Redmond Plastics, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1970

187 N.L.R.B. 487 (N.L.R.B. 1970)

REDMOND PLASTICS, INC. 487
Redmond Plastics, Inc., and Textile Workers' Union of
America, AFL-CIO. Case 3-CA-3480
December 28, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On May 22, 1969, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding,' finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8(a)(5) and (1)
of the National Labor Relations Act, as amended,
and ordering the Respondent to cease and desist
therefrom and to bargain with the Union.
On August 5, 1969, the Board advised the parties
that it intended to reconsider its earlier decision in
light of the Supreme Court's opinion in N.L.R.B. v.
Gissel Packing Company, 395 U.S. 575, and invited all
parties, including the General Counsel, to file state-
ments of position. Such statements have been received
from the Respondent and the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board, having again reviewed the entire record,
including the statements of position submitted by the
Respondent and the Charging Party, has decided to
adhere to its original decision. Thus, for the reasons
substantially set forth therein, we find that the
Respondent's refusal to bargain with the Union and
its insistence upon an election violated Section 8(a)(5)
of the Act, and that a bargaining order is warranted.
However, in view of the Supreme Court's intervening
opinion in Gissel Packing Co., supra, and our own
decision in Arthur F. Derse, President and Wilder Mfg.
Co., Inc ,2 we believe that some additional comments
are in order.
THE FACTS
Based on the credited evidence, and as more fully
set forth in the Trial Examiner's Decision, it appears
that the Union began its organizational drive on
March 27, 1968, and by March 29 had obtained
signed authorization cards from a majority of the
Respondent's production and maintenance
employees.3
At 7:30 a . m. on April 1 , Lamb and Sherman, the
two union representatives , and a committee of three
employees met with Respondent 's president, Red-
mond . At the same time , a group of 12 employees, as
instructed by the Union , remained outside the plant
and did not go to work . At the meeting , Lamb and
Sherman introduced themselves as representatives of
the Union and stated they represented a majority and
were ready to establish it by card proof . They asked
whether Redmond would like to check the cards and
he said he would . Lamb handed about 16 cards to
Redmond who looked through them and commented
that 1 was a part-time employee . Lamb asked whether
Redmond found the signatures to be authentic and
Redmond replied he thought they were . Lamb stated
that if Redmond needed further proof he could see
that no one was in the plant . On Lamb 's further
inquiries Redmond agreed he believed the Union
represented a majority and agreed he would recognize
the Union.
They agreed on April 4 as a time to meet for
negotiations . Redmond again looked through the
cards and commented on his assumption that the
committee present would be sitting with the Union in
the negotiations . Lamb suggested that there should be
an interim agreement to cover the understanding as
reached and Redmond agreed . Sherman left to
procure a writing tablet from Lamb 's car and
thereafter the employee members of the committee
and the other employees clocked in for work. When
Sherman returned , Lamb composed in longhand a
draft of a recognition agreement, reading it to
Redmond as he went along . Redmond found the
language acceptable but stated that the negotiations
would work both ways, that there would be no more
free coffee for employees and no more short days or
paid time on inventory days . Redmond then agreed to
have his secretary type the draft but told the two
union representatives that he would have to talk with
the Chicago officers of the Company (Western Felt,
majority stockholder in Respondent ) before he signed
it. They agreed to meet later that same day at 10 a.m.
and the draft was handed to Redmond 's secretary to
be typed.
The agreement read:
I do hereby recognize the Textile Workers Union
of America , AFL-CIO as the bargaining agent of
the employees of Redmond Plastics, Incorporated.
Proof has been shown me of a signed majority of
my employees on this day April 1, 1968. I agree to
negotiate with the Textile [sic ] Workers Union of
America A.F.L.-C. I.O. All conditions concerning
the employees employment will remain status-quo
1 176 NLRB No 10 Union held valid authorization cards from a majority of the employees in
2 185 NLRB No 76 an appropriate unit at the time of its request for recognition and
3 We hereby reaffirm our earlier findings and conclusions that the bargaining
187 NLRB No. 60
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until an agreement is reached between the two
parties. April 4, 1968 is the first day of negotiations
between the Textile Workers and Redmond
Plastics, Incorporated.
At the 10 a.m. meeting on April 1, the interim
agreement was produced. Redmond informed Lamb
and Sherman that because of the time differential he
had been unable to contact the Chicago office, and
that he desired to discuss the matter with that office
before signing the recognition agreement.
At 4 p.m. on April 1, as agreed, Lamb and Sherman
returned to Redmond's office. Redmond told them he
had talked with his attorney in Chicago and had been
advised to seek a consent-election agreement. Upon
the union inquiry, Redmond repeated that he did not
doubt the Union's majority. Redmond also stated that
he had informed his attorney of everything that had
taken place that morning, including looking at the
cards and agreeing to recognize the Union. Indeed,
Redmond admitted informing the attorney that the
employees had not come to work that morning and
that his doubt was really an inability to understand
how his employees could get involved in such a
matter.
It appears that on the evening of April 1 Redmond
was approached by employee Irene Hermanent who
claimed to speak for some of the girls. Hermanent
informed Redmond they did not want the Union and
wanted to know how they could get their cards back.
Redmond replied that the only solution he knew was
by secret ballot election to be held by the NLRB. It
also appears that the following morning employees
Mander and the Hotel brothers also asked Redmond
about the possibility of getting their cards back and
further informed Redmond that some of the employ-
ees were not quite sure they wanted the Union.
Redmond again indicated the solution to the dilemma
would be to vote in an election.
CONCLUSION
The issue thus presented is: Whether the Employer,
having satisfied himself that the Union represented a
majority of its employees in an appropriate unit (after
checking the signatures on the Union's authorization
cards and noting the employees' concerted refusal to
clock in at their regular time) and having agreed to
recognize and bargain with the Union, violated
Section 8(a)(5) of the Act by refusing thereafter to
bargain with the Union, and, on advice of counsel,
insisting upon an election on the ground that it
doubted the Union's majority, without, however,
committing unfair labor practices (except the unlaw-
ful refusal to bargain) which would impede the
Board's election processes? This question was long
ago answered affirmatively in Snow & Sons4 and other
Board and court decisions.
In Snow & Sons, supra, the employer, when first
confronted by the union's recognition demand based
on authorization cards allegedly signed by a majority
of his employees in the appropriate unit, refused the
union's demand on the grounds that it doubted the
union's asserted majority status and requested a
Board election. Subsequently, however, the employer
agreed to have an independent check made of the
employee signatures on the union authorization cards,
which check established that a majority of the
employees indeed desired to be represented by the
union. Therefore, since the employer no longer
entertained a reasonable doubt as to the union's
majority support, the Board held that the employer's
continued refusal to recognize the union and insist-
ence upon an election, without a valid ground
therefor, violated Section 8(a)(5).
The facts in the instant case are even stronger than
those in Snow & Sons, supra, for finding that the
Respondent's refusal to bargain with the Union
violated Section 8(a)(5). For here the Employer's
president, after checking the authenticity of signed
authorization cards presented by the Union and
noting the absence from the plant of virtually all unit
employees, not only acknowledged as fact that the
Union represented a clear majority of its employees,
but actually recognized the Union and agreed on a
date on which to commence bargaining. Later that
day, after discussing the situation with Respondent's
majority stockholder and counsel, the Respondent's
president reneged on its earlier recognition of, and
agreement to bargain with, the Union and insisted
upon a Board election on the grounds that it doubted
the Union's majority status.
On the foregoing facts, the Respondent's assertion
of "good faith doubt" was clearly contrived and
wholly specious and should, therefore, be given no
credence. To hold otherwise would be to make a
mockery of the Board's orderly election
processes-whose essential function is to resolve
legitimate disputes concerning the desires of a
majority of the employer's employees to be represent-
ed by a union. However, where, as here, a large
majority of the employees have convincingly demon-
strated to their employer their desire to be represented
by the union, and the employer's chief executive
officer has acknowledged this to be so and agreed on a
date to commence bargaining, it appears that no
issues remain which would warrant postponing the
employer's duty to bargain pending the outcome of an
election. In these circumstances, the Board should not
4 134 NLRB 709, enfd 308 F 2d 687 (C A 9), cited with approval in
Gissel Packing Co, Inc, 395 U S 575 at 593, 594
REDMOND PLASTICS, INC. 489
permit its election processes to be used as a loophole
in the law through which an employer may lawfully
delay his bargaining obligation and thereby deny his
employees their statutory right under Section 7 to
bargain collectively.
This conclusion is consistent with the Supreme
Court's views in Gissel, supra, and the Board's recent
decision in Wilder Mfg. Co., Inc., supra . In Gissel the
Supreme Court approved our holding in Snow & Sons,
supra, that Section 8(a)(5) is violated where , as here,
the employer, having recognized and agreed to
bargain with the union after satisfying himself
concerning the union's majority status, reneges on his
agreement and requests an election on the asserted
ground that he doubts the union ' s majority. In Wilder,
supra, the Board found an 8 (a)(5) violation because
the employer , having independent knowledge of the
union ' s majority support , nevertheless refused recog-
nition and evidenced no ". . . genuine willingness
. . . to resolve any lingering doubts which might have
remained as to majority status by resort to the Board's
election procedures ." In the instant case , it is difficult
to see that the Respondent's request for an election
indicated such genuine willingness to resolve "any
lingering doubts" concerning the Union 's majority
when , in fact , no such doubts lingered . For, according
to the credited evidence , Respondent' s president,
Redmond , even after requesting an election , repeated
that he had no doubt as to the Union 's majority
strength.
Accordingly , we reaffirm the findings and remedy
provided in the original Decision and Order herein.
SUPPLEMENTAL ORDER
In view of the foregoing, and on the basis of the
record as a whole , the National Labor Relations
Board reaffirms its Order of May 22, 1969 , in this
proceeding.
CHAIRMAN MILLER , dissenting:
My colleagues deny that dismissal of the complaint
herein would be consistent with Gissel5 and Wilder,s
and assert instead that this case should be controlled
by Snow & Sons, 134 NLRB 709, enfd . 308 F.2d 687
(C.A. 9).
I am persuaded to the contrary and would hold that
the facts here do not fit the decisional law of Snow &
Sons. While a representative of Respondent here
indicated an initial willingness to accept the cards as
proof of majority status , it is perfectly clear that he
advised the Union that he could not grant the
requested recognition without further consultation by
telephone with others.? The draft recognition agree-
ment was not signed , in the first instance for precisely
this reason , and there was no misunderstanding
between the parties on this point.
It is equally clear that Respondent 's representative,
after such consultation, did not cause the draft to be
signed, and instead sought a consent -election agree-
ment . Thus the final commitment for recognition did
not materialize , and Snow & Sons does not apply.
As the Court held in Gissel, an employer may, but
need not, accept cards as proof of majority status. And
as we said in Wilder, we will respect an employer's
willingness to resolve majority status questions by
resort to our procedures even when confronted with
evidence in addition to cards, in the absence of
independent unfair labor practices . Since there was no
Snow & Sons commitment , this case fits squarely
within these principles, and I would dismiss.
5 N L R B v Gissel Packing Company, 395 U S 575 seek legal advice . It is perfectly clear, however, that some further
6 Wilder Mfg Co, 185 NLRB No 76 consultation was required and that the parties were to meet later to receive
7 The testimony is in some conflict as to whether he advised the Union Respondent's final position (which the Union doubtless hoped, but did not
that he had to consult other officers of the Company or whether he had to know, would be the signed written recognition agreement)