United States Gypsum Co.

National Labor Relations Board - Board Decisions

Nov 19, 1975

221 N.L.R.B. 530 (N.L.R.B. 1975)

530 DECISIONS OF NATIONAL LABORRELATIONS BOARD
United States Gypsum Company and District No. 57,
International Association of Machinists and Aero-
space Workers, AFL-CIO. Case 8-CA-8542
November 19, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On August 18, 1975, Administrative Law Judge
Irving M. Herman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, United States
Gypsum Company, Genoa, Ohio, its officers, agents,
successors , and assigns, shall take the action set forth
in the said recommended Order.
i The 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (CA 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This
case was heard before me on April 16, 1975, at Toledo,
Ohio. The complaint, based on an amended charge filed by
i All dates are in 1974 unless otherwise specified.
2 I share Respondent 's position that while the errors in the transcript of
testimony are too "voluminous" to correct , reconstruction of the record is
not essential for understanding sufficient for resolution of the case
3 The unit consisted of
All production and maintenance employees at the Genoa , Ohio plant
including the engineering clerk, the storeroom clerk , the chief tester and
kiln relief foremen , but excluding temporary employees , packing relief
foremen, office clerical employees , and professional employees , guards
and supervisors as defined in the Act
4 The number of eligible voters in 1969 was 112
221 NLRB No. 116
District 57 of the International Association of Machinists
and Aerospace Workers, AFL-CIO (herein called the
Union), on January 13, duly issued January 28. The
primary issue is whether Respondent violated Section
8(a)(5) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151, et seq.), herein called the Act, by
withdrawing recognition from the Union on July 31, 1974,1
and thereafter refusing to recognize and bargain with it,
and by unilaterally changing working conditions.
Upon the entire record,2 including my observation of the
witnesses, and after due consideration of the briefs filed on
behalf of General Counsel and Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
1. RESPONDENT 'S BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is a Delaware corporation and operates a
plant in Genoa , Ohio, where it is engaged in the
manufacture of construction products; that it annually
ships products . valued in excess of $50,000 directly to
points outside Ohio; and that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
IT. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Union was certified by the Board as bargaining
representative of the production and maintenance employ-
ees at Respondent's Genoa plant on September 28, 1964.3
On petitions filed by Respondent in 1966, and again in
1969,' the Union was recertified in each instance following
elections which it won by votes of 82-24: and 75-32,4
respectively. The Union (District 7) is comprised of three
local lodges whose combined membership constitutes the
membership of the Union. One of these, Local 1386, is the
local for Respondent's plant. Membership records in
evidence show that on May 16, 1969, the date of the 1969
election, Local 1386 had 53 members, of whom only 51
voted in the election.5
5 Shaw testified, on the basis of a book he identified as a bound ledger of
the Local not marked as an exhibit, that in May and June of 1969 its
membership totaled 65 . However , that book reflected only that a certain
number of monthly payments had been made during that period, some of
which were attributable to either prior or subsequent months, hence
demonstrating its inadequacy as an appropriate membership measure for
May Also inadequate as a measure of membership for present purposes was
a five-sheet exhibit identified as the Local's membership rolls listing the
members who paid dues (for one or more months) in each of the months of
April-July 1969, and showing payments in May by only 43 employees. The
53-member figure mentioned in the text above is derived from a Univac
printout of the International 's Monthly Membership and Per Capita Tax
UNITED STATES GYPSUM CO. 531
Throughout the bargaining history, the contracts negoti-
ated were for 1-year periods. They contained neither union
security nor checkoff provisions. The most recent contract
(effective July 7, 1973), placed in evidence by Respondent,
included the following clause as article II, section 1:
The Company recognizes District Lodge No. 57 of the
International Association of Machinists and Aerospace
Workers, AFL-CIO as the sole and exclusive collective
bargaining representative of all production and mainte-
nance employees at the Genoa, Ohio, plant including
the engineering clerk, the storeroom clerk, the chief
tester, and kiln relief foremen, but excluding temporary
employees, office clerical employees, professional
employees, guards, and packing relief foremen and all
other supervisors as defined in the Act. This recogni-
tion is based solely on the assurance of the Union by
letter dated May 17, 1973, assuring the Company that
this Union then currently had active membership of
bargaining unit employees in excess of fifty percent
(50%) of the total employees in the bargaining umt.6
According to the undenied testimony of Kenneth Shaw,
who, prior to his retirement on June 30, 1974, had been a
business representative of the Union and the chief
negotiator of its contracts with Respondent since 1966,
Respondent questioned-the Union's majority status in the
negotiations "many times, every year."
2. - The 1974 negotiations
a. Commencement of negotiations and demands for
proof of membership majority
On April 15, 1974, Shaw wrote Respondent requesting
negotiations for modification of the contract. Respondent's
new works manager and chief negotiator, A.W. Alteneder,
replied May 6, advising of his readiness to meet. The
parties met on May 29 and again on June 6, at which time
Alteneder requested a letter from Shaw attesting the Union
membership of a majority of the unit employees.7 Altened-
er testified in respect to this as follows:
Q. At that time did you, have any doubt that the
union represented a majority of the employees?
A. Perhaps some doubt but nothing solid, no.
Q. What did you base this on?
A. Comments mostly that I had heard from people
in the plant.
Q. Well, who did you hear those comments from?
A. From hourly employees; supervisory employ-
ees.
Q. Well, do you remember any specific ones that
you heard it Trom?
Report listing 57 members whose dues were paid for May 1969. Checking
this report against the Local's membership roll for May reveals that 4 of the
57 did not loin until after May 16, the date of the election.
6 As Respondent observes , there was no specific testimony "as to how
long the particular type of clause had been in the contract " However, par. 7
of Respondent's answer suggests the presence of such a clause in the 1972-
73 contract.
7 Respondent 's brief defined this request as one for "compliance with
Article II of the contract."
8 While the immediate context of this quote places the date at July 30,
A. None. I would have to say most of the
department heads in the plant.
Shaw responded as follows on June 10:
In response to your question at the June 6 meeting in
your office, on Majority Status of District No. 57, IAM
& AW, at your plant.
The writer refers you to your Company Files, the
National Labor Relations Case No. 8-RM-558,
Date of. May 23, 1969
Place of issue: Cleveland, Ohio
Trust this answers your question on the subject, and
negotiations will proceed on other proposals before us
at the bargaining table.
Because this letter "did not seem to agree with the terms as
outlined in the contract," Alteneder requested another
letter, to which Shaw sent the following reply on June 28:
In response to your request on subject of majority
representation status of District No. 57, International
Association of Machinists & A.W.
The writer so states that a majority of the above
employees in the Production and Maintenance Depts.,
in your shop, are members of District No. 57-IAM &
AW.
Sam Griffin, who succeeded Shaw on July I after having
been the Union's assistant business representative, testified
that at every negotiating session he attended, even after
Shaw's second letter, Alteneder continued to request a
showing of majority status. Alteneder admitted this and
that it was not "unusual" for him to do so.
During the six sessions of the negotiations prior to the
Union's strike on July 8, both sides presented proposals.
Alteneder testified that if the Union had accepted
Respondent's offer, he would have signed a contract, and
Respondent stipulated that "up to July 31, 1974, if there
had been an agreement between the parties, the company
would have signed the contract." It further stipulated that
prior to that date it "did not have sufficient doubts to
withdraw recognition or to refuse to bargain with the
Union," 8 although Alteneder testified in this connection
that he told Griffin on July 30 that he "no longer" was
"sure" that the Union represented the majority.9However,
he did admit at the hearing that as of July 30 he "still
believed that [the Union] represented a majority of the
employees."
b. The strike and picketing
The strike commenced on the morning of July 8 and
ended August 1. About July 10, responding to efforts by
pickets to keep people out of the plant, Alteneder
the next page of the transcript establishes the date as of July 31 , consistent
with the stipulation noted in the prior sentence, supra.
9 One of the more serious errors in transcription (fn. 2, supra) has
Alteneder testifying at p. 27 that he had told Griffin at that time "that I did
not have any doubts that he represented the majority of the people."
Without attempting to record the exact testimony , but on the entire record,
and noting particularly Griffin 's testimony at pp. 86-87 that Alteneder
"continueld ] to question the majority stattcs" at that time, I specifically find
that Alteneder did not so testify and that the sense of his testimony in this
respect was that he expressed some doubt to Griffin.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organized a caravan of those employees wanting to work.
A preliminary injunction was entered by consent on July
2310 in the Court of Common Pleas of Ottawa County,
enjoining the Union and other unidentified defendants
from, inter alia, obstructing ingress and egress; placing
nails and other objects on access or entrance roadways;
interfering with entry or exit by force, violence, intirmda-
tion or threats in any manner; or approaching or following
employees or others for the purpose of threatening or
otherwise coercing them into refraining from business with
Respondent. The General Counsel issued an 8(b)(1)(A)
complaint against the Union on August 23, alleging,
substantially, placing signs at an entrance on July 9, "and
continuing thereafter," indicating the names of employees
crossing the picket line, and a sign stating "Get Apel," an
employee who had crossed the line; threats on July 9 to
employees entering and leaving the plant; firing a pistol on
July 9 and pointing a pistol on July 11 in the direction of
company officials at the plant gate, and threatening them
with physical harm on July 12; obstructing ingress and
egress of trucks belonging to other persons on July 10, 11,
and 12; threatening bodily harm to drivers of such trucks
on July 10 and 11; obstructing and stopping such trucks on
highways after they left the plant on July 11 and 12; firing
a starter pistol at employees and a supervisor leaving the
plant on July 10; attempting to prevent a switch engine
from entering the plant on July 10; striking, kicking, and
throwing rocks, eggs and eggs containing paint at automo-
biles of nonstrikers entering and leaving the plant on July
11, 22, 23, and 24; striking a truck at the plant gate with a
hose with nails protruding and throwing a similar hose
under the wheels of a truck on July 12; assaulting a
supervisor at the plant gate on July 22; and hitting an
official of Respondent on July 24 with eggs, and eggs
containing paint, at or near the plant gate."
According to Alteneder's uncontradicted testimony, the
number of pickets varied from day to day; employees
crossing the line were called "scabs"; Respondent picked
up about 130 pounds of the nails referred to in the
complaint; in addition to the hoses, boards and other
objects were used by the pickets as bases for protruding
nails . Alteneder estimated the damages to property
resulting from the acts described at about $10,000. He also
testified that the violence increased in intensity as the strike
continued, and that the injunction had no effect on the
picket line; that violence occurred virtually every day of
the strike, although he could not specify particular conduct
on any given day, but July 30 was "relatively quiet," and
the 28th "was quiet" 12 although the picket line was never
"totally silent."
c. Resumption of negotiations
Negotiations were resumed on July 25, the Union
seeking a raise of 55 cents per hour plus certain fringe
benefits previously offered by Respondent, and Respon-
10 Alteneder testified that issuance of the decree was delayed about a
week as the result of a stay obtained by the Union.
11 The Regional Director subsequently approved a settlement agreement
covering the allegations of the complaint. Both the settlement agreement
and the injunction mentioned above contained nonadnussion clauses.
12 After some hesitation on cross-examination concerning the 28th,
dent offering a 9 percent increase which amounted to 35 or
36 cents an hour plus the fringes. A Federal mediator
became involved, and, according to Griffin, told him on
July 26 that if the Union accepted Respondent's economic
terms, Respondent would not insist on incorporating in the
contract any reference to its $50,000 civil action against the
Union or the disciplining and, discharge of certain
strikers.13 Griffin had understood Respondent to have
insisted on including such matters in the contract up to
that time. Griffin testified that he thereupon informed the
mediator that he would hold a meeting "as soon as possible
to attempt to ratify the contract, from these proposals."
Meanwhile, on the 26th, a Friday, Alteneder mailed the
following letter to all the employees:
TO: ALL PERSONS WHO WERE EMPLOYED WHEN THE
STRIKE BEGAN ON JULY 8, 1974.
Enclosed is a copy of the Injunction issued by His
Honor Judge Donald S. Wargowsky of the Court of
Common Pleas of Ottawa County Ohio on July 23,
1974 against the Union and its officials. As you can see,
the Union's picket line has now been limited to six
people per gate. The court has instructed those
involved that any violence of any kind, at the plant or
away from it, by the Union or its members, will subject
the responsible persons to contempt proceedings which
can result in jail sentences as well as fines. In addition
to this Injunction the Federal Government is process-
ing similar type charges against the Union.
The plant is peaceful. As a result of these procedures,
there is now no longer a reason for anyone to stay out
for fear of violence, if he or she really wants to work
during the strike.
So far, I have not insisted on more than partial
operation of the plant. However, in all fairness to the
working employees, to the Company and its customers,
I must now move promptly to fully man the plant and
increase the operations to a normal, pre strike level.
Some jobs are still available and striking employees
who have not committed acts which will subject them
to lay off or discharge have the first right and
opportunity to fill the available openings. The Compa-
ny would like to fill them with experienced employees.
But if you delay, we have no choice but to promptly fill
your job with the best new person immediately
available. (We do now have applicants and have
already started hiring replacements for strikers.)
I am not advising any of you to end or to continue the
strike. That is up to the Union. Just as the law gives
employees the collective right to strike, it also gives
them the individual right to work during the strike and
it gives the Company the right to man and operate its
plant during the strike. This means that if a striker
followed by a reference to stone-throwing and name-calling, came his
statement that the 28th "was quiet," and on redirect he stated he did not
remember any rock-throwing on that date.
13 He mentioned "at least three" as within Respondent's purpose to
discharge. This number increased to five by July 30, and five were in fact
discharged.
UNITED STATES GYPSUM CO. 533
chooses not to return, a new employee is hired and
trained to do his job and the striker has been legally
replaced. He will go on layoff status and have to wait
for an opening _ when and if the Union ever ends its
strike.
Approximately sixty hourly and salaried employees are
already working. It is my plan to begin now to contact
our normal sources for obtaining new employees.
Therefore, if you do plan to end the strike as an
individual and return to work, I suggest you do it
promptly while openings are available.14
Griffin met with the unit employees on Sunday, the 28th,
and they voted approval of the terms submitted, 24-11.15
According to his testimony, he tried to reach Alteneder at
home to advise him of the employees' action, but Alteneder
was not there, so he called the mediator and reported the
events to him; the following morning Griffin again tried to
contact Alteneder on two occasions, and both times a
woman answered the phone and informed him that
Alteneder was busy getting the plant back into operation;
later that day or the next morning, he reported to the
mediator his inability to contact Alteneder, but finally, on
the 30th, in response to another phone call, Alteneder
called back, and Griffin informed Alteneder about the vote
and requested a meeting; he initiated three conversations
with Alteneder that day, Alteneder returning the call each
time; in one of these conversations Alteneder raised the
question of the Union's membership, and Griffm told him
he had 32 members eligible for strike benefits 16 but
explained that this figure represented less than the total
membership since membership for 3 months is required for
such eligibility under the Union's constitution and strike
benefits were also conditioned on performance of picketing
duty; Griffin also told him the Union represented a
majority of the employees; however, Alteneder continued
to question the majority status, and Griffin said "if you
don't believe us take it to the ballot box"; in the final
conversation that day Alteneder told him that "if the
Union backed off and did not bother them for 30 days"
Respondent would not contest an election. Griffin testified
that this was the "only" occasion Alteneder told him to
"take it to the box," but then stated that Alteneder had
also said that on the 25th. He could not recall whether he
told Alteneder he would call him on the 31st.
Griffin further testified that he knew the Union repre-
sented a majority of the employees because its books
showed that a majority belonged to the Union. He was
unable to demonstrate this through any records produced
at the hearing.17 It was stipulated, however, on the basis of
union dues records, that the Union had 40 members at the
time. Griffin credibly testified, in addition, that six or seven
new members were initiated in July who were not reflected
in those records because of the absence of an obligation to
pay the initiation fee or dues during a strike.
Alteneder testified that the mediator called him on July
29 and informed him that the employees "had ratified my
offer or something like that"; he replied that it was strange
he had heard nothing from the Union about it and the
picket line was still up, and the mediator responded that it
seemed that both he and Griffin were "playing around";
that he called Griffin all three times on July 30; that in the
first conversation Griffin "made some comment about the
membership having ratified something but he did not know
what it was," and that Griffin then raised the question of
discipline and the possibility of dropping the various legal
proceedings Respondent had instituted against the Union,
saying he would have to talk to his lawyer and they could
then "start bargaining"; that the second conversation later
that morning was "about the same" as the first except that
Alteneder may have clarified his last proposal; that in the
third conversation Alteneder modified his proposal, indi-
cating his willingness to drop the legal proceedings in an
effort to end the strike, and suggested that the wage and
fringe benefit provisions be put into effect at once. Griffin
said he would discuss it with counsel and-call Alteneder the
next morning; and that at no time on the 30th did Griffin
say the Union represented a majority of the employees.
3. The unilateral grant of benefits and withdrawal
of recognition
About 4 or 4:30 p.m. on July 30, after his third
conversation with Griffin, Alteneder discussed with his
attorney the' number of people who were crossing the
picket line to go to work and the general situation in the
plant and had a similar discussion the following day.
Griffin did not call on the 31st. That day Alteneder posted
the following notice in the plant:
I AM PLEASED TO ANNOUNCE THAT EFFECTIVE TODAY, ALL
HOURLY JOB WAGE RATES HAVE BEEN INCREASED 9%.
IN ADDITION, EFFECTIVE AUGUST 1, 1974, WE HAVE MADE
SIGNIFICANT IMPROVEMENTS IN THE PENSION AND GROUP
INSURANCE PLANS WHICH WILL BE OUTLINED TO YOU IN
DETAIL BY THE PERSONNEL DEPARTMENT WHEN THE
OPPORTUNITY PERMITS. IF YOU HAVE ANY QUESTIONS
REGARDING YOUR NEW RATE, SEE YOUR SUPERVISOR.
On August 1, at 4:46 p.m., he sent the following mailgram
to Griffin:
THIS MAILGRAM IS A CONFIRMATION COPY OF THE
FOLLOWING MESSAGE:
AS OF JULY 31 1974 WE NO LONGER RECOGNIZE IAM
DISTRICT 57 OR ANY OTHER UNION AS REPRESENTATIVE
OF OUR EMPLOYEES BECAUSE OF A GOOD FAITH DOUBT AS
TO ANY UNION HAVING MAJORITY STATUS ALL PREVIOUS
CONTRACT OFFERS ARE NO LONGER IN EFFECT FOR THE
SAME REASON
14 He testified in this connection as follows:
Q. Prior to July 31st had you sent a letter to the employees
indicating there was an injunction that would limit the picketing to six
people and you were going to start replacing strikers?
A. That we could, or that we definitely would, Dust don't recall.
15 Nineteen of the thirty-five present were union members.
16 Griffin testified Alteneder specifically asked that question.
17 General Counsel does not contend otherwise.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And he had delivered by hand to emploeee Garvin 18 the
original message on company stationery at 5:28 p.m. when
Garvin arrived for work.19
Alteneder testified on direct that he based his asserted
"good faith doubt" 20 on "several" factors: A majority of
the employees had crossed the picket line; Griffin had not
claimed a majority on July 30 and had sounded as though
he represented a minority; "numerous comments I had had
from employees working inside the plant"; 21 the failure of
four named employees to cross the line for fear of injury;
and information, that Local 1386 22 had not participated in
a recent 'International election. On cross-exammation;
Alteneder testified that his information as to the non-
participation of Local 1386 came from a newspaper article
in the spring of 1974 that he had not even read but had
been called to his attention by Respondent's counsel
sometime during the,strike. He admitted that nowhere in
his eight-page affidavit given in the course of the
investigation did he mention any of the last three factors
that he testified underlay his decision to withdraw
recognition. In fact he admitted that his affidavit had
truthfully stated that he had had no conversations with
employees as to whether the Union still represented them.
He also admitted that the "primary" or "biggest single"
reason for such withdrawal was the number of employees
who crossed the picket, line on the 31st or who had
announced they would but added that "there were several
other reasons too."
Alteneder also testified on cross that on the first day of
the strike 8 employees (of 123) crossed the picket line; that
by July 25 the number had increased to "perhaps the
middle twenties"; that by the 29th he estimated it at "the
high thirties," and by July 30 it had grown to 48, which his
attorney advised him was not sufficient; but that on the
31st he "th[ought] it was 66 that crossed the lines and 3
were scheduled off and 1 was sick." These figures for the
31st were stipulated by the parties, as was the size of the
unit at that time-117 or 122, depending on whether 5
potential dischargees 23 subsequently disciplined are to be
counted. Alteneder conceded that his letter of July 26
played some part in the employees' decision to cross the
picket line by conveying the information concerning
issuance of the injunction and the hiring of replacements.
The final contact between Griffin and Alteneder oc-
curred on August 2 when Griffin called and acknowledged
receipt of the' mailgram withdrawing recognition. Griffin
gave no additional testimony concerning the conversation.
Alteneder testified that Griffin asked whether the employ-
ees would be called back to work, and he said they would
except for those discharged for picket line misconduct; that
rs Garvin was president of Local 1386 and a member of the Union's
bargaining committee.
19 Garvin had talked with Alteneder that morning to arrange his return
to work.
20 At the hearing he stated that the reason for withdrawing recognition
was that he "no longer believed" the Union represented the majority.
21 Such employees were unidentified and their number not specified. The
comments consisted of "such things as 'if we win this one, will the union be
gone after this is over?' Or, `when this is all over, will the bastards be gone?'
This sort of thing."
22 Local 1386 is not a party to the contract, the contract specifically so
providing.
23 Beyond the five mentioned above.
in responses to Griffin's further question as to whether
Respondent would pursue its charge before the Board and
its civil action, he said no; and that Griffin did not
challenge the withdrawal of recognition or assert majority
status.
B. Analysis
1. The failure to _bargam
The basic settled legal principle generally controlling a
case where an employer withdraws recognition from an
incumbent union following the expiration of the certifica-
tion year or upon the expiration of a contract entered into
without a certification is that the union majority represent-
ative status is presumed to continue subject to the
employer's opportunity to show either that the union did
not in fact enjoy majority support at the time of the refusal
to bargain or that it had a reasonable doubt, objectively
grounded, that the union retained such support. Wanda
Petroleum, Division of Dow Chemical Company, 217 NLRB
No. 62 (1975); Bartenders, Hotel Motel and Restaurant
Employers Bargaining Association of Pocatello, Idaho and its
Employer-Members, 213 NLRB 651 (1974).24 Respondent
contends, first, that this principle as normally applied is
inapplicable here, relying on the acknowledgedly "unique
theory" (Brief p. 30) that the last sentence of article II,
section 1, of the 1973-74 contract, supra, and the Union's
letter of June 28, 1974, demanded as "compliance"
therewith, operated as a waiver of the usual presumption of
continued majority status; and second, that the evidence
here sufficed to overcome such presumption in any event. I
find no meet in either contention.25
Taking the latter point first, I find that. Respondent has
failed to sustain its burden of establishing the objective
reasonableness of its asserted doubt of the Union's
continued majority and hence of rebutting the presumption
flowing from the certification (if not also from the
contract).
Alteneder's testimony asserted five bases for his alleged
doubt on July 31:'1 (1) A majority had crossed the picket
line; (2) Griffin's failure in the final conversation on July
30 to claim majority status and his reference to only 32
employees as eligible for strike benefits; (3) general
conversations with employees working in the plant repudi-
ating the Union; (4) knowledge that additional employees
would have crossed the line but for fear of physical harm;
and (5) information that Local 1386 had not participated in
a recent International election. Alteneder conceded that he
had failed to-mention the last three of the above factors in
the affidavit he furnished the Board agent in the course of
24 The Board has yet to articulate a rationale for the majority's
agreement in Wanda with the dissent's disavowal of "good faith language,"
theretofore pertinent in matters of this kind (Pocatello Bartenders, e.g),
while excepting to the dissent's reliance in this connection on Linden
Lumber Division, Summer & Co, 190 NLRB 718,(1971), affirmed 419 U S.
301 (1974). It is one thing to dispense with good faith where the electoral
process is the order of the day; it is quite another when a reasoned doubt is
the precondition to the employer' s right to an election or to refuse continued
recognition.
25 Respondent urges, in addition, that the Union suffered an actual loss
of majority, but if the evidence does not show the requisite doubt, still less
will it prove the loss here or even shift the burden in this regard.
UNITED STATES GYPSUM CO.
the investigation of this case . Moreover, the alleged adverse
comments came from vague sources and indeed mostly by
way of hearsay from "the department heads in the
plant." 26 Alteneder could not recall the name of a single
employee in this connection, so' to the extent that such
reports may be credited at a1127 they might well have
emanated from employees who had always opposed the
Union and hence reflected no defection whatever. As to
the four identified employees who allegedly complained of
their fear of crossing 'the picket line, but none of whom
testified, not only were they so few, but as far as the record
shows they could well have been among those included in
Altender's second ground, i.e., the declining membership
of the Union 28 They could also have been among the
group that crossed the line by July 31. Alteneder's final
reason, likewise asserted for the first time at the hearing,
apart from its dubious derivation, appears quite irrelevant
for two reasons: As Respondent itself observes, the Local
is not a party to the contract; and in any event its failure to
participate in certain internal union affairs hardly needs
explaining to the Employer in order to avoid the latter's
drawing an inference of loss of 'et al,`196 membership as a
"reasonable" basis -for the further inference that its
employees no longer want the Union to represent them in
bargaining . Hinging bargaining rights on such free specula-
tion by employers would subject unions to a form of
disestablishment not in keeping with the Act's object of
stability in industrial relations. For these reasons I do not
believe any of the last three factors mentioned above were
in Alteneder's mind when he reached his decision to
withdraw recognition; nor would they, either singly or in
combination, have -constituted an objective basis for a
reasonable belief that the Union had lost its majority
status.
Alteneder's second asserted reason for his decision was
that Griffin had failed to claim majority representation on
July 30 and had indeed indicated minority status by
acknowledging that only 32 employees were getting strike
benefits. I credit Griffin, however, that he did claim
majority status that day and that his reference to the 32
employees receiving strike benefits was in response to a
specific inquiry by Alteneder to whom Griffin simultane-
ously explained its meaning, i.e., its inadequacy as a
relevant measure even of union, membership.` I can see no
reason whatever why Griffin would have volunteered such
information or even responded with it except by way of
establishing it as a base on which he predicated the
Union's majority.
Moreover, it is well settled that membership in a union
or financial support is- not necessary to establish its
representative status. Terrell Machine Company, 173 NLRB
1480, 1481, enfd. 427 F.2d 1088, 1090 (C.A. 4, 1970), cert.
denied 398 U.S. 929 (1970); Harpeth Steel, Inc., 208 NLRB
545 (1974); Washington Manor, Inc., doing business as
Washington Manor Nursing Center (North), 211 NLRB 324
(1974); N.LR.B. v. Gulfmont Hotel Company, 362 F.2d 588,
26 See Allied Industrial Workers, AFL-CIO, Local No 289 v. N.L KB.,
47 6 F.2d 868, 88i-882 (C.A.D.C., 1973). -
27 Cf. Massey-Ferguson, Inc., 184 NLRB 640, 641 `( 1970); San Luis
Obispo County, and Northern Santa Barbara County Restaurant and Tavern
Association, et al, 196 NLRB 1082, 1087 (1972)
535'
592 (C.A. 5, 1966); Pocatello Bartenders, supra; Orion
Corporation, 210 NLRB 633 (1974), enfd. 515`F.2d 81, 83-
85 (C.A. 7, 1975). Hence the absence of majority
membership or financial support will not sustain the doubt
required by the Act, although it is a factor to be considered
along with all of the surrounding circumstances. Convair
Division of General Dynamics Corporation, 169 NLRB 131,
134-135 (1969). Where, as here, there has been virtually no
turnover, minority membership characterized the situation
on the very day of the last election, and the Union
garnered 70 percent of the votes at a time when its
membership included only 47.3 percent of the bargaining
unit, the Union's minority membership status on July 30
could not have provided a reasonable basis for believing
that the Union no longer was desired by a majority of the
employees to represent them in bargaining. Any other
conclusion would entirely eliminate the presumption of
continuing majority flowing from the certification. If any
meaningful presumption attaches at all it must require at a
bare minimum that grounds for overcoming it arise at
some point subsequent to the election. The only such
possible ground here would be not minority membership as
such but the decline in the size of the minority. Cf. Peoples
Gas System, Inc., 214 NLRB No. 141 (1974). However, the
membership drop here was not substantial, going at most
from 47.3 percent to either 39.3 percent or 37.7 percent,
depending on whether the unit numbered 117 or 122.
Assuming the same proportionate relationship on July 30
as existed on the day of the last election between
membership and the choice of a bargaining agent, the 37.7
percent membership figure indicated 55.8 percent of the
employees still wanted the Union as their bargaining
representative.29
Hence this factor adds nothing to the last three by way of
providing an objectively reasonable basis for doubting the
Union's continued majority. - Significantly, Respondent
does not contend otherwise. On the contrary, as stated
above, Alteneder testified that as of July 30 he "still
believed that [the Union] represented a majority of the
employees"; and Respondent stipulated that until July 31
it "did not have sufficient doubts to withdraw recognition
or to refuse to bargain -with the union," and indeed that
"up to July, 31st, 1974, if there had been an agreement
between the parties, the company would have signed the
contract." The issue on this phase of the case thus reduces
to whether Respondent's "primary" asserted reason-the
crossing of the picket line on July 21-supplied the
essential element.
Alteneder admitted on cross-examination that only eight
employees crossed the picket line on the first day of the
strike (July 8); that as late as July 25 the number had
increased only to "perhaps the middle twenties"; that even
by July 29, when the employees may be deemed to have
received Alteneder' s letter of July 26, it had grown only as
far as "the high thirties"; and that it was not until the 31st
that a majority reported for work.
28 Two of those named-Foltz and Stone-had been members as of
1969.
29 Respondent posits a more substantial decline in membership, relying
on evidence I have discounted (fn. 5, supra) and ignoring Griffins
testimony, which I have credited, of 6 or 7 members in 1974 in addition to
the 40 stipulated in accordance with the dues records.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither an employee's initial failure to support a strike
nor his subsequent abandonment of the, strike provides a
reasonable basis for a belief that he does not desire the
striking union to continue to represent him in bargaining.
Industrial Workers, Local 289 v. N.L.R.B., supra and
cases there cited; Coca-Cola Bottling Works,, Inc., 186
NLRB 1050, 1053 (1970); Palmer Asbestos & Rubber
Corporation, 160 NLRB 723, 730 (1966); Cavalier Division
of Seeburg Corporation and Cavalier Corporation, 192
NLRB 290, 305 (1971); Anvil Products, Inc., 205 NLRB
709 (1973). Although as Respondent urges, the Board has
considered this factor in numerous cases as part of the
totality of the evidence, it does not aid Respondent in the
instant circumstances. Respondent contends in effect that
the employees honored the picket line only because of the
fear of crossing it and that their ultimate crossing of the
line despite the physical risk shows they no longer wanted
the Union's representation. The difficulty with this position
is twofold. First, the physical risk had dwindled substan-
tially since the early days of the strike. The complaint in
Case 8-CB-2430, for,example, issued August 23,30 specifies
19 incidents or groups of incidents of violence, only 3 of
which occurred after July 12, and the latest of which
occurred July 24. While I do not credit Alteneder's
testimony of any substantial violence thereafter, both
because of his lack of specificity and the absence of any
contempt proceeding following issuance of the injunction
on July 23 despite his testimony,that the intensity of the
violence increased as the strike continued, even he testified
that the 28th "was quiet." Yet by the 29th the number of
returnees was still less than 40. The substantial increase
thereafter, in my opinion, clearly flowed from a superven-
ing factor, namely, the impact of Alteneder's letter-of July
26, presumably received by all the employees by Monday,
the 29th, and their growing realization that each day's
delay in returning to work increased the danger of finding
a full complement. The intention disclosed by the letter
was unmistakable: Partial operation of the plant was no
longer satisfactory and Alteneder "must now move
promptly to fully man" it; only "some" jobs were "still
available," and "delay" left "no choice but to promptly fill
your job" from the applicants "we do now have" and from
among whom Respondent had "already started hiring
replacements." Respondent's attempt to belittle this plain
warning is not convincing. To argue that the'employees
"know the Employer had only hired a few new people and
the rural small town location of the plant made `mass
replacement impractical" is to say that the employees
should have ignored the plain language of the letter.
Alteneder himself was not so naive as he conceded that his
letter played some part in inducing the return to work.31
To the extent that the rural character of the plant's location
may have affected the decision of the returning employees,
30 Based on an amended charge filed August 14
31 Indeed, so clear is the import of the letter that Alteneder's earlier
inability to recall whether it had indicated only that "we could" rather than
that "we definitely would" replace the strikers (fn 14, supra) brings his
entire credibility into question
32 As for Respondent's comment that Shaw was the only witness at the
hearing with such knowledge and that he gave no testimony on this point, it
must be assumed that Respondent could have produced its own witnesses
concerning the matter.
I would infer that it influenced their return because of the
particularly limited job opportunities in, such a small
community in a time, of economic recession. I find that the
fear, generated by the letter, of exclusion; from employment
was crucial in persuading at least enough employees to,
return to make up for what Respondent itself conceded to
be an, insufficient doubt on July 30. Thus, this ground
too-the sine qua non of Respondent's attack on the
presumption of continued majority-is inadequate.
Similarly lacking merit is Respondent's contention that
the presumption is inapplicable by , reason of the, last
sentence of article II, section 1, of the 1973 contract and
Shaw's letter of June 28, 1974, demanded as "compliance"
therewith. As Respondent notes, the , record does not
specifically disclose how the clause ,happened to get into
the contract 32 It does, disclose, however, a persistent and
constant questioning of the Union's majority status
throughout their long bargaining history, even when, as in
the instant negotiations, , Respondent admittedly lacked
any reasonable basis for doubt and indeed "still believed
that [the Union] represented a majority of the employees,"
and despite the Union's repeated assurances to that effect:
The record also reveals that before commencing serious
negotiations in 1974 Respondent pressed for and insisted
upon assurances of a membership majority as "compliance
with Article II of the [1973] contract." It is a fair inference,
therefore, and I find, that, at some point in„ the past
Respondent demanded the inclusion of such a clause and
the Union agreed. What motivated such acquiescence by
the Union in a clause insistence upon which, to impasse
would have violated 'Respondent's bargaining obligation33
can only be speculated upon. What is clear is that by use of
this device Respondent managed to avoid the filing of
another representation petition and developed what it
deemed a means of avoiding the impact of the usual
presumption of majority in future bargaining. The Union's
acquiescence, however, both' in the' contract clause and in
the demand for "compliance" therewith, imports-nothing
more than capitulationto superior- strength. -
This, is not a case like Hayworth Roll and Panel Company,
130 NLRB 604 (1961), where the, union voluntarily
undertook to prove its majority status through the number
of employees it had on checkoff; or even like Dimarc
Broadcasting Corporation d/b/a KCKC, 204 NLRB' 378
(1973), where the Board majority''found'the union to have
reneged on its acceptance of the employer's "request" to
reprove its majority status.34 In the face of Respondent's
adamancy here the Union had three alternatives: It could
have filed a petition; it could have refused to consider the
clause and filed a charge if Respondent persisted; or it
could have, as it did, taken the easy way in the hope of
avoiding litigation by providing the demanded assurance.
But having done so did not, in my opinion, waive the
33 Cf N L R B. v. Wooster Demston of Borg-Warner Corporation, 356 U.S
342 (1958).
34 Moreover, Dtmarc,' relied on by Respondent, did not hold that the
union's acquiescence in the employer's request constituted a waiver of the
usual presumption of continuing majority On the contrary, the Board
specifically acknowledged the presumption, holding only that in view of the
union's agreement to reprove its majority the employer's refusal to meet
pending such demonstration by the union did not amount to a refusal to
bargain
UNITED STATES GYPSUM CO. 537
presumption of continuing majority flowing from the
certification. Assuming waivability by the Union of what is
at least in part a right of the employees who had elected the
Union and thereby imposed a duty upon it to represent
them, the presumption was not waived here. There is no
necessary inconsistency- between relying on the right to
bargain independent of a membership majority and
acquiescing in the demand for a statement of membership
majority in order to get Respondent to honor its obligation
without a lawsuit.35 And certainly there was no waiver of a
presumption deriving from the certification itself by virtue
of a provision in a contract that had expired, particularly a
provision which even during its life did not become "a
mandatory topic of future bargaining" (Allied Chemical &
Alkali Workers of America, Local Union No. 10 v.
Pittsburgh Plate Glass Company, Chemical Division, 404
U.S. 157, 187 (1971))36
Accordingly, Respondent breached its bargaining obli-
gation by ceasing to recognize and breaking off negotia-
tions with the Union notwithstanding the absence of an
objectively grounded reasonable doubt of the Union's
continued majority statuS.37
2. The unilateral changes
It follows from the foregoing that Respondent's admitted
unilateral changes in wages and other terms and conditions
of employment, declared on July 31 on the theory that
Respondent's obligation to continue bargaining with the
Union had' ceased , constituted a further violation of
Section 8(a)(5). San Luis Obispo County, et al. 196 NLRB
1082, 1088 (1972).
5. By withdrawing recognition from the Union as
exclusive representative of the employees in the aforesaid
bargaining unit on July 31, 1974, and thereafter failing and
refusing to bargain with the Union , Respondent has
violated Section 8 (a)(5) and (1) of the Act.
6. By unilaterally changing the wages and other terms
and conditions of employment of the 'employees in the
aforesaid bargaining unit Respondent has violated Section
8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Respondent will be ordered to cease and-desist from the
unfair labor practices found and from any-like or related
conduct, but nothing contained in my recommended Order
will require or authorize Respondent to withdraw or
discontinue any wage increase or other employee benefits
previously announced_or, granted save as may be requested
by the Union. Moreover, in order to effectuate the policies
of the Act my recommended Order will also require
Respondent to recognize the Union,, and, upon request, to
bargain with it as the exclusive representative of all the
employees in the aforesaid appropriate unit and, if an
understanding is reached, to embody such understanding
in a signed agreement.
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:
ORDER38
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material herein the following has been
an appropriate unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act:
All production and maintenance employees at the
Genoa, Ohio plant including the engineering clerk, the
storeroom clerk, the chief tester and kiln relief foremen,
but excluding temporary employees, packing relief
foremen, office clerical employees, and professional
employees, guards and supervisors as defined in the
Act.
4. At all times material herein the Union has been, and
now is, the exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
35 Respondent always had the privilege of filing its own petition if it
could show an objectively grounded reasonable doubt of the continued
majority status United States Gypsum Company, 157 NLRB 652 (1966)
36 Indeed , at the very moment of its insertion in the contract , the clause
was nothing more than a self-serving statement Absent a showing of an
objective basis for a reasonable doubt at that time , Respondent's
recognition of the Union could not lawfully have been "based solely" on any
assurance of majority membership
United States Gypsum Company, its -officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Failing or refusing to recognize and bargain collec-
tively with District No. 57, International Association of
Machinists and Aerospace Workers, AFL-CIO (the
Union), as the exclusive representative of its employees in
the following appropriate unit concerning wages, hours,
rates of pay, and other terms and conditions of employ-
ment:
All production and maintenance employees at the
Genoa, Ohio plant including the engineering clerk, the
storeroom clerk, the chief tester and kiln relief foremen,
but excluding temporary employees, packing relief
foremen, office clerical employees, and professional
employees, guards and supervisors as defined in the
Act.
(b) Announcing or granting wage increases or other
employee benefits without the agreement of the Union
except as permitted by law, but nothing contained herein
37 Cases cited by Respondent not specifically treated herein are either
legally inapposite or factually distinguishable.
38 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall require or authorize Respondent to revoke, withdraw
or discontinue, save as may be requested by the Union, any
wage increase or other employee benefits heretofore
announced or granted.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Recognize and, upon request, bargain with the Union
as the exclusive representative of its employees in the
aforesaid appropriate unit with respect to wages, hours,
rates of pay, arid- other terms and conditions of employ-
ment and, if an understanding is reached, embody the
terms of such understanding in a signed agreement.
(b) Post at its facilities located at Genoa, Ohio, copies of
the attached notice marked "Appendix." 39 Copies of said
notice, on forms furnished by the Regional Director for
Region ' 8, after being duly signed by Respondent's
authorized representative, shall be posted immediately
upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees 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 8, in writing,
within 20 days of the date of this Order, what steps have
been taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An 'Agency, of the United States Government
WE WILL NOT fail or refuse to recognize and bargain
with District No. 57, International Association of
Machinists and Aerospace Workers, AFLrCIO, as the
exclusive representative of our employees in the
bargaining unit in which we bargained with that union
until July 30, 1974.
WE WILL NOT make any changes in the working
conditions of our employees without the agreement, of
the Union except as may be permitted by law, but we
will not revoke any employee benefit already an-
nounced or granted unless the Union specifically so
requests.
WE WILL NOT interfere with, restrain, or coerce our
employees in any similar way regarding their rights
under the National Labor Relations Act.
WE WILL, upon request, bargain collectively with the
above-named Union as the exclusive representative of
all our employees in the bargaining unit mentioned
above, with regard to wages and all other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement.
as In the event that the Board's 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 Pursuant
UNITED STATES Gypsum
COMPANY