Satilla Rural Electric Membership Corp.

National Labor Relations Board - Board Decisions

Nov 12, 1965

155 N.L.R.B. 747 (N.L.R.B. 1965)

SATILLA RURAL ELECTRIC MEMBERSHIP CORPORATION 747
APPENDIX
NOTICE
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain by declining to meet with representatives
selected by Standard Allied Trades Council to bargain on behalf of said Union
with respect to a bargaining contract or by failing and refusing to meet with the
selected negotiating committee of said Union in order to bargain.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of rights guaranteed in Section 7 of the Act.
WE WILL, upon request of said Union, meet and bargain with representatives
selected by said Union to bargain on its behalf.
The appropriate units is:
All our employees employed at our Louisville plant, excluding the follow-
ing classifications: manager, superintendent, foremen, assistant foremen,
administrative employees, professional employees, office clerical employees,
final enamel inspectors, final cleaning house inspectors, confidential employ-
ees, guards, and supervisors as defined in the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organization.
AMERICAN RADIATOR & STANDARD SANITARY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room 2023,
Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200.
Satilla Rural Electric Membership Corporation and International
Brotherhood of Electrical Workers, AFL-CIO. Case No. 10-
CA-5804. November 12, 1965
DECISION AND ORDER
On July 7, 1965, Trial Examiner Thomas S. Wilson issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had not engaged in certain unfair labor practices alleged in the com-
plaint and recommending that such allegations be dismissed. There-
after, Respondent filed exceptions to the Decision; the General Coun-
sel filed exceptions and a. supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Cha.irman McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at th.e. hearing and finds that no prejudicial error was committed.
155 NLRB No. 60.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire rec-
ord in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner insofar as they are consistent
herewith.
The Union was certified as bargaining representative of Respond-
ent's employees on February 24, 1961. Between March 26 and
August 21, 1961, seven bargaining sessions were held between the par-
ties. On the latter date, within the certification year, Respondent
questioned the Union's majority status and refused to bargain further.
In a Decision and Order issued in May 19621 the Board found that
Respondent had not bargained in good faith with the Union since
July 8, 1961, and it ordered Respondent to bargain collectively with
the Union in good faith and to reduce to writing any understanding
reached. The Court of Appeals for the Fifth Circuit enforced the
Board's Order. It found that the Board was justified in entering an
order requiring Respondent "to bargain collectively in good faith
until it is clear that a contract can be agreed upon or that a true impasse
has occurred." 2
Thereafter, bargaining was resumed in November 1963 and con-
tinued until July 22, 1964. During this period, about 10 bargaining
sessions were held in the course of which 2 decertification petitions
were filed both of which were ultimately dismissed by the Regional
Director as untimely. On July 22 Respondent once more questioned
the Union's majority status and advised the Union that it would not
sign a bargaining agreement until the Union proved its majority
status in another election. As of that date, the parties were not at
an impasse , agreement had been reached on several matters, and wages
had not yet been discussed.
As the Supreme Court has said, "a bargaining relationship once
rightfully established must be permitted to exist and function for
a reasonable period in which it can be given a fair chance to succeed." 3
Contrary to the Trial Examiner, we do not believe that when Respond-
ent withdrew recognition the Union had yet been afforded "ample
time for carrying out its mandate on behalf of its members." 4
In 1961, after only seven bargaining sessions had been held, Re-
spondent questioned the Union's representative status and terminated
the bargaining relationship. This occurred well within the 1-year
period following the Union's certification, a period "when Unions
are generally at their greatest strength." 5 A substantial period of
1137 NLRB 387.
3 322 F 2d 251. The court's opinion was rendered on July 26, 1963, and its decree was
entered on October 16, 1963
3 Franks Bros . Company v N.L R.B., 321 U.S. 702, 705.
4 Ray Brooks v. N.L.R.B., 348 U.S. 96, 100
5 afar-Jac Poultry Company, Inc., 136 NLRB 785, 787.
SATILLA RURAL ELECTRIC MEMBERSHIP CORPORATION 749
litigation followed. Late in 1963, pursuant to a Board Order which
required enforcement by the court, bargaining was resumed. Ten
more bargaining sessions were held, but before bargaining had run
its course , once more the Union's majority status was questioned and
the meetings again were terminated by Respondent.
This course of events plainly demonstrates that when Respondent
last refused to bargain further with the Union, the Union had not
enjoyed the reasonable period of bargaining to which it was entitled
as an established statutory representative and which was contemplated
by our Order, and more particularly as enforced by the court's decree
requiring Respondent to bargain in good faith until an agreement or
true impasse was reached. It follows, and we find, that this refusal
to continue the bargaining relationship violated Section 8(a) (5) and
(1) and Section 2(6) and (7) of the Act.a So that the bargaining
relationship may yet have "a fair chance to succeed," the circumstances
of this case require that we order Respondent to bargain with the
Union until a contract is achieved or an impasse is reached. We shall
so provide.?
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Satilla Rural Electric Membership Corporation, Alma,
Georgia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith with Interna-
tional Brotherhood of Electrical Workers, AFL-CIO, as the exclu-
sive representative of all employees in the heretofore certified unit
with respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively in good faith with said
Union as the exclusive representative of Respondent's employees in
the heretofore certified unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment, until
an agreement is achieved or an impasse is reached.
a Cf IV B. Johnston Grain Company and Johnston Seed Company, 154 NLRB 1115
7In the view which we take of this case , we find it unnecessary to determine the applica-
bility of Mar-Jac Poultry Company, Inc ., 136 NLRB 785 , to the facts herein.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its plant at Alma, Georgia, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished
by the Regional Director for Region 10, shall, after being signed by
the Company's representative, be posted by the Company immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Company to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 10, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain with the International Brotherhood of Elec-
trical Workers, AFL-CIO, as the exclusive representative of all
employees in the heretofore certified unit with respect to rates of
pay, wages, hours of employment, and other terms and condi-
tions of employment until an agreement is achieved or an impasse
is reached.
SATILLA RURAL ELECTRICAL MEM BERSHIP CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Repiesentative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street
NE., Atlanta, Georgia, Telephone No. 526-5741.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on July 27, 1964, by International Brotherhood of Elec-
trical Workers, AFL-CIO, hereinafter called IBEW or the Union, the General Coun-
SATILLA RURAL ELECTRIC MEMBERSHIP CORPORATION 751
sel of the National Labor Relations Board, hereinafter called the General Counsel 1
and the Board, respectively, by the Regional Director for Region 10 (Atlanta,
Georgia), issued its complaint dated December 9, 1964, against Satilla Rural Electric
Membership Corporation, hereinafter referred to as the Respondent.
The complaint alleged that since July 22, 1964, Respondent had engaged in and
is engaging in unfair labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (5) and Section 2(6) and (7) of the Labor Management Relations
Act, 1947, as amended, herein called the Act. Copies of the charge, the complaint,
and notice of hearing thereon were duly served upon the Union and Respondent.
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing thereon was held at Waycross, Georgia, on April 22,
1965, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing,
were represented by counsel or a representative, and were afforded full opportunity
to be heard, to produce, examine, and cross-examine witnesses, to introduce evidence
material and pertinent to the issues,2 and were advised of their right to argue orally
upon the record and file briefs and proposed findings and conclusions or both. Oral
argument at the conclusion was waived. Briefs were received from General Counsel
and Respondents on May 19, 1965.
Upon the entire record in this case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE RESPONDENT
Satilla Rural Electric Membership Corporation is, and has been at all times material
herein, a Georgia corporation, maintaining its principal office and place of business
at Alma, Georgia, where it is engaged in the business of distributing electrical energy.
Respondent, during the past calendar year, which period is representative of all times
material herein, in the course and conduct of its business operations, purchased and
received supplies and materials valued in excess of $5,000 from outside the State of
Georgia. During the same period, Respondent received gross revenue in excess of
$250,000.
The complaint alleged, the answer admitted, and I find that Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization
admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
In my opinion, the instant case is both a travesty and an exercise in futility which
has gone on for nearly 6 years. Whether it has become such through the perseverance
of Respondent and its attorney, the carelessness of the Union, or the ineptness of the
Regional Office is anybody's guess. I attempt no assessment of responsibility therefor.
The present is the last-perhaps-in a series of three complaint cases beginning
back in 1959 brought by this Union against this Respondent. In each of the first two
cases Respondent was proved guilty of violations of Section 8 (a) (1) 3 and of Section
8 (a) (5) and (1) of the Act .4 The last case was affirmed and enforced by the Circuit
Court of Appeals for the Fifth Region.5 The facts of those two cases are all but
identical with the facts of the instant case. Yet due to the theory on which the instant
complaint was issued and tried, it is my considered opinion that this case as an unfair
labor practice must be dismissed, proving once again the old adage that if at first you
don't succeed, try, try, again.
'This term specifically includes the attorney appearing for the General Counsel at the
hearing.
2 By stipulation dated May 13, 1965, the parties corrected certain typographical errors
In Respondent's Exhibits Nos. 2 and 3. This stipulation is hereby accepted and received
In evidence as Trial Examiner 's Exhibit No. 1.
3129 NLRB 1084.
4 137 NLRB 387.
5 322 F. 2d 251.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The aforementioned series of cases began about August 1959 when the Union
started an organizing campaign among Respondent's then 55 employees in an appro-
priate unit. After a representation election had been ordered on October 21, 1959, the
Union brought unfair labor practice charges against the Respondent which resulted
in a Board decision on December 30, 1960, holding Respondent guilty of violating Sec-
tion 8(a)(1) of the Act, for illegally soliciting withdrawals of bargaining authority
from those of its employees who had previously executed union authorization cards.
Respondent did not object to posting the usual 8(a)( 1) notice in its plant.
On February 15, 1961, the Board finally conducted a representation election among
Respondent's employees which resulted in a 28 to 27 vote in favor of union represen-
tation. On February 24, 1961, the Union was certified by the Board to be the exclu-
sive bargaining representative of Respondent's employees in the appropriate unit.
There followed a series of some eight meetings held between March 25 6 and
August 21, 1961, at which Respondent and the Union purported to "negotiate"
toward a collective-bargaining agreement.
After further charges of refusing to bargain and other coercion had been filed
by the Union in Case No. 10-CA-4854, the Board decided on May 28, 1962, as I
had on March 2, 1962, that during the above interval of alleged "negotiations,"
Respondent had failed to bargain in good faith by questioning the Union's majority
status within 6 months of the date of the Union's certification and by unilaterally
granting wage increases in order to undermine the Union's representative status.
On July 26, 1963, the United States Court of Appeals for the Fifth Circuit, speaking
through Chief Judge Tuttle, issued its opinion and judgment enforcing in full the
above decision of the Board. This opinion concludes as follows:
We conclude that the Board was adequately justified on this record to enter its
order requiring the Respondent to bargain collectively in good faith with the
Union until it is clear that a contract can be agreed upon or that a true impasse
has occurred.
The order will be enforced.
Despite the issuance of this opinion on July 26, 1963, it was not until October 9,
1963, that the Union again requested Respondent to bargain. Then the inevitable
monthly delay occurred so that the parties did not actually sit down around the
table until November 9, 1963.
In the meantime on October 16, 1963, the decree of the court was entered enforc-
ing the judgment of that court dated July 26, 1963.
This time Respondent and the Union sat down on occasions at the bargaining
table from November 9, 1963, to July 22, 1964, again without arriving at any
mutually acceptable agreement. In fact wages were not discussed prior to July 22.
While this was going on and on May 8, 1964, an employee in the appropriate unit
named Bobby Underwood filed a petition for decertification. In this Underwood was
assisted by an attorney located at Alma, Georgia, whose fee seems to have come
from Underwood and other employees. The Regional Office notified Underwood and
the attorney that this decertification petition was "prematurely" filed by "1 month
and 9 days." This calculation must, despite being mathematically incorrect, be a
reference to the 30-day period prior to the expiration of the year following the entry
of the opinion and judgment of the court on July 26, 1963, thereby clearly indicating
the Region's belief that the Union received the right to bargain with Respondent
for 1 year from the filing of the judgment of the court.
A month and some days later, on June 29, Bobby Underwood filed a second
petition for decertification to which was attached a petition containing the alleged
signatures of 30 of Respondent's employees obtained between June 22 and 26, 1964,
purportedly indicating that they no longer wished to be represented by the Union.
Subsequently this petition was dismissed by the Regional Office.
On July 22, 1964, the Union and Respondent sat down around the table for what
was to prove the last time. General Counsel and the Union conceded that up to
this last meeting Respondent had been bargaining in good faith.
At the last previous negotiation meeting, on May 14, 1964, the Union had pre-
sented Respondent with a contract proposal containing, among other things, a 12-cent-
per-hour wage increase. Respondent gave its answer to these proposals by letter
dated June 24, 1964, which contained counterproposals on all unacceptable items
except wages which the letter merely stated Respondent "rejected" without a
counterproposal.
6 Characteristically this first meeting followed 1 month after the date of the certification
of the Union. This is the first of innumerable instances in this 5-year history proving
the apparent impossibility of arranging meetings between Respondent and the Union In
any period of time less than 30 days.
SATILLA RURAL ELECTRIC MEMBERSHIP CORPORATION 753
The meeting of July 22 itself opened with the customary pleasantries after which
there was some short discussion of the counterproposals made by Respondent in its
June 24 letter. The Union then asked for a counterproposal on wages. At this
point Attorney Bennett, acting as usual as Respondent's chief negotiator, inquired
if the Union was cognizant that a second decertification petition had been filed. The
Union was. Bennett then stated that this raised the question of the Union's majority
status which he "thought should be settled by an election before Respondent made
any proposal on wages." Twice Bennett asked the Union to agree to an election to
determine this majority status question. Twice the Union refused on the ground
that it had already been certified. International Representative Robinson for the
Union then inquired whether, if the negotiations continued and an agreement were
reached, Respondent would sign the agreement. Bennett's answer to this inquiry was
that "he thought that this question of representation would have to be settled before
the [Respondent] would sign an agreement." About this time Bennett stated that
he would file a representation petition which Robinson countered by stating that
he would file an unfair labor practice charge and "we'll see how it comes out." After
Bennett had stated that the Respondent was willing to continue negotiations, Robinson
stated that, if Respondent was not going to make any wage proposals or try to
reach an agreement on the wage schedule, there was no need of taking up time in a
meeting. The very last thing said at the breakup of this meeting was by Bennett
who reiterated that Respondent "would continue bargaining at any time."
On July 27, 1964, the Union filed the present 8(a)(1) and (5) charge with the
Regional Office.
Subsequently the Union has made no request for the continuation of negotiations.
On August 10, 1964, Respondent filed an RM petition with the Regional Office.
By letter dated August 12, 1964, the Regional Office over the signature of its
Regional Director notified Respondent in pertinent part as follows:
The above captioned case, petitioning for an investigation and certification of
representatives under Section 9(c) of the National Labor Relations Act, as
amended, has been carefully investigated and considered.
As a result of the investigation, it appears that, because petitioner failed to
file its petition in a timely fashion, further proceedings are not warranted at
this time. I am, therefore, dismissing the petition in this matter.
On December 9, 1964, the present complaint over the signature of the Regional
Director was issued.
B. Conclusions
Exclusive of the allegations relating to the majority status of the Union based upon
the certification of February 24, 1961, the Board Order of May 28, 1962, and the
opinion and judgment dated July 26, 1963, and the decree entered on October 16,
1963, by the United States Court of Appeals for the Fifth District, the gravamen of
General Counsel's complaint was stated as follows:
12
Since on or about July 22, 1964, Respondent has conditioned agreement on and
execution of a collective bargaining agreement on the Union's proving its
majority status in an election.
13
Since on or about July 22, 1964, Respondent has refused, and continues to
refuse, to bargain collectively with the Union as the exclusive representative of
all the employees in the aforesaid unit.
While Respondent was careful on July 22, 1964, not to phrase its request to the
Union for an election as a condition precedent to the execution of any collective-
bargaining agreement between Respondent and the Union and then, after the
Union's anticipated refusal of such an election, was careful to reiterate Respondent's
willingness to "bargain" with the Union at any time or place thereafter, I am con-
vinced, and therefore find, that Respondent's request for another election on July 22,
1964, was in fact a condition precedent to any agreement with the Union as of that
time. Hence paragraph 12 of the complaint was proven.
After all history was merely repeating itself on July 22, 1964.
Trial Examiner Best who found that Respondent had refused to bargain on
August 21, 1961, in Case No. 10-CA-4854 [137 NLRB 387] (affirmed by the Board
and enforced by the court) describes the events of that day in his Intermediate
Report as follows:
. In the meantime many employees in the unit became dissatisfied and fearful
that the customary wage increases would not be granted to them, and conse-
quently engaged in an abortive effort to decertify the Union as bargaining repre-
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative, as evidenced by the signed document exhibited by Attorney Bennett
at the meeting of August 21, 1961, and by reason of which the Respondent
questioned the majority status of the Union. The record shows that this docu-
ment (General Counsel's Exhibit No. 6) was forwarded to the Regional Office
of the Board, Atlanta, Georgia, but no affirmative action was taken thereon,
presumably because it was submitted within the certification year, which by
rule of the Board is afforded to every duly certified labor organization in the
absence of unusual circumstances to freely assert its majority status. I am,
therefore, constrained to find that the Respondent deliberately suspended and
delayed the granting of regular semiannual wage increases to employees in the
bargaining unit as a means of weakening and discrediting the Union as bargain-
ing representative.
Substitute Bobby Underwood's second decertification petition for "the signed docu-
ment exhibited by Attorney Bennett" and recall the testimony in the instant hearing
that Respondent had again granted semiannual wage increases after July 22, 1964,
some of which actually exceeded the 12-cent-per-hour increases then being requested
by the Union, and the situations of August 21, 1961, and of July 22, 1964, become
identical-except that, in the instant case, Bobby Underwood took the precaution
to hire an attorney other than the Respondent's in the instant decertification matter.
But in the instant case General Counsel, after serious consideration, withdrew
the amendment he had started to make during the hearing alleging that the unilateral
granting of these wage increases by Respondent after July 22 constituted a further
refusal to bargain. This amendment, if made, would have brought Respondent's
"good faith" during the 1963-64 "negotiations" into issue.
However, the above pleadings, General Counsel's and the Union's concession that
Respondent had been bargaining in good faith until July 22, 1964, and the refusal
to amend the complaint as above have now completely eliminated the question of
Respondent's "good faith" from the issues of this case.
Hence the sole issue here, as stated in General Counsel's brief, is:
Whether Respondent may question the majority status of a certified bargaining
representative during the year's extension of the certification granted pursuant
to a court decree enforcing an 8(a)(5) violation of the Act.
As this "year's extention" stems from a court judgment or decree, it seems that
this question would have been more appropriately addressed to the court than to me.
Assuming, arguendo, the General Counsel's contention that the Union here is
entitled to a 1-year period of negotiations free from question as to its majority
status, due to the court's order, the question arises as to the date from which that
period commences; i.e., from July 26, 1963, when the opinion and judgment issued,
or from October 17, 1963, when the court's decree was entered.
Originally the Region considered that this period began from the date of the
opinion and judgment on July 26, 1963, judging from the Region's dismissal of the
first decertification petition of May 8, 1964, on the grounds of being "premature"
by "1 month and 9 days." The Region now contends that the period commenced
with the entry of the decree on October 16, 1964.
However, this issue is actually immaterial here because Respondent's action on
July 22, 1964, occurred less than 1 year from either the judgment or the decree.?
I have found no case, nor has one been cited, where any court has laid down a
rule that a Respondent must bargain in good faith for any specified period of time
after the issuance of the judgment or the entry of its decree. The most definite any
court has been on this point is that such a respondent must bargain for "a reasonable
time" exclusive of the time spent in litigations
On this point General Counsel cites the Board decision in Mar-Jac Poultry Com-
pany, Inc., 136 NLRB 785, 786, where the Board required the Respondent to bargain
with a certified union for 1 year after the settlement of 8(a)(5) charges at the
Board level, saying:
One of the purposes of Section 9(c)(3) of the Act, which bars a petition
filed within 12 months from the date of the last election, is to insure the parties
a reasonable time in which to bargain without outside interference or pressure,
such as a rival petition. In accordance with this purpose, the Board has, with
judicial approval, adopted a rule requiring that, absent unusual circumstances,
an employer will be required to honor a certification for a period of 1 year.
In the prior case Respondent had questioned the Union ' s majority about 6 months
after the date of the certification . This time Respondent waited a little longer.
B John S. Swi ft Company, Inc., 133 NLRB 185, enfd. 302 F. 2d 342 (C.A. 7).
LEEDING SALES CO., INC. 755
Among the reasons supporting the adoption of this rule is to give a certified
union "ample time for carrying out its mandate" and to prevent an employer
from knowing that, "if he dillydallies or subtly undermines union strength" he
may erode that strength and relieve himself of his duty to bargain. [Citations
omitted.]
In the case before us the employer has bargained with a certified union for
only 6 months. It has, largely through its refusal to bargain, taken from the
Union a substantial part of the period when Unions are generally at their
greatest strength-the 1-year period immediately following the certification
Thus to permit the Employer now to obtain an election would be to allow it
to take advantage of its own failure to carry out its statutory obligation, con-
trary to the very reasons for the establishment of the rule that a certification
requires bargaining for at least 1 year. We shall, therefore, in this and in
future cases revealing similar inequities, grant the Union a period of at least
1 year of actual bargaining from the date of the settlement agreement.
The rule thus stated by the Board is the rule adopted by the Board following a
settlement with an employer at the Board level. Obviously the Board has the right
to create its own rules regarding its own settlement orders. But the cited case is
inapposite in regard to court decrees such as we are involved with here.
The court opinion and judgment here requires "the Respondent to bargain col-
lectively in good faith until it is clear that a contract can be agreed upon or that a
true impasse has occurred " It is clear that neither of these contingencies had
occurred when these negotiations blew up just 4 days less than 1 year from the date
of the court's opinion and judgment-and some 3 months prior to the entry of the
court's decree. The court might well consider that its order had been treated
contemptuously.
On the other hand there is no showing in this record to explain the Union's almost
4-month delay in requesting Respondent to bargain with it in accordance with the
court's opinion and judgment of July 26, 1963.
Because of this unexplained delay, I am constrained to find that, despite the fact
that the negotiations blew up only 361 days after the court's opinion and judgment,
the parties have bargained for "a reasonable period of time" as generally required
by the courts. I still feel that this is a question which should be determined by the
court involved, and accordingly will recommend that this complaint be dismissed
in toto.
RECOMMENDED ORDER
I hereby recommend that the Board issue an order dismissing this complaint in
its entirety.
Leeding Sales Co., Inc. and District 65, Retail , Wholesale, and
Department Store Union , AFL-CIO. Case No. 2-CA-10420.
November 12, 1965
DECISION AND ORDER
On July 21, 1965, Trial Examiner James V. Constantine issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that Respondent had not engaged in certain
other alleged unfair labor practices and recommended dismissal of
these allegations of the complaint. Thereafter, the General Counsel
and the Respondent filed exceptions to the Trial Examiner's Decision
and supporting briefs.
155 NLRB No. 70.
212-809-66-vol. 155-49