Schmutz Foundry & Machine Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1494 (N.L.R.B. 1980)

1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schmutz Foundry and Machine Company and Inter-
national Molder's and Allied Workers Union,
Local No. 214, AFL-CIO. Case 9-CA-13512
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On February 20, 1980, Administrative Law
Judge Josephine H. Klein issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
Charging Party filed an answering brief in support
of the Administrative Law Judge's Decision.
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, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Schmutz
Foundry and Machine Company, Louisville, Ken-
tucky, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Sndard Dry 'all Producrts,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing her find-
ings.
2 In the absence of any evidence that a decertification petition was
filed at any time material to the withdrawal of recognition at issue herein.
we do not rely on the Administrative Law Judge's discussion of the legal
import of such a filing.
DECISION
JOSEPHINE H. KLEIN, Administrative Law Judge: Pur-
suant to a charge filed on February 15, 1979, by Interna-
tional Molders and Allied Workers Union, Local No.
214 (the Union), a complaint was issued against Schmutz
Foundry and Machine Company (Respondent) on March
21, 1979, alleging that since December 1978 Respondent
has refused to bargain with the Union as the duly certi-
fied collective-bargaining agent of the employees at Re-
spondent's foundry.
251 NLRB No. 197
Pursuant to due notice, a hearing was conducted
before me in Louisville, Kentucky, on September 6,
1979. All parties were represented by counsel and were
provided full opportunity to present written and oral evi-
dence and to examine and cross-examine witnesses. The
parties waived oral argument. Since the hearing, briefs
have been submitted on behalf of the General Counsel,
Respondent, and the Union.
Upon the entire record, careful observation of the wit-
nesses, and consideration of the post-trial briefs, I make
the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a Kentucky corporation, operates a
foundry in Louisville, Kentucky. During the past 12
months, a representative period, Respondent sold and
shipped goods and materials valued in excess of $50,000
from its Louisville facility directly to points outside Ken-
tucky. Respondent is, and has been, at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
B. The Union is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
I. THE AI.I.EGED UNFAIR I.ABOR PRACTICES
A. The Chronology
Around 1956 the Union was duly certified as the ex-
clusive bargaining representative of the production and
maintenance employees at Respondent's foundry. The
most recent collective-bargaining agreement was to
expire in April 1977, but was extended for a month while
negotiations for a new contract were in progress. No
agreement having been reached, a strike, with picketing,
began on May 5, 1977. At that time there were approxi-
mately 28 or 29 employees in the bargaining unit. With
the participation of the Federal Mediation and Concilia-
tion Service limited negotiations continued into Septem-
ber, but no agreement was ever reached.
Sometime in November 1977 the Union notified the
Federal mediator that, in effect, the Union would accept
the Company's proposal as to vacations, apparently the
sole remaining matter seriously in dispute, and the em-
ployees would all return to work. The mediator there-
upon informed the Union that Respondent said the
Union's offer came too late as Respondent had closed the
foundry down.
On November 1, 1978, Respondent wrote each of the
employees that it intended to reopen the foundry. The
letter said that anyone who did not reply within 10 days
would "be omitted from the list of available employees"
for work at the reopened facility.
Thereafter, Nelson T. Hatcher, president of the Union,
asked Ray P. Schreck, Respondent's personnel director,
whether Respondent would recognize the Union as the
employees' bargaining representative upon reopening.
I National Labor Relations Act., as amended, 29 US.C. § 151, et seq.
SCHMUTZ FOUNDRY AND MACHINE COMPANY 1495
Respondent's answer was an unqualified negative. There
was no discussion of the reason for Respondent's posi-
tion. It appears that the Union also made a written bar-
gaining demand which was summarily rejected.
As of the beginning of January 1979, the foundry re-
opened and three employees returned to work. The oper-
ation was substantially the same as before the strike.
Thereafter, two or three additional employees were
added, all but one of whom had worked at the foundry
until the strike began. The one new employee was a
young person hired for manual labor, a job which was
rejected by former employees.
Respondent filed a representation petition on January
31, 1979 (Case 9-RM-802). The Union's charge was filed
on February 15. On March 21 the present complaint was
issued, whereupon, on March 27, the representation peti-
tion was dismissed because it was blocked by the present
complaint.
B. The issues
The General Counsel and the Union proceed generally
on the assumption that the only issue presented in this
proceeding is whether Respondent has presented suffi-
cient evidence to rebut the presumption of the Union's
continuing majority status and to establish a reasonably
grounded good-faith doubt of the Union's majority war-
ranting withdrawal of recognition.
Respondent, however, implicitly operating on the basis
of different underlying assumptions, maintains that there
are three issues, namely: "1. Does any basis exist to sup-
port a presumption that the Union continued in its repre-
sentative status beyond 1977 when the Employer perma-
nently closed its foundry operation? 2. Did the Employer
properly decline to recognize the Union in November
1978 as the bargaining representative for future foundry
employees, thus protecting and preserving the Section 7
right of free choice of representative of those future em-
ployees in accordance with the requirements of the Act?
3. Did the Employer have, when it refused to recognize
the Union, a reasonable good-faith doubt of the Union's
representative status so as to cast upon the Union the
burden of demonstrating its majority?" Implicit in the
first two issues stated by Respondent, and in its argu-
ments thereon, is an assumption, or contention, that Re-
spondent's present foundry operations are a new enter-
prise rather than a continuation of the prestrike oper-
ations.
The underlying assumptions will be examined, before
the "good-faith doubt" issue is reached. The relevant evi-
dence will be discussed in connection with each of the
issues presented.
C. The Presumption of Continuing Majority Status
In its brief, Respondent refers to the foundry closure
as being "permanent" and states: "It is uncontroverted
. . .that the Employer's decisions to close and later to
reopen the foundry were based solely on economic con-
siderations." However, there is no evidence to support
this statement.
The strike that began on May 5, 1977, caused a total
discontinuance of operations. Two supervisors-Stanley
Hoskins, foundry superintendent, and Charles E. Nether-
ton, foreman-remained at the foundry doing general
cleanup work and putting things in order. It does not
appear if they ever ceased doing so, but it does appear
that, when the foundry reopened on January 2, 1979,
they were still in their earlier positions.
At no time before the employees, through the Union,
offered to return to work did Respondent make any an-
nouncement of the purported closure of the foundry. Ap-
parently, Respondent never stated any reason for the clo-
sure. At the hearing, the only witnesses called by Re-
spondent were Personnel Director Schreck 2 and Fore-
man Netherton. Schreck's testimony establishes that he is
not part of "management." For example, he testified that
he had no advance knowledge of Respondent's decisions
to close and then to reopen the foundry, but he indicated
that management consulted him before finally deciding
to reopen. After testifying that before the foundry was
reopened he had been informed by Netherton that at
least some employees were opposed to union representa-
tion, his testimony continued:
JUDGE KLEIN: How did [Netherton] happen to
tell you that?
A. Well, he mentioned the meeting we had with
the powers that be, our boss, our president, on the
possibility of reopening which was in the month of
October, give or take, 1 don't remember the date.
We sat down and we said, well, if we do plan to
reopen the place who are we going to get and how
are we going to do it? And that's when all of this
gradually came out.
Q. How did it specifically come out who wanted
the union and who didn't?
A. Well, it almost comes naturally because this is
what it was all about. This was the reason we
weren't working down there, so naturally you talk
about if the fellows are going to come back, that is
going to be one of the topics that would come to
the surface.
The president of the Company was not identified. Nei-
ther he nor any other management representative testi-
fied. Obviously, therefore, nobody qualified to testify on
the subject provided any reasons for the decision to keep
the foundry closed after the strikers offered to return to
work, or for the decision to reopen as of the beginning
of January 1979. Schreck testified that he did not pass on
to Respondent's president the information he had re-
ceived from Netherton concerning the employees' sym-
pathies. Although such testimony was not contradicted, I
discredit it. The failure of any responsible management
representative to testify gives rise to an inference that
any such testimony would be adverse to Respondent's
position. There is no evidence that Respondent ever con-
sidered selling the foundry or any of its equipment. Her-
shel Hardwick and James P. Whitley, two of the first
three employees hired for the reopening, both testified
2 Schreck was originally called by the General Counsel and examined
and cross-examined pursuant to Rule 61 l(c of the Federal Rules of Evi-
dence He was later recalled by Respondent
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that when they were hired they were informed that there
would be no union.
In the absence of any supportive evidence whatsoever,
I must reject Respondent's belated contentions that the
foundry closure was intended to be permanent and that
both the closure and reopening were dictated by "eco-
nomic considerations." The only reasonable inference
from the record as a whole is that Respondent's failure
to resume the foundry operation in November 1977
when the employees offered to return to work in effect
constituted a lockout for the purpose of getting rid of the
Union. The foundry operation was resumed only when
Respondent concluded that it would no longer have to
recognize the Union. The "closing" of the foundry and
its subsequent reactivation were part of a coordinated
plan to be free of the Union.3
It is well established that strikers retain their employee
status. Cf. The Laidlaw Corporation, 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970); Sec. 2(3) of the Act. A fortiori, a lockout
cannot be held to terminate the workers' employment
status automatically. In the present case, Respondent
never informed the employees, either directly or through
their union, that they had been terminated because of the
purported closure of the foundry. Accordingly, the strik-
ers' employment status continued. See Woodlawn Hospital
v. N.L.R.B., 596 F.2d 1330, 1338 (7th Cir. 1979). The
bargaining unit in the present case thus remained un-
changed during the strike and subsequent foundry "clo-
sure." 4
In its brief, Respondent relies on Molded Fiber Glass
Body Company Midwest Division, 182 NLRB 400 (1970),
as authority for its contention that the Union was not en-
titled to a presumption of continuing representative
status upon reopening of the foundry. In Molded Fiber
Glass it was held, on the facts presented, that the union
involved was not entitled to a presumption of continuing
majority status after a closed plant was reopened. How-
ever, in all crucial respects the present case is distin-
guishable from Molded Fiber Glass. First, so far as it ap-
pears, in Molded Fiber Glass there was no strike and the
Board found as a fact that the plant closure was dictated
solely by economic factors unconnected with the Union;
in the present case a strike caused the cessation of pro-
duction and the continuing closure is unexplained. Based
on probative evidence, such as the employer's attempt to
sell the closed plant, the Board specifically found that
the plant closure in Molded Fiber Glass was intended to
be permanent and that the employer so informed the
union; in the present case there is no evidence that Re-
spondent intended the closure of the foundry to be per-
3 The present complaint does not allege either the failure to resume
operations in 1977 or the reopening as of January 2, 1979, as violative of
the Act. (A claim based on the "closure" would be barred by Sec.10(b)
of the Act.) Accordingly, no finding of a violation in connection with
such conduct is made here. However, the facts concerning these events
are background essential to illuminate Respondent's refusal to recognize
the Union when operations were resumed, which is the subject of the
complaint.
4 Schreck's uncontradicted testimony that the prestrike employees
were recalled according to strict seniority when the foundry operation
was resumed may well be seen as an implied recognition of the workers'
continuing employee status.
manent and the Union was not apprised of the purported
discontinuance until after the employees offered to return
to work. Similarly, in Molded Fiber Glass, the resumption
of operations was dictated by external economic facts; in
the instant case Respondent did not offer any evidence
of external economic or other reasons for reopening the
foundry. In Molded Fiber Glass, the employer's notifying
the union of a bona fide permanent closing amounted to
a notification of the termination of employment, and,
upon the subsequent reopening of the plant, the employ-
er did not recall any of the former employees because he
found them unsatisfactory; in the present case the strikers
were not told that the closure was to be "permanent,"
and, according to Schreck, they were recalled according
to seniority. Finally, in Molded Fiber Glass it was found
that the employer did not delay reopening the plant or
take any other action based on antiunion animus; in the
present case it has been found that both the closing and
the timing of the reopening were dictated by Respond-
ent's resolve to be rid of the Union.
It has been held repeatedly that neither a hiatus in op-
erations 5 nor a substantial diminution of the number of
employees 6 serves to break the continuity of an enter-
prise.
Most instructive is the First Circuit Court decision in
N.L.R.B. v. Band-Age, Inc., 534 F.2d 1 (1976), enfg. 217
NLRB 449 (1975), in which it was held that the respond-
ent employer was a "successor" and thus obligated to
recognize the union which had represented the employ-
ees before the transfer. The Board reached its conclusion
despite the facts that, upon the transfer, the transferor
had terminated the employees, with severance pay; the
transferee used only about one-seventh of the work force
and about one-third of the floor space that the transferor
had used; the transferee used only part of the transferor's
equipment (the remainder being sold); and the transfer-
ee's production, though similar, was not identical to the
transferor's. In affirming the Board's Decision, the court
said (534 F.2d at 4):
[A]bsent a change of employers the presumption of
continued majority support would undoubtedly be
appropriate, rebuttable only upon the employer's
showing of a good faith doubt.
As to the hiatus in operations, the court said (534 F.2d at
5, 6):
While the Board has sometimes relied on a substan-
tial hiatus between the termination of the pred-
ecessor's operations and the commencement of the
new employer's operations in finding no successor
obligation to bargain, it has done so only where the
hiatus in operations is "one of many factors pointing
to such a substantial transformation in the nature of
5 See, e.g., The Daneker Clock Company. Inc., 211 NLRB 719, 721
(1974), enfd. 516 F.2d 315 (7th Cir. 1975), and authorities there cited.
6 The Northwest Glove Co., Inc. et al., doing business as N.orthwest Glove
Company of Winona, 74 NLRB 1697, 1699 (1974); Gustave S. Krantz d/b/
a Krantz Wire d Mfg. Co.. et a, 97 NLRB 971 (1952), enfd. sub nom.
NV.L.R.B. v. Albert Amato and Wire & Sheet Metal Specialty Co., 199 F.2d
800 (7th Cir. 1952); Rohlik Inc., 145 NLRB 1236 (1964); Western Freight
Association, et oal., 172 NLRB 303 (1968).
SCHMUTZ FOUNDRY AND MACHINE COMPANY 1407
the predecessor's operations that a real question was
presented, by the combination of circumstances, as
to the employees' desire with regard to representa-
tion." United Maintenance & Manufacturing Co.,
Inc., 214 NLRB [529, 532] (1974).
While the change in the size and scope of oper-
ations of the new employer is a relevant considera-
tion . . . nevertheless diminution in size does not
necessarily preclude a finding of successorship.
Although at the hearing Respondent did not suggest
that it claimed that, as a matter of fact, the Union no
longer had majority support, its brief appears to make
such a contention. The brief says:
The Union's demand itself was made without ma-
jority support and was thus invalid and of no effect
ab initio. The Employer forthrightly discussed the
matter of representation with the Union and
promptly responded to the recognition demand.
There is no evidence to support Respondent's conten-
tion. When, around the end of November 1978, Union
President Hatcher spoke to Schreck on the telephone,
Schreck stated unequivocally that Respondent would not
recognize the Union. Schreck stated no reason for his
position. It can scarcely be said that "[t]he Employer
forthrightly discussed the matter of representation with
the Union." Nor is there any evidence that Respondent
ever gave any written explanation of its position.7
Respondent further contends that under the Act it was
required to abstain from recognizing the Union in order
to protect the rights of "future foundry employees." The
underpinning of this argument is Respondent's statement
that "the Union's representative status [was] lost upon
the closing of the foundry." But that position has hereto-
fore been rejected. Since it has been held that the closure
did not break the continuity of employment, the bargain-
ing unit remained in tact. Unless Respondent established
a valid basis for withdrnwing recognition, it did not have
the legal right, much less any obligation, to refrain from
bargaining for the asserted purpose of protecting future
employees.
Although Schreck testified that reinstatement was of-
fered to the strikers on the basis of seniority, it is not ap-
Although Hatcher testified only that he orally asked Schreck if Re-
spondent would recognize the Union upon resumption of operations,
Schreck's testimony shows that the Union made a written bargaining
demand:
There was one bit of correspondence and I don't remember the
date, where they had said that was-I don't recall, a letter did go
out. We did receive a letter from the Union at one time, saying that
they wanted to negotiate.
Q. Did they say that they wanted to return to work?
A. They wanted to sit down and negotiate I don't remember the
contents of the letter."
parent how many, if any, strikers rejected such offers."
Whether or not additional strikers will be employed,
there is a presumption that the future foundry employees
will support the Union in the same proportion that the
employees did before the strike.9 If the Union should
lose its majority support, the employees may petition for
decertification, or Respondent itself may file a new rep-
resentation petition. In the meantime, there is no reason
in law or logic to deprive present employees of represen-
tation by the duly certified Union.
D. Respondent's Claimed Doubt of the Union's
Majority Status
The basic issue litigated is whether Respondent's with-
drawal of recognition was justified by a "reasonable
doubt based on objective circumstances." Middleboro
Fire Apparatus, Inc., 234 NLRB 888, fn. 2. (1978), enfd.
590 F.2d 4 (Ist Cir. 1978).
In order to prevail, Respondent must establish the cir-
cumstances giving rise to a reasonable doubt by "clear
and convincing evidence." Pioneer Inn Associates, d/b/a
Pioneer Inn and Pioneer Inn Casino v. N.L.R.B., 578 F.2d
835, 840 (9th Cir. 1978); V.L.R.B. v. Windham Commu-
nity Memorial Hospital, 577 F.2d 805; NL.R.B. v. Trag-
niew, Inc.. and Consolidated Hotels of California, 470 F.2d
669, 674-675 (9th Cir. 1972)-"clear, cogent and con-
vincing evidence." Evidence of subjective intent is ad-
missible only to bolster evidence of objective facts.
N.L.R.B. v. Vegas Vic, Inc. d/b/a Pioneer Club, 546 F.2d
828, 829 (9th Cir. 1976); Orion Corporation v. N.L.R.B.,
515 F.2d 81, 85 (7th Cir. 1975).
In its brief, Respondent states that the "foremost"
factor on which it based its doubt of the Union's major-
ity status was "the communications received, both direct-
ly and indirectly, by the Employer's supervisor Nether-
ton." Netherton's testimony is riddled with inconsisten-
cies, caused in large measure by leading questions and
obvious prodding by Respondent's counsel. In addition,
in part, Netherton's testimony conflicted with Schreck's.
A sample will best show the nature of Netherton's testi-
mony. He first testified that he had enjoyed an amicable
relationship with employees Means, Whitley, and Hard-
wick, the first three men who went to work when pro-
duction was resumed. Netherton then testified that after
the strike ended some employees frequently visited the
foundry where Netherton was working. His testimony
continued:
Q. On the occasions of those visits, did the men,
these three individuals in particular communicate
with you about their feeling about the union.t
8 The one new employee hired before the present hearing is a young
man doing manual labor Such work was not the same as or equialen to
that performed by the strikers That job apparently was refused hb some
strikers
9 'indhum Communitv Memorial Hospital and Hatch ospital Corpora-
tin. 230 NL.RB 1070 (1977). enfd 577 F 2d 805 (2d Cir 1978): Laystrom
Aanufacturing Co., 151 NLRB 1482. 1484-85 (1965)
'o The transcript reads "unit." However, it is clear that the word actu-
ally used was "union"
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. They told me they didn't want nothing to do
with the union any more; that if they ever came
back to work they didn't want anything to do with
the Union.
Q. And did Hardwick and Means and Whitley
each communicate that to you?
A. Means did and I heard it from hearsay from T'
Hardwick and Whitley. I heard from a couple of
men that he had made motions that he would not
want the union. 1 2
Netherton then testified that all three men had told him
"directly" that they had severed their connection with
the Union. However, on cross-examination, Netherton
testified that Whitley had not communicated that infor-
mation; rather, Netherton "had heard from the other
men" that Whitley had severed his connection with the
Union. Proceeding further on the subject, Netherton tes-
tified that it was after returning to work in January that
Hardwick said he "had just never paid his dues or any-
thing." Netherton further testified that, in answer to an
inquiry, Hardwick said he had not obtained a withdrawal
card from the Union.
Further, Schreck testified that in October or Novem-
ber he attended a management meeting in which the ad-
visability of resuming foundry operations was consid-
ered. At that meeting, according to Schreck, the prob-
able attitudes of individual employees toward the Union
were appraised. All available information had come from
Netherton, Schreck never having directly spoken to the
employees. But Netherton testified that he communicated
his information to Schreck after Respondent had sent out
the November I letters advising employees of the future
reopening of the foundry. Netherton placed the commu-
nication "in January," which obviously was after the
three initial employees were hired since they commenced
work on January 2. Respondent's counsel pursued the
matter as follows:
Q. Did you have any communication right after
the date of this letter in November?
A. No.
Q. To Mr. Schreck about these men? It's impor-
tant, so think carefully.
THE WITNESS: I had a contact with Mr. Schreck
in the middle of December about this letter about
the men.
Netherton then testified that Hatcher, the Union's presi-
dent, had come to the foundry "in the first part of No-
vember" to ask if Respondent was going to recognize
the Union. Examination of Netherton by Respondent's
counsel continued:
Q. All right, now [had] you told Mr. Schreck
about the feelings of the men before or after Mr.
Hatcher came and talked to you?
A. It was after.
I The correct word is probably "about," rather than "'from."
" Although the transcript contains the pronoun "he," the witness
probably said "they."
Q. Not before at all?
A. I don't remember. It could have been before,
yes.
Q. Did you have an on-going dialogue with him
before the plant was reopened?
A. Yes, we talked before this letter went out. We
had a talk about the men about different things.
Netherton later testified:
JUDGE KLEIN: Mr. Greenebaum asked you if you
had an on-going conversation with Mr. Schreck
about these people?
A. Yes.
Q. And you said yes?
A. Yes.
Q. When did you have this on-going conversa-
tion?
A. I'd say when we talked about opening up the
foundry, going down the seniority list, either then
or when the letters came back.
Q. When was that when you first talked about it?
A. When the letters went out on November the
1st and when the letters came back. I imagine it was
in the first part of December.
It was around the end of November 1978 that Schreck
told Union President Hatcher that Respondent would
not recognize the Union upon reopening. Yet, as previ-
ously noted, Schreck denied having had any advance
knowledge of the reopening, which occurred at the be-
ginning of January 1979, and Netherton's direct, unled
testimony was that he had not told Schreck of employee
dissatisfaction with the Union until December at the ear-
liest. Thus, according to the testimony of Respondent's
supervisors, Respondent, through Schreck, had decided
not to recognize the Union before Schreck had received
any information concerning the employees' claimed
desire not to be represented by the Union. Thus, at least
when Schreck first announced that Respondent would
not recognize the union, there was not even colorable
basis for a claim of reasonable doubt as to the Union's
loss of majority status.
Schreck's office is at Respondent's affiliated manufac-
turing company, and thus he had no contact with the
foundry employees during the foundry closure. He testi-
fied that he did not relay to the company president the
information Netherton had imparted concerning employ-
ee feelings toward the Union. Schreck further testified
that he "had drawn no conclusion" from that informa-
tion. If that testimony is taken as true, it is clear that Re-
spondent had no basis, reasonable or unreasonable, for
doubting the Union's majority status, since Schreck, the
personnel director, had drawn no conclusion and had not
transmitted his knowledge to Respondent's president. 13
It may also be noted that Schreck testified that Re-
spondent's counsel filed the representation petition on
January 31, 1979, without input by Schreck.' 4
'3 Yet Schreck also testified that the employees' union sympathies
were an important factor in deciding whether to reopen
1 His testimony was:
Continued
SCHMUTZ FOUNDRY AND MACHINE COMPANY 1499
Even if it be granted that Respondent entertained a
doubt of the Union's majority status, it was not grounded
on objective facts sufficient to permit withdrawal of rec-
ognition. Apart from Netherton's testimony that he first
imparted any knowledge of employee sentiments to
Schreck after Schreck had rejected Hatcher's demand,
Netherton's own knowledge, as testified to by him, was
grossly inadequate to warrant a reasonable doubt. If his
testimony is taken at face value, the extent of his knowl-
edge was a conversation with employee Arbeenest
Means, together with rumor and hearsay from unnamed
employees about other unnamed employees. Netherton
did not even attempt to establish that the hearsay and
rumors covered a majority of the employees. And it
should be observed that Respondent did not call Means,
the only employee who Netherton said had directly
stated his opposition to union representation.
It requires no extensive citation of authority to demon-
strate that, as a matter of law, in order to rebut a pre-
sumption of a union's continuing majority status, an em-
ployer must show by clear and convincing evidence that
a majority of the employees in a bargaining unit have ex-
pressed a desire not to be represented by an incumbent
union. See, e.g., Cornell of California, Inc., 222 NLRB
303, 306-307 (1976), enfd. 577 F.2d 513 (9th Cir. 1978).
And that showing cannot be made by hearsay and
rumor. Cain's Generator & Armature Co., Inc., 237
NLRB 1198 (1978). Thus, even if the part of Netherton's
testimony most favorable to Respondent's position were
to be believed (contrary to his spontaneous testimony
without prodding by Respondent's counsel), it would be
necessary to reject Respondent's "foremost" contention;
namely, that Netherton's knowledge of employee senti-
ment warranted a doubt of the Union's majority status
sufficient to justify Respondent's withdrawal of recogni-
tion. Because he lived on a farm, Hardwick did not visit
the foundry during the closure. Whitley did visit the
foundry a few times to find out what was going on.
However, he denied having communicated any views
about the Union. It is most probable that he did not ex-
press any opinion since he has been deaf since birth and
has virtually no capacity to communicate orally. 5
Hardwick and Whitley testified that, when they re-
ported to Respondent for reinstatement, Schreck in-
formed them that there would be no union. They were
not asked their preferences or opinions. Two or three ad-
ditional prestrike employees were recalled sometime
later. These employees were not identified, and there is
no suggestion that they said they were averse to union
representation. Thus, however the bargaining unit is de-
fined, there is no substantial evidence that a majority of
the employees were opposed to union representation.
Q . Do you recall a petition being filed with the National
Labor Relations Board for an election. one that the Employer
sought?
A Well. I had a copy of that I don't remember exactly what date
it was filed. but I do know Mr Greenebaum filed it .
Q Did you talk with him about it?
A Not really, because this was something I wasn't really familiar
with, so whatever he chose to do. he did
15 At the hearing he testified through an interpreter Despite the oh'i-
ous cmpetence of the interpreter, communication was difficult
Respondent also appears to contend that its filing of an
RM petition evidences its "good-faith," But it is well es-
tablished that the filing of an RM petition does not estab-
lish an employer's reasonable good-faith doubt of a
union's majority status. Cantor Bros.., Inc., 203 NLRB
774, 778 (1973); Orion Corporation, 210 NLRB 633
(1974), enfd. 515 F.2d 81.1' Indeed, even the filing of a
decertification petition by employees is insufficient to
meet the employer's burden of establishing a reasonable
good-faith doubt of the union's majority status Cantor
Bros., Inc., supra, and cases there cited.
Although not entirely clear, Respondent's contention
apparently is that the three employees originally hired
(i.e., Means, Hardwick, and Whitley) constituted the bar-
gaining unit and they did not favor union representation.
Normally, all strikers are included in the bargaining unit
at the conclusion of the strike, including strikers who
have been replaced or who have taken other employ-
ment. See N.L.R.B. v. Windham Community Memorial
Hospital, 577 F.2d 805. There would appear to be reason
to depart from this rule when, as here, the strike has
been followed by a period of plant closure, whether or
not the closure is considered to be a lockout. As of the
time of the present hearing, none of the strikers had been
replaced. And Respondent failed to present evidence that
a majority of them opposed union representation. Ac-
cordingly, the presumption of continuing majority status
stands.
Even if Respondent were correct in contending that
the three employees first reinstated constituted the ap-
propriate bargaining unit, there would still be a presump-
tion of continuing majority. Even if one were to credit
Netherton's testimony that before the reopening Means
said he wanted nothing to do with a union if the foundry
reopened, Respondent would still not have established
either an absence of majority support or reasonable
grounds for doubting the Union's majority support. Re-
spondent's unexplained failure to call Means as a witness
strengthens the conclusion that either Means did not
make the statement attributed to him or that he made it
for the purpose of obtaining reinstatement.
Whitley and Hardwick both testified on rebuttal. Nei-
ther of them recalled ever having said that they did not
want union representation; it is most unlikely that they
did not want union representation; and it is most unlikely
that they had made such statements.
Respondent argues further:
. . . Netherton also was aware that these three men,
Means, Whitley, and Hardwick, who together con-
stituted the whole of the Employer's initial reopen-
ing foundry work force, before or after hire had
withdrawn from the Union . . . as none of them
had acted to preserve their membership.
'6 Cf. Pioneer Inn Associates. 578 F2d at 84: "[TJhe Board may strike
the balance more favorable toward the ur.ion when the union's status is
challenged by the enployer rather than the employees themselves " See
also M.ontgorr , Whard Co., Incorporated. 210 NLRB 717 (1974):
"[E]vidence of dissatisfaction with the union, to he of any significance.
must come from the employees themselves, not from the employer on
their behalf"
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Netherton quoted Hardwick as having said "that he had
just never paid his dues or anything." ' 7 Netherton fur-
ther testified that he "had heard from the other men that
[Whitley] was suspended by the Union."
It is important to note that, according to his own testi-
mony, it was after all five or six' 8 employees had re-
turned to work that Netherton questioned them and
learned they had not obtained union withdrawal cards.
Thus, that alleged fact could not have influenced
Schreck's original rejection of Hatcher's bargaining
demand or his announcement, when the men were rein-
stated, that there would be no union.
Further, the evidence does not support any claim that
the men had lost their union membership. Hatcher testi-
fied, without contradiction, that the employees involved
had never been dropped from the Union's membership
list. There is no evidence that any employees had ever
taken any active steps to terminate their union member-
ship. Respondent relies on the alleged absence of with-
drawal cards.' 9 According to Hatcher, union members
are automatically excused from paying dues during a
strike. Upon termination of employment, any member
may obtain an "honorary withdrawal card," which per-
mits him to remain a member in good standing without
payment of dues. If he is later employed on a job where
the Union is the collective-bargaining representative, he
may be restored to active membership without the pay-
ment of any fee. According to Hatcher, members who
do not obtain withdrawal cards are "suspended" from
membership and may later resume it.
In any event, there is a plethora of authority to the
effect that withdrawal from union membership is not
equivalent to renunciation of union representation. It is
well known that many employees desire the benefit of
i" As the transcript reads, Netherton testified that Hardwick said "he
got a withdrawal card." Obviously Netherton misspoke, since immediate-
ly thereafter he testified that Hardwick said "he didn't" get a withdrawal
card. Hardwick also so testified.
is Although Schreck was not sure of the total number of employees
reemployed, Netherton testified that he asked six reinstated employees if
they had obtained withdrawal cards. They all answered in the negative.
19 During his cross-examination of Hatcher, Respondent's counsel
twice asked for the production of a withdrawal card. Thereupon, on redi-
rect examination, counsel for the General Counsel produced a document
which Hatcher identified as Xerox copies of withdrawal cards issued to
Means, Hardwick, and Whitley. Respondent's counsel then vigorously
objected to admission of the exhibit into evidence on the grounds that it
was not properly authenticated and "it is not relevant in this proceed-
ing." Stating that he had produced the exhibit solely "as a favor to Mr.
Greenebaum because he wanted the cards" and "to save everyone the
time of issuing a subpoena," counsel for the General Counsel withdrew
his offer of the exhibit. Respondent's counsel never renewed his request
for a withdrawal card. It would be unrealistic to ignore the fact that
Hatcher identified a document as a copy of three withdrawal cards Since
Hardwick and Whitley denied having sought or received withdrawal
cards, it is a reasonable conjecture that cards were issued as a matter of
course to keep the record straight after the Union was informed that Re-
spondent had "closed" the foundry Under the circumstances, with the
strike having lasted some 6 months, it appears reasonable that the Union
would issue withdrawal cards without requiring that the strikers individ-
ually apply therefor. Withdrawal cards were not needed during the strike
and the Union well knew that thereafter the employees were not working
for Respondent.
While the withdrawn exhibit is not in evidence, Hatcher's identification
of it is sufficient to create considerable doubt of the contention in Re-
spondent's brief that the employees "had withdrawn from the Union . .
as none of them had acted to preserve their membership "
union representation without assuming the burdens of
membership. Terrell Machine Company, 173 NLRB 1480
(1969), enfd. 427 F.2d 1088 (4th Cir. 1970); Barrington
Plaza and Tragniew, Inc., 185 NLRB 962, 963 (1970);
N.L.R.B. v. Vegas Vic, Inc., 546 F.2d at 829. And this
principle would be especially applicable where, as here,
the employees had been on strike for a considerable
period of time and presumably were not then working in
a union shop.
Finally, Respondent maintains that the Union's "inac-
tivity" gave rise to a reasonable doubt of its continuing
majority status. Respondent emphasizes that the Union
took no action when Respondent announced that the
foundry had gone out of business. But there is more than
one possible reason for the Union's failure to take any
steps at that time. It was presented with a fail accompli.
Respondent had rejected the Union's offer to accept the
Company's latest contract proposal and the employees'
offer to return to work. One could not fault the Union if,
under the circumstances, it concluded that a demand to
bargain about the closure of the foundry and its effect on
the employees would be futile. It would not necessarily
be bad judgment for the Union to bide its time in the
hope that the foundry would reopen and the strikers
would then be eligible for reinstatement.
In any event, the law is clear that union inactivity,
even for an extended period of time, does not justify an
employer's withdrawal of recognition and refusal to bar-
gain upon reactivation of the union. See Pioneer Inn As-
sociates v. N.L.R.B., 578 F.2d at 839:
. . . Although the Union was dormant between
1971 and 1974, it had "resumed its role" by the time
the Company questioned its status. Thus, the Com-
pany's union inactivity claim was properly rejected.
There is no evidence in the instant case suggesting that
Respondent expressed any doubt of the Union's majority
status when the Union requested bargaining after Re-
spondent announced the forthcoming resumption of the
foundry operation. Accordingly, the present case falls di-
rectly within the scope of Pioneer Inn. 20 See also, e.g.,
N.L.R.B. v. Physicians & Surgeon's Community Hospital,
577 F.2d 305 (5th Cir. 1978), where the employer raised
almost the same defense as does Respondent here. The
court summed up its holding as follows:
The hospital cannot claim that any good-faith
doubt was based on the new list of employees it
compiled for the present litigation, since it had not
begun to compile this list as of the time it refused
further bargaining.... The factors on which the
hospital now claims a good-faith doubt about the
union's continuing majority status are gaps in the
bargaining sessions, employee disinterest in union
activities, employee turnover, a complaint of one
20 In Pioneer Inn. supra, the Board and the court rejected four defenses
raised by the respondent; namely, in the words of the court (578 F.2d at
839) "'(1) the Union's inactivity between 1971 and 1974; (2) conversations
with supervisors who reported that employees under their supervision
had not indicated support for the Union; (3) lack of union membership
(4) substantial turnover and expansion of the unit." In major part, these
contentions are similar to Respondent's in the present case.
SCHMUTZ FOUNDRY AND MACHINE COMPANY 15(01
employee against the union, and a lack of employ-
ees on the bargaining team. These factors may well
be explainable on grounds other than the employ-
ees' change of heart about union representation, if
indeed any of these factors, alone or together, could
support a good-faith doubt as to the union's major-
ity status. . .. As we said in [J. Ray McDermott &
Co., Inc. v. N.L.R.B., 571 F.2d 830, 859 (5th Cir.
1978)]:
The kind of "objective evidence" ordinarily suffi-
cient to overcome a rebuttable presumption of
majority support would be greater than fifty per-
cent employee support for a decertification peti-
tion . . . or thirty percent support for decertifica-
tion combined with other indicia of non-sup-
port ...
Conclusion
On the foregoing considerations, I conclude that the
Union is entitled to a presumption of continuing majority
status and that Respondent has totally failed to rebut the
presumption by adducing clear and convincing evidence
of objective facts which would afford reasonable
grounds to doubt the Union's majority status. According-
ly, I conclude that, by withdrawing recognition from
and thereafter refusing to bargain with the Union as the
exclusive bargaining representative of the production and
maintenance workers at the foundry in Louisville, Ken-
tucky, Respondent has violated Section 8(a)(5) and (1) of
the Act.
CONCLUSIONS OF LAW
1. Schmutz Foundry and Machine Company is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. International Molders and Allied Workers Union,
Local No. 214, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Since 1956 the aforenamed Union has been and is
now the representative for the purposes of collective bar-
gaining of the following employees:
All production and maintenance employees em-
ployed by Respondent at its Louisville, Kentucky,
facility; excluding all office clerical employees, pro-
fessional employees, guards and supervisors as de-
fined in the Act.
4. By withdrawing recognition from the Union in No-
vember or early December 1978 and by failing and refus-
ing to recognize and bargain with the Union since then,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be required to
cease and desist therefrom and from any like or related
conduct. Additionally, I shall recommend that Respond-
ent affirmatively be required to recognize and, upon
demand, bargain with the Union. Additionally, the cus-
tomary notice posting provisions will be included in the
recommended Order.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2 1
The Respondent, Schmutz Foundry and Machine
Company, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
the Union, International Molders and Allied Workers
Union, Local No. 214, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the following
appropriate unit:
All production and maintenance employees em-
ployed by Respondent at its Louisville. Kentucky.
facility; excluding all office clerical employees, pro-
fessional employees, guards and supervisors as de-
fined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with the above-named Union as the exclusive representa-
tive of all employees in the appropriate unit described
above with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such
an understanding in a signed agreement.
(b) Post at its foundry in Louisville, Kentucky, copies
of the attached notice marked "Appendix." 22 Copies of
said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Re-
spondent for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
21 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Lahor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
22 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.abor Relations Board"
. ...
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights to self-organization, to
form, join, or assist the above-named Union, or any
other labor organization, to bargain collectively
with representatives of their own choosing, to
engage in other protected concerted activities for
the purpose of mutual aid or protection, or to re-
frain from any or all such activities, as guaranteed
by Section 7 of the Act, except to the extent per-
mitted by the proviso to Section 8(a)(3) of the Act.
WE WILL NOT refuse to recognize and, upon re-
quest, bargain with International Molders and
Allied Workers Union, Local No. 214, AFL-CIO,
as the exclusive representative of our employees in
the appropriate unit described below.
WE WILL recognize and, upon request, bargain
with International Molders and Allied Workers
Union, Local No. 214, AFL-CIO, as the exclusive
representative of all our production and mainte-
nance workers at our foundry in Louisville, Ken-
tucky, excluding office clerical employees, guards,
and supervisors as defined in the Act, with respect
to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if
an understanding is reached, WE wIl.l. embody such
understanding in a signed agreement.
SCHMUTZ FOUNDRY AND MACHINE COM-
PANY