Maramont Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1995

317 N.L.R.B. 1035 (N.L.R.B. 1995)

1035
317 NLRB No. 149
MARAMONT CORP.
1 The Respondent Maramont has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
We find it unnecessary to rely on the judge’s personal views ex-
pressed in fns. 3, 5, and 9.
2 Although the judge found it unnecessary to determine how many
employees were in the bargaining unit, we find ample evidence in
the record to conclude that there were 118 unit employees as of Feb-
ruary 17, 1993. We note that the General Counsel and Maramont
agree on the identity of 118 unit members, but that Maramont con-
tends there were a total of 138 unit employees at the time the peti-
tion was delivered. We reject Maramont’s contention; in so doing,
we specifically rely on Maramont’s payroll and timecard records
which clearly show that the additional 20 employees Maramont
named as part of the bargaining unit either worked in departments
not historically included in the unit, were hired after February 17 or
terminated before February 17, or were supervisory or salaried em-
ployees.
3 The petition’s statement was written in English, Spanish, and
French.
We agree with the judge that there is no evidence that any of the
64 signatures were obtained by fraud, misrepresentation, or coercion.
The Maramont Corp. and United Production Work-
ers Union, Local 17-18; Eisner, Levy, Pollack
& Ratner, P.C.; Local 132-98-102, Plastic,
Metal, Trucking, Warehouse and Allied Work-
ers’ Union, International Ladies’ Garment
Workers’ Union, AFL–CIO
United Production Workers Union, Local 17-18
(The Maramont Corp.) and Eisner, Levy, Pol-
lack & Ratner, P.C. Cases 29–CA–16873, 29–
CA–16883, 29–CA–17427, 29–CA–17468, 29–
CA–17699, 29–RC–8044, and 29–CB–8833
June 30, 1995
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On April 28, 1994, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel, The Maramont Corp. (Maramont), United
Production Workers Union, Local 17-18 (Local 17-18),
and Local 132-98-102, Plastic, Metal, Trucking, Ware-
house and Allied Workers’ Union, International La-
dies’ Garment Workers’ Union, AFL–CIO (ILGWU),
each filed exceptions and supporting briefs. ILGWU
filed an answering brief and a brief in opposition to
Local 17-18’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion, Order, and Certification of Representative.
1. The judge found, and we agree, that Maramont
violated Section 8(a)(5) and (1) of the Act by failing
since July 1992 to remit to Local 17-18 dues withheld
from employees’ paychecks and to make contributions
to the contractually established Welfare Fund. We also
agree with the judge that Maramont unlawfully refused
to bargain on request with Local 17-18 for a successor
to the collective-bargaining agreement that was effec-
tive from November 20, 1989, to November 20, 1992.
2. We disagree, however, with the judge’s findings
that Maramont did not violate Section 8(a)(2) and (1)
by continuing to recognize Local 17-18, and that Local
17-18 did not violate Section 8(b)(1)(A) by continuing
to accept such recognition, after February 17, 1993.
The record shows that Maramont had for many
years recognized Local 17-18 as its employees’ exclu-
sive representative for collective-bargaining purposes.
Such recognition was embodied in a series of collec-
tive-bargaining agreements, the most recent of which
was effective from November 20, 1989, until Novem-
ber 20, 1992. The contract contained, inter alia, a dues-
checkoff provision. Beginning in July 1992, although
it continued withholding dues from employees’ pay,
Maramont failed to remit the dues withheld to Local
17-18. The record also shows that even after the con-
tract expired on November 20, 1992, Maramont con-
tinued withholding dues for Local 17-18 from employ-
ees’ pay. It is undisputed, however, that Maramont
never remitted any dues to Local 17-18 after July
1992.
On February 17, 1993, Maramont and Local 17-18
each received copies of a petition signed by 64 of
Maramont’s 118 unit employees,2 stating that the sig-
natory employees no longer wanted to be represented
for collective-bargaining purposes by Local 17-18, that
they were revoking their Local 17-18 dues-checkoff
authorizations, and that they were resigning member-
ship in Local 17-18.3 Despite the November 20, 1992
expiration of the contract, and the February 17, 1993
employee petition, Maramont continued withholding
dues from employees’ pay at least through May 1993.
In addition, Local 17-18’s representatives had
unimpeded access to Maramont’s premises and em-
ployees from July 1992 at least through the June 4,
1993 election, and Local 17-18’s representatives met
with Maramont officials to discuss employees’ griev-
ances after the February 17, 1993 employee petition
rejecting Local 17-18. Maramont also initiated bargain-
ing with Local 17-18 in May and June 1993.
An employer is not privileged to continue recogniz-
ing a union as its employees’ exclusive representative
when the employer has objective evidence that the
union no longer represents a majority of its employees.
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Regional Director noted to the Board that Local 17-18 had
been the employees’ bargaining representative for a number of years;
that the relationship between Maramont and Local 17-18 was amica-
ble; that the timing of Maramont’s unfair labor practices was such
that they just happened to block the ILGWU rival petition; that em-
ployees would not have been aware of the alleged unfair labor prac-
tices without Local 17-18 informing them; and that there was no evi-
dence that Maramont was otherwise failing to abide by the collec-
tive-bargaining agreement.
5 For the same reason, we disagree with the judge that Maramont’s
Sec. 8(a)(5) conduct constituted a withdrawal of recognition. Clearly,
a withdrawal of recognition would have interfered with employee
free choice. Here, however, the evidence shows that Maramont con-
tinued to recognize Local 17-18 by continuing to check off dues
from employees’ paychecks, including raising the amount checked
off from $3 per week to $15 per month in accordance with Local
17-18’s January 1993 dues increase. Further, as discussed above,
Maramont gave Local 17-18’s representatives continued access to its
employees and premises, met with Local 17-18 representatives con-
cerning employee grievances, and initiated bargaining with Local 17-
18 shortly before the representation election.
6 Underground Service Alert, 315 NLRB 958 (1994), is not to the
contrary. The Board held there that, during the interval between an
election and the certification of a union, an employer is not privi-
leged to withdraw recognition based on an employee petition. The
Board reasoned that a Board-conducted election is a far more reli-
able indicator of employee choice than an employee petition. Under-
ground Service Alert is distinguishable because in the case at bar no
Board election had been held when Maramont and Local 17-18 re-
ceived the employee petition on February 17, 1993. Indeed, as of
that time, processing of the election petition was blocked by the
pending unfair labor practice allegations. See Underground Service
Alert, supra at 961 fn. 8, distinguishing Atwood & Morrill Co., 289
NLRB 794 (1988), on similar grounds.
Point Blank Body Armor, 312 NLRB 1097 (1993). An
employer that recognizes a nonmajority union violates
Section 8(a)(2) of the Act. Similarly, a union that ac-
cepts recognition, even though it has objective evi-
dence of its actual loss of majority support, violates
Section 8(b)(1)(A). Ibid.
Here, it is undisputed that Maramont and Local 17-
18 each received the employee petition on February
17, 1993. At that time, both Maramont and Local 17-
18 had knowledge that Local 17-18 had lost its major-
ity status.
Local 17-18 contends that the February 17, 1993
employee petition was tainted by Maramont’s unlawful
refusal to bargain for a successor agreement and failure
to remit dues and welfare fund contributions. We dis-
agree. The Board considered the impact of those unfair
labor practices when, on April 19, 1993, it authorized
the Regional Director to proceed to an election in Case
29–RC–8044. The Regional Director believed that a
fair election could be conducted because the pending
unfair labor practice allegations were not the type that
would substantially impair employees’ ability to select
a bargaining representative.4
Following the June 4, 1993 election, Local 17-18
filed objections, some of which paralleled the pending
complaint allegations. On September 23, 1993, the Re-
gional Director issued a Supplemental Decision on Ob-
jections and Notice of Hearing, inter alia, overruling
Local 17-18’s objections. Subsequently, Local 17-18
filed a request for review, which the Board denied on
February 3, 1994. Thus, it is law of the case that these
unfair labor practices did not interfere with employee
free choice in the June 4, 1993 election. In these
unique circumstances, we therefore cannot find that
these same unfair labor practices tainted the employee
majority’s otherwise valid rejection of Local 17-18 as
their collective-bargaining representative.5
Therefore, we find that after February 17, 1993,
Maramont’s continued withholding of Local 17-18
dues from employees’ pay, its allowing Local 17-18’s
representatives unimpeded access to its premises and
employees, its meetings to discuss employee griev-
ances with Local 17-18 representatives, and its aborted
attempts to bargain with Local 17-18 just before the
June 4, 1993 election, constituted unlawful recognition
of a nonmajority union in violation of Section 8(a)(2)
and (1). Likewise, we find that Local 17-18 violated
Section 8(b)(1)(A) by accepting recognition from
Maramont when it was aware it was no longer the unit
employees’ majority representative.6
AMENDED REMEDY
Dues Payments
As stated above, the judge found, and we agree, that
Maramont violated Section 8(a)(5) and (1) by failing
since July 1992 to remit checked-off union dues to
Local 17-18. As a remedy for this unfair labor prac-
tice, the judge provided that Maramont shall reimburse
employees for any dues deducted. We disagree. Inas-
much as Local 17-18 was the employees’ lawful col-
lective-bargaining representative until February 17,
1993, we amend the judge’s remedy to provide that
Maramont shall remit to Local 17-18 all dues withheld
from employees’ pay during the period from July
1992, until February 17, 1993.
A different remedy is warranted with respect to dues
withheld after February 17, 1993. Inasmuch as we
have found that Maramont’s continued withholding of
Local 17-18 dues after February 17, 1993 constituted
a violation of Section 8(a)(2) and (1), we shall order
Maramont to return all such dues payments to the em-
ployees from whom they were withheld.
Fund Payments
We agree with the judge that Maramont must make
all contractually required contributions to the Welfare
Fund from July 1992 until June 4, 1993—the date of
the election—but for different reasons. Until November
20, 1992, Maramont was required pursuant to its col-
lective-bargaining agreement with Local 17-18 to make
contributions to the Welfare Fund on behalf of em-
1037MARAMONT CORP.
7 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the employer’s
delinquent contributions during the period of the delinquency, the
Continued
ployees in order to provide health insurance coverage.
After the contract expired, Maramont was required to
maintain the employees’ existing terms and conditions
of employment until bargaining in good faith with
Local 17-18 to impasse or agreement on a successor
contract. NLRB v. Katz, 369 U.S. 736 (1962). As the
judge found, Maramont refused to bargain with Local
17-18 on request; therefore, Maramont was obligated
to continue making contributions to the Welfare Fund
after November 20, 1992.
On February 17, 1993, when the employees rejected
Local 17-18 as their collective-bargaining representa-
tive, Maramont’s general obligation to bargain with
Local 17-18 came to an end. Indeed, we have found
above that Maramont’s post-February 17, 1993 rec-
ognition of Local 17-18 violated Section 8(a)(2) and
(1) of the Act. In prior 8(a)(2) cases, however, the
Board has recognized that it would be contrary to the
purposes of the Act to remedy that unfair labor prac-
tice with the issuance of an Order that on its face
would penalize employees by depriving them of bene-
fits previously provided, such as health care insurance.
Mego Corp., 254 NLRB 300, 301 (1981); Hartz Moun-
tain Corp., 228 NLRB 492, 562 (1977), enfd. 593 F.2d
1155 (D.C. Cir. 1978). In each of those cases, we or-
dered the employer to provide its employees with sub-
stitute coverage for the coverage that had been pro-
vided through the union benefit fund, so that no em-
ployee would be faced with termination of his or her
coverage simply because the employer had violated the
Act. We shall also do so here. In this case, it is not
necessary to order Maramont to provide substitute cov-
erage from February 17 until June 4, 1993, because it
is undisputed that the Maramont employees were in
fact provided with health benefit coverage by the Local
17-18 Welfare Fund during that period despite
Maramont’s continued failure to make fund payments.
In the particular circumstances of this case, and rec-
ognizing our broad discretion to appraise the relevant
factors that determine a just remedy, NLRB v. Seven-
Up Bottling Co., 344 U.S. 344, 346 (1953), we find
that it will best effectuate the policies of the Act to
order Maramont to pay for this coverage by reimburs-
ing the Welfare Fund for the contributions Maramont
failed to make until June 4, 1993, when the ILGWU
won the election and the Welfare Fund ceased provid-
ing coverage. After June 4, 1993, the Respondent shall
provide equivalent substitute coverage that shall not
lapse or be discontinued until the Respondent reaches
agreement on alternative health coverage or bargains to
impasse with the ILGWU.
ORDER
The National Labor Relations Board orders that
A. The Respondent Employer, The Maramont Corp.,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain on request with any labor or-
ganization with which it has a lawful obligation to bar-
gain under the National Labor Relations Act.
(b) Failing to remit union dues lawfully withheld
from employees’ pay.
(c) Failing to make contractually required contribu-
tions to the Local 17-18 Welfare Fund on behalf of
bargaining unit employees.
(d) Recognizing United Production Workers Union,
Local 17-18, as the exclusive representative of its em-
ployees for purposes of collective bargaining until that
Union has demonstrated its majority status pursuant to
a Board-conducted election.
(e) Withholding from employees’ pay dues for a
union that does not represent a majority of the bargain-
ing unit employees.
(f) Implicitly threatening employees with the loss of
their jobs if they vote for Local 132-98-102, Plastic,
Metal, Trucking, Warehouse and Allied Workers’
Union, International Ladies Garment Workers Union,
AFL–CIO.
(g) In any like or related manner interfering with,
restraining, 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, bargain with the union that is the ex-
clusive collective-bargaining representative of its em-
ployees in an appropriate bargaining unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody that understanding in a
signed agreement.
(b) Remit to United Production Workers Union,
Local 17-18 all dues withheld from bargaining unit
employees’ pay from July 1992, until February 17,
1993, plus interest as set forth in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
(c) Reimburse the bargaining unit employees for any
money withheld from their pay as dues for United Pro-
duction Workers Union, Local 17-18 after February
17, 1993, plus interest as set forth in New Horizons for
the Retarded, supra.
(d) Transmit to the Local 17-18 Welfare Fund those
contributions it failed to make on behalf of its unit em-
ployees from July 1992, to June 4, 1993, including any
additional amounts due the fund, computed in the man-
ner set forth in Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979).7
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
9 See fn. 8 above.
(e) Make whole bargaining unit employees for any
expenses incurred by reason of the Respondent’s fail-
ure to make contributions to the Welfare Fund, or by
reason of the Respondent’s failure to maintain an alter-
native health benefit coverage, in the manner set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), plus
interest as set forth in New Horizons for the Retarded,
supra.
(f) Provide an equivalent substitute to any insurance
or indemnity coverage maintained by or through the
Local 17-18 Welfare Fund so that no such coverage
shall be discontinued or lapse until the Respondent
reaches agreement on alternative health benefit cov-
erage or bargains to impasse with Local 132-98-102,
Plastic, Metal, Trucking, Warehouse and Allied Work-
ers’ Union, International Ladies Garment Workers
Union, AFL–CIO.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts due under
the terms of this Order.
(h) Post at its facility in Brooklyn, New York, cop-
ies of the attached notice marked ‘‘Appendix A.’’8
Copies of the notice, in English, Spanish, and Haitian
Creole, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B. The Respondent Union, United Production Work-
ers Union, Local 17-18, Brooklyn New York, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Acting as the exclusive representative of the unit
employees of Maramont for the purposes of collective
bargaining unless and until the Respondent shall have
demonstrated its majority status in a Board-conducted
election.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its union office in Brooklyn, New York,
copies of the attached notice marked ‘‘Appendix B.’’9
Copies of the notice, in English, Spanish, and Haitian
Creole, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by Maramont
Corp. at all places where notices to employees are cus-
tomarily posted.
(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.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Local 132-98-102, Plastic, Metal,
Trucking, Warehouse and Allied Workers’ Union,
International Ladies’ Garment Workers’ Union, AFL–
CIO, and that it is the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:
All full-time and regular part-time employees em-
ployed by the Employer at its Brooklyn, New
York facility, excluding all clerical employees,
guards, professional employees, foremen and su-
pervisors as defined in the Act.
APPENDIX A
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
1039MARAMONT CORP.
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain on request with any
labor organization with which we have a lawful obliga-
tion to bargain under the National Labor Relations Act.
WE WILL NOT fail to remit union dues lawfully
withheld from employees’ pay.
WE WILL NOT fail to make contractually required
contributions to the Local 17-18 Welfare Fund on be-
half of bargaining unit employees.
WE WILL NOT interfere with, restrain, or coerce you
by recognizing United Production Workers Union,
Local 17-18, as the exclusive representative of our em-
ployees for purposes of collective bargaining until that
Union has demonstrated its majority status pursuant to
a Board-conducted election.
WE WILL NOT withhold from our employees’ pay
dues for Local 17-18 or any other union that does not
represent a majority of the bargaining unit employees.
WE WILL NOT implicitly threaten our employees
with the loss of their jobs if they vote for Local 132-
98-102 Plastic, Metal, Trucking, Warehouse and Allied
Workers’ Union, International Ladies Garment Work-
ers Union, AFL–CIO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed Section 7 of the Act.
WE WILL, on request, bargain with any union that is
the exclusive collective-bargaining representative of
our employees in an appropriate unit concerning terms
and conditions of employment and, if an understanding
is reached, embody that understanding in a signed
agreement.
WE WILL remit to United Production Workers
Union, Local 17-18 all dues withheld from our em-
ployees’ pay from July 1992 until February 17, 1993,
with interest.
WE WILL reimburse our employees for any money
we withheld from their pay as dues for Local 17-18
after February 17, 1993, with interest.
WE WILL pay to the Local 17-18 Welfare Fund
those contributions we failed to make on behalf of our
employees from July 1992 to June 4, 1993.
WE WILL make whole any employees for any ex-
penses incurred because of our unlawful failure to
make contributions to the Local 17-18 Welfare Fund or
by reason of our failure to maintain an alternative
health benefit coverage.
WE WILL provide an equivalent substitute to any in-
surance or indemnity coverage maintained through the
Local 17-18 Welfare Fund so that no such coverage
shall be discontinued or lapse until the Respondent
reaches agreement on alternative health benefit cov-
erage or bargains to impasse with Local 132-98-102,
Plastic, Metal, Trucking, Warehouse and Allied Work-
ers’ Union, International Ladies Garment Workers
Union, AFL–CIO.
THE MARAMONT CORP.
APPENDIX B
NOTICE TO MEMBERS
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT act as the exclusive representative of
the unit employees of The Maramont Corp. for the
purposes of collective bargaining unless and until we
have demonstrated our majority status in a Board-con-
ducted election.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of rights guaranteed by
Section 7 of the Act.
UNITED PRODUCTION WORKERS UNION,
LOCAL 17-18
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York City on various days from January
25 to March 8, 1994.
The charges in Cases 29–CA–16873, 29–CA–16883, and
29–CA–17427 were filed by Local 17-18 (the incumbent
Union), respectively on September 29 and October 1, 1992,
and June 17, 1993. A consolidated complaint was issued in
the first two cases on April 3, 1993, and alleged:
1. That the Employer discriminatorily issued a suspension
to employee John Sanchez because of his alleged activity on
behalf of Local 17-18.
2. That the Employer refused to bargain with Local 17-18
for a new contract.
3. That the Employer failed and refused to remit union
dues to the Union in accordance with the terms of a collec-
tive-bargaining agreement which expired on November 20,
1992.
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 ILGWU received 61 votes and Local 17-18 received 44 votes.
There were four challenged ballots and one person voted against
both unions.
4. That the Employer failed and refused to make contribu-
tions to a Health and Welfare Fund in accordance with the
terms and conditions of the aforesaid contract.
On February 14, 1994, another complaint was issued in
Case 29–CA–17327 (filed by Local 17-18), which was con-
solidated with the present proceeding. That complaint al-
leged:
1. That the Employer had deducted union dues from its
employees but has retained them and failed to remit them to
Local 17-18.
2. That alternatively the Employer’s failure to remit dues
was unlawful until either;
(a) The contract expired, or
(b) The date or dates (February 17 or June 4, 1993)
when the employees signed and delivered a petition to
the Employer and to Local 17-18 stating, inter alia, that
they were revoking their dues-checkoff authorizations.
The charges in Cases 29–CA–17468 and 29–CB–8833
were filed against the Employer and the incumbent union,
Local 17-18, by the law firm which represented the ILGWU.
A complaint in those cases was issued on September 29,
1993, and alleges that the Employer and Local 17-18 contin-
ued to recognize and bargain with each other in violation of
Section 8(a)(2) and 8(b)(1)(A) of the Act after they were no-
tified that a majority of the employees in the bargaining unit
no longer wished to be represented by that union. It is con-
tended that this lack of majority status was demonstrated by
the delivery of employee signed petitions on February 17,
1993.
The charge in Case 29–CA–17699 was filed by Local
132–98–102 of the ILGWU (for purposes of brevity called
ILGWU), on October 5, 1993. The Regional Director issued
a complaint based on this charge on November 19, 1993.
This complaint, as modified at the hearing, alleged that on
or about June 3, 1993, during a speech given on the day
prior to the election, the Employer threatened to close or
move its plant; threatened to withhold wage increases and
other benefits; threatened to layoff employees and give their
jobs to other persons; threatened to refuse to bargain with the
ILGWU if they won the election; and promised raises to em-
ployees if they voted for Local 17-18.
The petition in Case 29–RC–8044 was filed by Local 132–
98–102 of the ILGWU on September 11, 1992. (Note this
was about 2 weeks before Local 17-18 filed its first unfair
labor practice charge.) Notwithstanding the argument of
Local 17-18 that its charge should block an election, the Re-
gional Director issued a Decision and Direction of Election
on April 22, 1993. In early May 1993 the Regional Director
ordered that an election take place on May 21, 1993. Be-
cause the Employer initially refused to furnish a list of the
eligible voters’ names and addresses, however, in accordance
with the rule in Excelsior Underwear, 156 NLRB 1236
(1966), it was necessary to postpone the election. After ob-
taining agreement from the Employer to furnish the required
list, the parties agreed to hold the election on June 4, 1993.
The election was held on June 4, 1993, and a majority of
the valid votes were cast for the ILGWU.1 On June 8, objec-
tions were filed by Local 17-18 and on June 9, objections
were filed by the Employer. On September 23, 1993, the Re-
gional Director issued a supplemental decision in the rep-
resentation case. In that decision, the Regional Director dis-
missed all the objections filed by Local 17-18 and dismissed
one of the two allegations made by the Employer. The re-
maining objection on which he ordered a hearing, related to
the employer’s allegation that a representative of the ILGWU
threatened to notify the Immigration and Naturalization Serv-
ice against employees who did not vote for that union.
On the entire record, and in particular based on my obser-
vation of the demeanor of the witnesses, and after consider-
ing the briefs filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted and I find that the Company, a New York
corporation, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Unions are labor organizations within the meaning of Section
2(5) of the Act.
II. BACKGROUND
For some number of years the Employer has recognized
and bargained with Local 17-18. The last contract was exe-
cuted on November 17, 1989, and ran for a term from No-
vember 20, 1989, to November 20, 1992. That contract pro-
vided for payments by the Employer to a Health and Welfare
Fund which is supposed to provide medical benefits for the
employees. The contract also contained a union-security and
dues-checkoff clause pursuant to which employees are re-
quired to become members of Local 17-18 and pay dues to
that organization.
The ILGWU began organizing the employees of
Maramont in 1987 and filed a petition in Case 29–RC–6754
seeking an election. Over a period of time, the ILGWU and
another union, Local 810 International Brotherhood of Team-
sters, also filed a series of petitions seeking elections at a
number of other companies that had contracts with Local 17-
18. Many, but not all of those companies, had contracts with
Local 17-18 through a multiemployer association called the
Williamsburg Trade Association whose members were en-
gaged in widely disparate businesses.
On February 19, 1993, almost 6 years after the petition
had been filed in Case 29–RC–6754, the Board issued a de-
cision at 310 NLRB 508 directing elections at various em-
ployers including Maramont. In so doing, the Board, among
other things, rejected the contention that a multiemployer
bargaining unit was appropriate. In the case of Maramont it
determined that this employer had never been a member of
the association and that it had signed an independent contract
with Local 17-18. The Board noted that although the
ILGWU may have filed its initial petition prematurely vis a
vis the expiration date of Maramont’s contract with Local
17-18, this would not preclude the holding an election at the
company. Accordingly, the Board ordered that an election be
held among the employees at Maramont, if after a reopened
hearing, it was shown that the company met the Board’s ju-
risdictional standards. (See fn. 2 of the Board’s decision.)
In the meantime and unknown to the Board, the ILGWU
filed the present petition in Case 29–RC–8044 on September
11, 1992, as it feared that its initial petition might be dis-
1041MARAMONT CORP.
2 I note that the contract between Local 17-18 and the Company
sets the standard wage rate at 20 cents an hour over the minimum
wage after an employee works for more than 60 days. The contract
also provided wage increases of 30 cents an hour as of July 1, 1990,
25 cents an hour as of July 1, 1991, and 25 cents an hour as of
July 1, 1992.
3 Pursuant to the collective-bargaining agreement, the Company
was obligated to contribute $3 per employee per week to the Wel-
fare Fund. This amounts to a total of $156 per year per employee.
Given the national discussion about the rising costs of health insur-
ance, I am more than a little curious about the level or types of ben-
efits that one can buy for this amount of money.
4 It appears that on September 24, 1992, Local 17-18 issued a leaf-
let to the employees stating that the employer had stopped making
payments to the Welfare Fund and that if these payments were not
received, the employees’ health insurance coverage would be termi-
nated. It seems that this notice was first given to the employees by
Local 17-18 only after the ILGWU filed its petition. In any event,
Bogen stipulated that the Welfare Fund did in fact elect to continue
insurance benefits for the employees and he agreed that it is reason-
able to assume that his client, Local 17-18 would have notified the
employees of this fact as soon as possible.
missed under the Board’s contract-bar rules requiring a peti-
tion to be filed 90 to 60 days before the expiration date of
a company’s contract with an incumbent union. As the new
petition was timely filed vis a vis the November 20, 1992
contract expiration date, the ILGWU withdrew its previous
petition and the Regional Director proceeded on this, rather
than the petition that had been filed in 1987.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The charges in Cases 29–CA–16873 and 29–CA–16883
were filed by the incumbent Union, Local 17-18 about 2
weeks after the ILGWU filed its election petition. As noted
above, Local 17-18 alleged that the Company discrim-
inatorily suspended employee John Sanchez in violation of
Section 8(a)(1) and (3) of the Act and that the company vio-
lated Section 8(a)(5) by refusing to bargain and by refusing
to carry out its contractual obligations of making welfare
fund contributions and remitting union dues to Local 17-18.
John Sanchez was employed by the Company since 1988.
He testified that on September 25, 1992, while he was at
work, Luis Moreano, a representative of Local 17-18 (who
had been given permission to enter the plant), asked him to
hand out some leaflets to other employees. According to
Sanchez, his supervisor, Daryl, was standing about 20 feet
away when Moreano handed him these leaflets. Sanchez
states that he then placed the leaflets into a freezer and con-
tinued working. He states that at lunchtime, when he went
to pick up the leaflets, they no longer were there and that
he therefore did not distribute them to any employees.
According to Sanchez, he was told on the following day
by plant manager, Jorge Diaz, that he was being suspended.
Sanchez asserts that he told Diaz that he thought he was
being suspended because of the leaflets but that Diaz merely
said that he was suspending Sanchez for 2 days because he
had orders to do so.
Both the General Counsel and the attorney for Local 17-
18 made valiant efforts to refresh Sanchez’ recollection re-
garding his conversation with Diaz on September 26, 1992,
Bogen went so far as to have Sanchez read his pretrial affi-
davit. But this was to no avail and Sanchez repeatedly testi-
fied that Diaz did not say anything about the Union or the
leaflets when he told Sanchez that he was being suspended.
It was only through the cross-examination by the Company’s
attorney who began to quote from the affidavit, that I was
informed that Sanchez, in his pretrial statement, had said that
Diaz had told him that he was being suspended for having
taken the leaflets from Local 17-18.
Apart from the absurdity of this allegation, it is obvious
that Sanchez who gave a false account of the events to the
Board agent during the investigation of this case, was unwill-
ing to lie when he was put under oath and asked to testify
in open court. Thus, notwithstanding the failure of the em-
ployer to explain its actions in suspending Sanchez, I con-
clude that no prima facie case was established and I shall
recommend that this allegation be dismissed.
According to Douglas Isaacson, the president of Local 17-
18, his union has represented employees of Maramont at its
Brooklyn facility for about 10 years. The last contract be-
tween Local 17-18 and the Company expired on November
20, 1992. Nevertheless, it is obvious that a sizable proportion
of the Company’s work force has not been satisfied with
Local 17-18’s representation for a long time as the ILGWU
was able to get at least 30 percent of the employees to sign
the necessary showing of interest in order to file the initial
election petition back in 1987.2
According to Isaacson, from July 1992, the Company
ceased making contributions to the contractually established
Welfare Fund.3 He states that from the same date, the Com-
pany stopped remitting dues to the Union which it was obli-
gated to do in accordance with the checkoff provisions of the
contract. In fact, the evidence shows that from July 1992 and
until May 31, 1993, the Company kept on deducting dues
from the employee’s wages but retained the moneys instead
of remitting them to Local 17-18.
Isaacson testified that on August 14, 1992, he sent a letter
to the Company demanding that the Company resume the
dues’ remittances and welfare fund contributions. He states
that as he received no response, he wrote again on Septem-
ber 10 and 15, 1992, and on January 29, 1993. He states that
the Company’s only response to each letter was silence. Ad-
ditionally, the letters dated September 10, 1992, and January
29, 1993, contain demands that the Company commence ne-
gotiations with Local 17-18 for a new contract.
Notwithstanding the failure of the Company to make wel-
fare fund contributions from July 1992, the fund decided to
continue to cover these employees and to reimburse them for
any medical bills that would otherwise have been covered
under the welfare plan until June 4, 1993, which was the
date of the election.4
In the meantime, the Regional Office was holding hearings
in relation to the election petition that had been filed by the
ILGWU on September 11, 1992. These hearings were held
in October and November 1992 and resulted in a Direction
of Election which was issued by the Regional Director on
April 22, 1993. (As noted above, the Regional Director
issued the Direction of Election despite an assertion that the
above-described actions by the employer should block the
election until a final disposition was made of the unfair labor
practice charges filed by Local 17-18; a process which would
have taken at least another year.)
In January 1993, Local 17-18 raised its dues from $3 per
week to $15 per month. This in turn generated a campaign
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the ILGWU to have the employees sign a petition which
stated:
We the undersigned employees of Maramont Corp. give
notice that we do not want to be represented for pur-
poses of collective bargaining by Local 17-18, United
Production Workers Union. We hereby revoke any and
all authority of Maramont to deduct (checkoff) dues,
fees or assessments for . . . Local 17-18 from our
wages. We hereby resign membership from Local 17-
18 immediately.
This petition was in three languages: English, Spanish, and
French. The ILGWU organizers who solicited the signatures
read and explained the petition to the employees. During the
period from January 30 to February 10, 1993, 64 employees
signed this petition and I am convinced by the testimony that
there is no evidence that the signatures were obtained by
fraud, misrepresentation, or coercion.
On February 17, 1993, copies of the petition were hand
delivered by the ILGWU to the Company and to the offices
of Local 17-18.
Isaacson testified that despite the Company’s noncompli-
ance with the dues-checkoff and welfare fund contribution
provisions of the contract and notwithstanding the expiration
of the contract on November 20, 1992, Local 17-18 non-
employee agents were permitted access to the company
premises and employees during 1993.
According to Isaacson, he was contacted in May 1993 by
the Company’s owner, Harry Reichman, who expressed an
interest in negotiating a contract. Accordingly, a meeting was
scheduled for May 24, 1993, where Isaacson was accom-
panied by a negotiating committee of employees which in-
cluded Simone Rosa, Jean Liffet, and Paulette Vendome.
(Note these names will reappear when we discuss the em-
ployer’s objections.) Isaacson states that the Company was
represented by two attorneys, one of whom is an experienced
labor counsel named Arthur Kauffman. At this meeting, ac-
cording to Isaacson, he simply presented the Union’s propos-
als which were reviewed by the other side.
Isaacson testified that another meeting was held on June
1, 1993. He states that at this meeting, the Company stated
that it did not wish to negotiate with Local 17-18 because
the election was coming up on June 4 and the Company
would only be willing to negotiate if Local 17-18 won the
election.
In my opinion, the evidence clearly shows that the Com-
pany favored Local 17-18 as its choice in the election. In-
deed there was unrebutted evidence that the Company’s plant
manager, Jorge Diaz, distributed Local 17-18 literature to
employees before the election. One of these stated:
To all our members:
This week-end an ILGWU organizer will visit you at
your home. They will try to convince you to vote for
them this June 4th. ILGWU is desperate. We, Local 17-
18 will never disrespect you or invade the privacy of
your home. Remember, you don’t have the obligation
to believe their false promises. Remember, they are
desperate. You have to know that at the factories con-
trolled by ILGWU, are closing and its members are
looking for jobs. If you vote for them you will be a
victim and you will be replaced by one of their old
members. Do not trust the future of your job voting for
a union—False and not trustworthy, ILGWU—Inter-
national. Vote ‘‘Local 17-18’’ on June 4.
On June 3, 1993, the day before the election, all the em-
ployees were gathered together where Harry Reichman deliv-
ered a speech that was translated by Jorge Diaz into Spanish
and by a hired interpreter into Haitian French. There are con-
flicting versions of what was said in this speech. The Gen-
eral Counsel presented a number of witnesses (all of whom
were ILGWU supporters), who gave their version of what
they heard. The Employer, on the other hand, presented some
employee witnesses (all of whom were members of Local
17-18’s negotiating committee), who testified as to what they
heard. The Employer did not call as witnesses either
Reichman or the persons who translated for him.
Having reviewed the record, I believe that the following
is essentially what was said. Reichman told the employees
that he was upset by the ‘‘lies’’ that the ILGWU was telling
about him and that if they won the election, they could not
make him do what he didn’t want to do. He told them that
he personally would not negotiate with the ILGWU, but
would have his partner do the negotiating on the Company’s
behalf. He said that if the ILGWU called a strike, the strik-
ing employees would not get paid when on strike and the
Company could and would hire replacements or send the
work to another plant that the Company operated. Reichman
told the employees that the ILGWU had sent a letter to the
city of New York which is a major customer and asked that
the city terminate its contract with Maramont. He stated that
if the city canceled the contract, the Company would lose
business and employees would either lose their jobs or be
laid off. At some point during the meeting, Jorge Diaz held
up a sample ballot which had an X marked in the box des-
ignated for Local 17-18 and told employees to vote this way.
In relation to Reichman’s statements regarding the
ILGWU’s alleged attempt to get the city to cancel its con-
tract, he referred specifically to a letter that he had received
on April 1, 1993, from the city’s department of human re-
sources which also enclosed a letter to that department from
the ILGWU’s attorney. What is immediately apparent from
these documents is that Reichman’s assertion at the June 3,
1993, that the ILGWU had sought a cancellation of
Maramont’s contract with the city is simply false. Thus, it
seems to me that in the June 3 speech, Reichman had raised
a false premise on which he elaborated to convey the mes-
sage that if the employees voted for ILGWU, this would re-
sult in the city canceling its contract and employees losing
their jobs.
IV. THE OBJECTIONS
With respect to the unfair labor practice allegations made
by Local 17-18, the Employer presented no evidence to rebut
those claims. Moreover, the Employer presented no reason,
justification, explanation, mitigation, or excuse as to why it
did what it did. Of course if we make the assumption that
people who run or advice companies do in fact have reasons
for the way they behave and if we add the presumption that
human beings will normally act in their own self-interest, I
think that the reasons for the Employer’s conduct in this case
is not too difficult to ascertain.
1043MARAMONT CORP.
5 This calls for a brief explanation of the Board’s ‘‘blocking
charge’’ rules. Normally, but not always, the NLRB will postpone
an election if there are unresolved unfair labor practice charges
pending. This rule is designed to benefit a union which is petitioning
the Board for an election as it prevents the union from being forced
into an election when there are unremedied unfair labor practices
pending. At the same time a petitioning Union is given the option
of filing a ‘‘request to proceed’’ pursuant to which it may choose
to go ahead with the election rather than wait for the outcome of
the unfair labor practice proceedings. See NLRB Casehandling Man-
ual, sec. 11730.8 and Morris, The Developing Labor, Chapter 10,
sec. B.
These rules work fine in a situation where there is only one union
involved. However, they do not work very well and are subject to
abuse when two unions are vying to represent the same employees.
Thus, in a two-union situation, the blocking charge rule can have the
perverse result of encouraging an employer to violate the Act. This
is because it can reasonably be predicted that upon an employer’s
commission of an unfair labor practice, the weaker of the two unions
will file charges and want to delay the election whereas the other
union may want to proceed to the election as soon as possible. Alter-
natively, the union that loses the election can be counted upon to
file objections asserting that the Employer’s unlawful conduct should
be grounds for holding a new election. Indeed in a worst case sce-
nario, it would be possible, if the Board applied these rules in a rigid
manner, for an employer and a losing union to delay, in perpetuity,
the certification of that union which a majority of the employees had
voted for in a secret-ballot election.
6 The Regional Director concluded that the conduct alleged by
Local 17-18, even if true, would not have had a sufficient impact
on the voters to affect the outcome of the election.
7 This appears to be a pattern. In Cherry Hill Textiles, 309 NLRB
268 (1992), a company represented by Ellman committed similar
violations vis a vis Local 17-18 which was the incumbent union and
represented by Bogen. In that case, the violations were also commit-
ted during the pendancy of an election petition filed by the ILGWU.
The ALJ, at 271 fn. 2, had this to say about the situation:
There is nothing in the record, other than the first sentence in
the letter, as to why the Respondent suddenly reneged on its as-
surances to the Union, [Local 17-18], that it would furnish the
information requested. Nor does the record reflect any plausible
reason for the Respondent’s seemingly bizarre pronouncements
that it would stop remitting initiation fees and dues to the Union
and that it would prohibit union representatives from entering its
facilities to police the collective bargaining agreement. These
steps may have been taken by the Respondent in connection
with a representation case election. An election was scheduled
for November 20, 1990 in Case No. 29–RC–7941; the ILGWU
had petitioned in that case to oust the Union as the collective
bargaining representative of the Respondent’s employees. It is
speculative that the Respondent stopped remitting dues and de-
nied the Union access as a less than subtle attempt to block the
election.
It is my opinion that the Company and Local 17-18, hav-
ing had a cozy relationship for many years, were both fearful
that the ILGWU would come in and replace Local 17-18 as
the employees’ bargaining representative. To this end, the
company committed various violations of the Act (for which
it could set aside moneys to pay for any potential liabilities),
and thereby give Local 17-18 grounds to file unfair labor
practice charges against it in an effort to delay any election
that could result in Local 17-18 being ousted.5 And in fact
this is precisely what happened as Local 17-18 filed charges
and asked that the election proceedings be postponed for
however long it took to get a decision on its unfair labor
practice charges. When this was unsuccessful and the elec-
tion went forward, Local 17-18 filed objections to the elec-
tion citing the same conduct which the company concedes
that it committed. Thus, based on this admittedly illegal con-
duct, Local 17-18 sought to overturn the results of the elec-
tion which had been won by the ILGWU. When this too
failed, and the Regional Director overruled the objections
filed by Local 17-18,6 the only remaining hope was that the
objections filed by the Employer would be sustained.7 Some-
how it is not surprising that the only witnesses that the em-
ployer brought forth to substantiate its objections happened
to be people who were on Local 17-18’s negotiating commit-
tee.
Jean Liffet (also known as Babu), testified that about 2
weeks before the election he was talking outside the plant
with union representative Jean Morriseau who is known by
his nickname of Tigus. Liffet asserts that Tigus told him that
if the employees did not vote for the ILGWU, then the Im-
migration would come. On direct examination he testified
that after this conversation he told another employee, Jac-
queline about it. However, on cross-examination, Liffet as-
serted that Jacqueline was present when the statement was
made by Morriseau. Jacqueline was not called to corroborate
or deny this assertion. There was also testimony that Jean
Liffet was a heavy midday drinker.
Marie Vendome, who is also known as Paulette Homme,
testified that on two or three occasions before the election,
Tigus told her and a group of 5 to 10 coworkers that if they
voted for the ILGWU, they would get help from that Union
if they didn’t have papers but if they did not vote for the
ILGWU the Union would call the Immigration Service. She
testified that this group of workers usually stayed together
but she could recall only three of their names, one of which
was Simone Rosa who, as noted above, served on the Local
17-18 bargaining committee with Vendome and Liffet.
Simone Rosa also testified about the alleged threat by
Morriseau. However, unlike Vendome who placed her at the
scene, Rosa stated that she did not actually hear Morriseau
make the statement; but that other employees, whose names
she couldn’t recall, told her that they were told that if they
did not vote for the ILGWU, they would be forced out of
the country.
Jean Morriseau (Tigus), whose testimony was corroborated
by another ILGWU organizer, Milton Jean Baptiste, testified
that the subject of Immigration was usually raised by em-
ployees to him, in that they expressed fears that if they voted
for the ILGWU the company would fire them or cause them
to be deported. He testified that he told employees that the
ILGWU has an office at 275 7th Avenue, where ILGWU
members could, among other things, get free assistance on
Immigration matters. He states that he also told them that
such assistance would be available when they became mem-
bers of the ILGWU which would happen if the ILGWU won
the election and ultimately was successful in obtaining a con-
tract.
In my opinion, Morriseau and Baptiste credibly denied that
they made any threats to call Immigration against any em-
ployees or otherwise made any threats to have people de-
ported. I make this finding based on the respective testimony
of the people involved and also based on my observation of
their demeanor. Accordingly, I shall recommend that the Em-
ployer’s objections be overruled and that Local 132–98–102
of the ILGWU be certified as the exclusive collective-bar-
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Even if a union was recognized at a time when it did not have
actual majority support, if that recognition was granted more than 6
months before any unfair labor practice charge is filed, then the
grant of recognition will not be challengeable because of the Act’s
6-month statute of limitations at Sec. 10(b). See Casale Industries,
311 NLRB 951 (1993).
9 Inasmuch as the Act permits employers or employees to file elec-
tion petitions to oust a union, it seems to me that it would be far
more efficient, economical and consistent with employee free choice
for elections to be the preferred method for resolving such questions
instead of having them litigated in the context of an unfair labor
practice trial. Although not specifically germane to the present case,
it would seem to me that the same principles should be applicable
in determining if an employer is required to grant initial recognition
in the absence of an election as when an employer is seeking to
withdraw recognition from an incumbent union. In NLRB v Gissel
Mfg. Corp., supra, the Board abandoned the test set out in Joy Silk
Mills, 85 NLRB 1263 (1949), which asked whether the Employer
had a good-faith doubt as to the Union’s majority status when it re-
fused to recognize a union. Instead it proposed, and the Court adopt-
gaining agent of the employees of Maramont in the unit de-
scribed by the Decision and Direction of Election.
V. DISCUSSION
As found above, I conclude that the 8(a)(3) allegation re-
garding John Sanchez has no merit and should be dismissed.
I have also concluded that the Employer’s objections are not
premised on any credible evidence and should also be dis-
missed. Some of the other allegations are more complicated.
A. The 8(a)(2) and 8(b)(1)(A) Allegations
In discussing these allegations, certain principles should be
kept in mind. First, Section 9(c) of the Act provides a mech-
anism by which employees can choose to be represented by
a labor organization. Moreover, the Act provides this same
mechanism pursuant to which employees may, at appropriate
times, change from one union to another, or vote not to rep-
resented by any labor organization. In accordance with our
traditions, the Board has established procedures which result
in secret-ballot elections as this is viewed as the best way
that employees can exercise choice, free to the extent pos-
sible, from undue outside influence. The election process is
viewed by the Courts and the Board as the best way of re-
solving what if any union, a group of employees wants to
have as their collective-bargaining representative. See NLRB
v. Gissel Packing Co., 395 U.S. 575 (1965), and Aaron
Bros., 158 NLRB 1077 (1966).
Once a union wins a Board-conducted election, it is enti-
tled to an irrebutable presumption of majority status during
the year following its certification. This means that the Em-
ployer may not withdraw recognition during that period of
time and no other union may challenge the winning union’s
status during that same period. Ray Brooks v. NLRB, 348
U.S. 96 (1954).
While recognizing that a secret-ballot election is the best
method of insuring employee choice, the Act does not pre-
clude a company from voluntarily recognizing a union if at
the time of recognition, the Union in fact represents a major-
ity of the employees in an appropriate unit. Garment Work-
ers Union (Bernhard Altmann) v. NLRB, 366 U.S. 731
(1961). In Keller Plastics, 157 NLRB 583 (1966), the Board
held that the Employer did not violate Section 8(a)(2) of the
Act by continuing to recognize a union 1 month after it had
been granted recognition and after it had lost its majority
support. The Board concluded that where the initial grant of
recognition had been based on the Union’s majority status
(albeit without a Board-conducted election), the Union was
entitled to an irrebutable presumption of majority status for
a reasonable period of time. See Royal Coach Lines, 282
NLRB 1037 (1987).8
Having obtained recognition, an incumbent union, if it en-
ters into a collective-bargaining agreement with an employer,
is entitled to an irrebutable presumption of majority status
during the life of the contract. Hajoca Corp., 291 NLRB 104
(1988). After the contract expires, the incumbent union is
then entitled to a presumption of continued majority support.
Laidlaw Waste System, 307 NLRB 1211 (1992). This means
not only that the Employer may not, without violating Sec-
tion 8(a)(5) of the Act, withdraw recognition during the life
of the contract, but it also means that no rival union may file
a petition for an election with the Board during most of the
life of the contract. (To the extent that the contract does not
exceed more than 3 years in duration.) To balance the inter-
est between labor relations stability and employee free
choice, the Board established certain ‘‘contract bar’’ rules in
Delux Metal Furniture Co., 121 NLRB 995 (1958). Without
describing all the rules, suffice it to say that where there ex-
ists a valid contract between a company and union A, an-
other union will be precluded from filing an election petition
for the same group of employees except 90 to 60 days before
the expiration of the contract (or if the contract is more than
3 years, 90 to 60 days before the 3-year period), or after the
contract expires if no new contract is reached by the Em-
ployer and the incumbent union. Similarly, an employer peti-
tion (RM) or employee petition (RD) to oust an incumbent
union can only be filed within the timeframe described
above.
Special problems are presented in situations where there
are two unions vying for the affections of one group of em-
ployees. It used to be that if an outside union filed a timely
petition for an election, the Employer was precluded from
continuing to negotiate with the incumbent union for a new
contract until and unless it the election. Shea Chemical
Corp., 121 NLRB 1027 (1958). That rule was changed in
RCA del Caribe, 262 NLRB 963 (1982), which held that
even where a rival union filed a petition and an election was
pending, the Employer was obligated to continue to bargain
with the incumbent union and to execute a contract if an
agreement was reached. (Of course such a contract would be-
come null and void if the rival union won the election and
was certified as the exclusive collective-bargaining represent-
ative.) Accordingly, the fact that a rival union filed a petition
and an election was pending would not, of itself, overcome
the incumbent union’s presumption of continued majority
status.
An incumbent union’s presumption of majority status may
be challenged by an employer after its contract has termi-
nated and if the Employer can show by a preponderance of
the evidence that the Union either has actually lost its major-
ity support or that the employer has objective factors ‘‘suffi-
cient to support a reasonable and good-faith doubt of the
union’s majority.’’ Laidlaw Waste Systems, supra. See also
NLRB v. Albany Steel, 17 F.3d (2d Cir. 1994).9
1045MARAMONT CORP.
ed a standard whereby an employer’s refusal to recognize a union,
(having majority support), would only be unlawful (in the absence
of an election or in cases where the union lost an election), where
the Employer’s conduct made the holding of a fair election improb-
able. After NLRB v. Gissel, an employer’s good-faith doubt, or lack
thereof, became irrelevant in determining if an employer was obli-
gated to recognize a union which was trying to become an incum-
bent. Via equivalence, it seems to me that the Employer’s good faith
should be equally irrelevant when determining if its withdrawal of
recognition from an incumbent union is either legal or prohibited
under the Act. As the Employer (or his employees), has the option
of filing a petition for an election if it has a reasonable basis for
questioning a union’s continuing majority support, it seems to me
that the preferred method of resolving the question of representation
should be the Board’s election processes unless it is shown that the
Union’s conduct made a fair election an unlikely possibility.
10 The General Counsel contends that the unit contained 118 em-
ployees as of February 17 whereas the Employer contends that there
were 138 employees in the unit. In view of my conclusions below,
it is not necessary to resolve this difference.
From the fact that 64 employees of the Company signed
a petition stating that they no longer wanted to be rep-
resented by Local 17-18 and the fact that this petition was
delivered to the company and Local 17-18 on February 17,
1993, the General Counsel does not simply argue that
Maramont could have withdrawn recognition based on a
good-faith doubt as to majority status, but that it was obli-
gated to do so. She therefore argues that if the evidence
shows that the Company and Local 17-18 continued to main-
tain a collective-bargaining relationship after that date, the
Company violated Section 8(a)(2) of the Act and the Union
violated Section 8(b)(1)(A) of the Act. Presumably the ra-
tionale for this argument is that both parties having obtained
knowledge that a majority of the employees no longer wish
to be represented by Local 17-18, any continued recognition
by the Employer would be with a minority union. I do not
agree with the General Counsel’s theory for a number of rea-
sons which are described below.10
First, although the Employer and Local 17-18 knew as of
February 17, 1993 that 64 employees signed a petition stat-
ing that they did not want to be represented by that Union,
they could not know if those signatures truly represented the
desires of all the persons who signed the petition. Signing a
petition is easy but is no substitute for a secret-ballot election
except where the conditions for holding an election have
been tainted by substantial unlawful conduct. Neither the
Employer nor Local 17-18 was in a position to ‘‘know’’ the
circumstances in which each employee signed his or her
name. They could not know what if any promises were
made. They could not know if an employee signed the peti-
tion because it represented his actual feelings or simply his
desire to get a solicitor out of his or her house in a tactful
manner. They could not know the extent to which employees
may have been influenced by peer pressure where solicita-
tions and signatures were obtained in group settings. Indeed
the only thing the Employer and the incumbent union could
truly know is that these people did in fact sign their names.
And this, in my opinion, is not quite the same as ‘‘knowing’’
that a majority of the unit employees did not want to be rep-
resented by Local 17-18.
The General Counsel and the Charging Party have cited
two cases to support their view of the matter. These are
Point Blank Body Armor, 312 NLRB 1097 (1993), and
S.M.S. Automotive Products, 282 NLRB 36 (1986). While on
point, they are in my opinion, distinguishable from the facts
in the present case.
In Point Blank Body Armor, the ILGWU filed an election
petition to replace another union as the bargaining represent-
ative. During the pendancy of the election, a majority of the
employees signed and delivered a petition to the Employer
and the incumbent union stating that they no longer wanted
be represented by that union. Notwithstanding that petition
and unlike the instant case, a new collective-bargaining
agreement was executed before the election was held. Based
on these facts and relying on the decision in S.M.S. Auto-
motive Products, the Board concluded that the execution of
this new contract was unlawful.
In S.M.S. Automotive, supra, the relevant facts were that
two outside unions filed petitions for an election which were
dismissed because they were filed within the ‘‘insulated pe-
riod’’ within 60 days before the expiration date of the exist-
ing contract between the Employer and the incumbent union.
Being aware of the Board contract-bar rules, one of the
unions obtained signatures from a majority of the work force
on a petition stating that they did not want to be represented
by the incumbent union. In this respect, this effort was done
in an attempt to avoid a situation where the Employer might
sign a new contract with the incumbent union which would
then bar the outside unions from filing new election petition
for another 3 years. When the company did in fact sign a
new contract an 8(a)(2) charge was filed against the Em-
ployer and an 8(b)(1)(A) and (2) charge was filed against the
incumbent union. As recognized by the judge, the facts in
that case presented a situation which, in many respects, was
sui generis and would result in a substantial injustice if the
Board’s contract-bar rules were strictly followed. The admin-
istrative law judge in a decision adopted by the Board, stat-
ed:
The rules established in Delux Metal, affirmed in City
Cab, 128 NLRB 493 (1960), provide a 60-day insulated
period during which the parties to a collective-bargain-
ing contract may negotiate and execute a new or
amended agreement without the intrusion of a rival pe-
tition. . . . There are situations in which the premise
underlying the establishment of the insulated period
does not exist. The instant case presents such a situa-
tion. Thus, the filing of the UAW and Teamsters peti-
tions in October and November 1979 are some evi-
dence of employee disaffection with their bargaining
representative. Efforts to permit the employees to voice
their true desires were initiated by the filing of those
petitions. They were, of course, barred by the Deluxe
Metal rules. Immediately, however, the employees sig-
nified the full extent of their disaffection when over
two-thirds of them signed the November 15 petition.
This act, I conclude, negates the existence of a legiti-
mate or genuine interest of SEIU in pursuing collective-
bargaining negotiations. . . . Had SEIU and the Em-
ployer given effect to the November 15 petition, it is
likely a renewal contract would not have been signed
on December 7. At that point, new representation peti-
tions could have been filed. The processing of such pe-
titions presumably would have resulted in a Board-con-
ducted election at a relatively early date. The employ-
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees would have made their selection regarding represen-
tation. All interested parties would have participated
The continuing fomenting of unrest, exemplified by the
variety of unfair labor practice charges . . . would have
ceased. The net effect of the SEIU-employer activity
was to proliferate employee unrest and industrial insta-
bility. The situation virtually cries out for a remedy.
[Id. at 43.]
It is noted that although the ALJ’s decision in S.M.S. was
issued before the Board’s decision in RCA del Caribe, Inc.,
262 NLRB 963 (1982), the Board stated that this did not af-
fect its decision in the case.
Clearly the facts of the present case are substantially dif-
ferent from those in S.M.S. and are not of a type that ‘‘cries
out for a remedy.’’ The fact is that unlike the S.M.S. case,
a petition for an election was pending in the present case and
there was little danger that it was going to be dismissed
based on the Board’s contract-bar rules. There was, unlike
the S.M.S. case, no danger that the execution of a new con-
tract with Local 17-18 would prevent the holding of an elec-
tion for another 3 years. In fact, none of the compelling rea-
sons which gave rise to the S.M.S. decision are present in the
instant case and I therefore do not believe that the facts here-
in justify a departure from the rules set out by the Board in
RCA del Caribe, supra.
This case is also distinguishable from the cited cases in
that the evidence shows that the Employer had in fact with-
drawn recognition from Local 17-18 and was no longer bar-
gaining with that Union after its contract had expired. Local
17-18 made demands to bargain on September 10, 1992, and
January 29, 1993 which were ignored by the Employer. Al-
though it is true that on May 24, 1993, a meeting was held
at which Local 17-18 merely transmitted its contract propos-
als, the evidence shows that at a follow up meeting on June
1, 1993, the Employer’s attorney told Isaacson that the Com-
pany would not negotiate with Local 17-18 unless and until
it won the election which was scheduled for June 4.
Inasmuch as the evidence shows that the Employer had al-
ready withdrawn recognition from Local 17-18, there is, in
my opinion, no basis for concluding that the Employer and
Local 17-18 had violated the Act by continuing to bargain
after receipt of the February 17, 1993 petition.
Finally, as I have already concluded that the objections to
the election have no merit, the result of that finding, if sus-
tained, will be that the ILGWU will be certified as the col-
lective-bargaining agent of the employees in question. This
will therefore obviate any need for the remedies sought in
the 8(a)(2) and 8(b)(1)(A) charges. Thus, with a certification
to the ILGWU, any unfair labor practice remedies for the al-
leged 8(a)(2) and 8(b)(1)(A) violations would become super-
fluous and unnecessary.
B. The 8(a)(5) Allegations of Local 17-18
As noted above, Local 17-18 was the incumbent union
having a collective-bargaining agreement that ran from No-
vember 20, 1989, to November 29, 1990.
Pursuant to Section 8(d) of the Act, neither party to a col-
lective-bargaining agreement may, during its term, alter,
modify, or change the terms of the contract without the con-
sent of the other. Therefore, the Employer’s unilateral breach
of this contract for the period of time prior to its expiration
date, by failing to make contributions to the Union’s Welfare
Fund and its failure to remit union dues to Local 17-18, con-
stituted violations of Section 8(a)(5) of the Act.
Further, even after the expiration date of a contract, an
employer must continue the existing terms and conditions of
employment (as represented by the terms of the collective-
bargaining agreement), until such time as the parties reach an
impasse in bargaining, reach a new agreement modifying
those terms, or until the Employer is legally discharged from
its obligation to bargain with the Union. W. A. Krueger Co.,
299 NLRB 914, 915 (1990); Roman Iron Works, 292 NLRB
1292, 1293 (1989). This is not true, however, as to the
union-security provisions of an expired contract. Robbins
Door & Sash Co., 260 NLRB 659 (1982); Tampa Sheet
Metal Co., 288 NLRB 322, 326 fn. 15 (1988). Thus, apart
from the union-security provisions of a collective-bargaining
agreement, an employer will violate Section 8(a)(5) of the
Act if it unilaterally changes the existing terms and condi-
tions of employment even after the collective-bargaining
agreement has expired. To this extent, the Employer clearly
has violated the Act by failing to make contributions to the
Local 17-18 Welfare Fund after November 20, 1992, and
until either February 17, 1993, (when the employee petition
was sent to the Company) or Local 17-18 or on June 4, 1993
(when the ILGWU won the election).
Although under the cited cases, an employer may, after the
expiration of a contract, cease giving affect to the union-se-
curity clause and cease checking off union dues from its em-
ployees wages, I think that a sound argument is made that
if the Employer voluntarily continues to comply with the
checkoff provisions of the expired contract, it may not retain
the money for itself but should be required to remit such
moneys to the Union. I would therefore conclude that an em-
ployer violates Section 8(a)(5) of the Act when it deducts
union dues from its employees wages after a contract has ex-
pired but fails to remit those dues to the Union.
Nevertheless, because Local 17-18 lost the election, it is
my opinion that it would not be appropriate, in the present
circumstances, and would constitute a windfall to that union
to order the Employer to turn the money over to them. Rath-
er, it is my opinion that this money which was withheld from
the employees, should go back to the people from whom it
was taken.
Finally, the evidence shows that Local 17-18’s demands
for bargaining, made in September 1992 and January 1993,
were met with silence. The Employer has not denied nor ex-
plained its lack of reaction to the Union’s request for bar-
gaining and in this respect there is no doubt that it violated
Section 8(a)(5) of the Act. Because Local 17-18 lost the
election, however, and the ILGWU will, as a consequence of
this decision, become the certified bargaining representative,
it would make no sense to grant a bargaining order in favor
of Local 17-18.
C. The 8(a)(1) Allegations Made by the ILGWU
These allegations all relate to a speech given by Reichman
on the day before the election. Although people gave varying
versions of what he said, I have concluded that for the most
part, the contents of his speech do not match the alleged vio-
lations of the complaint that are attributed to him. Thus, al-
though the complaint alleges that he threatened to lay off
employees and give their jobs to other people, the facts show
1047MARAMONT CORP.
that he merely said that if there was a strike by the ILGWU,
the strikers would not be paid during the time they were on
strike and that the Company could hire strike replacements
or transfer work to another plant. Also, although the com-
plaint alleges that Reichman stated that he would refuse to
bargain with the ILGWU if it won the election, the evidence
shows that he merely said that he personally would not meet
with the Union, but that his partner would do the bargaining
on behalf of the Company.
There was, however, one portion of his speech which I do
think constitutes an unlawful threat of reprisal. This was the
assertion that employees could lose their jobs as a result of
the Union’s attempt to have the city of New York cancel a
contract with the Company.
There is not always a bright line between a threat of re-
prisal (such as a threat to close one’s plant), and a lawful
prediction of economic consequences. In NLRB v. Gissel
Packing Co., 395 U.S. 575, 618–619 (1969), the Court stat-
ed:
Thus, an employer is free to communicate to his em-
ployees any of his general views about unionism or any
of his specific views about a particular union, so long
as the communications do not contain a ‘‘threat of re-
prisal or force or promise of benefits.’’ He may even
make a prediction as to the precise effects he believes
unionization will have on his company. In such a case,
however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer’s be-
lief as to demonstrably probable consequences beyond
his control or to convey a management decision already
arrived at to close the plant in case of unionization. See
Textile Workers v. Darlington Mfg. Co., 380 U.S. 263,
274, fn. 20 (1965). If there is any implication that an
employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities
and known only to him, the statement is no longer a
reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and co-
ercion, and as such without the protection of the First
Amendment. We therefore agree with the court below
that ‘‘conveyance of the employer’s belief, even though
sincere, that unionization will or may result in the clos-
ing of the plant is not a statement of fact unless, which
is most improbable, the eventuality of closing is capa-
ble of proof.’’ [Citation omitted.]
In the present case, the employees were told that because
the ILGWU had asked the city of New York to cancel its
contracts with the company, that such action could result in
the Employer losing business and employees losing their
jobs. The problem with this statement is that it was not a
statement based on objective fact but rather one based on a
false assertion of fact. While it is true that the Union did ask
the city to look into alleged labor violations of the company,
it did not ask the city to cancel its contract with Maramont.
It therefore is my opinion that the Company used this false
assertion in an attempt to frighten its employees into believ-
ing that the ILGWU would be responsible for their loss of
jobs. In my opinion, this statement went beyond a lawful
prediction of economic consequences based on objective fact.
On the contrary, I conclude that this statement was an unlaw-
ful threat of reprisal, which was violative of Section 8(a)(1)
of the Act. See Mademoiselle Sportswear, 297 NLRB 272 fn.
2 (1989).
CONCLUSIONS OF LAW
1. By refusing to meet and bargain with United Production
Workers Union Local 17-18, the Respondent, The Maramont
Corp., has violated Section 8(a)(1) and (5) of the Act.
2. By failing to make contributions pursuant to its contract
with Local 17-18 both before and after it expired, the Em-
ployer has violated Section 8(a)(1) and (5) of the Act.
3. By failing to remit union dues to Local 17-18 checked
off from its employees wages, the Employer has violated
Section 8(a)(1) and (5) of the Act.
4. By implicitly threatening employees with the loss of
their jobs if they voted for Local 132-98-102 Plastic, Metal,
Trucking, Warehouse and Allied Workers’ Union, Inter-
national Ladies Garment Workers Union, AFL–CIO, the Em-
ployer has violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Except to the extent specifically found herein, no other
violations have been committed by any of the parties to this
case.
7. The objections to the election are without merit and
should be dismissed.
REMEDY
Having found that the Employer has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Although I have concluded that the Employer has failed to
meet and bargain with Local 17-18, I shall not order the
Company to bargain with that Union inasmuch as the
ILGWU won the election and I have recommended that the
objections to that election be dismissed.
For the same reason, I shall not order the Company to
make any dues payments to Local 17-18. Rather, I rec-
ommend that the Employer reimburse all employees for any
dues which it has deducted from their wages and not remit-
ted to Local 17-18 since July 1992.
I shall also recommend that the Employer make any con-
tributions that it was required to make under the collective-
bargaining agreement with Local 17-18 until June 4, 1993.
Moreover, although, there was evidence that the Welfare
Fund continued to cover employees during the time that the
Employer ceased payments, I shall recommend that the Em-
ployer reimburse any employee (or their family), who having
suffered an illness or injury, incurred expenses to the extent
that such expenses have not been reimbursed by the Welfare
Fund but would nevertheless have been covered by the Wel-
fare Plan.
In the case of payments to the Local 17-18 Welfare Fund,
it is recommended that such payments be made with interest
to be computed in accordance with the practice set forth in
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). In the case of all other reimbursements it is rec-
ommended that they be made with interest to be computed
in accordance with Florida Steel Corp., 231 NLRB 651
(1977).
[Recommended Order omitted from publication.]