an 8(axl) violation. Rather, as the
Board has stated , "the test is whether the employer engaged in conduct
which, it may reasonably be said , tends to interfere with the free exercise of
employee rights under the Act." The Cooper Thermometer Company, 154
NLRB 502, 503 , fn.2 (1965).
24 95 NLRB at 673.
25 See fn. 18, supra.
26 See Colonial Manor Convalescent & Nursing Center, a Division of the La
Grange Land Corporation, 188 NLRB 861 (1971); Midwestern Instrurnents,
Inc., 133 NLRB 1132 (1961 ). As the Board indicated in Colonial Manor,
there is no absolute proscription against questioning a union's majority
status in the context of unfair labor practices. Rather, any unfair labor
practices committed are weighed to see whether they, in fact, would
preclude an employer from later withdrawing recognition from a union.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic benefits without regard to the presence of
the Union. Such a failure by Respondent to accord
to the Union its rightful role to negotiate such
programs for the employees necessarily tended to
undermine the Union's authority among the employ-
ees, whose interest it was obligated to represent in
such matters , with erosion of majority status the
probable result 27
Thus where, as here, the preceding violations are
"flagrant [and] egregious" in themselves "and where
they directly affect a large segment of the bargaining
unit," 28 we fmd Respondent's withdrawal of recogni-
tion shortly thereafter was unlawful.
For all the foregoing reasons,29 we agree with the
Administrative Law Judge that Respondent's with-
drawal of recognition on May 9 violated the Act as
the nature of Respondent's May 1 violations preclud-
ed Respondent from exercising a reasonably based
doubt of majority status.30
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board, adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent Guerdon Industries,
Inc., Armor , Mobile Homes Division, Ashburn,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the Administrative
Law Judge's recommended Order.
MEMBER KENNEDY , dissenting:
This is another case in which the members of the
Board majority have used a fiction to impose upon
27 Cf. C & C Plywood Corporation and Veneers, Inc., 163 NLRB 1022
(1967). We note that, on May I when Respondent violated the Act as noted,
the employee petition contained 35 names, which was less than a majority,
and not enough to establish a good-faith doubt of majority. When
Respondent next saw the petition on May 6, however, an apparent majority
of the employees had signed it. It is difficult to determine how many of
those additional signatures were adduced because of Respondent's May 1
actions. However, noting that Respondent's twin violations demonstrated
that what the employees had received without the Union, i e., the incentive
plan with its promise of benefits, they would lose should the Union
negotiate a wage increase, it is highly likely Respondent's actions had an
effect on the remaining 11 employees. We conclude, in the circumstances,
that it was Respondent's burden to prove otherwise and it has not carried
this burden.
28 N.L.R.B. v. Anvil Products, Inc., 496 F.2d 94 (C.A. 5, 1974), denying
enforcement of 205 NLRB 709 (1973).
29 We disagree with our dissenting colleague that the Supreme Court's
decisions in N.L.R.B. v. Gissel Packing Co, Inc., 395 U.S. 575 (1969), and
Linden Lumber Division, Summer & Co. v. N.L.R.B., 419 U.S. 301 (1974),
have rendered "obsolete" our rationale herein. With respect to Linden
Lumber, which involved an initial recognition situation , we note that there
was no charge that the employer there engaged in any unfair labor practice
apart from its refusal to bargain when confronted with a demand for
recognition. Here, there are other unfair labor practices alleged against
Respondent in addition to its withdrawal of recognition. We find the
Supreme Court's decision in Gissel more analogous to the instant case and,
while the Supreme Court in Gissel also did not deal with a loss of majority
situation but with initial recognition , we are satisfied that the rationale in
employees a bargaining representative by denying
them the right to express their own choice in a secret
election conducted by the Board. As I have done in
other similar cases, I dissent.31
After the Union was certified, the parties executed
a 3-year contract which expired on March 1, 1971.
That agreement was extended to March 1, 1974, with
the contract provisions and language remaining the
same except for various wage increases . The Union
served notices in early January 1974 that it wanted to
negotiate changes in the contract. No proposals were
sent to the Employer by the Union, and there was no
attempt to start negotiations prior to the scheduled
expiration date of March 1. The Respondent readily
agreed to a 1-month extension of the contract a day
or two before the expiration date of March 1.
According to Union Representative Walker, he
told Respondent's spokesman, Crawford, in late
February, when he requested extension of the
contract, that he had to meet with the employees to
get their proposals because there appeared to be a
lack of interest in advancing proposals. Walker was
delayed another month in getting the Union's
proposals prepared. Indeed, when Respondent heard
nothing from the Union, Crawford wrote Walker on
March 26 and indicated that Respondent stood
ready to negotiate but also stated: "Based on your
dwindling membership, I would strongly urge that
you file a disclaimer of interest on behalf of your
Union." Shortly after receipt of that letter, Walker
called Crawford on either April 1 or 2. Crawford
readily agreed to meet at the Atlanta Airport on
April 3. Walker presented the Union's proposals on
April 3 and Crawford agreed to contact him after he
had an opportunity to study them. ' About I week
Gisse4 concerning the propriety of issuing a bargaining order, supports our
decision in this case . In initial recognition cases, where the Board has found
violations similar to those Respondent committed on May 1, it has issued
bargaining orders rather than holding elections. See, e.g., Area Disposal Inc.,
200 NLRB 350 (1972); Skaggs Drug Centers, Inc., 197 NLRB 1240 (1972);
Tower Enterprises, Inc., d/b/a Tower Records, 182 NLRB 382 (1970). We do
not construe those court decisions cited at fn. 37 ofour colleague's dissent
to be contrary to our conclusions here.
30 We believe the foregoing analysis demonstrates that our rationale here
is hardly a "resort to sophistry" as our dissenting colleague alleges and also
places no "impossible burden" on Respondent as our colleague further
states. We have demonstrated how Respondent , absent its May 1 violations
or if its violations had not been of the kind that improperly affects the
bargaining relationship, could have lawfully withdrawn recognition from
the Union in light of the employee petition . But this was not the course
Respondent chose. And in such circumstances , we think it would be wholly
contrary to the purposes of the Act for this Board to rely on any possible
fruits of Respondent's prior unfair labor practices to justify a dishonoring of
the bargaining obligation as our dissenting colleague would have us do.
31 See, e.g., my dissenting opinions in Wald Transfer & Storage Co., 218
NLRB No. 73 (1975); Bartenders, Hotel Motel & Restaurant Employers
Bargaining Association of Pocatello, Idaho, 213 NLRB No. 74 (1974);
Automated Business Systems, a Division of Litton Business Systems, Inc., 205
NLRB 532 (1973), enforcement denied 497 F.2d 262 (C.A. 6, 1974); Anvil
Products, 205 NLRB 709 (1973), enforcement denied 496 F.2d 94 (C.A. 5,
1974); Orion Corporatioi, 210 NLRB 633 (1974); United Supermarkets, Inc.,
214 NLRB No. 142 (1974).
GUERDON INDUSTRIES, INC. 663
later , Crawford sent the Union its counterproposal to
retain the language of the expired contract.
While Respondent did not withdraw recognition
prior to May 9, 1974, it is clear that both sides were
genuinely concerned about the lack of support for
the Union among the employees.32 The observation
in the March 26 letter with respect to the "dwindling
membership" of the Union was based on documenta-
tion supplied by the Union. The monthly letters sent
by the Union to Respondent requesting remittance
of union dues checked off from employees who had
authorized such checkoffs clearly justified that
observation. On the date the contract expired (March
31), there were 126 unit employees and the Union's
letter for April set forth only 9 names on the checkoff
list. The Union's letter for March set forth 21 names
on the checkoff list. This Board recently recognized
that a small percentage of employees on checkoff is
an indicator of objective considerations to support a
doubt of majority support by employees. See Peoples
Gas System, Inc., 214 NLRB No. 141 (1974), citing
Convair Division of General Dynamics Corporation,
169 NLRB 131, 134 (1968).
Union Committeeman Stewart acknowledged that
International Representative Walker had expressed
concern to him that the Union did not represent a
majority of the unit employees. After receipt of
Crawford's "dwindling membership" letter, the
Union undertook to get additional cards signed. It
obtained only 24 additional cards., Thus the Union
had a maximum of 33 card signers out of a payroll of
84 employees on May 8.33
On May 6, 1974, Plant Manager Kiphart was
presented with a petition signed by 46 employees
which recited: "We no longer wish to be represented
by the Firemen & Oilers' Union." At that time there
were 84 employees in the unit. On May 9, Respon-
dent informed the Union that it was filing a
representation petition with the Board34 and that, as
the petition was supported by a substantial number
of bargaining unit employees, there was a serious
question of the continued majority status of the
Union. Accordingly, the letter further recited that
32 Crawford 's prompt agreement in late February to extend the contract
when the Union had made no effort to negotiate and Crawford's prompt
meeting at the Atlanta Airport as soon as Walker had prepared proposals
do not suggest that , Respondent was looking for an excuse to withdraw
recognition. The relationship between the parties had been harmonious.
There had been no strikes or lockouts. No grievances had been taken to
arbitration during the 3 years that Crawford had been responsible for the
industrial relations at this plant. Indeed no grievances had been pursued to
the third step of the contract's grievance procedure . The instant case is the
first unfair labor practice charge filed against Respondent at this plant.
Having agreed on a contract in February 1968, the Union and the
Respondent were content to retain that contract's provisions except for
wage increases until recognition was withdrawn in May 1974. It would
appear that Respondent was content to have its employee s represented by
the Union until it was presented on May 9 with the employee petition
signed by 46 employees . Continued recognition of the Union after that date
Respondent was suspending further negotiations for
a collective-bargaining agreement until the question
of representation was resolved by the Board.
As rationale for his finding-of an 8(a)(5) violation
in Respondent's refusal to bargain further with the
Union after May 9, the Administrative Law Judge
recited a familiar litany: After the expiration of the
certification year, there is a presumption of contin-
ued majority status which may be rebutted by
evidence establishing that the union no longer
represents a majority of the unit employees. Even
without proof of loss of majority an employer may
refuse to bargain if he relies on a doubt reasonably
based on objective considerations as to the continued
majority status of the union. The Administrative Law
Judge then proceeded to reason: A showing of lack
of financial support for a union is not the equivalent
of establishing the number of employees who desire
representation by the union; the low number of dues-
checkoff authorizations is not a reasonable ground
for believing that a union has lost majority support; a
showing that less than a majority of the 'unit
employees are members of the union is not the
equivalent of showing lack of majority support; and
statements by union officials that they are not getting
sufficient support are insufficient upon which to base
a good-faith doubt 35 According to the Administra-
tive Law Judge, no one can know how many
employees who favor _ union representation do not
become or remain members of a union. As to the
petition repudiating the Union signed by more than a
majority of the employees in the unit, the Adminis-
trative Law Judge ruled that this was insufficient to
rebut the presumption of the Union's continued
majority because Respondent had not properly
authenticated the signatures on the petition or that
the signers were actually employed in the unit on the
critical date. Finally, the Administrative Law Judge
said that the,petition would have furnished sufficient
objective reasons for doubting the Union's continued
majority status, except that Respondent committed
unfair labor practices on May 1.
would have subjected Respondent to a meritorious 8(a)(2) charge. See
Anderson Pharmacy, 187 NLRB 301 (1970); International Ladies' Garment
Workers' Union, AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.LR.B.,
366 U S. 731 (1961).
33 The number of employees listed for checkoff for March, April, and
May varied from 9 employees to as many as 33 . By the time Respondent
received the Union's letters , however , it appears that some of the listed
employees had either withdrawn their authorizations or had been terminat-
ed for one reason or another . As pointed out by the Administrative Law
Judge, the mobile home industry was in a severely depressed state during
this period. The number of employees in the unit declined from 126 during
the week ending April 5 to 84 during the week ending May 10.
34 The petition was filed in the Board's Regional Office on May 13, 1974.
35 The majority quite rightly disavows reliance on this latter bit of
reasoning by the Administrative Law Judge.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The majority has accepted the Administrative Law
Judge's reasoning except in the minor details set out
in the majority decision. Indeed, the Administrative
Law Judge professed to be only following the
precedents of previous decisions.
To sum up the majority's position: To rebut the
presumption of majority status deriving from,the
certification now more than 7 years old, it is not
sufficient to show lack of union membership, lack of
monetary support for the Union, or lack of signed
authorization cards by an employee majority. Nei-
ther separately nor together do these show lack of
union support, according to the Administrative Law
Judge and the majority; I respectfully express the
opinion that the reasoning by which this result is
reached is sheer sophistry. An employee who wishes
to be represented by a union usually joins it as a
member or otherwise supports it financially. When
he no longer wishes to be so represented, he usually
resigns his membership or stops paying dues. Not to
recognize this is to ascribe a free rider mentality to
the majority of the American workmen.
The resort to sophistry, it seems to me, is merely an
implementation of the impossible burden placed on
an employer to prove a negative, that is, the union
does not represent a majority of the unit employees.
For, as pointed out in Stoner Rubber Company, Inc.
123 NLRB 1440, 1445 (1959):
Proof of majority is peculiarly within the special
competence of the union. It may be proved by
signed authorization cards, dues checkoff cards,
membership lists, or any other evidentiary means.
An employer can hardly prove that a union no
longer represents a majority since he does not
have access to the union's membership lists and
direct interrogation of employees would probably
be unlawful as well as of dubious validity.
Moreover, I believe that the rationale of the
majority rests on doctrine which has been rendered
obsolete by the teaching of recent Supreme Court36
36 Linden Lumber Division, Summer & Co. v. N.LR.B., 419 U.S. 301
(1974); NLRB. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
39 Automated Business Systems, a Division of Litton Business Systems, Inc.
v. N.LR.B., 497 F.2d 262 (C.A. 6, 1974); The National Cash Register
Company v. NL.R.B., 494 F.2d 189 (C.A. 8, 1974); N.L.R.B. v. Dayton
Motels, Inc., d/bla Holiday Inn of Dayton, 474 F.2d 328 (C.A. 6, 1973);
Lodges 1746 and 743, International Association of Machinists and Aerospace
Workers, AFL-CIO [UnitedAireraft Corporation] v. NLRB, 416 F.2d 809
(C.A.D.C., 1969); N.L.RB v. Lay"strom Manufacturing Co., 359 F.2d 799
(C.A. 7, 1966).
38
Linden Lumber Division, Summer & Co. v. N.LR.B., supra. The
dissenting Members in linden did not disagree with the general proposition
that a secret election is the preferred method of determining a majority
representative but only with the conclusion that the employer could insist
on the union filing a representation petition seeking an election. The dissent
stated:
This section [9(c)(1XB)], together with §8(a)(5) and 9(a), provides
and court of appeals decisions.37 In the most recent
pronouncement of the Supreme Court on the general
subject, the Court said that the Act favors the policy
of determining a union's majority status by secret
election.38 Therefore, unless it "has engaged in an
unfair labor practice that impairs the electoral
process," the employer -may insist on a Board
election to determine majority status before bargain-
ing with the union. It is true that Linden dealt.with a
situation where a union was initially requesting
recognition. But the principle of that case is equally
applicable to a renewal situation where the employer
questions the continued majority status ofthe union.
Majority representation is an issue' in both situations.
The way to determine this question most accurately
is by asking the employees themselves in a secret
election whether they desire to be represented by the
union, rather than by resorting to the dubious
reasoning of the Administrative Law Judge adopted
by the majority in this case. Indeed, I believe that,
under the holdings of the Supreme Court in Linden,
as well as in Gissel, an employer has the right to test
out his doubts as to a union's majority status by
petitioning for an election. Thus, in Gissel, the Court
said (395 U.S. at 599):
That provision [Sec. 9(c)(1)(B)] was not added, as
the employers assert, to give them an absolute
right to an election at any time; rather, it was
intended, as the legislative history indicates, to
allow them, after being asked to bargain, to test
out their doubts as to a union's majority' in a
secret election which they would then presumably
not cause to be set aside by illegal antiunion
activity.
Not only is a secret election the most efficacious
method for determining majority status, it also has a
definite time advantage in resolving industrial
disputes. The Supreme Court pointed this out in
Linden where it said:
clear congressional direction as to the proper , approach to the situation
before us. When an employer is faced with a demand for recognition by
a union that has presented convincing evidence of majority support, he
may elect to follow one of four alternatives . First, he is free to recognize
the union .... Second, he may petition for a Board-supervised
election , pursuant to §9(c)(1)(B).... Third, rather than file his own
election petition, the employer can agree to be bound by the results of
an expedited consent election ordered after the filing of a union
election petition.... Finally, the employer can refuse to recognize the
union, despite its convincing evidence of majority support, and also
refuse either to petition for an election or to consent to a union-
requested election. In this event , however, the Act clearly provides that
the union may charge the employer with an unfair labor practice under
§8(a)(5) .... If the General Counsel issues a complaint and the Board
determines that the union in fact represents a majority of the
employees, the Board must issue an order directing the employer to
bargain with the umon .[419 U.S. at 312-313.]
GUERDON INDUSTRIES, INC. 665
The union which is faced with an unwilling
employer has two alternative remedies under the
Board's decision in the instant cases. It can file
for an election; or it can press unfair labor
practices against the employer under Gissel., The
latter alternative promises to consume much time.
In Linden the time between filing the charge and
the Board's ruling was about 4 1/2 years; in
Wilder, about 6 1/2 years. The Board's experience
indicates that the median time in a contested case
is 388 days. . . . On the other hand the median
time between the filing ' of the petition for an
election and the decision of the regional director
is about 45 days. In terms of getting on with the
problems of inaugurating regimes of industrial
peace, the policy of encouraging secret elections
under the Act is favored. [419 U.S. at 306-307.]
When Respondent was presented with a, petition
repudiating the Union signed by a majority of
employees in the unit, it had the right to, assume that
there was a serious question as to the Union's
continued` majority status 39 There is no contention
that the petition was other than legitimate or that it
had been obtained as the result of unlawful solicita-
tion efforts of - Respondent. Respondent was not
required to interrogate the signers as to the legitima-
cy of their signatures. On the contrary, it acted quite
properly, in my opinion, by promptly filing a
representation petition with the Board under Section
9(c)(1)(B) asking the Board to resolve the question of
representation by its conventional election proce-
dure. There was no obstacle to the holding of an
immediate' election. The Administrative Law Judge
did recognize that ordinarily the petition would raise
a reasonably based doubt as to the Union's majority
status, but held that the doubt could not be raised in
this case because, of Respondent's unfair labor
practices committed on May 1. The Administrative
Law Judge has failed to evaluate the alleged unfair
labor practices in terms of the possible impact on an
election. It is not every unfair labor practice which
nullifies an employer's right to an election.40 In
Linden, the Court said that "unless an employer has
engaged in an unfair labor practice that impairs the
electoral process," the employer can insist that the
union invoke the Board's election procedure.
(Emphasis supplied.) Similarly, in Gissel, the Su-
preme Court said that an employer who engaged in
- Cf. Telautograph Corporation, 199 NLRB 892 (1972).
4e See N.LRB. v. Anvil Products, 496 F.2d 94 (C.A. 5, 1974); The
National Cash Register Company v. IV LR.B., supra, N.LR.B. v. Nu-
Southern Dyeing & Finishing, Inc., and Henderson Combining Co., 444 F.2d
11, 15-16 (C.A. 4, 1971); Fremont Newspapers, Inc. v. N.L.R.B., 436 F.2d
665,672-673 (C.A. 8, 1976);IIngress-Plastene, Inc. ,v. N.LRB., 430 F.2d 542,
547 (C.A. 7, 1970).
41 N.LRB. v. Gissel Packing Co., Inc., supra at 600.
42 The express language of art. III of the contract since 1968 had granted
"unfair" labor practices "likely to destroy the union's
majority and seriously impede the election" may not
insist that before it bargains the union get a secret
ballot election.41(Emphasis supplied.)
An examination of the unfair labor practices
allegedly committed on May 1 is therefore necessary
in order to determine whether they were likely to
"seriously impede the election." On May 1, General
Manager Kiphart held a series of meetings with small
groups of employees in order to explain a proposed
incentive plan.42 Kiphart said that the program
would be instituted in two phases. Phase one was to
begin only when the employees produced four
mobile homes on a sustained basis. Respondent
would then begin to balance out the production lines,
a process which would take approximately 2 or 3
weeks. Employees who finished their assigned work
on, four units would be permitted to leave early and
receive a full day's pay. When the line was balanced
and production of four units maintained on a
sustained basis, phase ' two would come into effect
and the employees would then receive incentive
compensation. Respondent contended that the plan
was never implemented because the employees never
achieved a production of four units a day on a
sustained basis . While fording that phase two was
never reached, the Administrative Law Judge con-
cluded that phase one was implemented since several
employees after May i were sent home early with full
pay after completing their assignments . At one of the
meetings conducted by Kiphart on May 1, an
employee asked him what would happen to the
incentive program if the employees obtained a raise
as a result of the negotiations with the Union;
Kiphart responded that this would kill the incentive
program. The Administrative Law Judge found that
Respondent violated Section 8(a)(5) and -(1) by
failing to notify the Union of its decision to institute
a wage incentive system and by announcing the plan
and implementing it thereafter. He further found
that, by Kiphart's response to an employee's query as
to the effect of negotiations on the incentive
program, Respondent violated Section 8(a)(l) of the
Act, since the response "constituted athreat that the
plan would be discontinued in the event the Union
sought a wage increase during negotiations."
the Employer the right to institute and modify incentive plans . An incentive
plan had been installed shortly after the 1973 amendments to the contract
were adopted . That plan was subsequently abandoned. Walker testified on
direct examination by General Counsel that, during the 1974 discussions for
a new contract, the Union had agreed to continue art. III without change in
return for the Respondent 's agreement to continue the checkoff provision.
Walker further testified that , at the April 29 meeting, the parties had agreed
on everything except economic issues.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is a serious question of whether on May 1
the Union represented a majority of employees 43 If
it did not, then Respondent's announcement of a
proposed incentive system did not violate Section
8(a)(5) and (1). But even if the program did violate
Section 8(a)(5), it was at most a technical violation
since it was apparently abandoned before phase two
was reached. As to Kiphart's statement that if the
Union obtained a raise as a result of negotiations the
incentive program would be abandoned, it was not
intended as a threat . If the statement is violative of
Section 8(a)(1), it is at most a borderline violation. I
do not believe -that the events of May 1, either
together or separately, are the kind of unfair labor
practices which are likely to impair the electoral
process and "seriously impede the election." Accord-
ingly, I would find- that Respondent did not violate
Section 8(a)(5) by refusing on and after May 9 to
bargain further with the Union unless the union
demonstrated its majority status in a Board-conduct-
ed election . As I regard the other violations found by
the Administrative Law Judge to be both dubious as
well as minimal , I would dismiss the complaint in its
entirety.
Whether Respondent unlawfully threatened employees
that it would discontinue a wage incentive program if the
Union negotiated a wage increase.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross- examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were submitted by the
General Counsel and the Respondent.
Upon the entire' record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent, a corporation with an office and place of
business in Georgia, is engaged in the manufacture and
sale of mobile homes at its, plant in Ashburn, Georgia.
During the past calendar year, Respondent manufactured,
sold, and shipped finished products valued in excess of
$50,000 directly to customers located outside the State of
Georgia. The complaint alleges , Respondent admits and I
find, the Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
48 In my view, there is no basis for this Board 's presuming that the
Union had the support of a majority of the unit employees at any time after
the contract expired.
DECISION
Statement of the Case
JULIUS COHN, Administrative Law Judge: This case was
tried at Ashburn, Georgia, on August 15, 1974. Upon a
charge filed May 13 and served May 14, 1974, the Regional
Director for Region 10 issued the complaint in this
proceeding on July 9, 1974, alleging that Guerdon
Industries, Inc., Armor Mobile Homes Division, herein
called the Respondent or Company, violated Section
8(a)(1) and (5) of the Act by refusing to bargain with
Firemen & Oilers, Local No. 288, herein called the Union,
and otherwise independently violated Section 8(a)(1) of the
Act. Respondent filed an answer denying the commission
of unfair labor practices.
ISSUES
Whether the Respondent unlawfully unilaterally
changed existing working conditions by announcing and
implementing a wage incentive program for its employees.
Whether Respondent thereafter illegally withdrew recog-
nition from the Union and refused to bargain collectively
with the Union.
Whether Respondent unlawfully solicited employees to
vote out the Union.
Whether Respondent interrogated its employees con-
cerning statements made to Board agents.
1 The appropriate unit is: All production and maintenance employees
including leadmen and truckdrivers but excluding all office clerical
Firemen & Oilers, Local No . 288 and International
Brotherhood of Firemen, AFL-CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For a number of years the Company has been engaged at
its Ashburn, Georgia, plant in the manufacture and
assembly of mobile homes. On September 25, 1967, the
Board certified the Union as the exclusive bargaining
representative of its production and maintenance employ-
ees.1
On February 19, 1968, the Union and the Respondent
executed a collective-bargaining agreement which re-
mained in effect until March 31, 1974, upon the expiration
of a 1-month extension. The parties had negotiated wage
increases in March and July of 1969, December of 1970,
and March of 1972 and 1973. During that period, the
contract was extended for a year on March 1, 1971, and
further extended for 2 years on March 3, 1972. Apart from
the wage increases and extensions , the contract language
and provisions have remained the same throughout. The
following provisions of the contract are relevant to a
discussion of the issues in this case.
ARTICLE III
Prerogative of Management
Section 1. The Management of the Company and the
direction of the working forces, including all responsi-
employees, the draftsman , the dispatcher, the serviceman , watchmen,
guards, and supervisors as defined in the Act. -
GUERDON INDUSTRIES, INC.
bilities, powers and authorities, such as (by way of
example and not by way of limitation) the right to
select and hire, to promote, discipline or terminate, to
direct and determine the size of the working force, to
schedule work, to determine the products to be
manufactured, the location of the plant, or the removal
of any portion of the plant, the abandonment of any
operation, the schedule of hours and shifts shall be
posted by management, the establishment or choice of
methods, processes and means of manufacturing, the
setting of production standards as a basis for incentive
compensation, or the setting of cost of work standards
for workers not on incentive work, promotion, demo-
tion, layoff and recall, contracting or arranging for
work to be done outside the plant by others or by other
divisions of this Company, including production work,
and the establishment. of reasonable rules of plant
conduct which the Company had prior to the signing of
the Agreement, except such as are specifically relin-
quished or modified by provisions of the Agreement,
are the sole and exclusive rights and responsibilities of
management vested in this Company, and the exercise
of such rights shall in no event be the subject of
arbitration unless expressly agreed to by the Company
in writing-, and no provision herein is intended to
imply or permit a modification of these rights.
ARTICLE VII
Wages
Section 1 . The Company shall maintain throughout the
term of this agreement , the compensation for the given
classifications as set forth in Appendix A which is
attached hereto and made a part hereof.
ARTICLE XVII
Section 1. The parties acknowledge that during the
negotiations which resulted in this Agreement, each
bad the unlimited right and opportunity to make
demands and proposals with respect to any subject or
matter not removed by law from the area of collective
bargaining, and that the understandings and agree-
ments arrived at by the parties after the exercise of that
right and opportunity are set forth in this Agreement.
Therefore, the Company and the Union, for the life of
this Agreement each voluntarily and unqualifiedly
waives the rights, and each agrees that the other shall
not be obligated to bargain collectively with respect to
any subject or matter referred to or covered by this
Agreement.
Prior to the certification of the Union the Company had an
incentive system in effect which was maintained during
negotiations and continued after the execution of the
collective-bargaining agreement. The plant manager at that
time testified that the Company was concerned about the
continuation of this incentive program and that this was a
matter of discussion during the negotiations. While an
agreement on this point was never reduced to writing, the
incentive system in effect at that time was continued until
finally abandoned. Thereafter in 1973 the then plant
667
manager, Griffin, instituted an incentive program which
was short lived because of the dissatification of the
employees with the plan. Before effectuating the 1973 plan,
Griffin discussed the matter with Chief Shop Steward
Minor Cushion. This occurred just subsequent to the
negotiations for a pay raise and, after some discussion with
Cushion, the latter indicated that "We would try it." The
plan was then put into effect after a plant meeting with
employees but it endured only a short time.
In addition the Company has had a profit-sharing plan
which has been in effect all along even prior to the advent
of the Union. In 1972 the Company requested permission
of the Union to change the profit-sharing plan in terms of
its eligibility and the Union, in writing, consented thereto.
The Company contends that it had discussed this matter
with the Union merely because of a requirement by the
Internal Revenue Service.
B. Facts
In January 1974 the Union mailed notices to the Federal
Mediation and Conciliation Service with copies to the
plant manager informing that it wished to open the
contract for purposes of changes and modifications. In
mid-February Jimmy Walker, International representative
of the Union, called the Ashburn, Georgia, plant and
spoke to the then plant manager, Jewel, and told him that
he, Walker, was going to meet with the employees and
would get back to the plant manager after receipt of
proposals.
The plant manager advised Kenneth Crawford, director
of industrial relations of the Respondent, of Walker's
telephone call. On February 25, Crawford wrote Walker
advising that he would represent the Company and that
Walker should communicate with him in connection with
proposals. He also noted that the contract would expire
March 1 and no proposals had as yet been submitted.
Upon receipt of the letter Walker called Crawford
requesting an extension of the contract until March 31.
According to Crawford, during the course of this telephone
conversation Walker said that he was not sure of his
support from the employees, that he did not know how
many people were interested in the Union, and that he
must find this out before he goes any further. He stated
that Walker said he was not going to drive 100 miles for
four or five people. Walker's version of this part of the
conversation was to the effect that he had to meet with the
employees in order to get their proposals and at this time
there appeared to be a lack of interest in advancing
proposals. He denied any reference to a lack of employees'
interest in membership. In the latter part of March, Walker
met with the employees, worked up proposals to submit to
the Company, and then arranged to meet with Crawford at
the Atlanta airport on April 3.
Crawford further testified in this vein that, at the meeting
at the airport on April 3, Walker told him that he had not
as yet determined the amount of his support. On the other
hand Crawford stated that at no time either at the airport
meeting or during the telephone conversations or thereafter
did he question the Union's majority status. He did say
however that as of the end of that month (April) he did
have doubts as to whether or not a majority of the people
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were interested in the Union. In any event at the Atlanta
airport meeting Walker presented a proposed contract to
Crawford . The proposal contained not only economic or
wage changes but also some drastic changes in language.
Particularly, the Union deleted the previous Article III,
Management Prerogative clause , and substituted therefor a
diluted management rights provision containing no lan-
guage concerning incentive systems. The Union also
purposed revisions with respect to discipline procedures.
Crawford told Walker that he would take this proposal
back with hun, consider it, discuss it with the top
management, and call him back in several days.
Approximately a week after the Atlanta airport meeting
Crawford sent to Walker a copy of the Company's
counterproposal . This proposal retained substantially all
the language of the prior contract . The management
prerogative clause was repeated word for word . On April
18, Walker called and rejected the Company's proposal
and, after some discussion and further phone calls, it was
finally agreed that the parties would meet at the Ashburn
Motor Inn on April 29 to negotiate an agreement.
On March 26 during the course of these events the
Company wrote to Walker stating that "Based on your
dwindling membership , I would strongly urge that you file
a disclaimer of interest on behalf of your Union." The
letter also advised that the Company stands ready to
negotiate a new agreement and that it would not agree to
any further extension beyond March 31. In light of this
letter Walker proceeded to obtain some authorization
cards from employees and succeeded in getting about 25
cards . Also during this period of time the Union sent
monthly a letter to the Company requesting that it remit to
the Union dues checked off from employees who had
authorized the same . The numbers of employees listed for
March , April , and May varied from 9 employees to as
many as 33 for May but by the time the Company had
received the letters it appeared that some of the employees
listed on each had either withdrawn or been terminated for
one reason or the other. It is important to note in this
connection that the mobile home industry was in a severely
depressed state at least from early 1974 . Thus the
Company , employed 126 employees in the unit during the
week ending April 5 and only 84 employees in the unit
during the week ending May 10.
On April 29 Crawford met with Walker and three
employee committeemen in a room at the Ashburn Motor
Inn. The parties negotiated and, by the conclusion of their
meeting, agreement had been - reached on substantially all
contract language with the exception of economic matters.
Particularly the Union agreed to drop its demand for
revision of the management's rights clause and this
provision would be retained from the previous contract. In
return the Company agreed to continue the dues checkoff
clause as contained in the prior agreement . Although the
parties discussed the management prerogative clause, it
does not appear that there was any discussion concerning
any incentive program or system.
There is , however , conflict in the testimony concerning
what transpired at this meeting as to the membership cards
Walker had obtained. Crawford testified that Walker told
him that he had gotten some more cards but he did not
present them to Crawford. On the other hand Walker
stated that he had obtained some more cards because of
the letter Crawford had written and that therefore he had
the cards in the hotel room with him. He said he held them
in his hand and offered to show them to Crawford.
Crawford said, according to Walker, "Oh that's all right, I
believe, you." I credit Walker's version of the attempt to
show Crawford the authorization cards he had obtained.
Walker's testimony is corroborated by two of the union
committeemen who attended the meeting, Minor Cushion
and Johnny Stewart, both of whom averred that Walker
attempted or offered to show the cards to Crawford but
that the latter refused to look at them. Crawford did not
deny that Walker had cards with him . In any event, at no
time did Crawford challenge the majority status of the
Union and indeed, at this very meeting continued to
negotiate with Walker concerning the new contract.
Two days later, May 1 , General Manager Kiphart held a
series of meetings with small groups of employees in order
to explain a proposed incentive plan. The meetings were
called at the suggestion of Production Manager Lamar
Roberts who advised Kiphart that the employees were
concerned about rumors that an incentive program was to
be instituted and that they did not understand it. Prior to
this date the leadmen had been advised that an incentive
program was to be implemented and apparently this
information had been conveyed to the employees who
became worried because of previous bad experiences with
the incentive programs.
Kiphart had been general manager only since March 27,
1974, and he testified that upon his taking over the plant he
held a meeting of all employees during the course of which
he indicated that he was interested in introducing incentive
systems. He said he conducted his meetings on May 1 in
small groups so as better to be able to explain the system
and even to utilize a blackboard in his discussion. Kiphart
explained to the employees that the program would be
instituted in two phases . The first phase was to begin only
when the employees produced four units (mobile homes)
on a sustained basis. Kiphart said that the Company would
then begin to balance out the production lines , a process
which would take approximately 2 or 3 weeks. This
balancing involves moving employees from one position to
another until all of the line is manned in such a way as to
insure a continuous flow along the production line.
Employees who finished their assigned work on four units
would be permitted to leave early and receive a full day's
pay. When the line was balanced and production of four
units maintained on a sustained basis, phase two would
come into effect and the employees would then receive
incentive compensation . It is the contention of Respondent
that the plan was never implemented because the employ-
ees never achieved a production of four units a day on a
consistent basis. Concededly phase two was never reached.
However employees Stewart and Harper both of whom
attended the same meeting on May 1 stated that it was
their understanding that phase one went into effect
immediately and that this phase involved building pro-
duction to the four daily units while balancing out the
work force on the line . Both of these employees testified
credibly, while it is difficult to understand from Kiphart's
GUERDON INDUSTRIES, INC. 669
explanation when phase two begins and phase one ends. It
almost appears that they operate simultaneously since
Kiphart did say that phase two would commence when
four units were produced on a consistent basis. Yet he also
said that phase one would continue for a few weeks after
the four units were produced consistently. The more logical
method, it seems, would be a build up during phase one
with the second phase beginning when the goal is achieved.
Kiphart admitted that after May 1 employees were, on
several occasions , sent home early because they had
completed their portion of the work and that these
employees were paid for 8 hours even though they had not
worked a complete day. On the other hand it was
uncontested that before the announcement of the plan on
May 1 employees who were sent home early either for lack
of work or for any reason were only paid for the number of
hours actually worked. In these circumstances, I find that
the incentive program was implemented immediately after
the May 1 meetings.
At the meeting in the course of his explanation Kiphart
informed the employees that the program was not a piece
rate system and that they would never get less than the
negotiated wage rate.
Johnny Stewart, an employee member of the bargaining
committee , testified that, during the meeting he attended,
he asked Kiphart what would happen to the incentive
program if the employees obtained a raise as a result of the
negotiations with the Union. Kiphart allegedly responded
that this would kill the incentive program. This testimony
on the part of Stewart was corroborated by employee
Hayward Harper.
Stewart further testified that an employee named White
asked Kiphart how the employees could get the Union out.
Kiphart responded you can vote it out if you want to, or
you don't have to, or you Can vote it back in if you want to.
Again this testimony is corroborated by Harper who also
testified on cross-examination that Kiphart did not say
anything about whether he wanted the Union out or
wanted `it to stay. Kiphart denied the allegation stating that
no one asked any question as to how the employees could
get rid of the Union. He also denied stating that a wage
increase negotiated by the Union would kill the incentive
program. With respect to both of these occurrences I credit
the testimony of Stewart and Harper, who not only
corroborated one another but also testified in a straightfor-
ward and direct manner. On the other hand Kiphart's
testimony in other areas appeared to'be tailored to meet
situations. I have already noted the somewhat nebulous
distinctions he drew between phase one and phase two of
the incentive program. With respect to another issue
hereinafter discussed, his oral testimony concerning the
receipt by Lamar Roberts of an employee petition was at
variance with his affidavit submitted to a Board agent in
the course of the investigation of this case. Accordingly I
find that Kiphart told a group of employees that a wage
increase negotiated by the Union would kill the incentive
program or words to that effect and further in response to a
question from an employee he also stated in substance that
the employees could vote the Union in or out as the case
may be.
After the April 30 bargaining session and the meetings
with employees on May 1, no further meetings between
Respondent and` the Union occurred. By letter dated May
9 the Respondent's counsel informed the Union that it was
filing a petition with the National Labor Relations Board.
Respondent further stated that, as the petition was
supported by a very substantial number of bargaining unit
employees, there was a serious question of the continued
majority status of the Union and that further negotiations
for an agreement would be suspended pending the
resolution of this question by the National Labor Relations
Board. Copies of the RM petition and a transmittal letter
to the NLRB were enclosed. The RM petition was filed on
May 13, 1974. Respondent's RM petition was supported by
an employee petition reading "We no longer wish to be
represented by the Firemen & Oilers' Union." The
employees' petition was undated, and signed by 46
employees. Kiphart testified that he received this petition
from Lamar Roberts who was then production manager on
May 6. He further stated that Roberts told him that it was
given to him that very morning, by a leadman. In an
affidavit Kiphart submitted to the Board in the course of
the investigation he stated that Roberts had not told him
when he, Roberts, had received the petition. Roberts
appeared as a witness at the hearing but did not testify on
the matter of the employee petition. On the other hand
Larry Geoghagan, an employee, testified credibly and
without contradiction that on the day of Kiphart's
employee meetings, May 1, he saw employee George Day
going to the production manager's office to give Lamar
Roberts the petition. Geoghagan said that he recognized
the petition, that he had seen it circulating around, and
that he walked up and looked at it when Day handed it to
Roberts. He said there were about 35 signatures on it. He
further testified that the petition was circulating in the
plant again the following day and that he himself obtained
several additional signatures. As noted, Geoghagan testi-
fied credibly and as neither Robe rts nor Day, who also
testified as to other matters, controverted his testimony,' I
find that Roberts received the employee petition from Day
on May I while the employee meetings were in progress.
Moreover on that date less than a majority of the
employees had signed it. In connection with the signatures
on the employee petition, Kiphart stated that inasmuch as
he was relatively new in his position as general manager he
relied on Roberts' statement to' him that the petition
contained the signatures of employees actually on the
payroll. Apparently no further check as to the authenticity
of these signatures was made until August 13, 2 days before
the hearing in this case. Joyner a clerical employee stated
that on that date she checked the names against the
signatures on employees ' tax forms.
The final allegation of the complaint is with respect to
the alleged violation of Section 8(a)(1) of 'the Act that an
agent of Respondent interrogated 'employeee George Day.
The latter testified that he had given a sworn statement to
the Board agent investigating this case on May 20. A few
days thereafter Lamar Roberts, then manager of pro-
duction, asked Day whether he, had given a statement and
according to Day asked if he could see it. Roberts himself
testified that he had heard from another foreman that an
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent of the Board had seen Day the night before at Day's
home . He then said he saw Day and said "I hear you had
company last night." According to Roberts, Day replied
that he had and that he had given a statement to the Board
and thereupon Roberts asked what Day had said about
him to the Board agent.
C. Analysis
1. The majority status of the Union
It is well settled that a certified union, upon expiration of
the first year following its certification, enjoys a rebuttal
presumption that its majority representative status contin-
ues.2 Of course the presumption continues to exist after the
expiration of a collective-bargaining agreement which
followed the original certification.3 The presumption may
be rebutted by evidence establishing that the Union no
longer represents a majority of the employees. Even
without such showing of loss of majority, an employer may
refuse to bargain if he relies on a reasonably based doubt
as to the continued majority status of the Union. As to the
latter the Board has held that the asserted doubt must be
based on objective considerations and it must not have
been advanced for gaining time in which to undermine the
union.4
Respondent in this case contends that the Union did not
in fact represent a majority, and in any event, Respondent
had a reasonably founded doubt that the Union represent-
ed a majority of the employees in the unit and therefore it
was not obligated to bargain with the Union. In its letter of
March 26 Respondent merely indicated that it believed the
Union's membership was dwindling. Nevertheless, Re-
spondent bargained with the Union on at least several
occasions thereafter including April 3 at the Atlanta
airport and April 29 in Ashburn. Moreover I have found
that at the Ashburn meeting Respondent refused to inspect
the cards proffered by the union representative. Until May
9 when Respondent's counsel wrote to the Union and
simultaneously forwarded the RM petition to the Regional
Office, Respondent had not refused to bargain with the
Union nor had it seriously questioned its lack of majority
status . Therefore May 9 is the critical date for determining
whether the Union had either lost its majority in fact or
whether the Respondent as of that time entertained a
reasonably based doubt of the same. On that date, the
record reveals, there were 84 employees in the unit.
Respondent contends that the Union's lack of majority is
evidenced by the monthly dues-checkoff letters which the
Union sent to the Company. Thus the Union's letter in
March requested dues checkoff for 21 employees but 11 of
them had either withdrawn or quit by the time the
Company processed the checkoff. For April the list fell to
nine employees of whom two had left the Company's
employ. The Union's letter for May listed 33 names of
2 Celanese Corporation ofAmerica, 95 NLRB 664.
3 Barrington Plaza and Tragmew, Inc., 185 NLRB 962 (1970).
4 Terrell Machine Company, 173 NLRB 1480 (1969), enfd. 427 F.2d 1088
(C.A. 4,1970)-
5 The contract did not have a union-secunty clause.
s Bartenders, Hotel Motel & Restaurant Employers Bargaining Association
of Pocatello, Idaho, 213 NLRB No. 74 (1974); Terrell Machine Company,
supra and Terrell Machine Company v. N.L.R. B., 427 F.2d at 1090.
whom II had either withdrawn or left the Company.
Respondent urges that this paucity of names on the
Union's checkoff list illustrated the Union's loss of
majority status. Obviously less than a majority of the
employees had executed checkoff authorizations. However
the Board has consistently held with court approval, that a
showing of actual financial support of an incumbent union,
at least where such support is made voluntary,5 is not the
equivalent of establishing the number of employees who
continued to desire representation by that unions Nor
does the low number of dues-checkoff authorizations
establish a reasonable basis for believing that the Union
has lost majority support.? Further it has been held that a
showing that less than a majority of the employees in the
unit are members of the Union is not the equivalent of
showing lack of majority supports The rationale in these
cases is that no one can know how many employees who
favor union representation do not become or remain
members of the Union. Therefore on the basis of
established authority Respondent's reliance on the check-
off authorization list to establish the Union's lack of
majority or even to give rise to a reasonably based doubt is
misplaced.
Respondent further relies on statements allegedly made
by union representative Walker to the effect that the unit
employees did not support the Union. In this connection
while I cannot credit Crawford's testimony that Walker
stated that he would not drive to Ashburn, Georgia, merely
to represent four or five people, Walker admitted that he
had indicated a lack of support on the part of the unit
employees. However Walker testified that his expression of
concern over employee support was in connection with the
need to meet and determine proposals for bargaining. In
any case, Walker apparently regarded seriously Respon-
dent's suggestion in its letter of March 26 that the Union
seemed to be losing support, and he attempted and did
indeed obtain additional authorization cards. As I have
found, Respondent refused to look at the cards when
offered, and did bargain with the Union. This is inconsis-
tent with its claims of loss of majority and reasonable
doubt. Assuming Walker said he was losing support,
statements by union officials that they are not getting
sufficient support have been found insufficient upon which
to base a good-faith doubt,9 and evidence of dissatisfaction
with the Union must come from the employees them-
selves.10
The most important factor upon which Respondent
grounds its refusal to bargain must of course be the
employee petition signed by 46 employees. According to
Respondent's witness there were 85 employees on the
payroll from approximately May 5 through May 8 and
therefore 46 employees would constitute a majority.11 I
shall consider separately Respondent's alternate conten-
tions that the Union in fact lacked a majority or that
7 Bartenders, etc., supra.
8 N.L.RB. v. Gu nt Hotel, 362 F.2d 588 (C.A. 5,1966).
9 United Electric Company, 199 NLRB 603 (1972)
10 Terrell Machine Company, supra at 1482.
11 Counsel for the Respondent stated for the record that there were 84
employees during this period while Kiphart later testified to 85. In either
case, 46 petitioning employees would constitute a majority.
`GUERDON INDUSTRIES, INC- 671
Respondent had a reasonably based good-faith doubt as to
the Union's continuing majority.12
In support of its contention that the Union had lost its
majority status Respondent relies on the employee petition
which contains 46 alleged-signatures, more than a majority
of the employees in the unit as of May 9. However not only
is this petition undated, as are the individual signatures,
but also Respondent did not offer at the hearing to
authenticate the signatures on the petition. According to
Kiphart, when he received the petition from Lamar
Roberts, he relied on the fact that Roberts knew the
employees in the plant at that time.13 He made no further
effort to ascertain the authenticity of the signatures until 2
days before the hearing in this case, long after he had
withdrawn recognition from the Union. On August 13, a
clerical employee compared the signatures on the petition
with those on the income tax forms of the employees. She
said she attempted to determine, to the best of her ability,
whether the signatures matched, and she believed that they
did. No further evidence was adduced, and in these
circumstances , I find that the signatures on the petition
have not been properly authenticated nor has it been
established that they were the signatures of employees
actually in the unit on the critical date. The latter is
particularly true since the credited evidence, shows that
Lamar Roberts, at least, was given the petition on May 1
and the first indication of Respondent's refusal to bargain
further with the Union was its letter of May 9. Therefore I
find that the evidence is insufficient to rebut the presump-
tion of the Union's continued majority status.
However despite the failure of the evidence to show that
the Union had in fact lost its majority , the circumstances
may be such that Respondent could have entertained a
reasonably based doubt of the Union's majority status.14
And, in this connection, evidence insufficient to establish a
loss of majority, in fact, may, nevertheless be the basis of
an objective consideration sufficient to warrant a refusal to
bargain.15 Thus reliance on a petition signed apparently by
a majority of the employees could constitute evidence upon
which an employer may reasonably base a good faith
doubt as to the Union's majority. For such purpose, the
absence of a date on the petition need not disqualify it
from an employer's consideration particularly in view of
the evidence that the petition had been circulating
contemporaneously or shortly before the employer enter-
tained his doubt. Similarly, Respondent's manager could
have relied, reasonably, upon the statement of his
production manager that the signatures on the petition
were those of employees currently employed in the unit.
Thus, absent unfair labor practices, and accepting arguen-
do the testimony of Kiphart that he received the petition
on May 6 and the withdrawal of recognization was
accomplished on May 9, I would be constrained to find
that the objective considerations were sufficient to raise a
reasonably based doubt as to the Union's majority. It is
clear however that the assertion of doubt must be raised
"In a context free of unfair labor practices." 16
Before discussing the alleged unfair labor practices
themselves, a further review of the chronology with respect
to the evidence of objective considerations is in order. I
have previously credited the testimony of employee
Geoghagan who stated that he had observed the employee
petition being handed to Lamar Roberts on May 1, during
the progress of the employee meetings which Kiphart was
conducting. At the time Geoghagan was on his, way to get
another department ready for a meeting with Kiphart. As
the alleged unfair labor practices occurred during the
meetings on May 1,17 Respondent could not have a
reasonably based doubt assuming his conduct was viola-
tive of the Act. Moreover, according to Geoghagan, the
petition delivered to Roberts on May 1 contained only
approximately 35 signatures, less than'the majority of the
employees in the unit. Geoghagan further stated that he
saw the petition the following day and he himself obtained
additional names and signatures raising the total to 46
names. Therefore the petition with all 46 names could not
have been received until after the 1st of May and any
reasonable doubt based thereon could not be raised if
Respondent engaged' in unfair labor practices on May 1.
2. The alleged unilateral change
There is no question that on May 1, General Manager
Kiphart conducted meetings of small groups of employees
in the plant, announced the initiation of an incentive
program, and explained and demonstrated how the system
would operate. Admittedly this action took place without
notification or discussion with the representatives of the
Union. Respondent contends, first, that this incentive
system was a proposal which was never really implement-
ed. It bases this on the fact that the plan itself contemplat-
ed two stages or phases as Respondent calls them. The first
phase involved setting up a production line, manned in a
balanced fashion permitting the work to flow in such a
manner that four units (mobile homes or floors) could be
produced on a sustained basis. During this period of
balancing, as soon as employees finished their assigned
work on four units, they would be allowed to go home and
be paid for a full day's work. Phase two would involve the
payment of premium pay based on a percentage of the
labor cost to be given to the employees over and above
their contract rate. Kiphart was not really clear as to when
these phases would begin. He stated at one point that
phase two commenced as soon as four units were produced
daily on a consistent basis. But he also said that phase one
would commence at a time after the four units were being
produced on a consistent basis, during which the pro-
duction lines would be balanced and it would only be
during this period that the employees would get free time.
Kiphart did not explain how a consistent flow of four units
could be attained without a balanced line.
12 See Automated Business Systems, a Division of Litton Business Systems,
Inc., a Subsidiary of Litton Industries Inc., 205 NLRB 532 (1973),
enforcement denied 497 F.2d 262 (C.A. 6, 1974).
is Roberts, a witness at the hearing, did not testify as to the matter of the
employee petition.
14 See Automated Business Systems, supra.
15 Cf. Bartenders, etc., supra.
16 See Nu-Southern Dyeing & Finishing, Inc., 179 NLRB 573 (1969).
11 Not including the alleged independent violation of Section 8(a)(1) by
the interrogation of employee Day during the course of the investigation of
this case.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It would seem more logical that the balancing of the line
would be done during that period of- time when the
employees and the managers were striving to build up the
production to four units and this would constitute phase
one. In any event the testimony of employees is uncontra-
dicted that on at least two occasions shortly after the
meetings on May, 1, employees were sent home early
because they had finished their assigned tasks and were
compensated for a full day's work. It is equally clear that
prior to May 1, employees who were told to go home early
for production reasons , for lack of work, or for, whatever
reason, were compensated only for hours actually worked.
I find therefore that Respondent implemented its wage
incentive system immediately after the May 1 meetings and
entered at least phase one of that plan. As noted such
implementation was accomplished without notification or
discussion with the Union.
Respondent alternately contends that it had, in any
event, the right to implement a wage incentive program by
virtue of Article III of the collective-bargaining agreement,
the so-called management prerogative clause. The relevant
portion of that paragraph establishes that management
may set " . . . production standards as a basis for incentive
compensation, or the setting of cost of work standards for
workers not on incentive work, .... " It may be argued,
on the other hand, that this language or the remainder of
the management prerogative paragraph fails to indicate
that management has the right to set the rates of pay for
incentive compensation. It is quite possible under this
provision that management has the right to set, for
example, four units per day, as it did in this case, as a
"basis for incentive compensation," but there is nothing to
indicate that it also has the right to set a rate at which the
employees would be compensated for their achievement of
four units per day. In this connection, it is clear that
incentive programs designed to increase or supplement
earnings of employees are within the contemplation of the
term "wages" as used in the Act.18 This situation differs
from recent cases relied on by Respondent in which the
agreement is silent on the specific matter in dispute.19 Thus
having specifically provided management with the right to
set production standards as the basis for incentive
compensation, the agreement herein does not speak to the
question of the compensation itself. The so-called Zipper
Clause (Art.' XVII) provides for waiver only of those
matters covered by the agreement. It would appear that
compensation under incentive plans would not be a subject
that is waived but rather one for bargaining.
18 See C & S Industries, Inc., 158 NLRB 454 (1966).
19 Cases such as Valley Ford Sales, Inc., d/b/a Friendly Ford, 211 NLRB
834 (1974); and Radioear Corporation, 199 NLRB 1161(1972), Supplemen-
tal Decision at 214 NLRB No. 33 (1974) involve the issues of whether a
union waived its right to bargain about the unilateral termination of an
incentive wage plan in the first, and discontinuance of a benefit in the
second . Valley Ford is primarily concerned with the weight to be accorded
an arbitrator's award in fight of Spielberg standards . In Radioear, the Board
deferred to arbitration but when the arbitrator would not decide the issue of
whether the employer acted illegally, the Board itself concluded that the
union had waived the benefit, and the employer could properly discontinue
it. The management rights clause, relied on by Respondent in the instant
case, specifically provides that the exercise of the rights by the Company
should not be the subject of arbitration Of course , both cases cited arose
However it is not necessary to reach conclusions
concerning the interpretation of these contractual provi-
sions because no contract was in effect at the time in
question, the agreement having expired a month prior to
the announcement and explanation of the incentive
program which occurred on May 1. On that date, as found,
Respondent had no sufficient evidence to entertain a
reasonably based doubt of the Union's majority and
consequently was obliged to bargain with the Union.20
Indeed questions concerning the interpretation of the
management prerogative clause in the expired agreement
and whether the Union waived its rights as to incentive
plans are transcended by the fact that management rights
had been the subject of bargaining since the initial meeting
at the Atlanta airport. The Union's proposal would have
deleted the management prerogative clause in the form as
written in the prior contract, particularly the reference to
the, setting of production standards as a basis for incentive
compensation. The Union's final acceptance during negoti-
ations of the same clause to be included in the proposed
new contract occurred on April 29, 2 days before the
meetings, and this only was accomplished as a result of a
trade-off for the dues-checkoff, provision which the
Company had wished to eliminate . But a new agreement
was not consummated at this time as the parties still had
not agreed upon economic proposals; obviously further
changes could have been made if bargaining continued.
Absent an agreement, Respondent was obliged to bargain
over incentive programs.21
A final note with respect to this allegation of, unilateral
change. Respondent implemented the incentive program
on May 1 just 2 days after the April 29 bargaining session
in the course of which it reached agreement with the Union
on substantial provisions of the contract, leaving open only
economic proposals. Unlike the action of Griffin in 1973
,who advised the chief steward of his proposal, no notice
was given by Respondent to any union representative. But
apart from the notice factor, there is another curious
element to this matter which has not been explained by
Respondent. Company witnesses testified to the rather
common, knowledge that the Mobile Home Industry has
been in a severely depressed state due to the energy crisis
and economic conditions, particularly high interest rates.
Many of Respondent's employees were laid off since the
early part of the year, production continued at, a reduced
rate, employees frequently worked short days, there was
little or no backlog of orders, and Respondent only
manufactured for orders. In addition Respondent, which
operates 35 plants similar to the Ashburn plant had
under an existing agreement while the contract in the instant case had
expired.
20 It will be recalled that Kiphart testified that he did not receive the
employees' petition until May 6. The credited testimony is,that Roberts
received it on May 1 after Kiphart had commenced meetings with the
employees, and, in any event, a majority of the employees had not signed
the petition on that date.
21 Respondent has sought to rely on past practice. In this regard, a
former general manager testified that, during negotiations for the first
contract, the parties agreed that an existing incentive system be continued.
This agreement was not in writing but it is not contradicted. However this
does not establish a waiver by the Union as to future incentive plans.
Another plan was instituted in 1973 but it is uncontroverted that the then
general manager , Griffin, discussed it with the chief shop steward, Cushion.
GUERDON INDUSTRIES, INC. 673
discontinued incentive programs at a number of them
because of the decline in production. With this back-
ground, in the midst of bargaining Respondent suddenly
instituted an incentive program, setting a production
standard of four units a day which it must have known on
the basis of its orders would be nigh impossible to achieve.
As noted Respondent offered no explanation for its
conduct on May 1, and I conclude the action was
undertaken to undermine the Union.
For all of the above reasons, noting particularly that the
evidence was insufficient to establish that the Union had in
fact lost its majority status on May 1, nor had Respondent
sufficient information on that date upon which to base a
reasonable and good-faith doubt of the Union's continued
majority, I find that by failing to notify the Union of its
decision to institute a wage incentive system and by
announcing the plan on May 1, and implementing it
immediately thereafter, Respondent violated Section
8(a)(5) and (1) of the Act.
III. THE ALLEGED VIOLATIONS OF SECTION 8(A)(1)
Hayword Harper testified that, during the meeting he
attended on May 1, an employee asked Kiphart how a 20-
cent raise negotiated by the Union would affect the plan
and Kiphart responded that the plan would then be thrown
out. Harper's testimony is corroborated by employee
Stewart, both of whom I have credited as straightforward,
forthright witnesses. On the other hand I found Kiphart's
testimony to be less than candid in several areas and
accordingly I cannot credit his denial that this colloquoy
occurred. As the parties had reached the point in
negotiations when economic issues were to be discussed,
Kiphart's remark takes on added significance. He had just
announced the wage incentive program at the same
meeting; the statement thus constituted a threat that the
plan would be discontinued in the event the Union sought
a wage increase during negotiations. I therefore find that
Respondent thereby violated Section 8(a)(1) of the Act.
Employees Stewart and Harper further credibly testified
that at the meeting on May I an employee named C. D.
White asked Kiphart how they could get rid of the Union.
Kiphart replied that the employees could vote the Union
out and vote it back in if they wished. The General
Counsel contends that Kiphart's reply constituted an
invitation to employees to rid themselves of the Union and
sign a petition to accomplish that goal. lit is well settled that
an employer violates the Act by soliciting employees to
decertify a union or even advising them in certain
circumstances concerning the procedures. But the evidence
here does not establish such conduct. Kiphart did not
volunteer any information or raise the subject, he merely
responded to a question initiated by an employee; there
was no reference on Kiphart s part to the Union or any
comment, one way or another about it. 'The matter was not
further pursued during the meetings. The only factor that
gives one pause is the employee petition in the offing at the
time. However the evidence does not link Kiphart to the
petition at the time he was conducting the meeting at
which the question was asked. The credited testimony has
Lamar Roberts receiving the petition sometime on that
day. It has not been shown whether this occurred before or
after the particular meeting , or, even if it were before,
whether Kiphart learned of it from Roberts or had any
independent knowledge of the circulation of the petition
prior to his answering the employee's question. As
Kiphart's response would normally be protected under
Section 8(c) and the evidence fails to establish that he was
thereby attempting to solicit employees to sign the petition,
I find that Respondent did not violate Section 8(axl) of
the Act in this manner as alleged in the complaint.
There remains the allegation that Respondent unlawfully
interrogated an employee concerning a statement given to
a Board agent. Employee George Day had given a
statement to a Board agent on May 20, 1974. He testified
that a few days later Lamar Roberts asked him if he had
talked to anybody from the Board, that he told Roberts he
had given a statement, and that thereupon Roberts asked if
he could see it. Roberts admits the conversation stating
that he told Day that he heard that he, Day, had company
last night. He further states that Day told him that he had
been visited by a Board agent and that he asked Day what
if anything he had said about him, Roberts. Even accepting
the Roberts' version of the conversation, I find that
Respondent interfered with, restrained, and coerced its
employees in violation of Section 8(a)(1) of the Act by
interrogating Day concerning his meeting with an investi-
gator of the Board and as to the contents of his statement
given to the Board agent 22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
It has been found that Respondent unilaterally, and
without prior notice to, or negotiation with the Union,
promulgated an incentive program. Further , the Respon-
dent withdrew recognition from and has refused to bargain
with the Union, the exclusive representative of its employ-
ees in the unit found appropriate herein. It will therefore be
recommended that Respondent cease and desist from
unilaterally changing conditions of employment and
bargain collectively , upon request , with the Union as the
exclusive representative of these employees concerning
terms and conditions of employment and, if an under-
standing is reached, embody such terms in a signed
agreement. I shall further recommend that Respondent
22 Beech Aircraft Corp, 196 NLRB 68 (1972).
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease threatening its employees that an incentive program
will be discontinued in the event their Union negotiates a
wage increase, and interrogating employees concerning
their statements to Board agents.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 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. All production and maintenance employees includ-
ing leadmen and truckdrivers, employed at our Ashburn,
Georgia plant, but excluding office clerical employees, the
draftsman, the dispatcher, the serviceman, watchmen,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a)-of the Act.
5. By unilaterally, and without prior notice to or
consultation with the Union, promulgating an incentive
wage program on May 1, 1974, Respondent has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8 (a)(5) and (1) of the Act.
6. By withdrawing recognition and refusing on and
after May 9, 1974, to bargain collectively with the Union as
the exclusive bargaining representative of the unit de-
scribed above, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
7. By threatening employees with discontinuance of an
incentive program should the Union negotiate a wage
increase, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. By interrogating its employees concerning the
contents of his statement to an agent of the Board,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10. Respondent has not violated the Act in any other
respect alleged herein.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER23
Respondent, Guerdon Industries, Inc., Armor,Mobile
Homes Division , its officers , agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Unilaterally, and without prior notice to or consulta-
tion with the Union, promulgating or instituting a wage
incentive program involving its employees in the appropri-
ate unit described herein.
(b) Refusing to recognize and bargain collectively with
Firemen & Oilers, Local No. 288, with respect to rates of
pay, hours of employment, and other terms and conditions
of employment.
(c) Threatening employees with loss of incentive wages
should the Union negotiate a wage increase.
. (d) Interrogating employees concerning the contents of
statements they give to the Board.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Bargain collectively, upon request, with Firemen &
Oilers, Local No. 288, as the exclusive representative of the
employees in the appropriate unit and embody any
understanding reached in a signed agreement.
(b) Post at its plant in Ashburn, Georgia, copies of the
attached notice marked "Appendix." 24 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced or covered by any
other material.
(c) Notify the Regional Director for Region 10, in
writing, ' within 20 days from receipt of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
found herein.
23 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.
24 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 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
After a hearing in which all sides were represented by their
attorneys and presented evidence, it has been found that
we, have violated the National Labor Relations Act in
certain respects. To correct and remedy these violations,
we have been directed to take certain actions and to post
this notice.
WE WILL NOT unilaterally, and without notice to or
consultation with Firemen & Oilers, Local No. 288,
promulgate or institute any wage incentive program
involving our employees represented for collective-
bargaining purposes by that labor organization.
GUERDON INDUSTRIES, INC. 675
WE WILL bargain collectively , upon request, with
Firemen & Oilers, Local No. 288 , as the exclusive
representative of the employees in the appropriate unit
described below and embody any understanding
reached in a signed agreement.
The appropriate bargaining unit is
All production and maintenance employees
including leadmen and truckdrivers employed at
our Ashburn, Georgia plant, but excluding office
clerical employees, the draftsman, the dispatcher,
the serviceman, watchmen, guards and supervi-
sors as defined in the Act.
WE wiu. NOT threaten employees with loss of
incentive wages should the Union negotiate a wage
increase.
WE WILL NOT interrogate employees concerning the
contents of statements they gave to the Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act.
GUERDON INDUSTRIES, INC.,
ARMOR MOBILE Hows
DIVISION