Hollander Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1990

299 N.L.R.B. 466 (N.L.R.B. 1990)

466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hollaender Manufacturing Company, Inc. and Local
Lodge 789, District Lodge 34 of the Internation-
al Association of Machinists and Aerospace
Workers, AFL-CIO. Case 9-CA-26470
August 16, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On January 10, 1990, Administrative Law Judge
Nancy M Sherman issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order 1
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hollaender
Manufacturing Company, Inc, Cincinnati, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order
'In affirming the judge, Member Ovtatt understands the judge in her
remedy to have rejected any argument that the employees would have
repudiated the Union even had the Respondent offered to the Union the
guarantees it made directly to employees in its May 9 handout A with-
drawal of recognition is time specific in that at the moment an employer
communicates Its decision to withdraw recognition to the union the em-
ployer must have objective evidence that the union has lost its majonty
status Here, the petition that the employees no longer wanted the Union
to represent them was signed by 16 employees The unit, however, In-
cluded 30 regular employees and 4 probationary employees Because the
Respondent communicated its decision to withdraw recognition to the
Union before the two probationary employees resigned on May 8, their
resignations (which would have reduced the unit to 32 employees) were
immatenal to the question whether the Respondent had an objective basis
for withdrawing recognition at the time It communicated that withdrawal
to the Union
Mark Mehas, Esq , for the General Counsel
Donald B Hordes, Esq , of Cincinnati, Ohio, for the Re-
spondent
Richard .1 Carter, of Cincinnati, Ohio, for the Charging
Party
DECISION
STATEMENT OF THE CASE
NANCY M SHERMAN, Administrative Law Judge This
case was heard before me in Cincinnati, Ohio, on Sep-
tember 8, 1989, on the basis of a charge filed on May 24,
1989, by Local Lodge 789, District Lodge 34 of the
International Association of Machinists and Aerospace
Workers, AFL-CIO (the Union) against Respondent
Hollaender Manufacturing Company, Inc , and a com-
plaint issued on July 12, 1989 The complaint alleges that
Respondent violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act) by withdrawing
recognition from the Union, and thereafter refusing to
bargain with it, as the exclusive representative of certain
employees of Respondent
On the basis of the entire record, including the de-
meanor of the witnesses, and after due consideration of
the briefs filed by Respondent and counsel for the Gen-
eral Counsel (the General Counsel), I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a corporation which manufactures and
sells structural fittings and related products at Cincinnati,
Ohio During the 12 months preceding the issuance of
the complaint, Respondent sold and shipped from that fa-
cility products, goods, and materials valued at more than
$50,000 directly to points outside Ohio I find that, as
Respondent admits, Respondent is engaged in commerce
within the meaning of the Act, and that assertion of ju-
risdiction over its operations will effectuate the policies
of the Act
The Union is a labor organization within the meaning
of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
On December 13, 1965, the Union was certified as the
exclusive bargaining representative of the following ad-
mittedly appropriate umt
All production and maintenance employees em-
ployed by [Respondent] at its Cincinnati, Ohio facil-
ity including truck drivers, building maintenance
man, shipping and receiving clerk and all other
plant clerical employees, but excluding all office
clerical employees, professional employees, guards
and supervisors as defined in the Act
Thereafter, the parties had ongoing collective-bargain-
ing relations for several years and entered into a series of
successive collective-bargaining agreements The most
recent of these agreements became effective in June 1986
and expired on May 31, 1989 The recognition clause of
this agreement provided
The Company recognizes the Union as the sole
and exclusive bargaining representative with respect
to rates of pay, wages and other conditions of em-
ployment for all employees of the Company within
the bargaining unit defined in [sic] the National
Labor Relations Board in Case No 9-RC-6474as
follows
All production and maintenance employees of
the Company at its plant and operations located
299 NLRB No 59
HOLLAENDER MFG CO 467
at 10285 Wayne Avenue, Cincinnati, Ohio, 45215,
mcludmg truckdnvers, building maintenance
man, shipping and receiving clerk and all other
plant clerical employees, but excluding all office
clerical employees, guards and professional em-
ployees and supervisors as defined in the Act
That contract also provided
During the first three (3) months of continuous
employment, a new employee shall be considered a
probationary employee, he shall not be entitled to
any of the benefits of this contract other than the
wage rates, and his employment may be terminated
at any time during such period At the end of this
probationary period he shall acquire seniority as of
the date of his latest hiring
Gary Thomas, Respondent's production control man-
ager when he testified for Respondent on September 8,
1989, credibly testified that he had never had a situation
where a probationary employee filed a grievance
Thomas was Respondent's production control manager
as of May 5, 1989, the record fails to show when he
began to work for Respondent at the plant in question
The 1986-1989 bargammg agreement provided, "Contin-
uous service shall be broken and his employment shall
terminate if the employee is absent for work for
three (3) days without havmg reported for work, unless
he shall, before noon the day following such absence,
present a written statement showing a justifiable reason
for such absence " Thomas-testified that although
nonprobationary employees cannot be fired for an absen-
teeism of less than 4 days, probationary employees can
be terminated at any time
The 1986-1989 bargaining agreement included a union-
shop clause with a 30-day grace period In practice, em-
ployees were not requested to join the Union until after
they had completed their 90-day probationary period
Prior to May 5, 1989, 1 Respondent and the Umon had
agreed to set up negotiation meetings for a new collec-
tive-bargammg agreement The first meeting was sched-
uled for Monday, May 8
B The Employee Petition
As of about May 2, several of Respondent's employees
were dissatisfied with the Union, and wanted to see if
they "could have the Union go out" Inferentially in
consequence of discussions among them, unit employee
Phyllis Dugger, a member of the Union, telephoned the
National Labor Relations Board's Cincinnati Regional
Office at 415 or 4 30 p m on May 2 or 3 A male voice
answered the telephone, and said, "this is the Labor Re-
lation Board" or the "Labor Relation Office" She told
him that "some of the union membership at our compa-
ny," which she did not identify by name, "wanted to
find out what they should do to not have a union any
more" He told her that "you start a decertification peti-
tion" Dugger, who impressed me as a wholly honest
witness, testified for Respondent on direct examination
[h]e asked me how many members there were in
this union at our company I told him 30 He told
me I needed ten percent of the signatures—or ten
people to sign this petition to be presented
On cross-examination, she testified, "Ten percent of 30
people is what he told me" On redirect, when Respond-
ent's counsel asked, "Did he say you needed ten signa-
tures or ten percent?" she replied, "Ten signatures—ten
of 30 people" She did not ask the name of the person
she talked to, he did not tell her, and she did not know it
when she testified The other party to this conversation
did not testify There is no evidence that Respondent
knew about this conversation at any material time
Thereafter, the following material was typed, by an in-
dividual unidentified in the record, at the top of a sheet
of paper
DECERTIFICATION
We the undersigned are rejecting Local Union 787
We no longer want them to represent us, the Hol-
lander [sic] Manufacturing Inc , employee [sic]
At that time, Respondent had in its employ 30 employees
who were in the bargaining unit, had completed their
probationary period, and were union members, and 4
probationary employees (as defined in the contract) who
performed the same kinds of work as the nonprobation-
ary employees in the unit but were not union members
so far as the record shows Dugger asked at least 23 of
the 30 union members to sign the petition Sixteen of
them, mcludmg Dugger, did so on May 5 This solicita-
tion activity occurred within earshot of the.probationary
employees, none of whom offered or was requested to
sign
Late in the afternoon on May 5, Production Control
Manager Thomas, admittedly a supervisor, saw this doc-
ument, bearing the 16 signatures, on the desk of Produc-
tion Foreman Marvin Kates, admittedly a supervisor
Thomas thereupon informed David Echert, Respondent's
executive vice president and admittedly a supervisor,
that "there was a petition to decertify the Union" Then,
Thomas telephoned Company Attorney Donald B
Hordes and asked him how to proceed Thomas said that
Respondent had a petition that had 16 signatures Hordes
asked how many employees Respondent had Thomas re-
plied that respondent had 30 "union employees So
we didn't have a majority"
C The Withdrawal of Recognition
Pursuant to arrangements made for a first bargaining
session, the parties met at Hordes' office on Monday,
May 8, at approximately 3 p m Present for the Union
were two union stewards, neither of whom had signed
the petition, 2 and the union business agent Present for
Respondent were, among others, Thomas, Echert, and
Hordes Hordes advised the Union that based on Re-
spondent's earlier receipt of the petition, it would no
longer bargain with the Union Respondent expressed its
'AU dates hereafter are 1989 unless otherwise stated

'The record fails to show whether they had been asked to sign
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
belief that a majority of the bargaining unit employees,
16 out of 30, no longer wished to be represented by the
Union In making the statement, Respondent was operat-
ing under the assumption that probationary employees
did not count towards the total number of bargaining
unit employees in computing whether or not the Union
had a majority 3
D Events After the Withdrawal of Recognition
The workday of May 8 ended at 3 30 p m, about one-
half hour after Respondent withdrew recognition Two
of the probationary employees who worked that day did
not show up for work on May 9 or at any time thereaf-
ter On May 9, employee Ray Schneider asked to have
his name deleted from the petition, and his name was
crossed off that same day That same day, nonprobation-
ary unit employee Pat Fannon added her name to the pe-
tition The record fails to show whether the foregoing
action by Schneider or Fannon took place before or after
Respondent circulated to all its employees (inferentially,
including the probationary employees), at lunchtime on
May 9, the following handout bearing that date and
signed by Echert (emphasis in original)
To all of The Hollaender Mfg Co shop employees
On Friday May 5, 1989, we received a petition
signed by a majority of you stating that you no
longer wanted the Machinists Union to represent
you for the purpose of collective bargaining
Based on this employee sentiment, we informed
the union at our first bargaining session on Monday,
May 8, 1989 that we were now unwilling to enter
into negotiations for a new labor agreement
We will, of course, continue to abide by the cur-
rent umon contract which expires on May 31, 1989
After that time, however, we will no longer recog-
nize the Machinists Union as your bargaining repre-
sentative
One immediate consequence of all of this is that
effective June 1, 1989, we will no longer be deduct-
ing union dues of $20 15 per month from your pay
check Secondly, we will implement a new salary
package for all of our machine shop employees
which will be competitive with other similar com-
panies in the Cincinnati metropolitan area, and
which also recognizes your past and current contri-
butions to The Hollaender Mfg Co
YOU WILL NOT LOSE ANY OF THE
SALARY AND FRINGE BENEFITS YOU
CURRENTLY ENJOY
We will provide further details concerning your
salary and benefits in the next couple of weeks
In the meantime, thanks for your continued pa-
tience and support
N Haro, B Shamel, and H Jones, all of whom were
nonprobationary employees in the unit throughout May
1989 and none of whom had signed the decertification
petition, were separated as of June 9, June 16, and
3 My findings under this heading are based on a stipulation between
the parties
August 4, respectively No new employees were hired
between April 19, 1989, and the hearing on September 8,
1989
Of the 21 production and maintenance employees
hired by Respondent between January 3, 1989, and the
September 1989 hearing, about 14 (including the 3 who
were separated in May 1989) failed to complete their 90-
day probationary period
E Analysis and Conclusions
Absent unusual circumstances, there is an irrebuttable
presumption that a union enjoys majority support during
the first year following its certification On expiration of
the certification year, the presumption of majority status
continues but may be rebutted An employer who wishes
to withdraw recognition after a year may lawfully do so
(1) if he can show that on the date recognition was with-
drawn the union did not in fact enjoy majority status, or
(2) if he can show that its withdrawal of recognition was
predicated on a good-faith and reasonably grounded
doubt (based on objective considerations) of the union's
majority status at that time Fall River Dyeing Corp v
NLRB, 482 U S 27 (1987), NLRB v Flex Plastics, Inc ,
726 F 2d 272, 275 (6th Cir 1984), Colfor, Inc , 282
NLRB 1173, 1175 (1987), enfd 838 F 2d 164 (6th Or
1988), Bennett Packaging Go, 285 NLRB 602, (1987),
Station KKHI, 284 NLRB 1339 1340 (1987), enfd sub
nom Buckley Broadcasting Corp of California, 891 F 2d
230 (9th Cir 1989) The relevant date at which to con-
sider the bona fides of the employer's doubts is the date
that recognition is withdrawn Flex Plastics, supra, 726
F 2d at 275 Respondent evinces semantic confusion in
arguing (Br 7) (emphasis in original), "The issue in a
loss-of-majority case is invariably the extent to which the
majority of the employees have withdrawn their support
from the union Indeed, the instant decertification peti-
tion stated that the incumbent employees "no" longer
want' the Union to represent them" Rather, the issue in
such a case is whether, at the critical time, it can be
shown that the union in fact failed to possess majority
status For example, in the case at bar, Respondent's po-
sition would not have been undercut by evidence that
none of the signatones had ever wanted the Union to
represent them, and that all of them had joined the
Union solely because of the union-shop clause and for
the purpose of keeping their jobs
Respondent contends that its withdrawal of recogni-
tion on May 8, 1989, was justified by the 16-signature pe-
tition which it received on May 5 The General Counsel
stipulated to the authenticity of the signatures on the pe-
tition, and does not appear to question that it would jus-
tify Respondent's withdrawal of recognition if the signa-
tories constituted a majority of the employees in the cer-
tified unit However, the General Counsel contends that
this petition neither showed that a majority of the bar-
gaining unit employees did not want to be represented
by the Union, nor constituted sufficient objective basis
for a reasonable doubt of the Union's majority status, on
the ground that the petition was signed by only 16 em-
ployees and the bargaining unit allegedly consisted of 34
HOLLAENDER MFG CO 469
employees-namely, 30 nonprobationary employees and
4 probationary employees -
Respondent concedes (Br 6) that "probationary em-
ployees generally are deemed eligible to vote in a repre-
sentation election" See, e g, Johnson's Auto Spring Serv-
ice, 221 NLRB 809 (1975), Rust Engineering Go, 195
NLRB 815, 816 (1972), and cases cited However, Re-
spondent contends that such cases are irrelevant here, on
the ground that the four probationary employees here in
question were allegedly not in the bargaining unit Con-
trary to Respondent, I find that they were in the bargain-
ing unit Initially, I conclude that the probationary em-
ployees were within the certified unit, which is described
as "All production and maintenance employees" without
any exclusions material here More specifically, it was
admitted by Respondent's counsel that the probationary
employees "are production and maintenance employees
they do the \same kind of work that the regular em-
ployees do", I infer that probationary production and
maintenance employees work together with nonproba-
tionary production and maintenance employees, under
the same supervision, and under the same physical em-
ployment conditions 4 Moreover, when the Union was
certified in 1965, the probationary status of employees
otherwise in the bargaining unit (as probationary produc-
tion and maintenance employees would have been)
would not have excluded them from the unit or rendered
them ineligible to vote National Torch Tip Go, 107
NLRB 1271, 1272-1273 (1954), Sheffield Corp, 123
NLRB 1454, 1457-1458 (1959), Rust Engineering Go,
supra, 195 NLRB at 816 (1972) Although Respondent
points to the evidence that about 62 percent of the em-
ployees hired in 1989 before the September 1989 hearing
failed to complete their probationary period, the eligibil-
ity of probationary employees does not turn on the pro-
portion of such employees who, willingly or not, fail to
continue in the employer's employ throughout the trial
period National Torch, supra, 107 NLRB at 1273, John-
son's Auto Spring, supra, 221 NLRB 809, Extral Corp,
111 NLRB 878, 880 (1955) Also, while two of the pro-
bationary employees who worked on the day Respond-
ent withdrew recognition (May 8, 1989) did not show up
for work on the following day or at any time thereafter,
this circumstance would not have rendered them ineligi-
ble to vote either on May 8 or on May 5, 1989, the day
the petition was signed by certain nonprobationary em-
ployees and received by Respondent NLRB v General
Tube Go, 331 F 2d 751 (6th Cir 1964), NLRB v Res-
Care, Inc, 705 F 2d 1461, 1471-1472 (7th Cir 1983), St
Elizabeth Hospital v NLRB, 708 F 2d 1436, 1444 (9th
Or 1983), Computed Time Corp, 228 NLRB 1243, 1250-
1251 (1977), modified 587 F 2d 790 (5th Cir 1979), Per-
sonal Products Corp, 114 NLRB 959, 961 (1955), see also
Amoco Oil Corp, 289 NLRB 280 (1988) (holding eligible
to vote in a decertification election an employee who
gave preelection notice of his intention to retire postelec-
tion, whose last active day of work preceded the elec-
4 Thomas credibly testified that Respondent makes safety equipment
available to any employee, whether or not he is probationary The 1986-
1989 contract required Respondent to "continue its practice to furnish
safety devices and protective clothing when the same may be required"
non, but who was on vacation dunng the election)
Moreover, the bargaining agreement confirms the inher-
ent probability (Hill-Rom Go, 297 NLRB 351 (1989))
that the parties intended the contract unit to encompass
the entire certified unit Thus, the contract itself defines
the umt as "all employees within the bargaining unit as
defined in the National Labor Relations Board in Case
No 9-RC-6474," and otherwise tracks the language of
the certification Probationary employees were entitled
under the bargaining agreement to the "wage rates"
specified therein, a condition which goes to the marrow
of the employment relationship and as to which the
Union could not lawfully bind either them or Respond-
ent if the Union were not their bargaining representa-
tive 5 Moreover, under the bargaining agreement a non-
probationary employee's period of service included his
probationary period for purposes of seniority and (per-
haps) entitlement to vacation and holiday pay The fore-
going evidence that probationary employees were in the
contract unit outweighs the evidence relied on by Re-
spondent as showing their exclusion-namely, the par-
ties' practice of not requiring them to comply with the
contractual union-security clause, and the contractual
provision that they are not entitled to "any of the bene-
fits of this contract other than the wage rates "6
In short, the only evidence offered by Respondent in
support of its claim that the Union did not in fact enjoy
majority status when Respondent withdrew recognition
on May 8, 1989, is a petition signed by 16 employees in a
unit of 34 A petition thus signed by fewer than one-half
of the unit employees cannot be relied on as an expres-
sion of majority disaffection from the Union sufficient to
support Respondent's claim of a reasonable and good-
faith doubt of majority status Superior Bakery, 294
NLRB 256 (1989) Nor can a claim of reasonable and
good-faith doubt be supported by the legally erroneous
belief of Production Control Manager Thomas that the
four probationary employees were not in the bargaining
unit, in view of Respondent's knowledge of all the facts
which showed that such employees were indeed in the
unit Pioneer Flour Mills, 174 NLRB 1202 (1969), enfd
427 F 2d 983 (5th Ctr 1970), cert denied 400 U S 942
(1970), Superior Bakery, supra at 256, 263-264 (Fafard)
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by withdrawing
recognition from the Union on May 8, 1989 I regard as
immaterial the testimony of employee Dugger about her
conversation with a Board agent before the petition was
circulated Because Respondent withdrew recognition
before learning about this conversation, it could not have
given rise to any equities in Respondent Further, I con-
clude that neither did this conversation give rise to any
relevant equities in Respondent's employees Dugger did
not testify that the Board agent told her that Respondent
5 I need not and do not determine whether this provision entitled them
to the contractually specified overtime payments for weekend and holi-
day work and for more than 8 hours' work a day, to call-in or report
pay, or to shift premiums See Infra fn 6
6 I note that Respondent does not appear to contend that nonproba-
tionary employees with less than 6 months' service are excluded from the
unit by virtue of the contract clause excluding them from vacation bene-
fits
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would be compelled, or even that it could choose, to
withdraw recognition if presented with a petition signed
by a majority of the union membership Moreover,
whether she was told that to present a "decertification
petition" required 10 percent of the "members in the
union" (as she testified at one point) or "ten signatures
of 30 people" (as she eventually testified), she could
not have supposed that the Utuon would be ousted by
the signatures of 3 or even 10 employees among 30 union
members Rather, she must have realized that a "decerti-
fication petition" with so few signatures could not have
displaced the Union without some intervening action by
the Board
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act
All production and maintenance employees em-
ployed by Respondent at its Cincinnati, Ohio facili-
ty including truck dnvers, building maintenance
man, shipping and receivmg clerk and all other
plant clerical employees, but excluding all office
clerical employees, professional employees, guards
and supervisors as defined in the Act
4 At all times between December 13, 1965, and at
least through May 8, 1989, inclusive, the Union, by
virtue of Section 9(a) of the Act, was the exclusive rep-
resentative of the employees in the unit described in
Conclusion of Law 3 with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment
5 Respondent has violated Section 8(a)(5) and (1) of
the Act by withdrawing recognition from the Union on
May 8, 1989, as the representative of the employees in
the unit described in Conclusion of Law 3
6 The unfair labor practices described in Conclusion
of Law 5 affect commerce within the meaning of Section
2(6) and (7) of the Act
THE REMEDY
Respondent contends that even if (as I have found) it
violated the Act by withdrawing recognition from the
Union on May 8, 1989, no bargaining order should be
issued because, between that date and the hearing on
September 8, 1989, all signers of the petition remained on
the payroll, six nonsigners were separated, and no new
bargaining unit employees were hired In consequence, at
all times after May 8, 1989, one-half or more of the bar-
gaining unit employees consisted of employees who had
signed the petition, and, of the 28 unit employees on the
date of the hearing, 16 had signed the petition 7 In thus
relying on events which occurred after Respondent's un-
lawful withdrawal of recognition, Respondent overlooks
the fact that "the unlawful refusal of an employer to bar-
gain collectively with its employees' chosen representa-
tive disrupts the employees' morale, deters their organi-
zational activities, and discourages their membership in
unions for these reasons, a requirement that union
membership be kept intact during delays incident to
hearings would result in permitting employers to profit
from their own refusal to bargain" Franks Bros Co v
NLRB, 321 U S 702, 704-705 (1944), see also Fall River,
supra, 482 U S at 49-50, NLRB v Katz, 369 U S 736,
748 fn 16 (1962), Sterling Processing Corp, 291 NLRB
208 (1988) Moreover, when advising the employees gen-
erally that Respondent would not enter Into negotiations
with the Union for a new labor agreement, Respondent's
May 9 handout went on to say that in consequence, after
the bargaining agreement expired the monthly dues of
about $20 would no longer be deducted from employees'
paychecks, that "we will implement a new salary pack-
age which will be competitive with other similar
companies in the metropolitan area, and which also
recognizes your past and current contributions" to Re-
spondent, that "YOU WILL NOT LOSE ANY OF THE
SALARY AND FRINGE BENEFITS YOU CURRENTLY ENJOY,"
and that Respondent "thanks" the employees for their
"continued patience and support" It cannot be presumed
that none of the petition-signers would have undergone a
change of heart if, instead of promising employees a
"new salary package" (on expiration of the existing con-
tract) as what Respondent termed a "consequence" of
Respondent's unlawful refusal to enter into negotiations
for a successor contract, Respondent had offered the
Union that same "package" as part of such a contract
Cf Katz, supra, 369 U S at 745
For the foregoing reasons, the customary remedial
order will issue Indeed, if no such order is issued, it is
difficult to conceive of any other remedy Apparently in
anticipation of this difficulty, Respondent's brief relies on
the Board's refusal to issue a remedial order in cases
where the alleged unfair labor practice had been substan-
tially remedied by the respondent's own conduct 8 How-
ever, so far as the record shows, Respondent has taken
no remedial action here Nor can an unlawful withdraw-
al of recognition from a Board-certified union be fairly
characterized as a "de minims" or "technical" violation
of the Act—and, therefore, unworthy of a remedy—in
view of the statutory purpose (Sec 1 of the Act) of "en-
couragmg the practice and procedure of collective bar-
gaining" No different result is mdicated by Burger Pits,
Inc , 273 NLRB 1001 (1984), affd 785 F 2d 796 (9th Cir
1986), cited by Respondent In that case, the employer
withdrew recognition, and effected unilateral changes in
certain conditions of employment, after having received
7 This figure of 16 mcludes Fannon, who added her name to the peti-
tion on May 9, but not Schneider, who deleted his name on the same
day
8 Musicians Local 76 (Jimmy Wakely Show), 202 NLRB 620 (1973),
Postal Service, 205 NLRB 624 (1973) Cf Auto Workers (Omm Spectra) v
NLRB, 427 F 2d 1330, 1332-1334 (6th Cir 1970)
HOLLAENDER MFG CO 471
a petition which bore at least the purported signatures of
70 percent of the unit employees, but about 4 weeks
before the expiration of the current bargaining agree-
ment Although issuing a cease-and-desist and make-
whole order with respect to the period which the con-
tract was still in effect, the Board declined to issue a pro-
spective bargammg order, on the ground that the em-
ployer could have lawfully announced on receipt of the
petition an intention not to bargain with the union for a
new contract, and on the expiration of the contract with-
drawn recognition from the union and effected unilateral
changes In the instant case, Respondent's statement to
the Union that Respondent would no longer bargain
with it was made at a time when the Union was not
shown to possess minority status
In addition, Respondent will be required to cease and
desist from the unfair labor practices found, and like or
related conduct, and to post appropriate notices
On these findings of fact and conclusions of law and
the entire record, I issue the following recommended°
ORDER
Respondent Hollaender Manufacturing Co Inc , Cin-
cinnati, Ohio, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Refusing to recognize and bargain collectively with
Local Lodge 789, District Lodge 34 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO as the exclusive bargaining representative of
Respondent's employees in the following appropnate
unit
All production and maintenance employees em-
ployed by Respondent at its Cincinnati, Ohio facili-
ty including truck drivers, building maintenance
man, shipping and receiving clerk and all other
plant clerical employees, but excluding all office
clerical employees, professional employees, guards
and supervisors as defined in the Act
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request, recognize and bargain with Local
Lodge 789 as the exclusive representative of the employ-
ees in the foregoing appropriate unit concerning terms
and conditions of employment and, if an understanding is
9 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
reached, embody the understanding in a signed agree-
ment
(b) Post at its facility in Cincinnati, Ohio, copies of the
attached notice marked "Appendix " 1 ° Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
10 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words m the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT refuse to recognize and bargain with
Local Lodge 789, District Lodge 34 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO as the exclusive bargaining representative of
the employees in the bargaining unit
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL, on request, bargain with Local Lodge 789
and put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit
All production and maintenance employees mg
-ployed by us at our Cincinnati, Ohio facility includ-
ing truck drivers, building maintenance man, ship-
ping and receiving clerk and all other plant clerical
employees, but excluding all office clerical employ-
ees, professional employees, guards and supervisors
as defined in the Act
HOLLAENDER MANUFACTURING CO