Peoples Gas System, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1974

214 N.L.R.B. 944 (N.L.R.B. 1974)

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peoples Gas System , Inc. and Teamsters Union Local
769, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca. Case 12-CA-6025
November 14, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On April 9, 1974, Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, the General Counsel filed excep-
tions and a brief in support thereof, and the Respon-
dent and Charging Party also filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Following a Board election, the Union was certi-
fied in September 1966. Thereafter, the parties en-
tered into two successive 3-year contracts, the last
being effective from March 29, 1970, to February 6,
1973.1 Pursuant to the Union's timely request to re-
negotiate the agreement, the parties held a total of six
bargaining sessions between January 9 and February
14 but failed to reach an agreement. On April 23,
Respondent filed a representation petition with the
Board and on May 1 informed the Union that Re-
spondent would not engage in further bargaining un-
til the Union had demonstrated by a Board-conduct-
ed election that it represented a majority of the unit
employees.
The complaint alleges that Respondent violated
Section 8(a)(5) and (1) of the Act by its April 23
withdrawal of recognition from the Union as the ex-
clusive bargaining representative of the unit employ-
ees, and by thereafter refusing to resume negotiations
with the Union. The Administrative Law Judge con-
cluded that Respondent had no reasonable or objec-
tive basis for questioning the Union's majority status
and found the violations as alleged. We disagree.
The principle applicable to the present situation
has long been established. After the certification year
has run, an employer may lawfully withdraw recogni-
i All dates herein are in 1973 unless otherwise noted
tion from an incumbent union because of an asserted
doubt of the union's continued majority, if its with-
drawal occurs in a context free of unfair labor prac-
tices and is supported by a showing of objective con-
siderations providing reasonable grounds for a belief
that a majority of the employees no longer desire
union representation.2 Here, Respondent engaged in
no independent unfair labor practices, and the with-
drawal of recognition occurred more than 6 years
after the certification. Consequently, as the Adminis-
trative Law Judge quite properly viewed the prob-
lem, the issue to be resolved is whether or not "objec-
tive considerations" existed, justifying Respondent's
asserted doubt concerning the Union's majority sta-
tus.
We find, in agreement with Respondent's conten-
tions, more fully developed below, that the Employer
had sufficient objective bases for asserting a reason-
ably based doubt of the Union's majority status
based on: the sharp decrease in the number of dues-
checkoff authorization cards over the past 3 years;
the unusual conduct of the Union during negotia-
tions; and the changes in the composition of the bar-
gaining unit.
The Relevant Facts
1. Decrease in the number of dues-checkoff
authorization cards over the past 3 years
The record shows that there was a severe and dra-
matic decrease in the number of dues-checkoff au-
thorization cards 3 on file with the Company between
February 7, 1970,4 and April 23. According to the
uncontroverted testimony of Jesse Hogg, the
Respondent's attorney, on April 23, the Company
had in its possession dues-checkoff authorization
cards from about 72 employees out of a bargaining
unit of 177 or 179 employees, including probationary
employees.' This constituted only 39 percent of the
total unit. By contrast, in February 1970, the percent-
age of all unit employees on dues checkoff, including
probationary employees, had been approximately 76
percent. The dropoff is similarly dramatized if proba-
tionary employees are excluded. Thus, from Febru-
ary 1970 to April 1973, there had been a 39-percent
reduction of permanent employees on checkoff, and
2 Cf Nu -Southern Dyeing & Finishing, Inc, and Henderson Combining Co,
179 NLRB 573, In 1 ( 1969), and cases cited therein , Viking Lithographers,
Inc, 184 NLRB 139 (1970)
3 The dues-checkoff authorization card also designated the Union as the
signer's collective -bargaining representative
4 This was the last payroll date prior to the unsuccessful strike in 1970
, Probationary employees were newly hired employees who were required
to serve a 90-day trial period before attaining permanent status The Com-
pany customarily did not accept their dues -checkoff authorization cards
until the end of this 90-day period
214 NLRB No. 141
PEOPLES GAS SYSTEM, INC.
by April 1973 only a very narrow majority of such
permanent employees (51 percent) still had checkoff
cards on file with the Employer.
2. The unusual conduct of the Union during
negotiations
With regard to the behavior of the Union, the facts
are fully set forth in the Administrative Law Judge's
Decision and may be summarized as follows: The
Union's position from the outset of contract negotia-
tions until February 5 was that if an agreement was
not reached by February 6, the expiration date of the
current contract, the Union would strike. Indeed, at
the bargaining meeting of January 31, Union Presi-
dent Anthony Cannestro advised Respondent that
the union membership had authorized a strike at a
meeting held January 29.
On February 2, at the last bargaining session be-
fore the contract expiration date, the parties' posi-
tions on a number of issues had not yet been defined
and the parties were deadlocked with regard to the
proposed wage and job classification program and
the supervisors working clause. At the end of the
meeting, the Union stated that it would present the
Respondent's last contract proposal to its member-
ship at a meeting scheduled for February 5, but that
Cannestro and the members of the employees' bar-
gaining group would recommend rejection of the of-
fer. On February 5, however, according to Cannes-
tro, he and the employee negotiating committee met
shortly before the union meeting and, notwithstand-
ing their previously announced position, decided to
recommend that the membership accept the
Company's offer. The membership subsequently vot-
ed to accept Respondent's offer. On February 6,
Cannestro telephoned Robert Keyes, Respondent's
vice president, and informed him that the parties
"had a contract" and requested that Respondent's
attorneys draw it up for signatures.
When Union Attorney William T. Coleman subse-
quently called Hogg, the Company's attorney, and
notified him of the union membership's acceptance
of the Company's offer, Hogg expressed surprise be-
cause, according to him, there were many bargaining
areas yet to be resolved. Hogg therefore suggested a
meeting to dispose of the unresolved issues. Although
Coleman at first insisted that no unresolved items
existed, he reluctantly agreed to a meeting on Febru-
ary 14. At this meeting irreconcilable differences de-
veloped as to whether agreement had ever been
reached on a number of items, and Cannestro de-
clared that negotiations were closed and the Union
would go "the legal route." At the same time, he as-
sured the Company that the Union would not strike.
945
On February 20, the Union filed an unfair labor
practice charge against the Company, alleging that
the Company had refused to bargain with the Union.
The charge was withdrawn on March 16.
In March and April, Coleman and Hogg had a
series of telephone conversations which, Hogg assert-
ed, aroused his suspicion that the Union no longer
enjoyed the support of a majority of the unit employ-
ees.
According to Hogg, about the beginning of March,
Coleman called him and requested that he prepare
and submit an agreement which the Company would
be willing to sign, and that this agreement reflect the
Respondent's proposals on all unresolved matters.
Coleman stated that the Union "might" sign such an
agreement, but that it also reserved the right to pur-
sue a charge before the Board. Hogg proposed a
meeting to discuss this matter, but Coleman refused.
After consulting with the company officials, Hogg
informed Coleman that the Company could not ac-
cept the proposal.
On April 1, Hogg called Coleman and notified him
of the Company's intention to implement the wage
and job classification program. Coleman then in-
formed Hogg that the Union was about to file anoth-
er unfair labor practice charge.' In response, Hogg
declared that the wage package could not be imple-
mented.
On April 11, Coleman again called Hogg and re-
quested that the latter draft an agreement which the
Company would be willing to sign. Coleman stated
that the Union "would" sign such agreement but that
it reserved the right to pursue its charge before the
Board. Hogg once more requested that the parties
hold a meeting, but Coleman again rejected that
idea.
Also on April 11, Coleman wrote to Hogg, stating
that he (Coleman) was confirming their conversation
of that date in which Hogg had agreed to submit a
contract. Hogg, by letter of April 16, replied that he
had never made any such agreement. On April 23,
Respondent filed a representation petition with the
Board to test the Union's majority status. On April
25, Coleman again wrote a letter demanding that
Hogg "submit to us contract clauses for the new Col-
lective Bargaining Agreement . . . by Monday, April
30, 1973, which we will sign and agree upon at that
time, as we agreed before." On May 1, Hogg in-
6 The testimony of the two attorneys differed with respect to the conver-
sations Without making any credibility determinations , the Administrative
Law Judge recited Hogg 's version of the conversation We agree with the
Administrative Law Judge that it is unnecessary to resolve the credibility
issue as the same result would be reached regardless of the version credited
7 This charge , alleging that the Company had repudiated the agreement
reached as to the effective date of the new collective-bargaining agreement,
was filed on April 10, and was withdrawn on May 16
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed Coleman that Respondent had filed a repre-
sentation petition and that it would not engage in
further bargaining during the pendency of that peti-
tion. On the same day, Coleman sent Hogg a letter
which reminded him that "we have stated unequivo-
cally that we will sign the contract language you sub-
mit . . .." Coleman further stated that the Union
was willing to sign a contract embodying company
proposals drafted by Hogg relating to "unresolved
areas," adding, however, that the Union "reserved
the right to proceed through the National Labor Re-
lations Board on these matters." The next day, May
2, Coleman sent another letter to Hogg repeating his
demand that a written contract be forwarded to him
for the Union's signature. As for those items on
which the parties were still in dispute (as to whether
agreement had been reached), the letter stated that
they "will be submitted to the National Labor Rela-
tions Board for resolution."
On May 3, Hogg responded to the two preceding
pieces of correspondence, stating, inter aha, that "we
must . . . decline to comply with your demands," as
"[i]t is our considered opinion that Local 769 does
not enjoy the confidence or support of a majority of
the unit employees . . . . If Local 769 should prevail
in the NLRB election that we have asked for, then
we can recommence writing letters. . . . In the
meantime I respectfully suggest that this continuous
crossfire of correspondence cease."
On May 4, Coleman wrote another letter to Hogg
which stated the Union represented a majority of
the employees in the appropriate unit and that it
"stand[s] ready . . . to demonstrate . . . [its] majori-
ty status pursuant to current Board law." Coleman
further pointed out that Respondent's refusal to bar-
gain violated Section 8(a)(5) of the Act. By letter dat-
ed May 8, Hogg reiterated the Company's position
that the question of representation should be re-
solved by a Board-conducted election.
On May 9, Coleman wrote a letter proposing a
meeting "to negotiate . . . the unresolved areas" and
to demonstrate that the Union represented a majori-
ty of the employees in the unit. On May 10, Hogg
declined. On May 15, the Union filed a charge alleg-
ing failure to bargain and repudiation of the bargain-
ing agreement.
3. Changes in composition of the bargaining unit
The record demonstrates that there was consider-
able turnover among unit employees between 1970
and 1973. This is evidenced, first, by the fact that the
Union in 1970 conducted a contract renewal strike
during which 40 percent of the employees were per-
manently replaced.
The record further reveals that, in September 1972,
Respondent purchased Superior Gas Company,
which resulted in an addition of 26 new employees or,
a 17-percent accretion to the then existing unit: De-'
spite organizing attempts by the Union among the
former Superior Gas employees, as of April 23, none
of these employees had signed union authorization
cards. Also during the period from September 1,
1972, until April 23, there was a turnover rate among
the unit employees of 36 percent which, when pro-
jected to an annual rate, amounts to more than 61
percent.
Conclusion
In our opinion , Respondent had sufficient objec-
tive considerations , when viewed in their entirety, to
provide reasonable grounds for a belief that a majori-
ty of the employees no longer desired representation
by this Union.
We note first the dramatic reduction in the num-
ber of dues -checkoff authorizations on file with the
Employer-the tangible evidence most readily avail-
able to Respondent relevant to the trend with respect
to employee support. While this Board has correctly
held that employee support cannot necessarily be
measured solely or exclusively by the number of em-
ployees who actually become members of a union or
express, through a checkoff authorization , their will-
ingness to contribute financial support to it, we can-
not ignore the relevance of noticeable trends in such
data. In the instant case , the percentage of all unit
employees who had checkoff authorizations on file
with Respondent had dramatically dropped from a
high of approximately 76 percent in 1970 to a low of
about 39 percent by April 1973. General Counsel
urges that we must look only to "permanent"-i.e.,
nonprobationary-employees in this connection be-
cause it was Respondent ' s practice not to accept
checkoff authorizations from new employees until
they had completed their probationary period. In the
first place , we do not believe that this fact negates the
trend we have referred to, since the universe of which
both the 76-percent and 39-percent figures are calcu-
lated in both cases includes the total work force, in-
cluding probationers. But even if we look only to
checkoff cards on file by permanent employees, the
trend remains plain to see . Thus, in 1970 , 90 percent
of nonprobationary employees were on checkoff,
whereas on April 23 only 51 percent were .' Thus the
decrease from 90 percent to 51 percent is a 39-per-
8 While it may be a redundant observation, it should be recalled that this
51 percent is not 51 percent of the total unit, and thus does not, of course,
establish majority support As stated above, only 39 percent of the total
employees in the unit had checkoff cards on file
PEOPLES GAS SYSTEM, INC.
cent decrease , which approximates the 37-percent de-
crease if the complement of all employees rather than
dust nonprobationary employees is utilized as the
universe.
That such a trend is at least one indicator of objec-
tive considerations has long been recognized by the
Board . Thus in Convair Division of General Dynamics
Corporation, 169 NLRB 131 (1968), the Board said at
134:
... we are aware of the fact that individual em-
ployees may not authorize checkoffs for wholly
personal reasons unrelated to their interests in
supporting a union as their bargaining represen-
tative. However, we cannot say that, when con-
sidered together with such other circumstances
as are here also present, Respondent could not
have reasonably interpreted the decrease in the
number of unit employees on the checkoff list as
reflecting also a proportionate decrease in the
extent of the Union's overall support within the
unit.
The Employer was also entitled to weigh in the
scale the unusual conduct of the Union during nego-
tiations. Those experienced in negotiations will rec-
ognize the eyebrow -raising nature of the precipitate
change in the Union 's bargaining posture . First came
the union bargaining committee 's rejection of
Respondent 's economic proposals and its firm nego-
tiating statement that it would submit the Company's
offer to the membership with a recommendation that
it be rejected . Instead, just 3 days later, the same
committee reversed its field completely and, without
explanation to the Company , decided to accept the
offer , and ultimately came the Union 's insistence
that the Company write virtually any contract ac-
ceptable to it with an assurance that the Union
would sign such a contract forthwith. We think it was
not unreasonable of Respondent to regard these de-
velopments as evidencing a very considerable lack of
confidence by the Union in the strength of the sup-
port which the membership would afford it . Nor does
the record herein contain any explanation inconsis-
tent with that reasonable inference as to the causa-
tion factor underlying the sudden retreat in the
Union's bargaining moves.
To complete the picture, Respondent took into ac-
count the changes in the composition of the bargain-
ing unit during the period between 1970 and April
1973. In the course of the 1970 economic strike there
had been one substantial change in that composition,
since 40 percent of the work force as it existed prior
to the strike had been permanently replaced during
the strike . While it is of course possible that the re-
947
placements , who had chosen not to engage in the
strike activity , might nevertheless have favored union
representation , it was not unreasonable for Respon-
dent to infer that the degree of union support among
these employees who had chosen to ignore a Union-
sponsored picket line might well be somewhat weak-
er than the support offered by those who had vigor-
ously engaged in concerted activity on behalf on
Union-sponsored objectives.
In addition , Respondent 's work force had been
augmented in 1972 by the addition of 26 truckdrivers
formerly employed by a competitor business, Superi-
or Gas Company, which had been acquired by Re-
spondent . These employees were unrepresented when
they were merged into the bargaining unit here and
their addition increased the size of the unit by 17
percent . The Union conceded that, despite its efforts
to organize the former Superior Gas employees, none
had signed the cards which were utilized by the
Union as both an authorization card and a dues-
checkoff card.
A considerable total turnover had occurred during
the period from 1970 to 1973-the turnover rate
being approximately 36 percent . While this latter fac-
tor is of course not controlling , it nevertheless bears
out that considerable changes had occurred in the
composition of the bargaining unit.
Thus the objective facts available to Respondent
at the time it withdrew recognition include (a) a
sharp decline in employee financial support of the
Union , (b) a sudden and unexplained change in bar-
gaining posture under circumstances strongly sugges-
tive of a lack of confidence by the Union itself as to
the degree of support it had maintained , and (c) sub-
stantial changes in the composition of the unit, with
two groups of the post-1970 hires having been added
under circumstances suggesting a lesser degree of
union support therein . In the totality of these circum-
stances, we cannot say that Respondent did not have
an objective basis for a reasonably based doubt as to
the Union 's continued majority status. In the ab-
sence , therefore, of affirmative proof at the hearing
demonstrating that the Union' s majority status had
in fact been maintained , and in a context free of any
other unfair labor practices , we hold that General
Counsel has failed to establish a violation of Section
8(a)(5) and (1) of the Act . In this state of the record
we must , and shall , dismiss the complaint herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard on January
8 through 10, 1974, in Coral Gables, Florida, on the com-
plaint of the General Counsel issued on November 28,
1973,1 and the answer of Peoples Gas System, Inc., herein
called the Respondent or the Company. The principal
question to be decided is whether, following a period of
contract renewal negotiations, the Respondent was justi-
fied in refusing to continue to recognize and bargain with
Teamsters Union Local 769, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, as the exclusive repre-
sentative of the Company's employees, or whether the Re-
spondent thereby violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended.2 At the close
of the hearing, only the attorneys for the General Counsel
and the Union availed themselves of the opportunity to
argue their positions orally. Thereafter, briefs were filed by
all the parties.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Florida corporation with its principal
office and place of business in Miami, Florida, is a licensed
public utility engaged in the distribution and sale of natu-
ral liquid petroleum and the sale and installation of gas
appliances. Its annual gross volume of business exceeds
$250,000. It also annually purchases goods and materials
valued in excess of $50,000 which are shipped to its Florida
operations directly from points outside the State.
It is conceded, and I find, that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find, as the parties agree , that the Union is a labor
1 The complaint is based on original and amended charges filed by Team-
sters Union Local 769, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America on May 7 and 15, 1973, respective-
ly, copies of which were duly served on the Respondent by registered mail
on the respective filing dates
2 Sec 8(a)(1) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 " Insofar as pertinent, Sec 7 provides that "[e]m-
ployees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection "
Sec. 8(a)(5) makes it an unfair labor practice for an employer "to refuse to
bargain collectively with the representatives of his employees" designated
by a majority of the employees in an appropriate unit
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; Issues
This case arises out of the Respondent's refusal to con-
tinue to recognize and bargain with the Union for a new
contract to supersede an expired one unless the Union first
proved its majority status in a Board representation elec=
tion. As discussed below, the Respondent questioned the
Union's majority following six negotiation meetings, a ser-
ies of telephone conversations and an exchange of corre-
spondence between the parties. In substance, the Respon-
dent urges dismissal of the complaint on the grounds that
(1) the Union was not entitled to a presumption of majority
status normally attaching to a labor organization's certifi-
cation after 1 year because of the circumstances which led
to execution of the expired agreement in 1970; (2) the
Respondent's withdrawal of recognition was justified by a
reasonably grounded good-faith belief that the Union no
longer enjoyed the support of a majority of the unit em-
ployees; and (3) the Union, in fact, did not represent a
majority. We turn to the evidence.
B. The Evidence
1. Bargaining history; the initial unsuccessful negotiations
for a new contract; the Union's first unfair labor practice
charge
In September 1966, following a Board election, the
Union was certified as the exclusive representative of the
Respondent's employees in an appropriate unit. Thereaf-
ter, the parties entered into two successive 3-year contracts,
the last one effective from March 9, 1970, to February 6,
1973.3 Both before and after the expiration of the latter
contract, the parties held six bargaining sessions (on or
about January 9, 18, 25, 31, and February 2 and 14, 1973)
to negotiate a new agreement. These negotiations, howev-
er, did not produce a complete, final contract acceptable to
both parties. Although agreement was reached on many
terms and conditions of employment, other matters either
remained unresolved or contractual language had yet to be
drafted. In addition, at the conclusion of these face-to-face
meetings, serious dispute developed between the parties as
to what items had actually been settled at the bargaining
table. As the complaint does not allege a repudiation of a
negotiated agreement or any agreed-upon terms and condi-
tions of employment or other bad-faith bargaining,4 there
3 The bargaining unit conceded to be appropriate is that described in the
parties' contract, as follows
All employees of its East Coast Florida division in Dade and Broward
Counties engaged in production , maintenance and distribution , includ-
ing installation, plant, propane and service department employees, but
excluding all office clerical employees, meter readers, sales employees,
watchmen, guards and supervisors as defined in the Act
This description varies slightly from that of the certified unit
° It is noted, however, that in the amended unfair labor practice charge
filed in this case on May 15, 1973, the Union alleged, among other things,
that "on or about February 2, 1973 [the Company] has failed to bargain
PEOPLES GAS SYSTEM, INC.
is no need to describe in detail these meetings or resolve
conflicting testimony regarding the parties' positions on
disputed bargaining issues.
It appears that during the bargaining sessions Union
President Anthony Cannestro sought to impress upon the
Respondent the advisability of concluding a new agree-
ment by February 6, 1973,5 the expiration date of the then
current contract, to avoid a strike. On January 29, the
Union's membership voted in favor of a strike and the
Respondent was so informed. With the contractual termi-
nation date fast approaching the parties held a meeting on
February 2, which a Federal mediator attended. At first
the Federal mediator conferred separately with each party
and then brought them together to settle their differences.
These discussions seemed to focus on two issues on which
the parties were deadlocked-the Respondent's proposed
wage and job reclassification program and a supervisors
working clause-although some consideration was also
given to other subjects. At one point, the Union proposed
acceptance of the wage and job reclassification program in
exchange for the Respondent's abandonment of its pro-
posed supervisors working clause. When the Respondent
declined this suggestion, the Union requested the Respon-
dent to make a final offer. Apparently, the Respondent did
so, although the evidence does not indicate what specific
items were included in the offer other than its wage and
reclassification program and the supervisors working
clause. The Union stated that the final offer would be pre-
sented to the membership for consideration at a meeting
scheduled to be held in the evening of February 5. Cannes-
tro and the employee negotiating committee, however,
warned that they would recommend rejection of the offer
to the membership. On this note, the meeting ended with
Cannestro's further declaration that after the meeting he
would either call the Company or strike.6
The February 5 union meeting was attended by some 70
members. Shortly before the meeting opened, President
Cannestro and the employee negotiating committee met
and, notwithstanding their previously announced position,
decided to recommend acceptance of the Company's offer
to the membership. Thereafter, in accordance with this rec-
ommendation, the members voted "overwhelmingly . . . to
buy the package." Here, too, the record does not reveal the
specific terms of the "package" that was submitted to the
members, although it undoubtedly included the
Company's wage and job reclassification and supervisors
working proposals.
The next morning, Cannestro telephoned Robert W.
Keyes, the Respondent's vice president in charge of opera-
tions and one of the Company's negotiators, and informed
in good faith with the [Union] by repudiating agreement reached on
terms and conditions of a new collective bargaining agreement and by uni-
lateral withdrawal of offers for the terms and conditions of a new collective
bargaining agreement after acceptance of the offer by the [Union] in
violation of Section 8(a)(5) of the Act "
5 Except as otherwise indicated, all dates refer to 1973
6 The foregoing findings concerning the February 2 meeting are based on
the combined testimony of Union Negotiators Attorney William T Cole-
man and Cannestro and the Company's chief negotiator, Attorney Jesse S
Hogg, and reflect what, in my opinion, probably transpired on this occa-
sion
949
him that the parties had a contract. Keyes acknowledged
that he had been apprised of it the night before. Remarking
that the union meeting was a long one and that the con-
tract "was hard to sell," Cannestro asked Keyes if "a stipu-
lation of agreement" could be written up. Keyes replied
that he anticipated no problem and suggested that Cannes-
tro have the Union's attorney communicate with the
Company's attorney, Hogg.7
A few days later, Union Attorney Coleman notified
Hogg's office of the union membership's acceptance of the
Company's offer and requested that Hogg call him to ar-
range for drafting and signing an agreement. When Hogg
returned Coleman's call and was informed by Coleman
that the parties "had a contract," Hogg expressed his dis-
belief because there were too many bargaining areas and
imprecise proposals yet to be resolved 8 at the time the last
negotiating session on February 2 had adjourned, which
made it impossible for him to prepare a contract. Although
Coleman disagreed with Hogg, he consented to the latter's
suggestion to meet on February 14 to review the situation.
Accordingly, on February 14 the parties met. Soon an
irreconcilable dispute developed whether agreement had
ever been reached on a number of items. Among others,
was the effective date of the wage increase, which the
Union claimed the parties decided should be February 6,
while the Respondent insisted that the date should be
March 12 or 13, the same time the increase was due to go
into effect at its other division. In addition, the Union con-
tended that the Respondent's so-called proposals 1, 2, 3,
and 10 had previously been withdrawn, whereas the Re-
spondent argued that they were still on the bargaining ta-
ble. When it became apparent that neither party would
recede from its position, Cannestro declared that negotia-
tions were closed and that the Union was going to take the
"legal route." He also assured the Company that the Union
would refrain from striking and subsequent events proved
that it honored this commitment.
This was the last face-to-face meeting between the par-
ties. On February 16, Coleman prepared an unfair labor
practice charge against the Respondent, which he filed
with the Regional Office on February 20 (Case 12-
CA-5951). It alleged that "[s]ince on or about February 2
. . [the Company] has refused to bargain with . . . [the
Union], who is certified as the collective bargaining repre-
sentative in an appropriate unit, in violation of Section
8(a)(5) of the Act" On March 16, this charge was with-
drawn with the Regional Director's approval and the Re-
spondent was so notified.
2. The Union's subsequent efforts to secure a bargaining
agreement ; its second unfair labor practice charge; the
Respondent's withdrawal of recognition; its
representation petition
In March and April Coleman and Hogg had a series of
three or four telephone conversations which , according to
Hogg , aroused his suspicion that the Union might no
7 The findings concerning the union meeting and the Cannestro-Keyes
telephone conversation are based on Cannestro 's uncontroverted testimony,
which I credit
B According to Hogg , there were at least 10 items in dispute at that time
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longer enjoy the support of a majority of the unit employ-
ees. Although there is a variance in the attorneys' testimo-
ny respecting the initiation of these conversations and their
content, it is unnecessary to resolve this conflict because,
regardless of the version credited, the same determination
would be made concerning the sufficiency of the
Respondent 's asserted justification for its ultimate refusal
to recognize or bargain with the Union. Therefore, for the
purpose of deciding this issue, Hogg's account of these
conversations will be set forth.
About the beginning of March, while the Union's first
unfair labor practice charge was pending, Coleman called
Hogg on the telephone and asked him to prepare an agree-
ment which the Company would be willing to sign and to
forward it to him.9 Coleman also indicated that the Union
"might" sign an agreement with the reservation, however,
that it had the right to pursue its pending charge before the
Board to secure an order requiring the Company to execute
an agreement which the Union contended had previously
been reached.10 Hogg was not receptive to Coleman's prop-
osition for the stated reason that the Company would be in
the equivocal position of not knowing whether or not it
had a binding contract and proposed, instead, that they
meet to discuss the matter further. Coleman rejected this
suggestion and the conversation concluded with Hogg tell-
ing Coleman that he would take up the matter with the
Company and advise him of its decision."
Thereafter, Hogg conferred with company officials who
rejected Coleman's contract request. As promised, Hogg
then called Coleman and informed him that the Company
was not interested in his proposition and that therefore he
would not prepare a draft agreement.
In the meantime,-the Respondent received the Regional
Director's letter dated March 16, notifying it that he had
approved withdrawal of the Union's first charge. Asserted-
ly prompted by a desire to improve employee morale and
by other operational reasons, the Respondent subsequently
decided to implement its wage and job classification pro-
gram, which the Union had accepted in the prior negotia-
tions. Accordingly, on or about April 1, Hogg called Cole-
man and informed him of the Company's intention. Cole-
man interrupted Hogg to state that before he went any
further he should know that the Union was going to "re-
file" its unfair labor practice charge. In response, Hogg
declared that, under these circumstances, the wage pro-
9 Hogg testified that in all his contract negotiations with unions he has
always been the one requested to draft the parties' agreement and that he
has complied with such requests
10 As indicated above, the Respondent has consistently denied that a final
or complete agreement had ever been reached in their prior face-to-face
nefotiations
'According to Coleman's testimony, he made the first telephone call
during the week of March 15 to convey Union President Cannestro's re-
quest that the Company put into immediate effect the agreed-upon wage
increase and job reclassification program Coleman further testified that
Hogg stated that the suggestion was reasonable and that he would present it
to the Company and advise him Coleman also denied that on this occasion
he asked Hogg to draw up a contract, although he admitted that he did
make such a request in their April l l conversation Hogg, on the other
hand, testified that he did not recall anything specifically being said about
implementing the wage and job reclassification program, although he
agreed that it might have been mentioned or was implied in Coleman's
request that a contract be drafted
gram would not be implemented and that Coleman should
forget what he had said.12 Hogg then reported this conver-
sation to the Company which decided to await the out-
come of the second charge.13
On April 4, Coleman prepared and signed a second
charge which was mailed to the Tampa Regional Office
where it was docketed on April 10 (Case 12-CA-5995). It
alleged that "[s]ince on or about February 2, 1973 ... the
[Company] has failed to bargain in good faith with the .. .
[Union] by repudiating an agreement reached as to the ef-
fective date of the new collective bargaining agreement be-
tween the parties in violation of Section 8(a)(5) of the Act."
This charge was also withdrawn with the Regional
Director's approval on May 16 and the Respondent was
notified of this fact.14
While the second charge was pending, the final tele-
phone conversation between the attorneys for the re-
spective parties occurred on April 11. Coleman initiated
this call in which he renewed his request that Hogg prepare
a contract that the Company was willing to sign. This time,
instead of indicating that the Union "might" sign such an
agreement, as he had said in the first conversation, Cole-
man stated that the Union "would" do so. However, on
this occasion, too, Coleman reserved the Union's right to
pursue its charge before the Board. Critical of Coleman's
proposed reservation, Hogg declined to draft an agree-
ment, despite Coleman's insistence that he do so. Hogg
again suggested that the parties hold a meeting but Cole-
man rejected the idea. Finally, Hogg agreed to review his
files and an affidavit he had previously given to a Board
agent to ascertain the status of the bargaining negotiations
and then to get back to Coleman.15
Thereafter followed an extensive exchange of corre-
spondence between the attorneys. On April 11, Coleman
wrote Hogg confirming their last telephone conversation in
which Hogg undertook
... to submit within the next few days the final lan-
guage for a collective bargaining agreement between
the above parties. This should include your proposals
for the contract, numbers 1, 2, and 3, the language for
the successorship clause you suggested and the effec-
12 Coleman testified that on or about April 4, which was at or near the
time he prepared and signed the second charge , he telephoned Hogg and, as
a matter of common courtesy , informed him that he had refiled the charge
13 The wage increase was ultimately put into effect October 1
14 As indicated previously, the original and amended charge on which the
complaint in the instant case is based were pending at this time
15 Coleman's version , in substance , concedes that he asked Hogg to draft
a contract containing agreed-upon provisions and other proposals whose
language still had to be worked out and to furnish him with a copy He
further testified that, although Hogg stated that it would be better to handle
the matter at the bargaining table, Hogg agreed to prepare the document
after he ascertained the status of the prior negotiations from his records
Moreover , Coleman testified that he indicated to Hogg that the Union
might sign the document prepared by Hogg if it embodied significant terms
and conditions of employment to which the parties had previously agreed
Coleman , however, denied that he asked Hogg to draw up a contract the
Company was willing to sign or that he told Hogg that he reserved the
Union's right to pursue its charge against the Company , although he ac-
knowledged that he did include such a reservation in subsequent correspon-
dence with Hogg According to Coleman , he also inquired in this conversa-
tion whether the Company would grant the wage increase and Hogg replied
that the Company refused to proceed in such a piecemeal fashion
PEOPLES GAS SYSTEM, INC.
tive date of the contract you suggested of March 13,
1973.
With respect to the above named items, we reserve
the right to proceed through the National Labor Rela-
tions Board. It is our position that a contract was
reached wherein your contract proposals, numbers 1,
2 and 3, were deleted and dropped, the successorship
language we submitted was accepted by you and you
agreed to the effective date of the contract being Feb-
ruary 6, 1973.
Reserving the right to proceed through the Board,16
we intend to sign the collective bargaining agreement
submitted by you.
By letter dated April 16, Hogg expressed his dis-
agreement with Coleman's letter, stating:
I cannot accept or proceed upon the stipulations con-
tained in it. Contrary to your suggestion, I have not
guaranteed to submit the document referred to, but
merely stated that I would get out the file and see
about it within the next few days.
Moreover, your letter is in error in specifying what
the contents of such a document would be. I have
several times told you that there were unresolved areas
beyond those that you mention
All in all, I am now of the opinion that we should
not proceed in the manner that you have suggested. I
will be out of the State through Wednesday of this
week, but will be available after that.
On April 23, on Hogg's recommendation, the Respon-
dent filed a representation petition with the Board to test
the Union's majority status (Case 12-RM-257). Hogg testi-
fied that he began to doubt the Union's majority support
when Coleman in their first telephone conversation tried to
persuade him to draft an agreement which the Company
was willing to sign, as related above, instead of pursuing its
unfair labor practice charge before the Board However,
the Union was not put on notice that its representative
status was being questioned until it learned of the RM peti-
tion. The particular reasons which assertedly prompted the
Company's doubt will be considered in the "Concluding
Findings" section of this Decision, infra
Hogg's April 16 letter did not go unchallenged. On April
25, Coleman wrote Hogg, noting that Hogg was previously
asked to "draft contract language" covering the areas or
issues which Hogg claimed were unresolved but that he
failed to do so. Moreover, after alluding to his request in
his April I1 letter to "submit the final language for the
Collective Bargaining Agreement between the parties,"
Coleman "demand[ed] that . . [Hogg] submit to us con-
16 Coleman testified that this reservation was inserted in order to enable
the Union to pursue its charge before the Board in the event that the con-
tract drafted by Hogg did not embody the significant terms to which the
parties had previously agreed
951
tract clauses for the new Collective Bargaining Agreement
... by Monday, April 30, 1973, which we will sign and
agree upon at that time, as we agreed before."
On May 1, Hogg, in response, called Coleman's atten-
tion to the fact that the Company had filed a petition for
an election and that it "will not engage in further bargain-
ing during the pendency of that petition."
On the same day, Coleman sent Hogg a letter in which
he observed that Hogg had never defined the "unresolved
areas" and reminded him that "[w]e have stated unequivo-
cally that we will sign the contract language you submit
.." Coleman further declared the Union's willingness
to sign a contract embodying company proposals and
clauses drafted by Hogg relating to "unresolved areas,"
adding, however, the statement that the Union "reserve[d]
the right to proceed through the National Labor Relations
Board on these matters." The next day, May 2, Coleman
sent another letter to Hogg, repeating his demand that a
written contract containing previously agreed-upon provi-
sions be forwarded to him for the Union's signature. As for
those items where the parties were in dispute as to whether
agreement had been reached, the letter continued, they
"will be submitted to the National Labor Relations Board
for resolution." Concluding, the letter accused the Compa-
ny of engaging in stalling tactics violative of Section 8(a)(5)
of the Act.
To the two preceding pieces of correspondence, Hogg
answered on May 3 that "we must ... respectfully decline
to comply with your demands," adding:
It is our considered opinion that Local 769 does not
enjoy the confidence or support of a majority of the
unit employees, and these repeated and frantic efforts
that you are making as often as twice a day to get us to
sign just any kind of document, so long as it would
serve as a contract bar, only confirm and reconfirm
that opinion.
If Local 769 should prevail in the NLRB election that
we have asked for , then we can recommence writing
letters to each other. In the meantime, I respectfully
suggest that this continuous crossfire of correspon-
dence cease.
Replying to Hogg's May 1 letter, Coleman wrote on May
4 that the Union claimed that it represented a majority of
the employees in the appropriate unit and that it "stand[s]
ready, willing and able to demonstrate ... [its] majority
status pursuant to current Board law." He further pointed
out that the Respondent's refusal to bargain violated Sec-
tion 8(a)(5) of the Act. By letter dated May 8, Hogg reiter-
ated the Company's position that the question of represen-
tation should be resolved by a Board-conducted election
and that the Company intended to abide by the outcome of
such an election.
On May 9, Coleman proposed a meeting "to negotiate
on . . . the `unresolved areas' [the Respondent claims to
exist] and [to] discover the differences, if any, which exist
between the parties ... and [to] sign a collective bargain-
ing agreement. .." In addition, Coleman offered "to
show you that we represent a majority of employees in the
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit if you have any legitimate and realistic doubts as to
our majority status." However, he declined to participate
in a Board election. On May 10, Hogg concluded this ex-
change of correspondence, stating in his letter that the
Company refused to meet and negotiate with the Union, as
Coleman proposed.
C. Concluding Findings
The General Counsel and the Union contend that the
Respondent breached its statutory obligation and thereby
violated Section 8(a)(5) and (1) of the Act by refusing to
continue to recognize and bargain with the Union until the
Union demonstrated its majority status in a Board election.
The Respondent, on the other hand, vigorously maintains
that it was fully justified in requiring recertification before
resuming negotiations with the Union.
Relevant to the inquiry here, is the Board's following
oft-cited statement in Laystrom Manufacturing Co." con-
cerning the principles governing an employer's continuing
duty to recognize and bargain with a union which had pre-
viously been certified by the Board as his employees' exclu-
sive bargaining representative:
Absent unusual circumstances, there is an irrebuttable
presumption that the majority status of a certified
union continues for 1 year from the date of certifica-
tion. After the first year the certificate still creates a
presumption of majority status, but the presumption is
normally rebuttable by an affirmative showing that
the Union no longer commands a majority. Moreover,
where the certificate is a year or more old an employer
may withhold further bargaining without violating the
Act and insist that the union reestablish its statutory
representative status if, but only if, he in good faith
has a reasonable doubt of the union's continuing ma-
jority.
A showing of such doubt, however, requires more than
an employer's mere assertion of it and more than
proof of the employer's subjective frame of mind. The
assertion must be supported by objective consider-
ations. The applicable test, as defined in the Celanese
case, is whether or not the objective facts furnish a
"reasonable basis" for the asserted doubt, or, put an-
other way, whether or not there are "some reasonable
grounds for believing the Union has lost its majority
status since its certification."
Clearly, the burden of proving a good-faith, reasonably
grounded doubt of the union's continued majority status or
that the union actually lost its majority rests upon the em-
ployer.18
17 151 NLRB 1482, 1483-84 Although enforcement of the Board's bar-
gaining order was denied (359 F 2d 799 (C A 7, 1966), the court did so only
because of its disagreement with the Board's finding that the employer ques-
tioned the Union's majority status in bad faith and not because it disagreed
with the Board 's statement of governing principles See Automated Business
Systems, a Division of Litton Business Systems, Inc, etc, 205 NLRB 532, In
8 (1973)
i s Terrell Machine Company, 173 NLRB 1480, 1481 (1969), enfd 427 F 2d
The Respondent does not dispute the validity of the
foregoing principles. However, it argues, in defense, that
the Union was not entitled to a presumption of majority
status when the Respondent withdrew recognition and
filed its representation petition on April 23, 1973, because
that presumption had already been rebutted by the events
occurring in early 1970; that, even if the presumption were
applicable, the Respondent's withdrawal of recognition
was prompted by a good-faith and well-founded doubt that
the Union continued to enjoy the support of a majority of
the unit employees; and finally that, in any event, the evi-
dence produced by the General Counsel and the Union
rebutted the presumption of the Union's majority status. I
find no merit in these contentions for the reasons set forth
below.
With Respect to the Union's Right to a Presumption of
Majority Status
In support of its contention that the Union may not
claim the presumption of majority status, the Respondent
relies on the asserted fact that in early 1970 the Union
engaged in an unsuccessful strike to secure a better con-
tract than the one that was ultimately executed; that, as a
consequence of the strike, 40 percent of the strikers were
permanently replaced; that the Union thereafter refused to
sign a subsequently negotiated 3-year agreement with the
Respondent, offering to abdicate its representative status
rather than execute the agreement; and that the Union was
ultimately forced to execute this agreement after the Re-
spondent had initiated Board proceedings for such pur-
pose.19 This was the contract which expired on February 6,
1973, and was the subject of renewal negotiations involved
in the present case.
I find nothing in the events which establishes that the
Union at that time lost its majority support or which other-
wise vitiates the presumption of majority status arising out
of its certification. Significantly, instead of challenging the
Union's majority status after the 1970 strike, as the Re-
spondent would have been expected to do had it really
entertained any doubt concerning the Union's representa-
tive capacity, the Respondent resorted to Board processes
to compel the Union to execute a previously negotiated
contract. Moreover, it is well settled that, apart from a
Union's certification, a collective-bargaining contract, law-
ful on its face, normally raises a presumption that the con-
tracting union's majority status continues during the life of
the contract and after the contract's termination.20 For this
1088 (C A 4, 1970), cert denied 398 U S 929 (1970), Nu-Southern Dyeing
& Finishing, Inc, and Henderson Combining Co, 179 NLRB 573, In 1 (1969)
19 Case 12-CB-1123
20 Automated Business Systems, supra at 12-13, Emerson Manufacturing
Company, Inc, 200 NLRB 148, 150 (1972), Barrington Plaza and Tragniew,
Inc, 185 NLRB 962, 963 (1970) enforcement granted in part and denied in
part sub nom N L R B v Tragniew, Inc, 470 F 2d 669 (C A 9, 1972) 1 do
not understand that the Respondent is contending that the Union did not
enjoy majority support at the time the parties executed the 1970 contract
and that therefore the presumption of majority status could not attach after
the contract expired If such were its contention , it would be untenable as it
has been held that this presumption may not be challenged by evidence
time-barred by the limitations provision of Sec 10(b) of the Act that the
Respondent's recognition was unlawful in 1970 Barrington Plaza, 185
NLRB at 964, and N L R B v Tragniew at 673
PEOPLES GAS SYSTEM, INC.
reason, upon expiration of the 1970 contract, the presump-
tion of majority status attached to the Union when the
1973 contract renewal negotiations were undertaken. In-
deed , the Respondent honored its bargaining obligation at
that time until April 23, 1973, when it questioned the
Union's majority by filing a petition for an election.
Accordingly, I find that the Union's presumptive majori-
ty status was not impaired by the events of 1970 and con-
tinued after the expiration of the parties ' last contract on
February 6, 1973.
With Respect to the Sufficiency of the Objective
Considerations for the Respondent's Doubt
As discussed earlier in this decision, the Respondent,
without prior notice to the Union, suddenly withdrew rec-
ognition by filing with the Board a petition for an election
on April 23, 1973. This action was taken after the Respon-
dent and the Union had engaged in five bargaining ses-
sions between January 9 and February 2, the last one of
which was attended by a Federal mediator; the union
membership had voted on February 5, the eve of the termi-
nation of the then current contract , to accept a package
proposal whose contents, though not precisely described in
the record, included, at least, the Respondent's proposed
wage increase and reclassification program and a supervi-
sors working clause ; the parties had held a final face-to-
face meeting on February 14 which ended with the parties
being in sharp dispute as to the items on which agreement
had previously been reached; the Union had filed two suc-
cessive unlawful refusal-to-bargain charges; and the
Union's attorney had vainly sought to secure a contract in
a series of telephone conversations and an exchange of cor-
respondence with the Respondent's attorney. Although the
record is devoid of evidence of employee dissidence or dis-
satisfaction with union representation , the Respondent
justifies its doubt that the Union continued to enjoy the
support of a majority of the employees on the basis of
numerous factors which, it asserts, in their totality, moti-
vated its withdrawal of recognition and the filing of the
election petition . We turn to a consideration of these fac-
tors.
The 1970 events: According to the Respondent, its deci-
sion to withdraw recognition and file the election petition
rests, in part , on those events . As noted above , I am unable
to perceive anything which transpired at that time which
impugned the Union's majority 3 years later. The
Respondent 's successful resort to Board processes in 1970
to force the Union to sign a previously negotiated contract
demonstrates , in my opinion , the Respondent 's confidence
that the Union retained its majority status, despite the as-
serted replacement of 40 percent of the strikers. In these
circumstances , I find the events in 1970 too tenuous, if not
also too remote, to support a serious doubt of the Union's
majority status.
The Union's alleged indifferent representation of employ-
ees: Another factor which the Respondent claims prompt-
ed it to question the Union's majority is the Union's "total
inactivity" as an employee representative. It alleges that
during its 6-year incumbency it had presented to the Re-
spondent only three written employee grievances, one of
953
which went to arbitration and was lost by the Union. How-
ever , according to the undisputed and credible testimony
of Chief Shop Steward Black and Shop Steward Flaks, they
had handled for employees many grievances , problems,
and complaints concerning working conditions and disci-
pline imposed on them and took up these matters informal-
ly with the employees ' immediate supervisors where they
were usually adjusted . Black further credibly testified,
without contradiction , that pursuant to arrangement with
Company Vice President Keyes , if a satisfactory adjust-
ment were not achieved on this level , he would discuss the
matter with higher management , particularly Keyes him-
self. Apparently , there was no need-and the Respondent
has not shown it to be otherwise-for a more formal proce-
dure for settling their differences amicably. Moreover,
there is absolutely no evidence that the Union at any time
refused to handle or process employee complaints or griev-
ances or that employees ignored the Union and personally
presented their grievances to management.
In addition to the foregoing , the record discloses that the
Union held monthly membership meetings where employ-
ees presented and discussed their job problems ; that the
Union maintained at the Respondent 's facility a bulletin
board where notices pertaining to union business were
posted ; that an employee committee participated in con-
tract negotiations ; that employees were afforded the op-
portunity to vote whether to strike in support of the
Union 's contract demands and whether to accept the
Company 's so-called package proposal ; and that Chief
Shop Steward Black policed the seniority list which the
Respondent was required to post under the parties' con-
tract.
In sum, I am unable to find in the record before me such
indifference by the Union to the interests and representa-
tion of employees as to support the Respondent's belief
that a majority of the employees no longer desired union
representation . 21 Indeed , if the Respondent 's belief were
tenable , it is difficult to understand the absence of evi-
dence of employee expressions of disenchantment with the
Union or opposition to the Union 's bargaining efforts on
their behalf.
The Union 's efforts, accompanied by strike threats, to con-
summate an agreement before the February 6, 1973, expira-
tion date of the then current contract : The Respondent urges
that such an approach to bargaining for a new contract
betrayed an apprehension by the Union that it was vulner-
able to replacement as the employees ' bargaining agent
and hence confirmed the Company 's belief that the Union
no longer enjoyed majority support. In my opinion, the
Respondent 's disparagement of the Union 's motivation for
accelerated negotiations is founded on pure speculation
and a reluctance to give the Union the benefit of a desire to
serve its constituents more advantageously , especially since
a wage increase was involved . I therefore find in the
Union's conduct-by no means an uncommon bargaining
technique-no plausible reason for doubting the Union's
majority status.
Alleged capitulation to the Respondent's contract position:
21
The cases cited by the Respondent clearly do not require a contrary
result
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent asserts that, in deciding to test the
Union's majority status, it also took into consideration the
Union's abrupt reversal of its position from opposition to
the Company's package offer to acceptance of the
Company's proposal after the Union's membership had
voted on February 5 in favor of the package offer. In addi-
tion, the Respondent claims, it considered the subsequent,
determined efforts of the Union's attorney to induce the
Company's attorney to draft a contract agreeable to the
Company, which he indicated the Union might and would
sign, despite the fact that the parties were in sharp dispute
whether the parties had reached agreement on all bargain-
ing issues. According to the Respondent, it interpreted the
Union's actions as a complete surrender to the Company's
bargaining position to the detriment of employee interests
and had as its sole purpose preserving the Union's repre-
sentative status "in the face of declining employee sup-
port" by securing a contract which would preclude a ques-
tion of representation from being raised in a Board election
proceeding.
I am unable to find a sound basis for the Respondent's
analysis of the Union's actions. Not only is there no evi-
dence of employee dissatisfaction or rejection of union rep-
resentation 2 or other ground for the Union to fear it was
losing majority support, but also there isn't the slightest
suggestion in the record of any Board proceeding being
instituted by an employee or another labor organization to
oust the Union. Indeed, there is even no evidence that any
other labor organization had instituted an organizational
drive to wean employee adherence away from the Union.
It thus appears to me that the Respondent's appraisal of
the Union's motivation in attempting to secure a labor con-
tract is founded more on suspicion or speculation than
fact.
As for the Union's alleged capitulation to the
Respondent's bargaining position, I do not view the
Union's efforts to secure a contract from the Respondent
as other than an attempt to obtain for the employees the
best deal possible under the circumstances, while reserving
its right to pursue before the Board unfair labor practice
charges the Union had filed should a drafted agreement
omit significant provisions it maintained had previously
been agreed upon.23 As discussed earlier in this decision,
the parties held five bargaining sessions. The February 2
meeting, which was attended by a Federal mediator, pro-
duced a company package offer which included, at least, a
substantial wage increase and a job reclassification pro-
gram. Although the union membership voted on February
5 to accept this offer, a dispute developed between the par-
ties whether agreement had been reached on all terms and
22 The fact that the Union failed to implement its strike threat does not
necessarily establish that the employees did not want union representation
Kentucky News , Incorporated, 165 NLRB 777, 779 ( 1967) Indeed , the em-
ployees' unproductive strike experience in 1970 and the Respondent's ac-
knowledgement of the fact that it is extremely difficult to win a strike
against a public utility , which the Respondent is, might well explain the
employees ' reluctance to strike the Respondent in support of their demands
in 1973
23 it is of no moment to the issues presented in this case that the General
Counsel ultimately refused to include in the complaint allegations relating
to the Respondent 's repudiation of prior agreements
conditions of employment to be embodied in a contract.
As a result, negotiations broke down on February 14, fol-
lowing which the Union filed successive unfair labor prac-
tice charges and its attorney engaged the Respondent's at-
torney in a series of telephone conversations and an ex-
change of correspondence in the hope of obtaining a
contract.
Viewing the Union's action in light of the prior negotia-
tions, I find no basis for the inference urged by the Re-
spondent that the Union thereby capitulated to the
Respondent's demands at the expense of employee inter-
ests. Apart from the fact that the evidence does not show in
what specific respects there was an outright contractual
surrender, it might reasonably be expected that a drafted
agreement would contain many clauses of benefit to the
employees. Certainly, such an agreement would include a
substantial wage increase to employees which the Respon-
dent had indicated in the telephone discussions it was will-
ing to put into effect immediately as part of a complete
agreement . Moreover, the Union insisted on reserving its
right to pursue its unfair labor practice charge in the event
there were significant omissions of provisions from the
contract which it claimed had previously been agreed
upon. Finally, it is not unreasonable to assume that, if the
Respondent submitted to the Union an unsatisfactory pro-
posed agreement for signature, this could crystallize the
points of difference between the parties, leading to further
negotiations at the bargaining table.
In sum , I am not pursuaded that, under the particular
facts and circumstances of this case, the Union's efforts to
secure a contract constituted such an unwarranted capitu-
lation to the Respondent's contract demands as to create a
reasonable doubt of the Union's continuing majority sta-
tus.24 Indeed, to cast doubt on the Union's majority status
simply because it tried to obtain a contract drafted by the
Respondent which might well have settled the parties' dif-
ferences amicably, would not effectuate the policy of the
Act to encourage the peaceful adjustment of labor dis-
putes.
Alleged decrease in the number of dues checkoff authoriza-
tion cards over the past 3 years: Further contributing to its
decision to test the Union's majority status, according to
the Respondent, was the decrease since 1970 in the number
of dues checkoff cards the Company had on file on April
23, 1973, when it filed its election petition with the Board.
This decision was based on information Attorney Hogg,
who advised the Respondent to question the Union's ma-
jority, had received from the Company that the latter had
in its possession checkoff cards 25 of about 72 employees in
the bargaining unit of 177 or 179 employees, including pro-
bationary employees,26 which constituted approximately 39
percent of the total unit. He also learned from the Compa-
ny that in February 1970 the percentage of unit employees
24 The facts of Viking Lithographers, Inc, 184 NLRB 139 (1970), and
other cases relied upon by the Respondent to justify a finding of sudden
contractual capitulation and a reasonable doubt of a union's majority status
are plainly distinguishable from the situation presented in the instant case
25 The dues-checkoff card also designated the Union as the signer's col-
lective-bargaining representative
26 These were newly hired employees who were required to serve a 90-day
trial period before acquiring permanent status, as provided in the parties'
bargaining contract
PEOPLES GAS SYSTEM, INC 955
on dues checkoff was approximately 70 percent. However,
no probative evidence was adduced by the Respondent to
substantiate these figures. Moreover, for computation pur-
poses, the Respondent erroneously included probationary
employees in the unit since admittedly it was the
Respondent's practice to reject checkoff cards of proba-
tionary employees until they had successfully completed
their 90-day probationary period. On the other hand, the
undisputed evidence establishes that on April 23 the Re-
spondent actually had checkoff cards on file from 76 per-
manent employees 27 out of a total of 148 or 149 such unit
employees 8 and that the number of checkoff cards actual-
ly amounted to 51 percent of the permanent employees 29
It thus appears that, while it is true, as the Respondent
argues, that an employer may take into account, along with
other evidence, a substantial decrease in the number of
employees who had executed dues checkoff authorization
cards in determining whether the Union continued to enjoy
majority status,30 the evidence here does not support the
purported decrease or the Respondent's asserted good-
faith doubt of the Union's majority. Not only does the
record disclose that on April 23, 1973, a majority of the
employees eligible to authorize a dues checkoff still main-
tained their checkoff arrangements, but also the checkoff
continued after the expiration of the parties' collective-bar-
gaining contract in a state which had a "right to work"
law." Moreover, as far as the probationary employees are
27 The 76 employees included 74 designated on Joint Exh I as on dues
checkoff and permanent employees Richard D Hengy and Bennie M Paw-
lowski, who the evidence shows were still on checkoff on April 23. Thus, the
names of Hengy and Pawlowski appear on the April dues transmittal list
which the Respondent had prepared and sent to the Union pursuant to the
parties' last contract Moreover, there is testimony by a former office em-
ployee of the Union that the Union had no record of a resignation having
been submitted by these individuals during the period of March through
May 1973 In addition to the 76 cards, the Union also had in its possession
8 checkoff authorizations bearing pre-April 23 dates However, these cards
will not be considered with respect to the question of the Union's good-faith
doubt because they had never been submitted to the Respondent, which was
unaware of their existence
25 There is a dispute whether a permanent employee, Joseph W Warner,
classified as a janitor, should be included in the bargaining unit This ques-
tion need not be resolved as it is unimportant to the issue of good-faith
doubt whether there were 148 or 149 permanent employees in the unit
29 Hogg testified that in June 1973, during the course of the Regional
Office's investigation of this case, the Company advised him that in 1970, 90
percent of the permanent employees were on checkoff Here, too, there is no
probative evidence to substantiate this information
30 Convair Division of General Dynamics Corporation, 169 NLRB 131, 134
(1968) Of course, it is also well settled that, standing alone, a showing that
less than a majority of the employees in the bargaining unit made dues
checkoff arrangements or were union members or paid dues does not neces-
sarily establish a lack of majority support for union representation (Glen-
lynn, Inc, d/b/a McDonald's Drive-In Restaurant, 204 NLRB 299, 310
(1973); Terrell Machine Co, supra, Convair, supra), although the employer
may nevertheless take this factor into consideration along with others, in
assessing in good faith whether the union continued to enjoy majority sta-
tus Ingress-Plastene, Inc v N L.R B, 430 F 2d 542, In 6 (C A 7, 1970)
3i Sec 12 of the Declaration of Rights of the Florida Constitution pro-
vides in pertinent part
The right of persons to work shall not be denied or abridged on ac-
count of membership or nonmembership in any labor union, or labor
organization, provided, that this clause shall not be construed to deny
or abridge the right of employees by and through a labor organization
or labor union to bargain collectively with their employer
Cf Terrell Machine Company v N L R B, supra at 1090
concerned,32 it cannot be assumed that they, as new em-
ployees, did not desire to be represented by the Union,
whether or not they had joined that organization. At least,
no evidence was presented from which such an inference
might be drawn. As the Board observed in Laystrom,33
"new employees will be presumed to support a union in the
same ratio as those whom they have replaced."
All these being considered, I find little, if any, justifica-
tion for the Respondent's reliance on the diminished num-
ber of checkoff cards to doubt the Union's majority status.
Alleged high employee turnover: As additional justifica-
tion for its doubt, the Respondent relies on employee turn-
over during the period from September 1, 1972, when the
Respondent purchased Superior Gas Company, 34 a com-
peting business firm, until April 23, 1973, when the Re-
spondent filed its representation petition. Here, too, Attor-
ney Hogg based his recommendation on information he
acquired from the Respondent, which is unsubstantiated in
the record, that during that period the Company experi-
enced a 36-percent employee turnover. It appears that the
36 percent reflects the fact that, of the original 26 employ-
ees in Superior Gas' employ at the time of the acquisition,
only 15 of them were on the Respondent's payroll on April
23.
While high employee turnover, in conjunction with other
convincing factors, might be evidence of a reasonably
grounded belief that the Union was no longer the employ-
ees' choice,35 I find, under the facts and circumstances of
this case, that the 36-percent turnover, unsubstantiated as
it is, is a weak reed upon which to rely to sustain a reason-
able doubt of the Union's majority status 36 As noted
above, a change in personnel does not necessarily mean
that the new employees are not interested in being repre-
sented by the incumbent certified union in collective bar-
gaining with the employer, whether or not they join the
union. In fact, as indicated above, new employees may be
presumed to favor the union in the same ratio as those they
have replaced.
Accretion of Superior Gas employees to the bargaining
unit: The Respondent states that it was also motivated to
file the representation petition by the fact that, as a result
of its acquisition of Superior Gas, the latter's drivers and
servicemen became part of the bargaining unit.37 It further
32 As later indicated, probationary employees are normally includable in
a plant unit
73 Laystrom Manufacturing Co, supra, see also Printers Service Inc, Photo-
Composition Service, Inc, 175 NLRB 809, 812 (1969), Harpeth Steel, Inc,
208 NLRB 545, 546 (1974)
34 it appears that on September 1, 1972, the Respondent acquired Superi-
or Gas Company, whose facility was then located in Fort Lauderdale, Flori-
da Although Superior Gas' 26 truck drivers and servicemen were placed on
the Respondent's payroll at that time, they continued to work at the Fort
Lauderdale facility until the early part of 1973 when that operation was
physically merged with the Respondent 's Miami facility There is no ques-
tion that Superior Gas' employees became part of the Respondent's bar-
gaining unit upon completion of the acquisition
35 Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801 (1973), Viking
Lithographers, Inc, supra at 3, Lloyd McKee Motors, Inc, 170 NLRB 1278,
1279 (1968)
36 Cf Harpeth, supra at 4, Maywood Packing Company, 181 NLRB 778,
781 (1970), Printers Service, supra at 812, Kentucky News, incorporated, su-
pra at 778, Laystrom, supra at 1484
37 As noted above, there were only 15 former Superior employees on the
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserts that before the acquisition these employees had
once rejected representation by a Teamsters union . Hogg's
testimony in support of this assertion is vague and of dubi-
ous probative value. Thus, he testified that some time back
in the "60's," which he "guessed" to be about 1966, "there
was either a petition or some charges by the Teamsters in
the course of an organizing effort which failed." He further
testified that he did not believe that an election was held on
that occasion.
I view this evidence too inconsequential and remote to
justify a finding of union hostility sufficient to support a
genuine doubt of the Union's majority status. Convair, su-
pra, upon which the Respondent relies, is plainly inapplica-
ble. There, the Board found, among other things, that the
certified unit had undergone drastic changes due to a reor-
ganization of the employer's operations which involved the
transfer into the certified unit from the employer's other
plant of a group of employees who had previously rejected
the same union at a separate Board election conducted at
this other plant. The Board found, on the basis of this and
other evidence, that the employer's doubt of the certified
union's continuing majority status was well founded. Obvi-
ously, nothing of the sort that occurred in Convair hap-
pened in the present case.
The Respondent also alludes to the fact that no former
Superior Gas employee signed a dues-checkoff card as evi-
dence of opposition to the Union. However, as noted previ-
ously, the failure to authorize a dues checkoff does not
inescapably warrant an inference of union opposition. It is
surely not uncommon for employees to favor union repre-
sentation and yet not desire to become union members or
pay dues or authorize a checkoff.38 In these circumstances,
the failure of former Superior Gas employees to execute a
dues checkoff does not vindicate the reasonableness of the
Respondent's doubt of the Union's majority status.
The Union's 6 -year certification: The Respondent urges
the age of the certification as another factor justifying its
doubt of the Union's continuing representative status. The
ready answer to this contention is the Board' s statement in
Maywood Packing, supra at 778, fn. 1 that "[ i]t is clear that
the mere passage of time is insufficient to rebut the pre-
sumption" of majority status which normally attaches to a
certification after the first year of its issuance.
The Respondent's subjective good faith. Finally, in further
defense of its conduct, the Respondent contends that it
acted in good faith in questioning the Union's continued
majority status. This, the Respondent urges, is demonstrat-
ed by the absence of a history of unfair labor practices; by
the lack of evidence that it raised the issue of majority
status in an effort to gain time in which to undermine the
Union or that it engaged in such activity; and by the fact
that it immediately filed an election petition in order to
resolve its doubt.
Assuming that the Respondent acted in good faith in its
Respondent 's payroll at the time of the filing of the representation petition
on April 23, 1973
38 According to the undisputed and credited testimony of Chief Shop
Steward Black , there were no serious attempts made to organize former
Superior Gas employees before their transfer from the Fort Lauderdale
installation to the Respondent's facility in Miami in the first part of 1973
refusal to continue to recognize the Union as the employ-
ees' bargaining representative unless it proved its majority
at a Board election, I find that this would not justify the
Respondent 's action . Manifestly , a good-faith claim 39 is a
subjective matter and, under settled law , is entitled to
weight only if well-founded objective considerations are
shown warranting the withholding of recognition from the
incumbent certified union .40 In language equally applicable
here the Board in Laystrom, supra at 1485, held:
The absence of union animosity or of independent un-
fair labor practices, although consistent with a subjec-
tive good-faith belief that the Union had lost its ma-
jority, does not establish that the Respondent had a
"reasonable basis" or "reasonable grounds" for so be-
lieving. As for Respondent's action in filing a petition
for an election , and its willingness-first expressed 2
months after its refusal to bargain-to meet with the
Union for the limited purpose of trying to seek a con-
ditional contract contingent on the outcome of the
election, it need only be noted that these are self-serv-
ing assertions which do not provide any objective ba-
sis for doubting the Union's continuing majority.
In view of the foregoing, I conclude that the Respondent
failed to establish that its withdrawal of recognition from
the Union was based on objective considerations justifying
a reasonable doubt that the Union no longer enjoyed ma-
jority status.
With Respect to the Union's Alleged Lack of Majority
As shown above, the presumption of majority status of
an incumbent certified union may be rebutted by the em-
ployer by proof that the union lost the support of a majori-
ty of the unit employees. Such proof, like a good-faith
doubt,41 would excuse the employer's withdrawal of recog-
nition . Although the Respondent did not produce any evi-
dence that the Union no longer enjoyed majority status
when it withdrew recognition and filed an election petition
on April 23, 1974, it argues, nevertheless, that the General
Counsel, by submitting additional checkoff cards to fortify
the presumption, thereby actually demonstrated the
Union's lack of majority requiring a dismissal of the com-
plaint. I find no merit in this contention.
At the outset, I find, in agreement with the Respondent's
position and contrary to the contention of the General
Counsel and the Union, that the probationary employees
should be included in the bargaining unit for the purpose
of determining majority.42 According to the Respondent,
39 See Automated Business Systems, supra at In 25, where a majority of the
Board seems to question the use of good-faith terminology
40 Because of the existence of such objective considerations in the cases
cited by the Respondent those cases are plainly distinguishable from the one
involved here
41 In disagreement with the Union's contention, actual proof of majority
would not overcome an employer's reasonably grounded doubt of an in-
cumbent certified union's continuing majority status as to put the employer
in violation of Sec 8(a)(5) of the Act Automated Business Systems, supra, 8
el seq , where a majority of the Board rejected a contrary dictum in Taft
Broadcasting, supra, upon which the Union relies
42 Erie Marine Division, The Rust Engineering Company, 195 NLRB 815,
816 (1972), VIP Radio, Inc, 128 NLRB 113, 116 (1960), The Sheffield
PEOPLES GAS SYSTEM, INC
the addition of probationary employees would increase the
size of the unit to 179 43 on the critical date , and since the
General Counsel proved that the Union had secured at
most 84 cards , the Union did not represent a majority of
unit employees . Assuming that the size of the unit is as
indicated , I fail to see how the General Counsel 's evidence
destroyed the majority presumption the Union was other-
wise entitled to. Indeed , in a similar situation in Terrell,4a
the Board, with court approval, so held , stating:
Further . . . we find , for the reasons set forth below,
that on July 3, the Union continued to be the majonty
representative of the employees in the unit . Thus, on
the facts of this case , the presumption of continued
majority status was operative , and it was incumbent
upon the Respondent to go forward with the evidence
to establish actual loss of such status , if it wished to
rebut that presumption. Of course , if the General
Counsel's evidence refuted his own contention, that
would undoubtedly be sufficient . But that is not the
case here . 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. Accordingly , the Trial Examiner 's finding
here that on July 3, only 41 of the 90 employees in the
unit were dues-paying members does not justify his
conclusion that on that date the Union did not repre-
sent a majority of the Respondent 's employees. There-
fore, we find , the presumption of the Union 's repre-
sentative status on and after July 3 has not been rebut-
ted.
Here , too, I find for the same reasons that the presump-
tion of the Union 's majority did not lose its vitality simply
because dues-checkoff cards from less than a majority of
employees in the unit were introduced in evidence. Ac-
Corporation, 123 NLRB 1454 , 1457 (1959), 134 NLRB 1101 , 1106, fn 6
(1961)
43 While it is undisputed that there were 148 or 149 permanent employees
in the unit , the only evidence produced by the Respondent concerning the
number of probationary employees on the critical date was the testimony of
Attorney Hogg , who clearly did not have personal knowledge , that there
were 30 employees in that category Such testimony has little , if any, proba-
tive value
44 Terrell Machine Company, supra
957
cordingly, I find that, by withdrawing recognition from the
Union and refusing to resume negotiations , the Respon-
dent breached its statutory bargaining obligation and vio-
lated Section 8(a)(5) and (1) of the Act.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act , as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and in any like or related conduct and take certain
affirmative action designed to effectuate the policies of the
Act. To remedy the Respondent 's unlawful refusal to fulfill
its statutory obligation , it is recommended that it recognize
the Union as the certified bargaining representative of the
Company's employees in the unit found appropriate herein
and that , on request , it resume negotiations with that orga-
nization concerning rates of pay, wages, hours of employ-
ment, and other conditions of employment . An appropriate
notice for posting is also recommended.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All employees of its East Coast Florida division in
Dade and Broward Counties engaged in production, main-
tenance , and distribution , including installation , plant, pro-
pane and service department employees , but excluding all
office clerical employees , meter readers , sales employees,
watchmen , guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein , the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5. By withdrawing on April 23, 1973, recognition from
the Union as the exclusive representative of the employees
in the aforesaid appropriate unit , and by thereafter refus-
ing to resume negotiations and bargain with the Union, the
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]