Hennessy Products, Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1985

273 N.L.R.B. 1511 (N.L.R.B. 1985)

HENNESSY PRODUCTS 1511
Hennessy Products, Inc. and International Brother-
hood of Teamsters, Chauffeurs., Warehousemen
and Helpers of America, Local Union No. 992.
Case 6-CA-13640
18 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 August 1981 Administrative Law Judge
James T. Youngblood issued the ati ached decision.
The General Counsel filed exceptions and a memo-
randum in support thereof', the Charging Party
Union filed exceptions and a brief in support there-
of, and the Respondent filed a brief in support of
the decision and also filed art answering brief to the
General Counsel's and the Union's exceptions and
a memorandum in support thereof.
The Board has considered the decision and the
record in light of the exceptions, briefs, and memo-
randa and has decided to affirm the judge's rulings,
findings, and conclusions' and to adopt the recom-
mended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' In agreeing with the judge's decision to dismiss the complaint herein
because no violation was made out under the precedent of re/autograph
Carp, 199 NLRB 892 (1972), we note that the Board, while overruling
re/autograph in Dresser Industries, 264 VERB 1088 (1982), decided to
apply Dresser prospectively only, and therefore would not find unlawful
actions taken pursuant to the applicable law at the time of the action, i e,
while re/autograph was the law In finding no violation here, we do not
necessarily agree with all of the statements made by the judge with re-
spect to the parameters of re/autograph We also note the unusual factual
matrix presented here, and specifically note the lack of any pending
grievance or the existence of a current or recently expired contract
Chairman Dotson and Member Dennis, who agree that Dresser was
prospective only and therefore would not apply to the instant case, find it
unnecessary to intimate any views regarding the issues presented in
Dresser
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge.
The complaint which issued on October 16, 1980, alleges
that since about May 20, 1980, Hennessy Products, Inc
(the Respondent or the Employer) has failed and refused
to furnish International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 992 (the Union) with certain necessary
and relevant information requested by the Union, in vio-
lation of Section 8(a)(1) and (5) of the Act. The Re-
spondent filed an answer denying the commission of any
unfair labor practices This matter was heard by me on
May 20, 1981, in Chambersburg, Pennsylvania. All par-
ties were represented at the hearing and following the
hearing the Respondent and the General Counsel filed
briefs which have been duly considered.'
On the entire record in this matter, and from my ob-
servatiom of the witnesses and their demeanor, and after
due consideration of the briefs filed, I make the follow-
ing
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent, with its office and place of business
in Chambersburg, Pennsylvania, is engaged in the manu-
facture and nonretail sale and distribution of railroad spe-
ciality equipment and vending machines and related
products. The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On October 11, 1978, the Union was certified as the
exclusive collective-bargaining representative of the Re-
spondent's production and maintenance employees.' Be-
tween December 1978 and October 1979, 3 the Union and
the Respondent unsuccessfully attempted to negotiate a
collective-bargaining agreement. On April 23, 81 of 119
unit employees went out on a union authorized strike.
The strike continued until October 27. The remaining 38
unit employees crossed the picket line and continued to
work throughout all or part of the strike During the
1 To its brief the Respondent attached the affidavit of James B Nick-
las, vice president of the Respondent, and two pieces of union literature
soliciting employees to sign union authorization cards and a copy of a
union authorization card In the affidavit Nicklas states that on the after-
noon of June 4, 1981, after the hearing in this matter he witnessed orga-
nizers of the Union distributing this literature at the Respondent's prem-
ises The General Counsel filed a motion to strike that portion of the Re-
spondent's brief which made reference to the above mntenal The Re-
spondent filed an opposition to the General Counsel's motion Whether
or not the Union was soliciting employees to join the Union, or to sign
authorization cards, after the hearing in this matter, to me, is totally irrel-
evant and tmmatenal to the issues in this proceeding In any event no
consideration was given to this material in this decision Additionally, on
June 29, 1981, the Charging Party filed a motion to reopen the record so
that the transcript and exhibits in a prior proceeding between the same
parties could be Incorporated into the present record That case was set-
tled on May 15, 1980, by an informal settlement agreement, a copy of
which is in this record As the issues involved in that proceeding have no
bearing on the issues in this proceeding, I see no reason to reopen the
record Accordingly, the Charging Party's motion to reopen the record is
denied
2 The appropriate unit is described as follows
All full-time and regular part-time production and maintenance em-
ployees of Hennessy Products, Inc employed at Its plant located in
Chambersburg, Pennsylvania, including group leaders and shipping
and receiving clerks, excluding all co-op students and summer help
and other temporary employees, office clerical employees and pro-
fessional employees, guards, and supervisors as defined in the Act
a Unless otherwise specified all dates refer to 1979
273 NLRB No. 190
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of the strike, the Respondent hired 64 permanent
replacements. It also appears that, during the course of
the strike, at least 11 striking employees returned to
work. During the strike, the Respondent had group
meetings with all of the employees at least once a week.
James Hennessy, the Respondent's president, on more
than one occasion, informed the assembled nonstriking
employees that they could get rid of the Union after 1
year from the date of the certification. 4 On October 23,
one of the strike replacements, Ralph G. Fries, filed a
decertification petition in Case 6-RD-693.
By letter dated October 25, the Respondent's counsel
John G. Kruchko advised the Union that the Employer
had been notified that its employees had filed a decertifi-
cation petition and that "consistent with Board policy,
the Company is hereby suspending negotiations pending
the outcome of this election."
By letter dated October 26, 5 the Union notified the
Employer that it accepted "the contract proposal" and
made an unconditional offer to return to work on behalf
of all of the striking employees. On October 27, the pick-
eting ceased and each of the striking employees made an
individual and unconditional request to return to work.
By letter dated October 30, the Respondent's counsel
acknowledged receipt of the Union's October 26 letter,
and indicated that there was no proposal outstanding
which could be agreed to at that time, and reiterated its
refusal to negotiate pending the outcome of the decertifi-
cation petition. He emphasized that the Company was
not withdrawing recognition, but rather only refusing to
bargain while the RD petition was pending. The letter
also informed the Union that the Company would recall
striking employees on a nondiscriminatory basis, as job
openings become available.
A few strikers were reinstated immediately and on No-
vember 7 the Respondent informed striker James Mon-
gold that he was being denied reinstatement because of
picket line misconduct. The remaining unreinstated strik-
ers were informed that they had been permanently re-
placed and would be recalled when jobs became avail-
able
On November 14, the Union filed an unfair labor prac-
tice charge alleging that the Respondent violated Section
8(a)(1) and (3) of the Act by terminating or refusing to
reinstate Mongold. The decertification petition was held
in abeyance pending the resolution of that charge. Fol-
lowing a complaint and hearing in that matter on May 15
the parties entered into an informal settlement agreement
in which Mongold waived reinstatement
By letter dated May 29, 1980, the Union requested that
the Respondent forward the following information:
1. The names and addresses of the present employ-
ees in the bargaining unit and their date of employ-
ment. In listing the employees, please indicate their
work classification and wage rate.
4 This appeared to be in response to employee questions
5 This letter was hand delivered by Harrison L Lushbaugh, secretary-
treasurer of the Union, to James Nicklas, the Respondent's vice president
of manufacturing on October 26
2. The names and addresses of any employees hired
since October 20, 1979, and include the date hired,
the classification of work, and the wage rate.
3. Indicate when you intend to recall the laid off
striking employees.
4 State whether there are any laid off striking em-
ployees whom you do not intend to recall. We raise
the issue because at the NLRB hearing there was an
unstated implication that there may be employees
who will be refused employment. The Union's posi-
tion is that you are obligated to reinstate all of the
laid off employees and this position is supported by
all of your conduct to date including, but not limit-
ed to, your letters. If you are attempting to deprive
any laid off employee of employment, we should
like to be advised of the specific factual basis for
your position.
On receipt of the Union's request for the above infor-
mation, James Nicklas, the Respondent's vice president,
who is also in charge of labor relations for the Respond-
ent, made the decision for the Respondent not to respond
to the Union's letter As of the date of the hearing in this
matter, the Respondent had not responded to the Union's
request for information and had not communicated to the
Union that the Respondent had withdrawn recognition
of the Union as the exclusive representative of its em-
ployees.
The complaint alleges that the information requested
by the Union on May 29, 1980, was necessary for, and
relevant to, the Union's performance of its function as
the exclusive collective-bargaining representative of the
employees in the appropriate unit and as the Respondent
has failed and refused to furnish the requested informa-
tion, the Respondent has engaged in conduct violative of
Section 8(a)(1) and (5) of the Act
At the hearing the General Counsel and the Respond-
ent entered into a stipulation setting forth the above
facts, and the General Counsel, relying on a presumption
of continued majority status and a presumption of rel-
evance of the requested information, offered no further
evidence and rested his case in chief on the complaint,
answer, stipulation, exhibits, and the presumptions as
stated above.
The Respondent contends that, because of the penden-
cy of the decertification petition, it has no duty to bar-
gain with the Union and therefore had no duty to supply
the requested information to the Union pending that de-
certification petition; and that the General Counsel must
establish by testimony or other evidence, the relevance
of the requested information. In any event it has a good-
faith doubt that the Union continues to represent a ma-
jority of the bargaining unit employees
Discussion and Conclusion
The Respondent relies on the Board's decision in Tel-
autograph Corp., 199 NLRB 892 (1972), in support of its
general proposition that it had no duty to meet and bar-
gain with the Union, and therefore it had no duty to
supply the Union with any information, which might
otherwise have been necessary and relevant to the bar-
HENNESSY PRODUCTS 1513
gaining process In Telautograph the employer and the
union had a contractual relationship for many years, and
their last contract covered the period November 3, 1969,
through November 2, 1970. On September 3, 1970, an
employee filed an RD petition The Board's Regional
Director concluded that the decertification petition was
timely filed and raised a question concei ning representa-
tion, and directed an election by secret ballot On Octo-
ber 16, 1970, while the decertification petition was pend-
ing, the union requested the company to meet and dis-
cuss changes and modifications in the current agreement.
On November 4, 1970, the company replied that it
would be inappropriate to meet due to some questions
regarding representation of the unit. On November 9,
1970, the union filed an unfair labor practice charge, al-
leging that the company had refused to bargain Thereaf-
ter, under the Board's usual practice involving a block-
ing charge, the election was held in abeyance and the
Regional Director issued a refusal-to-bargain complaint.
The administrative law judge (i elying on the facts that
the Regional Director had concluded that the decertifi-
cation petition was timely, and raised a question concern-
ing representation; the absence of any unfair labor prac-
tices or antiunion activity to render improper, or in any
way taint, the atmosphere for an election; that the re-
spondent company in no way assisted or participated in
the filing of the decertification petition) concluded that
such circumstances, independent of any objective consid-
erations of good-faith doubt concerning the union's con-
tinued majority, foreclosed the company from dealing
with the union on and after November 4, 1970, the date
on which respondent suspended negotiations The Board
agreed.
In the instant case, the Union was certified on October
11, 1978. Between December 1978 and October, the
Union and the Respondent unsuccessfully attempted to
negotiate a collective-bargaining agreement On April 23,
the Union authorized a strike which lasted until October
27 On October 22, after the expiration of the certifica-
tion year, one of the striker replacements filed a decerti-
fication petition. By letter dated October 25, the Re-
spondent informed the Union that it had been notified of
the decertification petition filed 'with the National Labor
Relations Board and, consistent with Board policy, it
was suspending negotiations pending outcome of the
election. On October 26, the Union hand delivered a
letter to the Respondent accepting its last contract pro-
posal. This letter also made an unconditional offer on
behalf of all striking employees to return to work The
picketing ceased on October 27 with each of the striking
employees making an individual request to return to
work. On October 30, the Respondent sent a second
letter to the Union reiterating that because of the decerti-
fication petition the Compani would continue to refuse
to bargain with the Union during the pendency of that
petition, and further stating that the Company was not
completely withdrawing recognition but rather was only
refusing to bargain while the decertification petition was
pending. The Respondent further informed the Union
that striking employees would be recalled on a nondis-
criminatory basis as job openings become available
By letter dated November 7, the Respondent informed
striking employee James Mongold that his request for re-
instatement was denied because of picket line miscon-
duct. On November 14, the Union filed a charge in Case
6-CA-12915 alleging that the Respondent violated, inter
aim, Section 8(a)(1) and (3) of the Act by terminating
James Mongold. The decertification petition in Case 6-
RD-693 was held in abeyance pending resolution of the
charge in Case 6-CA-12915 On January 16, 1980, a
complaint issued in Case 6-CA-12915 alleging that the
Respondent violated Section 8(a)(1) and (3) of the Act
by terminating James Mongold. On May 6, 1980, a hear-
ing opened in that case and on May 15, 1980, the parties
entered into an informal settlement agreement in Case 6-
CA-12915. On May 29, 1980, the Union requested that
the Respondent supply the information, as set forth
above, and the Respondent failed to respond in any
manner to the Union's request for information. By letter
dated July 17, 1980, the Regional Office notified the par-
ties that the decertification petition in Case 6-RD-693
was being held in abeyance pending resolution of the in-
stant Case 6-CA-13640.6
On October 22 and on May 29, 1980, no charges were
pending against the Respondent in Region 6 of the Na-
tional Labor Relations Board and, so far as this record
reflects, the settlement agreement in Case 6-CA-12915
was fully complied with by the Respondent
As indicated above, at the time of the filing of the de-
certification petition on October 22, there were no unfair
labor practice charges pending against this Employer,
and it appears that none had been filed against this Em-
ployer from the date of the certification until November
In November, the Union filed the charge in Case 6-CA-
12915 alleging, in addition to the 8(a)(1) and (3) violation
involving James Mongold, that there was employer In-
volvement in the filing of the RD petition. By letter
dated December 19, the Acting Regional Director for
Region 6 advised the Union that:
With respect to the alleged instigation of the decer-
tification petition by the Employer, the investiga-
tion reveals that no evidence of any involvement by
the Employer in the filing of the petition. To the
contrary, it appears that the petition was initiated
by the employees without any assistance from the
Employer I am, therefore refusing to issue com-
plaint on this aspect of the charge.
It would appear that from this letter the Region found
no evidence to indicate employer interference in the
filing of the RD petition. Other than the fact that the
Employer Informed the employees that they could file a
decertification petition after 1 year, there is nothing in
6 On October 31, 1979, a complaint issued against the Union in Cases
6-CB-4835, 6-CB-4850-1, 6-CB-4850-2, and Case 6-CB-4851 On Apnl
9, 1980, the General Counsel approved a stipulation entered into by the
parties in these cases submitting the matter to the Board for issuance of a
Decision and Order On May 21, 1980, the Board issued a Decision and
Order and on September 9, 1980, the U S Court of Appeals for the
Third Circuit issued a judgment, enforcing the Board's Decision and
Order
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this record to indicate that the Employer in any way ini-
tiated the filing of the RD petition.
Therefore, it is my conclusion that the RD petition,
which was timely filed, adequately raises a question con-
cerning representation, and precludes the Employer from
bargaining with the Union until the question concerning
representation is settled. I agree that the filing of the de-
certification petition in itself does not justify withdrawal
of recognition, but it does relieve the Company of its ob-
ligation to bargain with the Union and, in fact, forecloses
the Employer from dealing with the Union, pending res-
olution of the petition. Other than the current charge
there is no evidence that the Respondent has engaged in
unfair labor practices or antiunion activity to render im-
proper or in any way taint the atmosphere for an elec-
tion. It in no way assisted or participated in the filing of
the decertification petition or otherwise sought to dissi-
pate the Union's majority status. Therefore, it is my con-
clusion that, at the time of the filing of the decertifica-
tion petition, the Employer was under a duty to suspend
its bargaining negotiations with the Union pending the
outcome of the RD petition. And it is my conclusion
that the Employer did not violate Section 8(a)(5) by re-
fusing to bargain with the Union during the pendency of
the decertification petition or by suspending negotiations
pending resolution of that petition. Here there was no
contract or grievance procedure to administer and, there-
fore, no reason to bargain with the Union pending the
decertification petition outcome.
Under these circumstances, it would appear to me
that, having no duty to bargain with the Union, the Em-
ployer would have no duty to disclose any information
which might otherwise be relevant to contract negotia-
tions or the institution of grievance and arbitration pro-
cedures under contractual arrangements It seems to me
that the duty to furnish a union with information, exists
only insofar as there is a duty to bargain with the majori-
ty representative. In the absence of a bargaining obliga-
tion, and there being no contract to administer, no sound
reason exists for compelling an employer to furnish infor-
mation to a union which might be ousted as the collec-
tive-bargaining representative in the pending representa-
tion proceeding and therefore would have no entitlement
or need for the requested information. It would seem to
me that the duty to furnish information stems from the
underlying statutory duty imposed on employers to bar-
gain in good faith with respect to mandatory subjects of
bargaining and where that duty does not exist or has
been suspended any other duty derived from that statuto-
ry duty would also be suspended.
In my view, Telautograph makes it clear that when a
valid decertification petition is filed, charges based on an
employer's refusal to continue negotiations with the in-
cumbent union thereafter, should be promptly dismissed
as nonmeretricious, unless the charge contains allegations
that the respondent has committed other acts which may
be a basis for finding a violation of the Act.
Here there is nothing to prevent the processing of the
RD petition except the instant charge. To compel the
Employer to furnish the information under the circum-
stances of this case seems totally inconsistent with the
underlying principles in Telautograph, supra; Shea Chemi-
cal Corp., 121 NLRB 1027 (1958); and Midwest Piping
Co., 63 NLRB 1060 (1945)
Therefore it is my conclusion that the Respondent has
not violated Section 8(a)(5) of the Act as alleged in the
complaint, and I shall recommend that the complaint be
dismissed in its entirety.7
CONCLUSIONS OF LAW
1. Hennessy Products, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Teamsters
Local Union No. 992 is a labor organization within the
meaning of Section 2(5) of the Act.
3. Hennessy Products, Inc., the Respondent, did not
violate Section 8(a)(1) and (5) of the Act as alleged in
the complaint
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 8
ORDER
The complaint is dismissed in its entirety.
7 The General Counsel and the Respondent submitted a stipulation
dated June 10, 1981, correcting the transcript in certain regards There
being no objection on the part of the Union and as the corrections appear
appropriate the record is corrected as set forth in the stipulation
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses