Orion Corp.

National Labor Relations Board - Board Decisions

May 16, 1974

210 N.L.R.B. 633 (N.L.R.B. 1974)

ORION CORPORATION
Orion Corporation and District No. 10, International
Association of Machinists and Aerospace Workers,
AFL-CIO . Case 30-CA-2157
May 16, 1974
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On June 19, 1973, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed limited exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order as modified
herein.
The record shows, and the Administrative Law
Judge found, that the Respondent refused to bargain
with the Charging Party in violation of Section
8(a)(5) of the Act. Briefly, the Union was certified on
April 1, 1971, as the exclusive bargaining representa-
tive for the Respondent's production and mainte-
nance employees. During the next year the parties
held over 25 negotiating sessions, the last of which
was held on May 19, 1972, when a Federal mediator
was present . By letter dated August 11, 1972, the
Respondent advised the Union that it was withdraw-
ing recognition on the ground that it believed the
Union n- longer represented a majority of employ-
ees. The Administrative Law Judge found, and we
agree for the reasons set forth in his Decision, that
the Respondent had no reasonable basis for believing
that a majority of employees in the unit no longer
wished to be represented by the Union.
Under established Board precedent,' a certified
union , upon the expiration of the first year following
its certification enjoys a rebuttable presumption that
its majority representative status continues. An
employer may lawfully refuse to bargain with a
union if it affirmatively establishes that, at the time
of the refusal, the union no longer commanded a
majority or that the employer's refusal was predicat-
ed on a reasonably based doubt as to the continuing
i Celanese Corporatien of America, 95 NLRB 664
2 Member Kennedy states in his dissent , "The Union' s admission that it
had only 16 or 17 members in a bargaining unit of 44 employees is
633
majority. With respect to the former there must be
affirmative proof that the majority of unit employees
no longer wanted the union to represent them. With
regard to the latter, the employer need not prove that
the union lost its majority but need only establish
that it had a reasonable basis for doubting the
union's majority at the time it refused to bargain.
The Board has recently reaffirmed these principles in
Automated Business Systems, 205 NLRB No. 35.
In applying the above principles to the instant case,
the Administrative Law Judge found that the basis
upon which the Respondent formed its doubt as to
the Union's majority representative status was as a
whole not objective, but rather subjective, a matter of
opinion and a frame of mind. We agree. Prior to its
withdrawal of recognition, the Respondent checked a
list of unit employees which Respondent claims
revealed that 24 to 26 of the approximately 44 unit
employees no longer supported the Union. As more
fully set out in the Administrative Law Judge's
Decision, the record shows that although there is
objective evidence with respect to a few of these
employees, there was no reliable evidence with
respect to the majority of these employees. The
Respondent's information about this latter group of
employees consisted of such speculations as the
employee was happy, he was a loner, or he was
acquainted with business problems.
The Respondent, in its exceptions, contends that
the Union in fact no longer represented a majority of
unit employees on August 11, 1972, when recognition
was withdrawn. To support its contention, Respon-
dent relies on evidence that 10 employees resigned
from the Union in 1972 before August 11 and that
the Union admitted at the hearing that it had only 16
or 17 members on that date. This evidence is
insufficient to prove that the Union failed to
represent a majority. "For, a showing as to employee
membership in, or actual financial support of, an
incumbent union is not the equivalent of establishing
the number of employees who continue to desire
representation by that union. There is no necessary
correlation between membership and the number of
union supporters since no one could know how many
employees who favor union bargaining do not
become or remain members thereof." 2 The Respon-
dent has offered no other evidence bearing on this
issue.
For the above reasons, we find that the Respon-
dent has not shown (1) that the refusal to bargain
was predicated oil a reasonably based doubt as to the
continuing majority status of the Union; or (2) that
the Union, at the time Respondent withdrew recogni-
dispositive of this case " We do not agree as it is our understanding that this
is contrary to Board law. See Terre!! Machine Company, 173 NLRB 1480,
1481, and United Aircraft Corporation, 168 NLRB 480.
210 NLRB No. 71
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion , no longer represented a majority of unit
employees. Therefore, we agree with the Administra-
tive Law Judge that Respondent violated Section
8(a)(5) of the Act by withdrawing recognition from
the Union on August 11, 1972.
In his dissent Member Kennedy, relying in part on
the evidence from the Union's records that 10
employees had resigned from the Union prior to
August 11, 1972, and that there were only 16 or 17
union members on that date, concludes that the
Respondent's doubt was based on objective consid-
erations. We do not agree. The Respondent first
learned of this evidence at the hearing-long after it
withdrew recognition from the Union.3 Assuming
such evidence were relevant to a showing of a
reasonable basis for doubt, it cannot have a bearing
here, since facts regarding union support ascertained
after the refusal to bargain are not controlling, or
even guiding, in determining whether the Employer
had a reasonable basis for doubt at the time it
refused to bargain. Rather, what is controlling is
whether the Respondent had a reasonable basis for
doubt at the time it refused to bargain. We have
found that it did not.
We recently stated in Automated Business Systems,
supra, "Member Kennedy, while he acknowledges
that there is a distinction between establishing a basis
for reasonable doubt and proving loss of majority,
nevertheless equates the two in legal effect ...."
Member Kennedy's rationale here would equate
evidence relating to loss of majority with evidence
proving an objective basis for doubt. The timing is
off. His rationale would permit an employer at its
whim to withdraw recognition in the hope that
subsequent litigation would reveal what would be
grounds for reasonable doubt had the employer
based its withdrawal on that evidence. This is
contrary to the well-established principle that if an
employer does not establish that it had a reasonable
doubt when it ceased bargaining, it can defend
against an 8(a)(5) allegation only by showing actual
loss of majority as of the date of withdrawal of
recognition.4
While we agree with the Administrative Law Judge
that Respondent violated the Act, we have difficul-
ties with respect to certain aspects of the Administra-
tive Law Judge's recommended remedy and to
certain remedies sought by the General Counsel.
The Administrative Law Judge, in addition to the
usual cease-and-desist order and notice-posting
requirements, recommended a broad order requiring
Respondent to cease and desist from in any other
manner interfering with employee rights. A broad
order is clearly warranted here. The Respondent's
violation goes to the very heart of the Act. The
Administrative Law Judge, citing Tiidee Products,
Inc., 194 NLRB 1234, also recommended that the
Respondent be ordered to reimburse the Charging
Party for its litigation costs in this case and for
expenses incurred in negotiating with the Respon-
dent. While we agree that Respondent acted in bad
faith and failed to assert a meritorious defense for its
actions, we do not agree that it would effectuate the
policies of the Act to require reimbursement of such
costs in the circumstances herein. Normally, litiga-
tion and bargaining expenses are not recoverable by
the Charging Party. In our opinion, the Respondent's
conduct, although serious, is not so aggravated and
pervasive, or its defense so frivolous, as to warrant
this special additional remedy. The Respondent's
conduct is not part of a pattern of repeated unlawful
actions. Nor is this a summary judgment case in
which the Respondent continues to assert frivolous
contentions, not to preserve a defense , but to further
delay compliance with an earlier decision.5 As we
recently stated in Heck's Inc., 191 NLRB 886, the
public interest in allowing a charging party to
recover costs of litigation does not override, except in
extraordinary circumstances, the principle that litiga-
tion expenses are normally not recoverable. In the
present case, we find no extraordinary circumstances
warranting such a remedy and deem it inappropriate
to depart from our existing policy with respect to
remedial orders in cases involving violations of
Section 8(a)(5). Accordingly, we shall delete the
recommended reimbursement order.
In his limited exceptions, the General Counsel
requests that the Board order the Respondent to pay
costs under Rule 38, Federal Rules of Civil Proce-
dure, in the event it fails to comply with the Board's
Order. For reasons set out above, we do z & feel that
the Respondent's conduct is so aggravated and its
defense so frivolous that we should now direct the
General Counsel to seek relief under Rule 38. The
General Counsel also requests, and the Administra-
tive Law Judge recommended, that we order the
certification year to be deemed as commencing anew
when the Respondent begins to bargain in good
faith. We have found, however, that the Respondent
has unlawfully refused to bargain commencing on
August 11, 1972, more than a year after certification
issued. (The Union was certified on April 1, 1971.)
Furthermore, since the charge herein was filed on
November 14, 1972, we are precluded by Section
3 When it withdrew recognition from the Union , the Respondent WOAF-TV, AM-FM, 201 NLRB 801, Member Penello later made it clear
apparently was aware that some employees had resigned from the Union that he approved the result therein on the basis of a different rationale. See
but was not aware of the evidence in the subpenaed records. fn 19, Automated Business systems, supra
Although he joined Member Kennedy in Taft Broadcasting, 5 Cf. John Singer, Inc, 197 NLRB 88.
ORION CORPORATION 635
10(b) of the Act from finding a violation of the Act
occurring before May 14, 1972. Therefore, the
Administrative Law Judge's finding that Respondent
acted in bad faith from the date of certifications
cannot be construed as a finding of a separate
violation of the Act. As we are precluded from
finding that Respondent violated the Act during the
certification year, we cannot remedy Respondent's
bad faith during that year. Extension of the certifica-
tion year is therefore not warranted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Orion Corporation, Grafton, Wisconsin, its
officers, agents, successors, and assigns, shall take
action set forth in said recommended Order, as so
modified:
1. Delete paragraph 2(b) of the recommended
Order and renumber the remaining paragraphs
accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER KENNEDY, dissenting:
Respondent's withdrawal of recognition on August
11, 1972, occurred under circumstances which clearly
establish an objective basis for Respondent's belief
that the Union had lost its majority status. Indeed,
the Union admitted that when recognition was
withdrawn there were only 16 or 17 members in a
bargaining unit of 44 employees. Consequently, I
find that Respondent did not violate Section 8(a)(5)
or (1) of the Act when it refused to continue to
recognize the Union as the bargaining representative
of its employees. The decision of the majority here is
contrary to numerous Board and court cases which
recognize that "an employer may lawfully withdraw
recognition from an incumbent union because of an
asserted doubt of the union's continued majority if
its assertion of doubt is raised in a context free of
unfair labor practices and is supported by a showing
of objective considerations providing reasonable
grounds for a belief that a majority of the employees
no longer desire representation." See Southern
Wipers, Inc., 192 NLRB 816, citing Viking Lithogra-
phers, Inc., 184 NLRB 139.
The facts in this case are largely undisputed. The
Union was certified as the bargaining representative
of Respondent's employees on April 1, 1971, follow-
ing a Board-conducted election in which 20 votes
were cast for the Union and 13 against. A series of 25
bargaining sessions were held over a period of 15
months . It is undisputed that 24 of these 25 meetings
occurred outside the 10(b) period.7 The only meeting
within the 10(b) period was held shortly before 5 p.m.
on May 19, 1972, when the Union and Respondent
met separately with a Federal mediator. The parties
did not meet face to face and nothing occurred
during that meeting which will support a finding that
Respondent's conduct violated the Act in any way
and we are precluded by the statute from finding any
violation on the basis of anything that occurred at
the other 24 meetings. It is undisputed that, through-
out the 25 bargaining sessions , the parties never
discussed wages. The Union admits that it had not
made any wage proposal during the negotiations.
It is not suprising that support for the Union
declined among the unit employees during the long
series of unproductive negotiations which did not
include discussion of wages. Union Committee
Chairman William R. Riedel, Jr., testified that
membership started to decline after the first of the
year and the members became "disgusted" because
of the lack of progress in negotiations. The Union
refrained from reporting to the employees as to what
transpired at the bargaining sessions because they
did not want to stir them up. Another factor
prompting the employees to become disenchanted
with the Union was a dues increase which was
effective in January 1972.
The subepnaed records of the Union reveal that 10
employees actually resigned from the Union between
February and August 1972 and the dues of others
lapsed. The Union made no secret of the defections
by the employees. Indeed, the Union resorted to the
tactic of trying to shame the employees into staying
in the Union. Committee Chairman Riedel testified
that he solicited defecting employees to sign a form
stating, "I refuse to accept any benefits that will be
won by Union negotiations . . . and I hereby
authorize and direct the Company to withhold the
amount of the Union-won benefits from my pay-
check and to donate it to charity." Riedel testified
that Dennis Higgins who was also a member of the
bargaining committee also solicited employees to
sign the shame form. It escapes me how the members
of this Board can believe that the solicitation of
employees to sign this form would not come to the
attention of management of the Respondent.
The majority is incorrect in its observation that
6 We do not agree with our dissenting colleague that permitting litigation majority by evidencing that the loss was occasioned by the Respondent's
of the conduct of bargaining was prejudicial error . Such evidence is relevant bad faith
as background to show the context in which Respondent withdrew r The initial charge herein was filed November 14, 1972.
recognition I t would also be relevant to rebut a showing , if any, of loss of
636 DECISIONS OF NATIONAL
Respondent first learned of the resignations at the
hearing in this case. The plain fact is that General
Counsel affirmatively developed during his case-in-
chief that Respondent's supervisors were well aware
of resignations and defections in the winter and
spring preceding its withdrawal of recognition in
August. Having elicited abundant testimony without
objection, the General Counsel cannot now repudi-
ate the very testimony which he offered. The
testimony which General Counsel obtained from
Joseph Moravchik, Respondent's manager of manu-
facturing, as to his conversations with McBride,
Mathews, Melk, Mentzel, Fromm, D. Harmon, W.
Harmon, Bode, Kiehnau, Zirtzlaff, Pennington, and
Labenstein cannot now be brushed aside as hearsay.
Many of the conversations were between Moravchik
and employees and therefore were not hearsay.
Furthermore, the courts have long recognized that
even hearsay evidence which is received without
objection has probative value.8
Similarly, the testimony which General Counsel
elicited without objection from owner and General
Manager Charles P. LeBahn cannot be discounted,
LeBahn testified supervisors had reported to him that
10 employees had dropped out of the Union before
July 24, 1972.9 It is significant, I think, that the
subpenaed records of the Union which were later
produced at the hearing verified that 10 employees
had in fact resigned from the Union before Respon-
dent withdrew recognition.
We have not said in earlier cases that a respondent
must have proof, admissible in a court of law, that a
union has lost the support of a majority of employ-
ees. As a matter of fact we have said quite the
contrary. In Taft Broadcasting, 210 NLRB No. 113,
we said:
While it is clear . . . that each of the factors
relied on by the Respondent standing alone may
have weaknesses as a basis for supporting a good-
faith doubt of the Union's majority status, we
note that the Respondent does not rely on any
one reason alone, but rather on all as a whole
.... [and] has produced sufficient evidence
s See N L R B v. International Union of Operating Engineers, Local Union
No. 12, 413 F.2d 705 (C.A. 9), enfg 165 NLRB 358 , where the court stated:
"There was no objection to this hearsay testimony . 'Hearsay, even at
common law, if unobjected to when offered, can be of probative value, and
certainly occupies a similar position in an administrative proceeding such as
this.'
Th
"
s e 10 employees named by LeBahn were Stanley Mathews, Kendall
McBride, Ruth Newberry, Phillip Uselding, Marvin Hempleman, Mildred
Bode , Donald Harmon, Edwin Hesprich, Arthur Kiehnau, and Ernst
Fromm
iu My colleagues disagree in in 2 of the majority opinion with my
conclusion that the Union's admission that it had only 16 or 17 members in
a bargaining unit of 44 employees is dispositive of this case. They cite
United Aircraft Corporation, 168 NLRB 480, which was denied enforcement
by the D C Circuit Court of Appeals 416 F 2d 809 (1969), and Terrell
Machine Company, 173 NLRB 1480. I will not follow the Terre!! case since it
LABOR RELATIONS BOARD
when considered in its entirety to cast serious
doubt on the Union' s continued bargaining role
and to support Respondent' s decision to reassess
the Union's majority status... .
... Since General Counsel failed to come
forward with evidence that on the refusal-to-
bargain date the Union in fact did represent a
majority of employees in the unit in question, the
allegations in the complaint are found without'
merit.
The Union's admission that it had only 16 or 17
members in a bargaining unit of 44 employees is
dispositive of this case.i° In my view, resignation
from a union cancellation of a checkoff authoriza-
tion is totally inconsistent with the notion that the
employee wants a union to continue to act as his
bargaining agent . At the very least, such resignations
or cancellations of checkoff raise doubts of contin-
ued majority. This is particularly true since the
employer is unable to question employees and
ascertain their purpose in resigning or canceling their
checkoff.
It is axiomatic that there is no duty to bargain with
a union which does not command support from a
majority of employees. See N. L. R. B. v. Nu-Southern
Dyeing & Finishing, Inc., 444 F.2d 11, 15 (C.A. 4,
1971), where the court stated:
The law is settled that during the first year
following certification a union is entitled to an
irrebutable presumption of majority support.
After this certification year, however, the pre-
sumption may be overcome by proof that the
union no longer enjoys such support or that the
company reasonably has a good faith doubt of
such support. [Emphasis supplied.]
My colleagues ignore the fundamental principle that
an employer may not deal with a minority union.
The Employer's mistaken good-faith belief that a
union represents a majority is no defense. Interna-
tional Ladies' Garment Workers' Union, AFL-CIO, v.
is inconsistent with the Board 's decision in Convarr Division of General
Dynamics Corporation, 169 NLRB 131 The Board dismissed the complaint
and stated.
[T]he sole evidence readily available to the Respondent as a reliable
measure of union support was that provided by the employees'
checkoff authorizations.
The Board held that a 10-percent drop in checkoff authorizations was
significant enough that the company could rely on the decrease as an
objective factor showing that the union no longer held majority support.
Similarly, in Hayworth Roll and Panel Company, 130 NLRB 604, the
Board dismissed the 8 (a)(5) complaint because the union had checkoff cards
from less than a majority of the employees In Otto Klein, 172 NLRB 1922,
the union's admission of lack of majority with only seven dues-paying
members was a decisive factor in the Board 's dismissal of the 8(ax5)
complaint
ORION CORPORATION 637
N.LR.B., 366 U.S. 731 (1961). We have said that an
employer may not continue to deal with an incum-
bent union if he has reasonable cause to believe that
the union does not command majority support. In
Anderson Pharmacy, 187 NLRB 301, the Board found
that the employers violated Section 8(a)(1) and (2) by
executing a new contract with an incumbent union
when there was ample evidence that the employers
were aware that the status of the Guild as the
bargaining agent of the employees was open to
serious question. The same reasoning must apply in
the instant case.
On this record there can be no question that
Respondent's doubt was based on objective consid-
erations. The General Counsel made no effort to
prove that the Union in fact represented a majority
of Respondent's employees in August 1972. Under
these circumstances, the complaint should be dis-
missed for failure of proof of the essential allegation
of a refusal-to-bargain complaint.
I reject the suggestion in the majority opinion that
my "rationale would permit an employer at its whim
to withdraw recognition." It is totally inaccurate to
suggest or imply that Respondent's withdrawal of
recognition was based on a mere whim. In this case, I
adhere to precisely the same rationale I expressed in
Southern Wipers, Inc., supra, and Taft Broadcasting,
201 NLRB 801. I think it noteworthy that Member
Jenkins joined me in my rationale in the Southern
Wipers case and Member Penello joined me in my
rationale in the Taft Broadcasting case. In the last
paragraph of the Taft Broadcasting case we said: "In
sum, we conclude that, at the time it withdrew
recognition, the Respondent had sufficient objective
grounds for believing that a majority of the employ-
ees no longer desired union representation. Since the
General Counsel failed to come forward with
evidence that on the refusal-to-bargain date the
Union in fact did represent a majority of employees
in the unit in question, the allegations in the
complaint are found to be without merit." i I
The result I reach in this case obviates extensive
consideration by me of Respondent's various excep-
ii The District of Columbia Court of Appeals stated the applicable rules
in Lodges 1746 and 743, International Association of Machinists and
Aerospace Workers, AFL-CIO [Untied Aircraft Corporation) v N L.R B,
416 F.2d 809, 811- 812
The legal principles relating to withdrawal of recognition of a
bargaining representative are well settled . Absent special circum-
stances , the union enjoys an irrebuttable presumption of majority
status for one year after certification Thereafter, the presumption
continues but becomes rebuttable upon a showing of "sufficient
evidence to cast serious doubt on the union 's continued majority
status." At that point, the burden shifts to the General Counsel to prove
that, on the critical date, the union in fact represented a majority of the
employees [Emphasis supplied.]
The Sixth Circuit Court of Appeals and the Eighth Circuit Court of Appeals
tions which allege that the decision of the Adminis-
trative Law Judge demonstrates "manifest bias of the
Administrative Law Judge." In adopting his conclu-
sion, however, the majority cannot ignore these
exceptions in view of his abrasive rhetoric. I disavow
the Administrative Law Judge's gratuitous comment
that Respondent's counsel "was party to an overall
and persistent plan by the Respondent to frustrate
the expressed desires of its employees to bargain
collectively through their union `from the day one.' "
I can find nothing in this record which warrants such
harsh criticism.
The charge in this case was filed more than 6
months after the expiration of the certification year.
The complaint does not and could not put in issue
Respondent's conduct at the bargaining table during
the certification year. There are no independent
8(a)(1) allegations in the complaint nor are there any
allegations of 8(a)(3) violations of the Act. There is
not the slightest suggestion in this record that the
resignations and defections of the employees from
the Union were the result of 8(a)(1) conduct. Under
these circumstances, it was improper, in my opinion,
for the Administrative Law Judge to charge that
Respondent's bargaining was an "outrageous flout-
ing" of the law "from the day one." If the Union
believed that Respondent had engaged in "sham
bargaining sessions," as found by the Administrative
Law Judge, it was incumbent upon the Union to file
a timely 8(a)(5) charge. I think it highly inappropri-
ate for the Administrative Law Judge to have
criticized Respondent's bargaining when the out-
standing complaint raised no issue with respect
thereto.
The ultimate conclusion of the Administrative Law
Judge that Respondent's withdrawal of recognition
violated Section 8(a)(5) of the Act within the 10(b)
period is predicated upon events outside the 10(b)
period which the Administrative Law Judge consid-
ered to be unlawful, but which Section 10(b)
precludes from being found to be unlawful. Thus, the
pre-10(b) conduct has become the sine qua non for
the finding of an 8(a)(5) violation within the 10(b)
agree that the General Counsel must prove majority if the employer offers
evidence which casts serious doubt that the union no longer commands a
majority See N L.R.B. v Dayton Motels, Inc, 474 F 2d 328, 331 (C A 6,
1973), NLRB v Little Rock Downtowner, Inc, 414 F 2d 1084, 1090-91
(C A 8, 1969)
The courts thus recognize the reality stated by the Board in Stoner Rubbc,
Company, Inc, 123 NLRB 1440, that since proof of majority is peculiarly
within the special competence of the union , ordinarily an employer can
hardly prove that the union does not represent a majority since he does not
have access to the union's membership lists, its authorization cards, or other
proof of union adherence In denying enforcement of Laystrom Manufactur-
ing Co, 151 NLRB 1482, 359 F.2d 799 (1966), the Seventh Circuit Court of
Appeals quoted with approval the Board's observation in the Stoner case
that the "employer can hardly prove that a union no longer represents a
majority."
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period. The Supreme Court in the Bryan Manufactur-
ing Company case 12 plainly drew a distinction
between what is commonly called "background"
evidence and the use of evidence outside the 10(b)
period to establish a violation within the 10(b)
period. The Court stated:
The second situation is that where conduct
occurring within the limitations period can be
charged to be an unfair labor practice only
through reliance on an earlier unfair labor
practice. There the use of the earlier unfair labor
practice is not merely "evidentiary," since it does
not simply lay bare a putative current unfair labor
practice. Rather, it serves to cloak with illegality
that which was otherwise lawful. And where a
complaint based upon that earlier event is time-
barred, to permit the event itself to be so used in
effect results in reviving a legally defunct unfair
labor practice.
I do not understand how my colleagues can affirm
the Administrative Law Judge's reliance upon pre-
10(b) conduct. They recently dismissed a CB
complaint in Paper Products and Miscellaneous
Chauffeurs, Warehousemen and Helpers, Local 27,
IBT (Combined Container Industries), 209 NLRB No.
140, with the explanation that they could not rely on
evidence of an earlier time-barred unfair labor
practice. They stated:
This is precisely what Bryan forbids the Board to
do; i.e., find that an unfair labor practice was
committed outside the 10(b) period to establish
that another unfair labor practice was committed
within the 10(b) period.4 If this is the only way a
violation of the Act within Section 10(b) can be
established, the complaint must fail.
In the instant case the alleged coercion of the
employees by supervisors to sign authorization
cards would be an unfair labor practice if
committed within the 10(b) period. And, unless
this unfair labor practice is established, which it
cannot be, the unfair labor practice of executing
the contract cannot be established. Nor does it
help to say, as the Administrative Law Judge
does, that he is merely considering the circum-
stances under which the cards were signed to
"shed light" on the validity of the cards in order
to establish the unfair labor practice of executing
the contract. This is not a case of "shedding
light." This is clearly a case of finding a precedent
unfair labor practice as the predicate for an unfair
labor practice within the 10(b) period.
4 Bryan Manufacturing Co, supra at 416, 417.
In the instant case, the propriety of Respondent's
conduct at the bargaining table was not challenged in
the complaint and it cannot be an issue here by virtue
of Section 10(b) of the Act.
For the foregoing reasons, I dissent from the
majority's decision. I would dismiss the complaint in
its entirety.
12 Local Lodge No. 1424, International Association of Machinists [Bryan
Mfg. Co] N LR.B., 362 U S 411,416-417.
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 having found,
after a trial , that we violated the Federal law by
refusing to bargain in good faith with District No. 10,
International Association of Machinists and Aeros-
pace Workers , AFL-CIO:
WE WILL NOT refuse to recognize and bargain
collectively with District No. 10, International
Association of Machinists and Aerospace Work-
ers, AFL-CIO, as the exclusive representative of
the employees in the unit described below. The
bargaining unit is:
All production and maintenance employees
in our Grafton, Wisconsin , plant, excluding
office clerical employees , professional em-
ployees , guards, and supervisors within the
meaning of the Act.
WE WILL NOT in any other manner interfere
with , restrain, or coerce employees in the exercise
of their right to self-organization, to join or assist
District No . 10, International Association of
Machinists and Aerospace Workers, AFL-CIO,
or any other labor organization , and to engage in
other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection , or to refrain from any or all such
activities.
WE WILL bargain collectively , upon request,
with the above-named Union as the exclusive
representative of the employees in the above-
described unit with respect to rates of pay, wages,
hours of employment , and other conditions of
employment , and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
ORION CORPORATION
(Employer)
Dated By
(Representative) (Title)
11
ORION CORPORATION 639
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held on February 22 and 23, and on
April 30 and May 1, 1973, at Milwaukee, Wisconsin, on
complaint of the General Counsel against Orion Corpora-
tion, herein called the Respondent or the Company. The
charge was filed on November 14, 1972, and the complaint
issued on January 12, 1973. The sole issue of the case is
whether the Respondent unlawfully refused to bargain, in
violation of Section 8(a)(5) of the Act, with District No. 10,
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union. Briefs were
filed by the General Counsel and the Respondent.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Orion Corporation, a Delaware corporation, is engaged
in the manufacture of bearings at its plant located in
Grafton, Wisconsin. During the past calendar year, a
representative period, it sold and shipped goods valued in
excess of $50,000 from this location directly to points
outside the State of Wisconsin. I find that the Respondent
is an employer within the meaning of Section 2(2) of the
Act and that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that District No. 10, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
This is literally a refusal-to-bargain case . Following a
Board-conducted election the Union was certified in April
1971 as exclusive bargaining agent for the Respondent's
then approximately 33 production and maintenance
employees. There followed, between about May 1971 and
April 1972, more than 25 negotiation meetings between the
parties. They last met on May 19, 1972, with a Federal
conciliator in attendance; all that happened there is that
the issues outstanding were somewhat identified. By letter
dated August 11, 1972, the Respondent advised the Union
it was withdrawing recognition on the ground that it
believed the Union no longer represented the majority of
the employees. These facts-certification in April 1971, 25
bargaining sessions, withdrawal of recognition-are clear
and undisputed. The complaint alleges that the refusal to
bargain on that day and, as the Company also concedes,
thereafter, was illegal. The defense rests entirely upon an
assertion that the Respondent had a reasonable and good-
faith doubt about the Union's majority status. This
question, as plainly stated here, is all that this case is
about.'
There are other allegations spelled out in the complaint,
each a subordinate or collateral aspect of the general
charge that the Respondent violated Section 8(a)(5) of the
Act by its refusal "to bargain in good faith with the
Union." These deal with tangential matters, some revealing
and some cumulative and perhaps confusing. They will be
dealt with at the end of this decision.
On the real issue, the law is simple and clear. During the
12 months following Board certification of the union as the
exclusive bargaining agent, there is a virtually conclusive
presumption of continuing majority status. Ray Brooks v.
N. L. R. B., 348 U.S. 96. The presumption continues thereaf-
ter, but it then becomes rebuttable, depending upon the
circumstances Terrell Machine Company, 173 NLRB 1480,
enfd. 427 F.2d 1088 (C.A. 4, 1970). And when, following
the initial 12-month period, an employer choses to
withdraw recognition because it claims the union lost
majority thereafter, the burden is upon the employer to
establish the fact. Laystrom Manufacturing Co., 151 NLRB'
1482, reversed on other grounds 359 F.2d 799 (C.A. 7,
1966). This rule of law follows of necessity from the fact
there is a presumption in favor of the refusal to bargain
complaint in such cases and it has been so held. Celanese
Corp. of America, 95 NLRB 664. And whenever an
employer does in such a situation assert it had a reasonable
or good-faith doubt of loss of majority, it must point to
objective criteria to prove its defense. United States Gypsum
Company, 157 NLRB 652. Mere statements of opinion by
management agents, testimony reflecting no more than the
mental operation of company witnesses , will not suffice.
Objective means the opposite of subjective; it means
something said or done by the employees themselves, upon
which an impartial observer would be justified in making
an inference of some kind. And finally, as it has also been
held, evidence of dissatisfaction with a collective-bargain-
ing agent duly selected must properly come from the
employees themselves, if it is to carry any weight, and not
from the employer on their behalf. N.L.R.B. v. Sanson
Hosiery Mills, Inc., 195 F.2d 350 (C.A. 5).
i There is no issue as to the appropriate unit The complaint alleges, the clerical employees, professional employees, guards and supervisors as
answer does not deny, and I find that all production and maintenance defined in the Act, constitute a unit appropriate for the purposes of
employees at the Respondent 's Grafton , Wisconsin , plant, excluding office collective bargaining within the meaning of Section 9(b) of the Act
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Evidence Said to Support a Reasonable Doubt of
Majority
Charles LaBahn, president and owner of the Company,
said unequivocally at the hearing it was he who made the
decision to discontinue bargaining with the Umon. The
other two participants in the critical events were James
Mallien, the company lawyer who did all the bargaining
personally, and Joseph Moravchik, the operations manager
who part of the time assisted Mallien in the negotiating
sessions . LaBahn testified that none of the employees
spoke to him at all about their pro- or anti-union feelings.
He made clear the only information that came to him on
the entire subject he received from Moravchik, who may
also have heard from other supervisors. Moravchik is the
man whose day-to-day supervisory duties bring him in
contact with the employees; he sees them often and is
friends with a good number of them. What objective
criteria or impersonal proof of an intent by employees no
longer to be represented by the Union there may have
been, came to Moravchik, and only to him. His testimony
is therefore the ultimate story on which the affirmative
defense to the complaint stands or falls.
The thinking of management, and therefore of necessity
a look at what basis it had for what it decided to do, is very
clearly revealed by a document produced by Lawyer
Mallien at the hearing, and by his testimony relating to it.
On August 11, 1972, a letter withdrawing recognition was
prepared immediately following a conference between the
lawyer and the president of the company. Each had a list
of employee names in his hands, and with LeBahn doing
the talking about who he believed should be counted this
way or that, they checked off what they thought was the
Union's status at the moment. Mallien had the Excelsior
list of 1971, with 33 names-the employee complement at
the time of the election. LaBahn apparently had a longer
and more current list, for about 14 employees had been
hired after the balloting. In the Board election, held in
March 1971, the vote had been 20 in favor and 13 against
the Union. There had also been a Wisconsin's Employ-
ment Relations Commission agency shop referendum
election among the employees on August 31, 1971, where
the vote had been 23 yes to the Union, and 11 no.
Mallien and LaBahn went about it mathematically that
day. On his list Mallien wrote "14 hired since Excelsior
List, 2 retired, 1 (Dennis) is super." Dennis is Dennis
Higgins, an employee who had been on the Union's
bargaining committee at most of the bargaining sessions
and who was promoted to supervisor on August 3, 1972.
After noting that 23 had voted "yes" in the Wisconsin
referendum, Mallien then subtracted 3 from that number
and reduced the prounion group to 20. He then wrote
down that there were 44 "employees now." As a witness he
said this alone showed a lack of majority. His notes also
contained the statement "however-at least five have
resigned from union."
Deferring for the moment appraisal of Moravchik's
testimony about the factual basis of his thinking as to who
favored the Union and who did not, if the case in defense
be appraised in terms of Mallien's written calculation and
his testimony, it would have to be found that the
Respondent violated Section 8(a)(5) when it withdrew
recognition on August 11. To say that the Union lost two
adherents merely because two employees retired is pure
speculation and not an objective criterion at all. Asked had
he not considered the 14 new hires antiunion solely for the
reason that they had come to work after the Board
election , Mallien first equivocated but then admitted the
fact . He qualified the position by saying 2 of the 14 were
known members of the IAM when hired . If it be assumed
for the moment five employees in fact told management
they had resigned from the union , at best the Respondent
could conclude was six employees out of 44-the five plus
Higgins-no longer wished to engage in collective bargain-
ing through this Union . It had no objective criteria for
concluding anything more damaging than this to the
Union's continuing majority status . See Laystrom, supra,
" . . . new employees will be presumed to support a union
in the same ratio as those whom they have replaced."
As to what indication the Respondent had from the
employees themselves concerning their attitudes toward
collective bargaining through this union, we come to the
evidence offered by Manager Moravchik . As to the 14
employees hired after the Union 's certification, he said he
interviewed "about 95 percent" of them before they started
work ; he added that the applicants were also inter-
viewed-"50 percent" of the time-by LaBahn . Without
specific reference to particular individuals in this group of
14, Moravchik testified they-or a considerable number of
them-indicated in the hiring interviews they were not in
favor of the Union. LaBahn described his, and Moravch-
ik's employment interviews, as follows:
.. in the course of the interview , we felt it was the
company 's obligation to tell them what the circum-
stance was at the time , that there was a union in the
picture that had gained representation , that there had
... that no settlement had been reached , and that a
dispute might result . Some made absolutely no com-
ment when told that. Others would make other
comments like it would make no difference to me or
I've crossed picket lines before , expressions like that."
Q. (By Mr . Greco) About how many people would
say that?
A. I don't know.
s s s s
Q. Could have been just one or two?
A. No, it would be more than that.
Q. Maybe five or ten?
A. Yes, sir.
Pressed for more precise quotation of what the appli-
cants had said, Moravchik admitted clearly none said
anything about "whether they wanted the Union to
represent them." Moravchik also candidly conceded the
conclusion he reached at the time-that the applicants, at
least those that said anything-did not like unions, was
purely his , "general opinion." If the complaint had so
alleged it might well be that the testimony of LaBahn
about the hiring interviews would support a finding that
the Respondent illegally coerced the new employees within
the meaning of Section 8(axl) of the Act. Certainly
ORION CORPORATION 641
whatever any of them may have said about picketing lines
was drawn from then by the not so subtle interrogation of
their perspective employers. In any event, they said
nothing about whether they wished the Union to bargain
for them. It follows that as to those persons at work in the
spring and summer of 1972, the Respondent has no basis at
all on which to predicate its asserted reasonable doubt.
Moravchik testified twice at the hearing, first as an
adverse witness called by the General Counsel, and again,
after a long unavoidable recess occasioned by unrelated
factors, when called by the Respondent in defense. He
spoke in detail of individual, named employees, and
explicated why he believed this one or that one did not
wish to be represented by the Union any more. What he
said as a witness on these matters becomes what he passed
on to the president, who, it will be recalled, said that he
withdrew recognition strictly and exclusively on the basis
of what Moravchik reported to him.
Fair appraisal of what Moravchik considered objective
criteria for concluding the Union had lost majority
standing in the spring of 1972, requires appreciation at the
outset of what the Company agents-the manager, the
president, and the lawyer-had been doing from first to
last throughout the certification year in furtherence of their
ever-present concern with the employees' attitude towards
collective bargaining. Moravchik said it was a "shock"
when he learned of the Unions' organization campaign and
of employees agreeing to favor the Union. He added that
in consequence he and Groth, another supervisor, soon
started to keep notes, mental and written, of the Union's
representative strength. He also reported what he heard,
and his thinking, to LaBahn from time-to-time. Asked how
long this had been going on, Moravchik answered: "We
had been doing that all the while . . . I think-since about
1971 on. Q. As soon as the union got in? A. Yes . . . . Q.
Well, what did you check in the beginning? The Witness:
As to who we in our opinion was for union and who was
against the union and who was just in between." Moravch-
ik did the same thing with his assistant. "He [Groth ] was
my assistant, and he and I would do the same thing many
times . . . . Q. Tell me, when did you start doing that with
him? A. From the day one. Q. April 1, 1971, when the
Union was certified? A. Yes. He and I would sit down
and make a list of who we thought was happy with the
company and who was unhappy or whatever you want to
call it." Moravchik used to attend the bargaining sessions
with Mallien. He quoted the lawyer as follows: "He would
ask me about how things were going on the floor, how the
mood of the people was, and whether they were-they
were antagonistic or something like that."
LaBahn started by saying he and Moravchik went over a
list of employees for this purpose "perhaps every 2 months
. .. perhaps early spring of 1972." At one point he said he
never told the lawyer of his doubts before July 1972. The
witness then switched to say he did "Sometime in the
spring of 1972," and that when he did so, Mallien "said
2 Mallien was simply not a credible witness As early as June 8 , in a letter
to the Union , he wrote "we see no point in further meeting " Asked did he
know "during the course of the negotiations" that the Company was
keeping a running tally of the Union's representative strength, he answered
he was "unaware of that " Asked did LaBahn respond to him in any way
after his January legal advice about how employees withdraw from unions,
keep an ear open and keep me informed as to what you
think the majority status of the Union is . . . Q. And you
in turn told that to Mr. Moravchik, didn't you? A. Yes."
Then came more from LaBahn's testimony: Early in 1972
he told Mallien employee Fromm had resigned his union
membership; he told Mallien "in the spring or winter of
1972" an employee named Uselding was reported as
disaffecting"; "Mr. Mallien was made aware of deminish-
ing union strength prior to that . . . . All during the spring
of 1972 whenever a rumor reached me that someone had
resigned or wasn't paying dues." "Q. And what did Mr.
Mallien say? A. Well, he just said stay close to what's
happening among your employees." All this before
expiration of the certification year.
We come to Mallien's testimony. He denied nothing of
what Moravchik and LaBahn put in his mouth. The
implied burden of his story was to remove himself from the
picture, so far as any decision to question the Union's
majority at any time; he said all he did was the negotiating.
But if all the record testimony be considered, the truth is
otherwise. One fact, brought to light when he was on the
witness stand , suffices to tie him to the activities of
Moravchik and LaBahn, unquestionably aimed at getting
this union out of the plant. Early in March he had a lawyer
in his office research Board law on the question of
withdrawing recognition from a certified union. He sent
the results of his research, no doubt accompanied by
professional recommendations, in writing to LaBahn. At
first equivocating about how he happened to do this during
the very period when he was meeting with the union agents
and ostensibly bargaining in good faith, he gave the
following explanation of why he forwarded this material to
his client. "The latter part of July, sometime in there,
subsequent to-oh, about a month or so subsequent to the
expiration of the certification year , the client was getting
concerned about having to continue to pay for negotiation
meetings and wanted to know if there wasn't some way to
end it all." [sic-the entire quotation! ]
LaBahn was not in the hearing room while Mallien
testified. Called later by the Company, LeBahn denied
flatly ever receiving anything from the lawyer in writing on
the subject of withdrawal of recognition. Obviously neither
man was telling the truth from the witness stand. With this,
there emerges also a special significance in the further fact
that on January 25, 1972, Mallien wrote another letter to
LaBahn "regarding resignation of union members." He
explained this one by saying: ". . . the same as I do for
any other client . If I come across to any other information
that might be pertinent to them or find useful or helpful, I
make a copy and send it to them." In the context of the
total story unfolded, I do not believe Mallien. I am
convinced he was party to an overall and persistent plan by
the Respondent to frustrate the expressed desires of its
employees to bargain collectively through their Union
"from the day one." 2
It is in the light of this background as a significant
he gave a flat "No" How does one reconcile this with LaBahn's very
detailed testimony of keeping the lawyer informed in all details about
continuing reports of individual employee attitudes towards the Union from
January right through into July and August9 Between the lawyer and his
client, the two cast a grave shadow upon the entire defense. it was not the
first time Mallien stepped over the line in this field of law Compare, John
(Continued)
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picture of management's frame of mind throughout the
bargaining that we come to Moravchik's testimony about
what he heard and why he believed what he believed. At
the time of the Board election in 1971 there were 33
employees in the bargaining unit; in early August 1972, on
the 4th as well as the 11th, there were 43. As part of its
answer to the complaint, the Respondent attached a letter
it wrote to the Union on August 11, formally withdrawing
recognition. Actually the Company raised the question of
majority and effectively rejected the Union as exclusive
agent long before that date. Be that as it may, Moravchik's
testimony went to what he thought, and why, in early
August.
In his first appearance as a witness on February 22, 1973,
he referred to 24 employees by name; when he returned to
the stand in defense on May 1, he spoke about 26. There
are material changes in his testimony between the two
dates; in the interval, it may be assumed, his first testimony
had been studied. For example, asked had "any employ-
ees" told him they did not wish to be represented by the
Union, he clearly answered "no," this after speaking of
Zirtzlaff, Mentzel, and Melk, his son-in-law. In his later
appearance Moravchik added that both Mentzel and Melk
had told him they "did not want to be represented." The
lawyer who studied Board decisions for his client knew, of
course, that there is a fatal difference between an employee
discontinuing his dues or even outright membership in the
union, and being unwilling to gain by its bargaining status.
There were other changes in Moravchik's testimony. The
first time he said he believed employee Clark had rejected
the Union; the second time around he said that man
remained prounion.
In any event, considering his total story, he said of no
less than 13 persons that his conclusion was entirely a
matter of opinion, that he had heard nothing from these
employees themselves, or even indirectly by hearsay about
them. Vasilauskas: "It is an opinion of mine based on the
man's personality." Hesprich: "He never told me any-
thing. . . . Going on opinion now, my opinion." Sinad.•
"He never said anything. He doesn't talk very much .. .
He is a loner, loner's don't belong in Unions . . . It's my
opinion. . . . Based on his personality." I just feel he's a
man who wouldn't. That's all." Sedlacek: "... he has a
little business of his own . . . it is strictly an opinion of
how the man thinks of what you have to do in order to stay
in business. . . . He didn't say anything. It's an opinion."
Clark• "Nothing that would indicate it. It's just an opinion
I have . . . . Just based on his work and his attitude
towards the company." Disch: "It was his expression that
he did not want to be a member of anything. He wanted to
negotiate everything for himself." Schreurs: "I believe that
he was disenchanted with the-with being represented the
way he was. . . . Never spoke to me directly." Christian-
son. "This is an opinion also of mine formed from knowing
people." Carkle. ". . . was an elderly employee and-I felt
that he was considerably-kept considerably to himself
and was not about to belong to any group. I just felt-that
was an opinion of mine."
Whether by accident of design, in his testimony about
the following employees Morvchik exposed the fact that in
his opinion anyone who wishes to advance with this
Company must of necessity be antiunion minded. Osheim:
"Osheim was an opinion based on the fact that he was
going to school . . . . He was interested in how he could
better himself with our company." Rosenbaum: "He didn't
tell me he didn't belong to the union . It's an opinion... .
Based on . . . conversation that we have been talking
about his job and how he liked it . . . he was satisfied with
his . . . with the type of job he was assigned to."
Maciejewski: ". . . I thought he had good potentials. He
was a good employee . . . he was a relatively good
company man and the kind that would be with this
company for a long time." Gelhar: ". . . an opinion of
mine based on his desire to become a part of management
.... He was going to do anything that he could to
become a better employee and further himself with the
company."
Fromm is an employee who on February 17, 1972,
advised the Union in writing that he was resigning.
Moravchik testified, without contradiction , that Fromm
told him about it at the time . There is no reason for not
believing this. With Fromm, Moravchik joined four
others-D. Harmon, W. Harmon, Bode, and Kiehnau -by
saying Fromm told him the four were "going to get out like
he did ." He admitted he himself heard nothing directly
from any of these . Fromm was not produced to support the
manager's pure hearsay testimony. In the light of the
character of Moravchik's total testimony, I cannot rely on
his testimony concerning these employees, to say nothing
of the fact he conceded he heard nothing about their not
wanting the Union to bargain for them as free riders, i.e.,
not paying dues as matters progressed . In an apparent
attempt to bolster Moravchik's testimony, the Respondent
offered into evidence letters from all four of these
employees resigning from the Union . One is dated August
10, one August H, and two August 14 . But this was long
after the Respondent 's decision to withdraw recognition
had been made ; in fact there is documentary proof-from
Lawyer Mallien's files-that on both August 10 and
August 3 he told Union Agent Quast the Company
seriously doubted the Union's majority status . ". . . we're
going through an exercise in futility . . . there's a
substantial doubt as to whether the Union at this point
represents a majority of the people ." The four letters of
resignation therefore could not have been a factor-or an
objective criteria-in the Respondent's asserted good-faith
doubt . Indeed, Moravchik admitted he had never seen
such documents; they were produced at the hearing from
the Union's files pursuant to the Respondent's subpena,
long after the events. By this time , of course, the unfair
labor practice had been completed , and the employees'
reaction to it could hardly serve retroactively to support
the defense now.
Three other employees named by Moravchik must be
said to fall within the hearsay category. Uselding: "What
did you base your opinion on with respect to him? A: His
statement . . . That he didn 't belong-I don 't know how it
came out. Q: Who did he say it to? A: To AlMentzel .. .
Oster Mfg Co , 173 NLRB 503, 508
ORION CORPORATION 643
Q: He didn't say he no longer wanted the Union to
represent him? A: If he said it, I never heard it."
Hemplemen ". . . hearsay from another person... Q:
You never spoke to Mr. Hemplemen? A: No. Q: Who was
the hearsay you heard it from? A: Uselding made it to
Mentzel at the same time."
Clearly Moravchik's state of mind throughout, like that
of management generally from first to last, was to seek out
antiunion expressions from among the employees. It is to
be expected that when management's representatives look
for a certain point of view, in fact hope to discover it, they
will think they hear it from others when in fact it is not
there. An excellent example is his testimony about an
employee named Baldwin. In the beginning of his story he
placed Baldwin among those who told him "they weren't
going to join the Union." Later, after going through one
name after another, Moravchik said "Baldwin . . . never
told me anything. That's an opinion of mine .... Based
on his background, his feelings towards the company .. .
he has been more or less self-employed or in conjunction
with his brother. I think from business point of view he'd
recognize that . . . I never talked to him about it."
As to three others Moravchik's testimony is that he
based his opinion on what he knew about them as of the
time of the 1971 election or earlier. Zirtzlaff.. ". . . he came
to me on the onset and said if he had to belong, he would
not be able to work for me." Pennington: "That he thought
the Company that small didn't need anything but personal
negotiations . . . . That was early in `71: Labenstein: "He
was a foreman at one time and dropped back into a worker
at his own request. . . . What did he tell me?.... He
would never belong to no union . . . . Q: When? A: Well,
originally, when the Union first came in." Commenting
generally on his mental process with respect to this concern
as to the Union's strength, at one point Moravchik said: "I
think ever since the Union has been there. I just had an
opinion of who I thought would join and who I thought
wouldn't." Whatever the manager may have heard, or
believed, at the time of the organizational campaign, or
when the election took place, by no stretch of the
imagination can it serve as objective criterion to prove that
long after the Union was certified, the employees did not
wish to bargain collectively.
Reference has already been made to Mentzel and Melk.
During his first appearance as a witness Moravchik
testified his son-in-law, Melk, told him he would not join
but never said he did not wish to be represented by the
Union, and that Mentzel also said "he wasn't going to
join," but that he never asked the man whether he wished
to be represented. When testifying a second time Moravch-
ik added that both these men also told him they did not
want to be represented. I do not believe his second version.
As to a third man, Newberry, the manager said he heard the
employees say he "was getting out." On April 28, 1972,
Newberry resigned from the Union in writing, asking that
his name be removed from the mailing list. Like other
letters sent to the Union then or later, Moravchik never
saw this one either until after it was all over.
In addition to all the foregoing, Moravchik spoke of
McBride and Mathews. Like Fromm, who resigned from
the Union on February 17, these two also sent written
resignations to the Union early in the year , McBride on
February 7 and Mathews on February 27. As to each of
these Moravchik said they personally spoke to him. He
made no claim to have seen these letters of resignation
either ; he said only these three told him they were leaving,
or had quit the Union.
It is at this point that two other aspects of this case must
be considered.
C. Union Dues and the "Bargaining " Sessions
The Union saw fit to collect dues from the employees of
this Company even before achieving for them a signed
contract , and a number of them paid . They were not
required to pay , or to join as members, for there never was
a contract and the Union did not condition its duty to
represent the entire complement pursuant to the certifica-
tion upon their paying anything at all. Dues payments were
recorded, of course, and in a sense this could be called
membership in the Union , as distinguished from a vote in
favor of its acting as exclusive collective -bargaining agent.
There came a time when some employees balked at
continuing to pay dues when the Union was getting
nowhere in its efforts to agree upon a contract with the
Company. As meeting after meeting produced virtually
nothing, understandably employees started to feel they
might be wasting their money. Besides, they knew that
anyone who chose not to pay dues would enjoy the same
contract benefits in the end, if anything were ever
accomplished, as did those who did pay. And whenever
anyone discontinued his dues, his card record was marked
"lapsed." The Union even conceded at the hearing that by
August 1972 only about 16 or 17 employees were still
paying, or were recorded as "members." The Respondent's
agents had no insight into the current number at any time,
for it never saw these records until they were produced at
the hearing pursuant to subpena. All the Company knew
was what Moravchik testified to at the hearing, as detailed
above.
Between May 1971 and the following April, Mallien,
doing all the talking for the Company, met with two union
representatives to discuss contract proposals and counter-
proposals, 25 times, a number of hours on each occasion.
On May 19, 1972, they had a final meeting with a Federal
conciliator. He asked each side to jot down what the
remaining issues might be, believing, no doubt , that by this
time there could not be much left to resolve. The Union
gave him a list of 23 items , each referring to a contract
proposal ; 12 of these were marked "major," meaning that
those matters were of serious import, and still required
much discussion. The Company gave the conciliator two
written lists of outstanding issues ; one referred to the
Union's proposals, and of the 32 items set out there, noted
that 29 of them were still "open." The second list noted 29
company proposals, with only 11 marked "ok" and the rest
"open." The only contract clause which Mallien marked as
having been agreed to by both parties was Report Pay; all
the rest were marked "open," on either the union proposal
list or on that of the Company. The parties had not even
touched upon the subject of wages as yet, and they never
met again.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis and Conclusion
I find that the Respondent failed to bargain in good
faith, that it had no reasonable basis for believing a
majority of the employees no longer wished to be
represented by the Union, that it questioned majority in
bad faith, that it unlawfully withdrew recognition from the
Union, and that by the totality of its conduct it refused to
bargain with the Union in violation of Section 8(a)(5) of
the Act.
An employer who approaches the bargaining table with
an honest intent of trying to come to terms with the chosen
representative of its employees, as the statute requires, does
not simultaneously have its principal officer and supervi-
sors keep a watchful eye upon the employees with the hope
of finding evidence of a change of heart among them-as
did all three of them in this case-LaBahn, Moravchik,
and Groth. Moravchik started "from the day one" to keep
a tally to offset the balloting results leading to the Union's
certification. He and LaBahn continued to match notes
every month or two, keeping "an ear to the ground," as the
lawyer advised. And as early as January 1972 the lawyer
sent written advice to LaBahn on the question of how
employees may indicate rejection of a union as their
bargaining agent . How did this become "useful or helpful"
to the client, as the lawyer explained at the hearing, except
to nourish a preconceived plan to put a stop to union
activities altogether? Can the external format of collective
bargaining apace with such activities ever mean anything
but a cover for pervasive bad faith?
In total disregard of the law which says that during the
first 12 months after certification the Union's majority
status must be presumed to hold fast, the president asked
his lawyer in the beginning of March to find a way "to end
it all." LaBahn was the principal, and that his purpose
throughout was to make a mockery of the negotiations
could not be clearer. And the lawyer, always cooperative
with the objective, searched the law to find means for
discontinuing all bargaining with a certified union. This is
the man who during those very days was meeting and
talking for hours with union agents about contract
proposals and counterproposals. He had one eye on the
union agents , and the other on their principals, waiting for
the moment when a claim could be made that the agency
authorization had been withdrawn by the principals. If this
be honest collective bargaining, the phrase "good faith"
must be deleted from Section 8(d) of the statute.
In his brief, counsel for the Respondent stresses certain
Board precedents which speak of the absence of "inde-
pendent unfair labor practices" by an employer who
questions the continued validity of an established majority
status . I deem those precedents inapposite to the case at
bar. While it is true the Respondent here is not found to
have committed out-and-out violations of the statute aside
from the refusal to bargain, the very clear activities aimed
at ferretting out-if not creating-antiunion evidence
throughout the certification year, proved by the Compa-
ny's own witnesses, destroys its assertion of good faith
3 Terre!! Machine Company, supra, " a showing as to employee
membership in, or actual financial support of , an incumbent union is not
the equivalent of establishing the number of employees who continue to
quite as much as would directly coercive statements in
violation of Section 8(a)(l).
Of all the many provisions normally found in collective-
bargaining contracts, not one of substance was agreed
upon throughout the 25 meetings that took place between
the parties. Mr. Walter Davis, who acted as trial counsel
for the Respondent, correctly argues that no employer is
required by law to make any concession in the bargaining
process, and that if in the end he holds fast to any and all
items, it follows logically that the Union was equally
unyielding as to each of them. He calls this hard
bargaining. If other factors reflected on this record and
bearing upon the negotiation be ignored, if the annotated
proposals shuffled back and forth be taken out of context
and evaluated in isolation, a certain picture would emerge.
But Mr. Davis is now saddled with all the other things that
happened simultaneously with the meetings, all directly
related to the so-called bargaining and pointing to a totally
different conclusion. He was not a party to the events; in
fact there is indication that the evidence most destructive
of the defense came as a surprise to him, as indeed it was to
the General Counsel too.
Hard bargaining in this case not only assured the passage
of 12 months from the date of certification, but also gave
promise of growing reluctance by the employees towards
continuing to pay union dues. It is the extent of the
Company's adamancy-about as extraordinary as is ever
seen-that, coupled with the clear proof of continuing
search for antiunion sentiment and contemporaneous
planning of a legal defense in anticipation of the Labor
Board complaint that was sure to follow, demands an
ultimate finding of bad faith, both in the discussions that
took place and in the final rejection of the Union. The
object of frustrating the Union was won, for some
employees did stop paying dues in consequence. But
discontinuance of dues is not basis, or objective criteria, for
inferring rejection of collective-bargaining in the minds of
the employees.3 And even that technique is shown to have
failed, for when, in their effort to continue collection of
necessary expenses from the employees, the union officers
sarcastically invited some of them to waive contract
benefits which the Union might eventually win, none
signed. Even in the face of the Company's delaying tactics,
they never wavered in their willingness to have the Union
speak for them.
That the refusal to bargain in this case was unlawful is so
clear that no purpose would be served by reporting the
evidentiary details said to support collateral and cumula-
tive allegations. The complaint says that on August 11 the
Company also refused the Union's request for a list of
employee names and their wage rates, that in September it
made unilateral changes in health benefits and life
insurance, and that in October it increased holiday and
vacation benefits without consulting the Union. The
decision to withdraw recognition from the Union was
made as early as July, as the President himself admitted,
and perhaps even June. This meant the Company would
have nothing to do with the Union thereafter, including, of
desire representation by that union " See also N.L.R.B. v Master Touch
Dental Laboratories, Inc, 405 F 2d 80 (C A 2, 1968).
ORION CORPORATION 645
course, any thought of consulting it in any way on how to
run the business or giving it any information at all. The
whole includes the sum of its parts. If the Respondent had
a right to exclude the Union entirely from its affairs, of
necessity anything it thereafter did independently it would
also have a right to do. If it was wrong in rejecting the
spokesmen of its employees, by like reasoning every
unilateral change it later made in conditions of employ-
ment was part and parcel of its continuing refusal to
bargain, and equally unlawful. Restated: the order to
bargain which must issue is as broad as the entire spectrum
of the Act. If the purpose of the additional allegations was
to obtain specific directions to the Respondent to cease
and desist from these particular unilateral activities, it was
a superfluous gesture, for clearly, albeit implicitly, the
broad order extends to every action of the type anyway.
On June 5, 1972, shortly after the completely abortive
meeting with the Federal conciliator, the Union sent to the
Company a request for "a finalized proposal in the form of
a complete contract" "covering the areas in which we have
been negotiating since May 5, 1971." Malien answered 3
days later saying he could not do so, that the attempt
would be an "exercise in futility," and closing with "we see
no point in further meetings." There is not, and there could
not be, any claim that full agreement had been reached
and that its failure to reduce the accord to writing
amounted to a refusal by the Respondent to sign a fully
negotiated contract. I do not understand how, in view of
the fact no agreement had been reached on any substantive
matters, the Respondent's failure to prepare a full contract
at this point could be viewed, as the complaint apparently
alleges, either as an independent unfair labor practice, or
as cumulative proof of a refusal to bargain. The incident
does no more than illustrate the complete frustration which
the Respondent's overall strategy had wrought in the
Union's ranks.
IV. THE REMEDY
The Respondent having refused to bargain with the
Union, the first element of the remedy must be that it be
ordered to bargain now, and to bargain in good faith. This
being a Board certification case, proper remedy also
requires that the certification year be deemed as commenc-
ing anew on the day the Respondent begins to bargain in
good faith. This is also a case in which the Union's request
for reimbursement from the employer for expenses it
incurred in cjequence of the Respondent's calculated
unfair labor practices, is persuasive. The refusal to bargain
in this instance was not occasioned by any rersonable
disagreement as to law, it did not flow from any substantial
or ostensibly defensible position. Rather, the record as a
whole makes very clear the Respondent was determined to
utilize the so-called bargaining sessions as a device to await
the day when its original intent of removing the Union
from its plant could be successfully achieved. In the
circumstances, its entire course of conduct can fairly be
called premeditated, pervasive and outrageous flouting of
the very basic principles of the law . Justice therefore
requires that the Respondent be ordered to reimburse the
Union for all expenses incurred in connection with this
litigation , including reasonable counsel fees, witnesses fees,
transcript and record costs, printing cost (in the event of
further litigation), travel expenses, and per diem of its
agents and representatives. This shall include the expenses
incurred by the Union' s professional representative in
attending the sham bargaining sessions with the lawyer
Mallien.4
In view of the extent and character of the unfair labor
practices committed, the Respondent must also be ordered
from in any other manner restraining or coercing its
employees in their statutory right to engage in collective
bargaining.
V. THE EFFECT OF THE UNIAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate and substantial relation to trade , traffic and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. All production and maintenance employees of the
Respondent at its Grafton, Wisconsin, plant, excluding
office clerical employees, professional employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. At all times since April 1, 1971, the Union has been
and now is, the exclusive representative of the employees in
said unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
3. By refusing, on August 11, 1972, and thereafter, to
bargain collectively with District No. 10, International
Association of Machinists and Aerospace Workers,
AFL-CIO , the Respondent has engaged and is engaging in
unfair labor practices within the meaning of Section 8(aX5)
and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDERS
The Respondent, Orion Corporation, Grafton, Wiscon-
sin, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
4 See Tudee Products, Inc, 194 NLRB 1234; Food Store Employees Union
Local 347, Amalgamated Meat Cutters [Heck's Inc], 476 F 2d 546,
(C.A.D.C., 1973)
5 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain in good faith upon request with
the above-named Union.
(b) In any other manner interfering with , restraining, or
coercing its employees in the exercise of the rights to self-
organization , to form labor organizations , to join or assist
District No . 10, International Association of Machinists
and Aerospace Workers , AFL-CIO, or any other labor
organization , to bargain collectively through representa-
tives of their own choosing , and to engage in any other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or
all such activities , except to the extent that such rights may
be affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with District No.
10, International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative of all
employees in the unit described above, and, if an
understanding is reached , embody it in a signed agreement.
(b) Reimburse the Union for costs and expenses incurred
in connection with this entire litigation in the manner
described in the section above entitled, "The Remedy."
(c) Post at its plant in Grafton, Wisconsin, copies of the
attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 30, after being duly signed by its representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.
6 In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals
United States Court of Appeals, the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board."
Order of the National Labor Relations Board" shall be changed to read