Wald Transfer & Storage Co.

National Labor Relations Board - Board Decisions

Jun 18, 1975

218 N.L.R.B. 592 (N.L.R.B. 1975)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wald Transfer & Storage Co. and Westheimer
Transfer & Storage Co., Inc. and General Drivers,
Warehousemen and Helpers , Local No. 968,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Cases 23-CA-5062 and 23-CA-5063
June 18, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 30, 1974, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 only to
the extent consistent herewith.
The Respondents and the Union have had a
collective-bargaining relationship for more than 25
years, marked by a series of collective-bargaining
agreements, the last of which expired in July 1973,
after extension by the parties from March 6. These
facts, although not specifically relied upon by the
Administrative Law Judge, support his basic conclu-
sion that the Union enjoyed a presumption of
majority support and that such presumption contin-
ued even after the expiration of the agreement.'
It is well-settled Board law that the effect of such a
presumption renders an Employer's refusal to bar-
gain prima facie unlawful, and that the prima facie
case can be refuted if the Employer affirmatively
establishes certain grounds for its refusal.
Here the Respondents have shown that less than a
majority of employees had submitted checkoff
authorizations prior to the time Respondents refused
to continue bargaining. The Administrative Law
Judge noted the absence of independent violations of
Section 8(a)(1) and concluded that Respondents were
entitled to doubt majority support inasmuch as union
"membership" had always been expressed by the
number of employees on the checkoff list and the list
was less than half the number actively employed,
thus the Respondents had objective evidence forming
1 Bartenders, Hotel Motel and Restaurant Employers Bargaining Associa-
tion of Pocatello, Idaho and Its Employer-Members, 213 NLR1 No. 74, (1974).
2 Celanese Corporation ofAmerica, 95 NLRB 664 (1951)
a reasonable basis to doubt that a majority of
employees supported the Union. We disagree.
It has been clearly established that a distinction
exists between union membership and union support,
foreclosing relying upon one as evidence of the other.
Here, union membership being voluntary in this
right-to-work State emphasizes that distinction.
Many employees while approving of the Union may
not choose to give it their financial support or
participate as members.3
More than 3 months after Respondent stopped
implementing checkoff, the Union submitted new
checkoff cards in an attempt to remove a disagree-
ment over the wording of these cards from future
bargaining. Notwithstanding evidence that the num-
ber of proffered cards did not represent a majority of
Wald's employees when submitted in October, and
the lack of evidence in this record that they reflected
a majority of Westheimer's employees at any time,
the Respondents were continuing to bargain in
February 1974, when payroll records referred to by
the Administrative Law Judge showed that some of
the October signers were not then employed. Two
months later the parties were about to finalize the
agreement.
At the April I1 bargaining session, held to resolve
any remaining differences among the parties and to
sign the agreement, Respondents refused to continue
bargaining, giving no explanation for questioning the
Union's majority support; in fact, Respondent
Westheimer admitted at the hearing that it did not
formulate its doubt until 10 days after the instant
charge was filed on April 22. Rather than asking the
Union for any evidence of majority support or
seeking to resolve any question of support through a
Board election, the Respondents waited until the
hearing in this case before giving the Union the basis
for their alleged doubts.
The record does not reveal the least evidence of
employee dissatisfaction with the Union, and Re-
spondents' conduct in continuing to bargain belies
an awareness of any dissatisfaction. In fact Respon-
dents presented evidence that the employees had
ratified the collective-bargaining agreement in July
1973, though they had received no notice from the
Union to that effect.
In all the circumstances, including the fact that
Texas, where these employees are based, is a right-to-
work State, we do not agree with the Administrative
Law Judge's fording that Respondents could rely
upon these checkoff cards, the fact that they may
have represented union membership, and the later
3 See Terrell Machine Company, 173 NLRB 1480 (1969), enfd. 427 F.2d
1088 (C.A. 4, 1970), cert. denied 398 U.S. 929 ; N.L.R.B. Y. Gullmont Hotel
Company, 362 F.2d 588, 592 (CA. 5, 1966).
218 NLRB No. 73
WALD TRANSFER & STORAGE CO. 593
showing that some of the employees who had given
checkoff authorizations were no longer employed, as
a reasonable basis for doubting that a majority of the
employees continued to desire union representation.
Relying on clearly distinguishable cases,4 our
dissenting colleague charges that we have ignored the
well-settled principles which we are, in fact, reaffirm-
ing today. While he fails to focus on the crucial issue
of whether evidence on which a reasonable doubt of
majority support could be based existed at the time
of Respondent's refusals, Member Kennedy exagger-
ates the significance of the number of signed
checkoff authorizations. Our colleague has by neces-
sity ignored the fact that in this right-to-work State
employees who support a union are not required to
agree to dues checkoff. It is not irrelevant that the
question of majority arises in a right-to-work State. It
is rather the crux of the matter. Member Kennedy
persists in reliance upon cases distinguishable on the
facts. He calls attention to decisions of the Courts of
Appeals for the Fifth and Sixth Circuits, wherein
doubt of majority was based essentially on decertifi-
cation petitions having been filed. The Anvil case
(Anvil Products, Inc., 205 NLRB 709 (1973)) which
went to the Fifth Circuit involved limited strike
support as an additional objective consideration.
Member Kennedy fails to 'note that the Fifth Circuit
has specifically recognized the impact of a lack of
compulsory checkoff on the majority issue in
Gulfmont, supra at 591-592:
No one knows how many employees who favored
the unions had decided not to authorize the
Company to deduct union dues or how many who
favored union bargaining were not even members
of the union.
It is fairly plain that the company's conclusion
that the majority support for the union was
lacking was based on the knowledge that a larger
number (exceeding by more than the 5 majority,
by which the election had been won), had been
struck from the checkoff list than had been added
to it.
4 The cases cited by Member Kennedy are clearly inapposite to the case
under consideration. In Southern Wipers, Inc., 192 NLRB 816 (1971), the
Board found reasonable grounds to doubt that majority support existed
when the union and employer had not communicated for about 6 months
during which period the union appeared to be totally inactive , several
employees indicated their dissatisfaction with the union, and the work force
of 100 employees suffered a turnover of 389 employees. In Viking
Lithographers, Inc., 184 NLRB 139 (1970), the Board also found factors
which could support a reasonable doubt. After the parties had not
communicated for several months and several employees had expressed
dissatisfaction with the union, and only 4 of the original employee
complement of 21 remained in a unit of 25, the union informed the
employer that it agreed to the employer's "last offer," which in the
circumstances of that case was even difficult to ascertain . The union's total
The flaw with the respondent's reasoning here
is that there is no necessary connection between
the checkoff list and the number of union
supporters. There was no compulsory checkoff.
[Emphasis supplied.]
... comparison of the checkoff lists and a
comparison of additions and subtractions from
the list, in a legal sense , showed nothing with
reference to what percentage of the 186 employ-
ees on September 30th still wished to have their
bargaining unit represented by the unions. The
effort by the company to challenge the unions'
status by reliance upon such information there-
fore does not arise to the dignity of substantial
evidence to justify a doubt of the continuing
majority status.
The dissent concludes that when the Union
attempted to collect new checkoff cards with the
intent of showing employee support,5 it failed to get a
majority of employees to sign the cards and,
therefore, cannot be presumed to enjoy majority
support. We cannot accept such a conclusion,
particularly when there is no showing in this record
that, prior to the new cards being proffered, a
majority of employees had ever executed checkoff
cards. In fact, there is no showing that a majority of
employees had ever agreed to checkoff at any time
during the more than 25 years of collective bargain-
ing between the parties.
Our colleague points to Respondents' understand-
ing that union members were always on checkoff and
to the union president's testimony supporting this
belief. Confusing union membership with union
support, the dissent fails to consider the lack of
evidence that less than a majority of employees
wished this Union to represent them at the time of
the Respondents' refusals. Here, the Respondents
had stopped honoring checkoff 9 months before their
refusal to bargain. There is no evidence that
Respondents had any knowledge with respect to how
many employees were paying dues directly to the
Union. In fact, officials of both Respondents
capitulation was viewed as an attempt to forestall a loss of its status as
bargaining representative.
5 As the dissent discussion shows, the Union, rather than attempting to
evidence majority support, collected the cards in an attempt to remove a
divisive issue in negotiations concerning the wording of the legend on the
face of the checkoff cards. However, concerning the final negotiating
session, the dissent implies that Manuel's agreement to adjourn was
"promptly" arrived at because of concern over the majority issue, whereas,
according to Respondents' counsel, the parties were discussing a picket line
clause after the majority question was raised as to one Respondent . Manuel,
in essence, testified that the purpose of adjournement was to allow
Respondent's counsel an opportunity to ascertain more facts. Both
witnesses were found by the Administrative Law Judge to be candid and
truthful.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified, in essence , that employees could be doing
just-that.6
Our colleague would put the onus on the Union to
file a petition, a resolution of this case for which we
see no justification. At the time of the refusal to
bargain, Respondent Wald offered no basis for its
alleged doubt and the record clearly shows that
Respondent Westheimer did not formulate its alleged
doubt of majority support until well after its refusal
to bargain and not even until several days after the
charge herein was filed. Faced with' these circum-
stances, we do not believe an incumbent union in a
right-to-work State has an obligation to evidence its
presumed majority support through the Board's
election process.
Our colleague sees an election pursuant to an RM
petition as unlikely under current Board precedent,
citing Bartenders of Pocatello, supra, footnote 1,
where the contract had a voluntary checkoff clause
which, as a roadblock in determining continuing
majority, tends to equate with a state law protecting
the right to work without union membership. But the
basic reason an election is not directed in such cases
is the statute-engendered Board purpose to foster
stability in collective bargaining when there are no
truly objective considerations for doubting the
continued existence of majority support. Like the
Administrative Law Judge, our colleague would
elevate a mere questioning of majority, apparently
based only upon the number of checkoffs in a right-
to-work State, to an acceptable objective considera-
tion, no unfair labor practice having followed.
We cannot agree that "common sense" dictates
that this Board require the Union to seek an election
when there is no showing that since the Texas right-
to-work law was enacted in 1947 it has ever had a
majority of unit employees on checkoff, or that the
Respondents have seen fit to question that fact, and
where it appears that, for the last 9 months before the
hearing, the Respondents have not been implement-
ing the checkoffs which were furnished. We certainly
intend no downgrading of the importance of Board
elections. However, there are circumstances, as here,
in which the question generated by the Employer
does not justify this Board's dismissing a refusal-to-
bargain allegation.?
We believe that Respondents' conduct here, partic-
ularly in waiting until the final bargaining session
before questioning the Union's majority support
without giving any explanation for their alleged
doubt, constitutes a refusal to bargain in good faith.
6 Simply as an example of the marked disparity in numbers between
union members and unit employees that may exist in a right-to-work State,
we note that this panel recently considered a contract-bar issue in the
context of a unit of 700 of whom only 40 were members . Thiokol
Corporation, 215 NLRB No. 138 (1974).
We regard the evidence presented as too speculative
to support Respondents' asserted good-faith doubt of
majority when they refused to bargain on April 11,
1974.
Accordingly, we find that Respondents have since
April 11, 1974, and at all times thereafter, refused to
bargain collectively in violation of 8(a)(5) and (1) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
Wald Transfer & Storage Co., Houston, Texas, and
Westheimer Transfer & Storage Co., Inc., Houston,
Texas, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with General Drivers,
Warehousemen and Helpers, Local No. 968, affiliat-
ed with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of their
employees in the following appropriate unit:
All drivers, helpers, warehousemen and craters
employed by Respondent at its Houston, Texas
place of business, exclusive of all guards, watch-
men and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at their facilities in Houston, Texas, copies
of the attached notice marked "Appendix."8 Copies
of said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondents' representatives, shall be posted by
Respondents immediately upon receipt thereof, and
be maintained by them for 60 consecutive days
r Compare Southern Wipers, Inc., supra, fn. 4, and Viking Lithographers, I
Inc., supra, fn. 4.
8 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
WALD TRANSFER & STORAGE CO. 595
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply
herewith.
IT Is FURTHER ORDERED that the portion of the
complaint alleging Respondents to have violated
Section 8(a)(5) and (1) of the Act by resort to evasive
and dilatory tactics be, and it hereby is, dismissed.
MEMBER KENNEDY, dissenting:
This is another case in which the majority ignores
the well-settled principle that "an employer may
lawfully withdraw recognition from an incumbent
union because of an asserted doubt of the Union's
continued majority if its assertion of doubt is raised
in a context free of unfair labor practices and is
supported by a showing of objective considerations
providing reasonable grounds for a belief that a
majority of the employees no longer desire represen-
tation."9 The dismissal of the complaint by the
Administrative Law Judge should be affirmed.
The facts in this case are largely undisputed.
Respondents have had a long history of continuous
collective bargaining with the Union since at least
the late 1940's. The most recent collective-bargaining
agreement between the Union and Respondents
terminated on March 6, 1973. On May 22, 1973, the
parties agreed to extend, the old contract retroactive-
ly from March 7 to July 9. No dues were checked off
by Respondents after July 1973. Negotiations for a
new contract were complicated by the fact that the
expired contract consisted of 6 pages and the Union's
proposal included some 30 pages from a standard
form industry contract.
9 Southern Wipers, Inc., 192 NLRB 816; Viking Lithographers, Inc., 184
NLRB 139. The observation by my colleagues that these cases are
inapposite is reminiscent of the majonty's observation with respect to my
dissent in Automated Business Systems, a Division of Litton Business Systems,
Inc., a Subsidiary of Litton Industries, Inc., 205 NLRB 532 (1973). The Sixth
Circuit agreed with my dissent and refused to enforce the Board's 8(a)(5)
finding. 497 F.2d 262 (1974). My colleagues' discussion with respect to what
constitutes "a reasonable doubt of majority support" is also reminiscent of
the majority decision in Anvil Products, Inc., 205 NLRB 709, in which I
dissented. After the Fifth Circuit denied enforcement of the 8(a)(5) finding
and bargaining order, the Board agreed in its Supplemental Decision and
Order, 216 NLRB No. 28 (1975), "that Respondent had a valid, objective
basis for doubting the Union's majority status when it withdrew recognition
from the Union."
My colleagues ' allegation that I have ignored the fact that Texas is a
right-to-work State is no more than a diversionary tactic. It is totally
irrelevant that these cases arise in a right-to-work (State.
Likewise, the majority's attempt to make much of the fact that checkoff is
not compulsory is irrelevant. Surely my colleagues do not expect employees
on compulsory checkoff to express their desire not to support the Union by
canceling checkoff and losing their jobs. Obviously, only in a noncompulsory
As found by the Administrative Law Judge, when
the parties adjourned on July 9, 1973, Union
Representative Boyd informed Respondents that
their position on four unresolved issues was not
acceptable to the Union and that he would not
recommend that the employees accept the Respon-
dents' proposed contract. As the parties left the
meeting room, Boyd asked, "You are not going to
take an economic strike over this, are you?" A
meeting of employees was held early on the morning
of July 13. Employees of each Respondent reported
to work and stated that the employees had ratified
the agreement.
The Union did not advise Respondents that their
proposal had been accepted. The first contact that
Respondents had from the Union was 2 or 3 weeks
later when Union Representative Boyd called at the
office of counsel for Respondents and said: "Well, I
have got to have some relief on this check-off
thing.... It just won't fly the way you proposed it
to us. We can't change the form of the written
authorization without the approval of the Interna-
tional, and we're not about to go to the International
for approval." Boyd then proposed: "Would you
agree to a provision in the contract that would recite
that they're revocable as you proposed in the
contract, but that we use the same check offs that are
presently in existence, and anyone that we get in the
future would be on the same form." Counsel for
Respondents objected and urged that the checkoff
form should contain the same escape language that
the Respondents had proposed in the contract
negotiations . Boyd declined Respondents' sugges-
tion, asserting that he would have to get the
International's approval. Boyd then volunteered "but
maybe if I get new ones signed up, maybe your
clients will feel that the employees who may have
signed in the past and couldn't get out because they
couldn't read or didn't know the escape." Counsel
for Respondents advised that Boyd was free to do
checkoff situation can an employee voluntarily exhibit his support of the
union-or, in the instant case , his desire not to support the Union-by
authorizing, or withholding authorization of, checkoff. Only in such a
noncompulsory situation, then, can checkoff authorizations provide any
indication of union support or lack thereof.
The statement by my colleagues that the Fifth Circuit in Gulfinont
specifically recognized the impact of a lack of compulsory checkoff on the
majority issue is a misinterpretation of that case. In Gunt the union
"expressly asserted that in addition to the members on checkoff, they had
`an excess number of members . . . who are not on checkoff' ..." 147
NLRB 997 at 1002. There is no such assertion here . Rather, the Union's
president admits that he never knew of a union member at either Employer
who was not on checkoff. Moreover, in Gunt the union had won an
election by a close vote and had been certified . Shortly before the expiration
of the initial collective-bargaining contract , the employer refused to bargain,
basing its doubt of the union's majority exclusively on the number of
employees on checkoff. Here, however, there has never been a certification,
and the evidence casting doubt on the Union's majority status is based not
only on the number of unit employees on dues checkoff ; but on the number
of union members as well.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what he wanted, but that he doubted that it would
work.
There were no further discussions with Respon-
dents or their counsel until the union president called
Respondents' counsel on December 10, 1973. How-
ever, in November each Respondent received from
the Union a group of checkoff authorization cards
which were executed late in October. Wald received
21 checkoff cards bearing the names of its employ-
ees. Westheimer received 17 checkoff cards bearing
the names of its employees. No additional cards were
ever submitted to either Respondent.
I have set forth what transpired with respect to the
checkoff cards because it establishes that Respon-
dents' asserted doubt of the Union's majority status
on April 11, 1974, was supported by evidence of
objective considerations.'0 When doubt of the
Union's majority status was expressed, there were at
most 13 union checkoff authorizations in a unit of 38
employees of Respondent Westheimer, and of the 41
unit employees of Respondent Wald only 18 had
executed union checkoff authorizations.
My colleagues concede that authorization cards for
the Union did not constitute a majority in the
bargaining unit at either Wald or Westheimer. I
reject the majority's suggestion that the Union's
failure to get a majority of checkoff cards is not
evidence of lack of union support." The Administra-
tive Law Judge correctly found the fact that it had
been the understanding of the officials of both
Respondents that all union members were on
checkoff was of "major significance." Even Union
President Manuel testified that he never knew of a
union member at either Wald or Westheimer who
was not on checkoff. Union members did not pay
dues directly to the Union. Indeed, after Respon-
dents ceased checking off dues in July 1973, the
Union made no effort to collect dues from employees
of Respondents until January 13, 1974, when the
10 My colleagues acknowledge that "Respondents have shown that less
than a majority of employees had submitted checkoff authorizations prior to
the time Respondents refused to continue bargaining." Their discussion
totally ignores the fact that the Union for reasons of its own volunteered to
get the new checkoff cards for Respondents . Having failed to get a majority
of cards in either unit , it cannot be presumed that the Union enjoys majority
support.
11 This Board should not engage in sophistry in presuming majority in
cases of this type. The Board has long known that "Proof of majority is
peculiarly within the special competence of the union. It may be proved by
signed authorization cards, dues checkoff cards, membership lists, or any
other evidentiary means. An employer can hardlyprove that a union no longer
represents a majority since he does not have access to the union 's membership
lists and direct interrogation of employees would probably be unlawful as well as
of dubious validity." [Emphasis supplied.] Stoner Rubber Company, Inc., 123
NLRB 1440, '1445 (1959). And yet, notwithstanding the fact that unions
have the special competence to prove majority, my colleagues attempt to
impose an incorrect burden upon employers. See United Supermarkets, Inc.,
214 NLRB No. 142, fn. 10 (1974). Reviewing courts have held, quite
properly in my opinion , that the General Counsel has the burden of proving
majority if the employer offers "evidence to cast serious doubt on the
Union's continued majority status." Lodges 1746 and 743, International
question of self-payment was discussed at a union
meeting attended by only three employees from
Wald and only seven employees from Westheimer.
As a result of that meeting, business representatives
were instructed to collect dues. When business agents
visited the plants in both January and February
1974, only "a very nominal number" paid their dues
to the Union. It is clear that no dues were checked
off by the Respondents after July 1973, and the dues
collected from a "nominal number" in January and
February 1974 constituted the only dues paid to the
Union after July 1973.
My colleagues suggest that Respondents should
have asked the Union for evidence of majority
support or sought a Board election. When the
counsel for Respondents expressed doubt of majori-
ty, Union President Manuel agreed to adjourn the
meeting promptly. There is not the slightest sugges-
tion in this record to indicate the Union possessed
evidence of majority. Indeed, it was the Union's
limited number of checkoff cards and the limited
number of names on the monthly printout lists sent
by the Union to Respondents which caused Respon-
dents to question the Union's majority.12 What
purpose would have been served by Respondents
seeking a Board election? Parties are not required to
perform a futile act. It is clear that the Board would
not have conducted an election had Respondents
filed an RM petition. See Bartenders, Hotel, Motel,
and Restaurant Employers Bargaining Association of
Pocatello, Idaho and Its Employer-Members, 213
NLRB No. 74, in which I dissented. On strikingly
similar facts, my colleagues dismissed the employer's
RM petition and found a refusal-to-bargain violation
even though the union had only 115 members in a
unit of 308 employees.13
I simply do not understand my colleagues' rejec-
tion of the following conclusion of the Administra-
tive Law Judge:
Association of Machinists andAerospace Workers, AFL-CIO [United Aircraft
Corporation] v. N.L.RB, 416 F.2d 809, 811-812 (C.A.D.C., 1969), cert.
denied 396 U.S. 1058 (1970); The National Cash Register Company v.
NLRB., 494 F.2d 189 , 194 (C.A. 8, 1974); N.L.R.B. v. The Little Rock
Downtowner, Inc., 414 F.2d 1084, 1090-91 (C.A. 8, 1969); NLRB. v.
Dayton Motels, Inc, d/b/a Holiday Inn of Dayton, 474 F.2d 328, 331 (C.A. 6,
1973); Automated Business Systems, a Division of Litton Business Systems,
Inc. v. NLRB., 497 F.2d 262, 270 (C.A. 6, 1974). See also N.LR.B. v.
Laystrom Manufacturing Co., 359 F.2d 799 (C.A. 7, 1966).
12 The Board has required employers to bargain even though the union
admitted that it did not have a majority. See my dissent in United
Supermarkets, Inc., 214 NLRB No. 142 , (1974).
13 The Board's mechanistic application of its blocking charge rule to
deny employees the opportunity to express their choice of a bargaining
agent in a Board-conducted election has been criticized by the Fifth Circuit.
See Templeton v. Dixie Color Printing Co., 444 F.2d 1064 (C.A. 5, 1971);
Algie V. Surratt v N.LRB., 463 F.2d 378 (C.A. 5, 1972); NLRB v. Anvil
Products, 496 F.2d 94 (CA 5, 1974), denying enforcement of 205 NLRB
709 On remand the Board agreed in its Supplemental Decision with my
original dissent that the employer "had a valid, objective basis for doubting
the Union's majority status when it withdrew recognition ." 216 NLRB No.
28
WALD TRANSFER & STORAGE CO. 597
There was absolutely no evidence presented to
show that the Respondents have sought to
undermine and destroy the Union since express-
ing their doubt concerning the union majority
status. There were no allegations in the complaint
or evidence presented of independent 8(a)(l)
violations. More objectivity of Respondents' consid-
erations before expressing doubt of the Union's
majority status would seem hard to find With full
knowledge that the membership of the Union has
always been expressed by the number of employ-
ees on the checkoff list, when that list totaled less
than one-half of the employees actively employed,
it seems perfectly logical that the Respondents,
and each of them, were entitled to doubt the
Union's majority. The objectivity certainly cannot
be questioned, because a simple count of the number
of employees employed and a count of the number of
employees on the checkoff list, has to be the same
regardless of one's subjective prejudices and bias. In
a context free of unfair labor practices these factors
provide an objective basis which properly furnishes a
reasonable basis for the Respondents to believe the
Union had lost its majority status. [Footnotes
omitted; emphasis supplied.]
I have stated previously that this Board should
follow "common sense" in deciding cases of this type
and recognize that "this legal business of a
`rebuttable presumption' " to reach a wholly unreal-
istic result serves no useful purpose.14 Highly
relevant are the observations of the court in N.L.R.B.
v. Laystrom Manufacturing Co., 359 F.2d 799 (C.A. 7,
1966). The court stated at 801:
We add that with respondent's long-time good
faith dealing with the Union, there is no basis for
a reasonable inference that it abruptly changed its
course of conduct and for the first time acted in
bad faith in raising the issue as to the Union's
majority. Good faith is not a one-way street. The
Union's refusal, when challenged, to submit the
issue to an election where each employee would
be permitted in secrecy to make his choice, leads
to the inescapable inference that it, too, was
doubtful and fearful of the result. As the Trial
Examiner stated:
And it is equally reasonable to speculate
that a union may prefer to let the Board
handle its hot chestnuts with tongs of
technicalities instead of going to an election.
A suspicion is not alien in the setting
14 See my dissent in Automated Business Systems, a Division of Litton
Business Systems, Inc., 205 NLRB 532 (1973), enforcement dewed 497 F.2d
262 (C.A. 6, 1974).
15 In fiscal year 1974, the Board's Regional Offices conducted 8,976
elections. Of this total , 81 percent were conducted promptly pursuant to a
described above that perhaps the Union
doubts that it could win an election today.
I agree with the Seventh Circuit that we should not
try to handle a union's "hot chestnuts with tongs of
technicalities." The Supreme Court and the Board
have both acknowledged that our election procedure
is the superior way to ascertain whether there is
majority support for a union. It was recognized in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), and recently repeated in Linden Lumber
Division, Summer & Co. v. N.L.R.B., 419 U.S. 301
(1974). In the Linden case, the Court pointed out that
a union has two alternatives available to it when an
employer refuses recognition: "It can file for an
election; or it can press unfair labor practice charges
against the employer under Gissel. The latter alterna-
tive promises to consume much time, In Linden the
time between filing the charge and the Board's ruling
was about 4-1/2 years; in Wilder, about 6-1/2 years.
The Board's experience indicates that the median
time in a contested case is 388 days. Gissel, 395 U.S.,
at 611 fn. 30. On the other hand the median time
between the filing of the petition for an election and
the decision of the Regional Director is about 45
days. In terms of getting on with. the problems of
inaugurating regimes of industrial peace, the policy
of encouraging secret elections under the Act is
favored." 15 419 U.S. at 306. I respectfully suggest
that my colleagues' decision herein does not encour-
age elections and it does not promote the prompt
resolution of majority questions.
Respondents committed no unfair labor practices
which would have made a free election impossible.
An election could have been held without delay to
determine if the Union in fact had the `support of a
majority of the unit employees. On this record, there
is no reason to doubt that if the Union had won the
election the parties would have quickly resumed their
negotiations. A year has now elapsed without
bargaining. Another year may expire before the issue
is settled in the courts. Instead of taking the
expeditious election route, the Union has resorted to
an unfair labor practice proceeding, with its accom-
panying delay, in the hope that this Board and a
reviewing court will force upon the employees a
bargaining agent which they would reject in a freely
conducted secret election.
I think the decision of my colleagues in this case
has the necessary effect of downgrading the role and
importance of our elections and does not serve the
voluntary agreement of the parties . In the remaining 19 percent of the
election cases, hearings were held , but even in those contested cases the
Board's Regional Directors issued their Decisions and Directions in a
median time of only 42 days after the petition for an election was filed. 39
NLRB Ann Rep . 13-16 (1974).
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long-range interests of employees, unions, or employ-
ers.
APPENDIX-
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Gener-
al Drivers, Warehousemen and Helpers, Local
No. 968, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive repre-
sentative of our employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages , hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment . The bargaining unit is:
All drivers, helpers, warehousemen and
craters employed by Respondent at its
Houston, Texas place of business, exclusive
of all guards, watchmen and supervisors as
defined in the Act.
WALD TRANSFER &
STORAGE CO.
WESTHEIMER TRANSFER &
STORAGE CO., INC.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard in Houston, Texas, on August 15, 1974, upon
two complaints issued by the General Counsel of the
National Labor Relations Board (herein Board) and the
answer filed by each of the Respondents, Wald Transfer &
Storage Co. (herein Wald), and Westheimer Transfer &
Storage Co., Inc. (herein Westheimer), each dated June 27,
1 The complaint in Case 23-CA-5062 was served on Respondent Wald
on or about June 19, 1974, based on a charge filed by the Charging Party on
April 22, 1974, and thereafter served on the Respondent. the complaint m
1974.1 An order consolidating these two cases was dated
and served on the parties the 19th day of June, 1974.
The two Respondents in this case are entirely separate
corporations with no common ownership, but have been
joined in this consolidated complaint because the Respon-
dents conducted joint negotiations with the Charging
Party, Local 968. The complaints allege that the Respon-
dents refused to bargain with employees in an appropriate
unit and engaged in dilatory and evasive tactics in order to
frustrate and evade the consummation of a final and
binding collective-bargaining agreement, which conduct is
in violation of Section 8(a)(5) and (1) of the Act. Helpful
briefs have been received from the Charging Party, the
Respondents, and the General Counsel.
Upon the entire record in these proceedings, and from
my observation of the demeanor and testimony of the
witnesses, I hereby make the following:
FINDINGS OF FACr
I. JURISDICTION
Respondent Wald is, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of Texas, having its principal
office and place of business in Houston, Texas, where it is
engaged in the business of transporting goods by truck and
the moving, storing, and warehousing of residential and
commercial goods. During the past 12 months, which is a
representative period, Wald, in the course and conduct of
its trucking operations within the State of Texas, derived
gross income in excess of $1 million. In excess of $50,000 of
this amount was received pursuant to contracts or
arrangements with and/or as agents for Mayflower
Moving and Storage Company operating among the
various States of the United States.
Respondent Westheimer is, and has been at all times
material herein, a corporation duly organized under and
existing by the virtues of the laws of the State of Texas,
having its principal office and place of business in
Houston, Texas, where it is engaged in the business of
transporting goods by truck and moving, storing, and
warehousing residential and commercial goods. During the
past 12 months, a representative period, Westheimer in the
course and conduct of its trucking operations within the
State of Texas, derived gross revenue in excess of $2
million. In excess of $50,000 of this amount was received
pursuant to contracts or arrangements with and/or as
agent for Allied Van Lines, Inc., operating among the
various States of the United States.
Upon the basis of the aforementioned facts, which are
admitted by the Respondents, I herewith find that the
Respondents Wald and Westheimer are employers en-
gaged in a business which is an essential link in commerce
and which does affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Case 23-CA-5063 was served on Respondent Westheimer on or about June
19, 1974, based on a charge filed by the Union on April 22, 1974, and
thereafter served on the Respondent.
WALD TRANSFER & STORAGE CO. 599
II. THE LABOR ORGANIZATION
General Drivers, Warehousemen and Helpers, Local No.
968, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
is now , and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
A resolution of the matters involved herein necessitates,
first, a determination to be made as to whether the unusual
delay, passage of time, and failure of the Respondents and
the Charging Party to reach an agreement was the result of
deliberate dilatory and evasive tactics by the Respondents
in an effort to avoid their legal bargaining obligation; and,
secondly, whether the Respondents' refusal to bargain on
and after April 11, 1974, was predicated on a good-faith
and reasonably grounded doubt of the Union's continued
majority status.
B. The Evidence
The parties involved herein are not in serious disagree-
ment as to the essential facts involved.2 The Union and the
Respondents have had a bargaining relationship that dates
back to at least the midforties. The most recent contract
covered the period from March 7, 1970, through March 6,
1973. Attorney I. J. Saccomanno was chief negotiator and
spokesman on behalf of both Respondents Wald and
Westheimer in the jointly conducted negotiations with the
Union. Business Representative L. W. Boyd was chief
negotiator and spokesman for the Union. The parties
participated in several contract negotiating sessions in
March, April, May, and July 1973, seeking to negotiate an
agreeable contract which would have succeeded the most
recent one that expired on March 6, 1973. The parties, by
agreement, had extended the most recent contract to July
9, 1973. At the conclusion of the negotiating session on
July 9, 1973, there were three or four items still not agreed
to, but the Companies' positions on these items had been
rather definitively set forth. One of the unresolved issues
concerned the phraseology or language that was used in
the checkoff forms. The difference in their respective
positions related to the waiting period or time when an
employee might revoke his written checkoff authorization.
At the close of the negotiating session on July 9, there was
an oral agreement to extend the contract until July 11.
Boyd informed the Respondents that their position on the
unresolved issues was not acceptable and that he was not
going to recommend acceptance of the proposed contract.
Saccomanno testified, and it was not disputed, that
company officials observed union notices posted, or
distributed, on, July 12 indicating that there was to be a
meeting of the employees very early Friday morning, July
2 Manuel testified to a comment allegedly made by Saccomanno in
February 1974, which was denied by Saccomanno. Both Manuel and
Saccomanno appeared to be candid , truthful witnesses, and there is no basis
to credit one witness over the other as to this statement . In any event, I find
it unnecessary to resolve this conflict because the alleged statement , if made,
13. When the employees reported for work on July 13th, an
employee informed each of the employers that the
employees had voted to ratify the agreements. Neither of
the Respondents, however, officially heard from the Union
that the proposed contracts had been accepted by the
employees or had been approved by the Union. During
late July or early August of 1973, Saccomanno and Boyd
met on two or three occasions in an effort to resolve their
differences in the language relating to the checkoff
authorizations. Nothing was finally resolved between
Saccomanno and Boyd on this issue. However, in Novem-
ber, each of the Respondents received from the Union a
group of checkoff authorization cards which had been
dated during the month of October 1973.3
Nothing further was heard from the Union until
December; however, during this intervening period, L. W.
Boyd, who had been handling the negotiations for the
Union, ceased his employment with the Union.
On December 10, Willard Manuel, president of the
Union, contacted Saccomanno and asked Saccomanno to
prepare a draft of the contract that had been agreed to
between Saccomanno and Boyd. Saccomanno agreed to
prepare such a draft and indicated to Manuel that the
parties could probably get together the latter part of
January 1974 to review his draft. Saccomanno was
contacted twice during January by Manuel concerning the
proposed contract draft but Saccomanno had been unable
to prepare the drafts. On February 14, Manuel contacted
Saccomanno and upon learning that the draft contract had
not been prepared, he suggested that he (Manuel) would
make an effort to locate Boyd and would work with Boyd
in an effort to prepare a draft and then get back to
Saccomanno. Manuel promptly prepared the drafts and
forwarded them to Saccomanno and proposed_a meeting
date in early March. Saccomanno and Manuel met on
March 15 to consider the draft as prepared by Manuel.
Although Saccomanno had questions concerning a number
of provisions in the contract, nevertheless, the parties were
able to agree on all but three provisions. These were
characterized as checkoff authorizations, overtime, and
picket line. According to the testimony of Manuel, the
March 15th negotiating session broke up with some
mutuality of feeling that the remaining issues could be
easily resolved and possibly the contracts finalized within a
week. Saccomanno had no definite recollection of any
discussion as to when the parties would next get together as
the March 15th meeting concluded.
On March 27th, Manuel sent a telegram to Saccomanno
stating that he had been unsuccessful in trying to contact
Saccomanno in order to arrange for a meeting to conclude
the contracts and requested that Saccomanno respond and
advise when he would be available for their next meeting.
April 1 Saccomanno telephoned Manuel and stated that he
would not be able to meet until April the 11th, 1974,
because he had just moved into a new office. Although this
as not proof of a violation of the Act and is not determinative m my
decision.
3 Resp. Exhs. 6(a) through (u) reveal the names of 21 employees of
Respondent Wald for whom deductions were to be made. Resp . Exhs. 8(a)
through (q) reveal the names of 17 Westheimer employees for whom the
Union submitted checkoff authorization cards.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date was not as early as Manuel would have desired,
nevertheless, he agreed to this meeting date.
The meeting of April 11 was relatively brief. Saccoman-
no advised Manuel that Respondent Wald had expressed a
good-faith doubt of the majority status of the Union and
that he (Saccomanno) had been unable to reach either Jay
Hurwitz or Julian Hurwitz of the Westheimer Company to
assertain their position, but that he would do so and advise
the Union. The meeting terminated without any discussion
of the basis for the good-faith doubt expressed by the
attorney for the Respondents. There has been no further
contact between the Union and the Respondents since the
April 11th meeting. Neither Respondent Wald nor Re-
spondent Westheimer have filed a petition with the Board
requesting that an election be held to determine the wishes
of the employees.
C. Position of the Parties
1. As to the dilatory and evasive tactics
The Union and the General Counsel seek to place all the
blame and responsibility for the inordinate delay and
failure to conclude a "successor" contract to the one that
expired on Match 6, 1973 (July 11, 1973, by extention
agreements), on the Respondents. This is not entirely
accurate. The testimony of Respondents to the effect that
as of July 13, 1973, they were each of the opinion their
contract offers had been accepted by the employees stand
in the record uncontested. Thereafter, the union negotiator
sought to clarify one item (the checkoff authorization
language) with the negotiator for the Respondents, but
without success. Nearly 4 months then elapsed without any
effort being made by the Union to conclude the matter .4
After the Union again contacted the negotiator for
Respondents on December 10, 1973, it may fairly be said
that he (Saccomanno) was' more responsible for the delay
thereafter than was the Union. However, under all the
circumstances ,5 I cannot conclude that the time lapse
between December 10, 1973, and April 11, 1974, while the
parties were endeavoring to reconstruct what had been
negotiated and agreed to in the' late spring and early
summer of 1973, was deliberate, planned, or caused by the
Respondents with a view toward evading their collective-
bargaining obligations under the law. In my opinion, both
the Union and the Respondents must jointly share the
responsibility for the passage of time from July 11, 1973,
until April 11, 1974, without concluding a contract, and I
shall recommend dismissal of that portion of the complaint
alleging the Respondents to be guilty of violating Section
8(a)(5) and (1) of the Act by resort to evasive and dilatory
tactics.
4 It is recognized the Boyd, the chief negotiator for the Union, changed
jobs during this period and undoubtedly the relationship with Respondents
became "lost" in the mill of' routine business during this period of time.
Nevertheless, this is only in the nature of a justifiable excuse and did not
relieve the Union of its responsibilities and obligations of representing the
employees. The employees might very well have regarded themselves as
having been abandoned.
5 Saccomanno testified that his daughter was in and out of the hospital
on several occasions during this period of time and his law office was
moved.
6 Resp . Exhs. 9(a) through (f).
(2) The good-faith doubt issue
On April 11, 1974, Saccomanno advised the Union that
Respondent Wald had a good-faith doubt that the Union
represented a majority of the employees. With respect to
Respondent Westheimer, Saccomanno advised that he had
been unable to reach either Jay Hurwitz or Julian Hurwitz,
but that he would advise the Union. No other contact or
communication occurred between the parties. During the
investigation of the charges, the field investigator was
advised that both Respondents had a good-faith doubt that
the Union represented a majority of the employees.
The evidence shows that sometime in November, 1973,
the Union submitted a group of checkoff authorization and
assignment cards duly signed by various employees to each
of the Respondents. The cards bore various October 1973
dates and the signature of a witness. There was no evidence
to indicate that additional cards were thereafter submitted
or that the Union had advised the Respondents of any
changes. _ Having heretofore indicated that I am of the
opinion that the delay between July 1973 and April 1974
was the mutual responsibility of both the Respondents and
the Union and thus not a violation of the Act, we turn now
to the critical period following April 11, 1974.
While it may be argued that a definitive position as to
the "good-faith doubt" by Respondent Westheimer was
not expressed on April 11, 1974, in view of the clear-cut
expression on behalf of Respondent Wald and the failure
of either the Union or Westheimer to do anything further,
it is not unreasonable to regard April 11 as the critical date
for both Respondents. The question to be resolved then is:
Did Respondents have a good-faith and reasonably
grounded doubt of the Union's continued majority status
on and after April 11, 1974?
There was evidence introduced 6 showing that there were
38 employees on the payroll of Westheimer in classifica-
tions,mcluded within the bargaining unit as of February
17, 1974.7 As of May 19, 1974, there were 40 employees
working in job classifications included within the bargain-
ing unit.8 During this period of time - February 1974 to
May 1974 - there were only 17 names submitted by the
Union to Westheimer as being on the checkoff authoriza-
tion list. Of these 17 , 4 names were not on the February
payroll and 6 were not on the May payroll.
Insofar as Respondent Wald is concerned, there was
evidence submitted to indicate that there were 41 employ-
ees working in the bargaining unit on February 27, 1974.
(See Resp. Exh. 4.) There were 21 names on the checkoff
authorization list (See Resp. Exhs. 6(a) through (u)), but
three of the employees on the checkoff list were no longer
employed by Wald in February 1974. Sid Wald testified
that since the beginning of his employment with Respon-
7 Respondent Westheimer admitted in its answer and Respondent Wald
amended its answer at the hearing to admit that All drivers , helpers,
warehousemen and craters employed by Respondent at its Houston , Texas,
place of business exclusive of all guards, watchmen and supervisors as
defined in the Act, constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act
a The May 19th figures cannot be considered as evidence reflecting a
frame of mind or "good-faith doubt" as ofApril 11, and I have not done so.
The figures are of importance, however, to show a fairly steady number of
employees within the bargaining unit during the critical period of time.
WALD TRANSFER & STORAGE CO. 601
dent in 1946, it had been his understanding that all union
members were on the checkoff authorization list. Jay
Hurwitz testified that since he began his employment with
Respondent Westheimer in 1948, he had never known of
an employee that was a member of the Union that was not
included on the checkoff authorization list. These state-
ments have major significance because they were corrobo-
rated by the testimony of President Manuel of the
Charging Party, who testified that the dues checkoff
authorization forms have been the only means of collecting
union dues 9
The General Counsel and the Charging Party argue most
effectively for a violation of the Act by Respondents
because of (1) the late, or delayed, questioning of the
majority status after extensive negotiations; 10 (2) lack of
objective considerations in forming a doubt as to the
majority status; 11 (3) replacements can be presumed to
favor the Union in the same ratio as those replaced; 12 (4)
financial support (the checkoff authorizations) is not
indicative of the wishes of the majority; 13 and (5) the
Respondents neither filed an RM petition nor requested
the Union to prove its majority status.
Analysis
The Respondents in their brief cite Dimarck Broadcasting
Corporation d/b/a KCKC, 204 NLRB 378 (1973), and seek
to analogize the Board's refusal to find an 8(a)(5) violation
of the Act in that case with the instant case. In the Dimarck
case, the respondent, in the course of negotiating a new
contract, requested the union to prove its majority status.
The union acquiesced to this request and agreed to reprove
its majority. The Board then properly found that because
the union had agreed to reprove its majority status, the
respondent was not guilty of a "refusal to bargain" by
insisting that the union comply with what it had agreed to
do. Clearly, the Dimarck case is not apposite to the instant
set of facts.
The law governing this particular set of facts is rather
succintly set forth in the Terrell Machine Company case,
supra, which is often cited, but in my opinion frequently
misconstrued by knowledgeable labor attorneys.
It is well settled that a certified union, upon expiration
of the first year following its certification, enjoys a
rebuttable presumption that its majority representative
status continues .' This presumption is designed to
promote stability in collective-bargaining relationships,
without imparing the free choice of employees.2
Accordingly, once the presumption is shown to be
operative, a prima facie case is established that an
employer is obligated to bargain and that its refusal to
do so would be unlawful. The prima facie case may be
rebutted if the employer affirmatively establishes either
(1) that at the time of the refusal the Union in fact no
longer enjoyed majority status,3 or (2) that the
employer's refusal was predicated on a good faith and
9 Manuel testified of an effort in January and February 1974 in which
individuals were appointed to attempt to collect dues at the employment
site, but this method was most unsuccessful and only a few members paid
their dues in this manner.
10 Citing Vanette Hosiery Mills, 114 NLRB 1107 (1955).
reasonable grounded doubt of the Union's majority
status. As to the second of these, i.e., "good faith
doubt" two prerequisites for sustaining the defense are
that the asserted doubt must be based on objective
considerations4 and it must not have been advanced
for the purpose of gaining time in which to undermine
the Union.-9
1 Celanese Corporation ofAmerica, 95 NLRB 664, 671-672.
2 Id.
3 "Majority representative status" means that a majority of
employees in the unit wish to have the Union as their representative for
collective-bargaining purposes. Id
4 See Laystrom Manufacturing Company, 151 NLRB 1482, 1484,
enforcement denied on other grounds (sufficiency of evidence) 359
F.2d 799 (C.A. 7, 1966); United Aircraft Corporation, 168 NLRB 480
(rXD); N.L.RB. v. Gu nt Hotel Company, 362 F.2d 588 (C.A. 5,
1966), enfg. 147 NLRB 997, and cf. United States Gypsum Company,
157 NLRB 652.
5 See C & C Plywood Corporation, 163 NLRB 1022; Bally Case and
Cooler, Inc, 172 NLRB 1127.
In discussing the principles set forth in the paragraph
above, the Board fords the respondent is guilty in the
Terrell case, but clearly separates its discussion of these
applicable principles into -the two available defenses for the
Respondent. The confusion and misapplication of these
principles seems to have stemmed from the fact that all too
often practicioners utilize the language employed by the
Board in discussing the first available defense (at time of
refusal the union lacked majority status), when the issue is
the employer's second available defense, namely, a good-
faith and reasonable grounded doubt of' the Union's
continued majority status. In the Terrell case, after
discussing the presumption of majority status and the
assumptions that are applied to support that presumption,
the Board found that respondent had not proved the
union's lack of majority. The Board then went on to
discuss the respondent company's subjective reasons for
doubting that the union continued to represent a majority
of the employees. On the basis of the rather flimsy
subjective reasons advanced by respondent, the Board then
found the respondent to be in violation of their bargaining
obligation. In the instant case , however, the Respondents
have at all times asserted only that they have a reasonable
and good-faith doubt as to the Union's majority status. (In
other words, only the second available defense is at issue.)
In order to sustain this defense, they must prove that their
asserted doubt was based on objective considerations and
that their asserted doubt and consequent refusal to bargain
must not have been advanced for the purpose of gaining
time in which to undermine the Union. Applying these
principles to the evidence presented in this case, I am
unable to fmd the Respondents to be guilty of violating
Section 8(a)(5) and (1) of the Act.
There was absolutely no evidence presented to show that
the Respondents have sought to undermine and destroy
the Union since expressing their doubt concerning the
union majority status. There were no allegations in the
complaint or evidence presented of independent 8(a)(1)
11 Citing N.L.RB. v. Gunt Hotel Company, 362 F.2d 588 (CA. 5,
1966).
12 Citing Laystrom Manufacturing Co., 151 NLRB 1482, 1484 (1965).
13 Citing Terrell Machine Company, 173 NLRB 1480 (1969).
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violations . More objectivity of the Respondents' considera-
tions before expressing doubt of the Union's majority
status would seem hard to fmd. With full knowledge,that
the membership of the Union has always been expressed
by the number of employees on the checkoff list, when that
list totaled less than one-half of the employees actively
employed, it seems prefectly logical that the Respondents,
and each of them, were entitled to doubt the Union's
majority-14 The objectivity certainly cannot be questioned,
because a simple count of the number of employees
employed and a count of the number of employees on the
checkoff list, has to be the same regardless of one's
subjective prejudices and bias. In a context free of unfair
labor practices these factors provide an objective basis
which properly furnishes a reasonable basis for the
Respondents to believe the Union had lost its majority
StatUS.15
The Respondents have never said that a majority of the
employees may not wish to be represented by the Union.
Their position has always been that based upon purely
objective considerations, they have a good-faith doubt that
the Union represents a majority of the employees. An
employer has an obligation to bargain only with a majority
union.16 In fact, an employer places itself in jeopardy by
executing a contract with a union where there is evidence
reasonably available to indicate that the majority status of
the union is open to serious question.17 Apparently, the
Union was unable to come forward with evidence to
present to the General Counsel during the investigative
stages of this case that the Union actually represents a
majority of the employees and there was no evidence
presented at the trial to this effect.
While I think the Respondents might have been well
advised to have filed an RM election petition with the
Regional Office of the National Labor Relations Board, I
am not of the opinion that failure to do so totally destroys
Respondents' asserted defense, which I have found to be
valid. A resolution of the doubt and a determination of the
wishes of the employees is a relatively simple matter and
can be disposed of by either the Respondents or the
Charging Party filing a petition with the Regional Director.
This should be done, but I am without authority to order
an election. I shall recommend dismissal of the complaint
in its entirety.
CONCLUSIONS OF LAW
1. The Respondents, and each of them, are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Neither Respondent Wald nor Respondent West-
heimer has engaged in the unfair labor practices alleged in
the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
14 Full consideration has been given to the fact that this is not always 16 International Ladies' Garment Workers Union [Bernhard Altmann
true. Most often unions will have multiple means of collecting dues, but this Texas Corp I v. N.L.R B., 366 U.S. 731 (1961).
was not the case in this situation . 17 See Andersen Pharmacy, 187 NLRB 301(1970).15 Southern Wipers, Inc., 192 NLRB 816 (1971).