Pennex Aluminum Corp.

National Labor Relations Board - Board Decisions

Apr 13, 1988

288 N.L.R.B. 439 (N.L.R.B. 1988)

PENNEX ALUMINUM CORP. 439
Pennex Aluminum Corporation and Chauffeurs,
Teamsters and Helpers Local Union No. 430,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO.' Case 4-CA-
14617
April 13, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN, BABSON, AND CRACRAFT
On April 24, 1985, Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and Charging Party filed
briefs in opposition to the Respondent's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions 2 and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and orders that the Respondent,
Pennex Aluminum Corporation, Harrisburg, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1.
"1. Cease and desist from
"(a) Refusing to bargain with Chauffeurs, Team-
sters and Helpers Local Union 430, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America as
the exclusive collective-bargaining representative in
the following bargaining unit:
"All production and maintenance employees,
including laborers, truckdrivers and shipping
and receiving employees, employed by Pennex
Aluminum Corp. at its Wellsville, Pennsylva-
nia location; excluding all office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordmgly, the caption has been amended to
reflect that change.
2 In adopting the judge's conclusion that the Respondent did not have
sufficient objective considerations to support its asserted doubt of the
Union's majority status, we agree with the judge's reliance on Pennco,
Inc., 250 NLRB 716 (1980), for the general principles for which he cited
that case. We note, however, that in our decision in Station KKHI, 284
NLRB 1339 (1987), we overruled Pennco to the extent that the Board
there applied a presumption that strike replacements support a union in
the same ratio as the employees they replace
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
'that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Chauffeurs,
Teamsters and Helpers Local Union 430, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica as the exclusive collective-bargaining represent-
atives of the following unit of our employees:
All production and maintenance employees, in-
cluding laborers, truckdrivers and shipping
and receiving employees employed by us at
our Wellsville, Pennsylvania location; exclud-
ing all office clerical employees, professional
employees, guards and supervisors as defined
in the Act.
WE WILL NOT in any like- or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, resume bargaining in good
faith with' the Union and, if an understanding is
reached, embody it in a written agreement.
PENNEX ALUMINUM CORPORATION
William Slack, Esq., for the General Counsel.
Norman I. White, Esq. (McNees, Wallace & Nurick), of
Harrisburg, Pennsylvania, for the Respondent.
Ira H Weinstock, Esq., of Harrisburg, Pennsylvania, for
the Charging Party Union.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. This
matter involves an alleged failure and refusal by the Em-
ployer, Pennex Aluminum Corporation (the Respondent)
to bargain collectively with Teamsters Local 430, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union). Respondent defends, in general, on the grounds
that it justifiably withdrew recognition of the Union after
288 NLRB No. 53
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union had been inactive for a 2-year period. This ini-
tial decision will find that the Union was not inactive for
the period involved, that Respondent was not justified in
withdrawing recognition, and that Respondent therefore
engaged in an unfair labor practice by failing and refus-
ing to bargain collectively with the designated agent of
its employees, in violation of Section 8(a)(1) and (5) of
the National Labor Relations Act (the Act).
The charge was filed on 24 September 1984 1 and the
complaint was issued on 30 October. The hearing was
held before me at Harrisburg, Pennsylvania, on 24 Janu-
ary 1985, and briefing date was set for 28 February 1985.
On the entire record, including briefs, and from my ob-
servation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND BACKGROUND
A. Prior Negotiations and Board Action
Respondent, operating an aluminum extrusion plant at
Wellsville, Pennsylvania, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act. The Union is a labor organization within the
meaning of Section 2(5) of the Act. An election was held
on 19 February 1982 and of 36 votes cast, 22 were in
favor of the Union. On 1 March 1982 the Union was cer-,
tified as the exclusive collective-bargaining representa-
tive of a unit consisting of all production and mainte-
nance employees, including laborers, truckdrivers, and
shipping and receiving employees of Respondent at Re-
spondent's Wellsville, Pennsylvania facility, but exclud-
ing all office clerical employees, guards, and supervisors
as defined in the Act.
Between 23 April and 16 September 1982, Respondent
and the Union met and negotiated regarding wages,
hours, and other terms and conditions of employment of
members of the bargaining unit. Sessions were held on 23
April, and 1, 9, and 15 June 1982, resulting in a contract
offer by Respondent on that date. On 17 June 1982 the
bargaining unit employees voted to reject the offer. On 9
August 1982 the Union telephoned Respondent to deter-
mine if the offer was still viable, and on being told that it
was, advised Respondent it was calling a meeting of em-
ployees to conduct another vote. On 10 August 1982,
however, Respondent advised the Union that the propos-
al was withdrawn. On 16 September 1982, Respondent
made a different and less favorable offer. The Union re-
sponded with a counterproposal, which Respondent re-
jected. On 28 October 1982 the Union filed a charge
with this Board alleging a failure by Respondent to ne-
gotiate in good faith. On 14 November 1982 Respondent
unilaterally put into effect its less-favorable offer of 16
September 1982.
A hearing was held on the Union's charge, Case 4-
CA-13302, on 9 May 1983. The initial decision, issued 4
November 1983, found that Respondent had withdrawn
its offer of 15 June 1982 solely because bargaining unit
employees, while rejecting it, did not as a result go out
on strike. It also found that the unilateral "contract" of
16 September 1982 had fewer benefits. It specifically rec-
ommended ordering Respondent to reinstate the unlaw-
fully withdrawn offer of 15 June for union consideration.
On exceptions, the Board issued its Decision and
Order on 23 August 1984. 2 It reversed the administrative
law judge's findings of fact, and dismissed the complaint.
Within 2 weeks of the Board's action, on 6 September,
the Union sent a letter to Norman I. White, attorney for
Respondent and Respondent's "chief negotiator" at the
prior meetings, proposing various dates in September and
October "for negotiations for an Agreement." On 14
September White responded as follows:
On September 6, 1984, you wrote requesting
dates for negotiations at Pennex. That request must
be rejected.
Bruce, as you know, the election was on Febru-
ary 19, 1982. On the 37 people then on the payroll,
only ten remain. Thus, we now have over 60 em-
ployees of whom only 16 percent were with us
when the union was certified. Surely the union
cannot now claim majority status.
In addition, the last negotiating session took place
over two years ago. You chose to wait and remain
silent while the NLRB case was litigated. Of
course, you expected to win, but the complaint was
dismissed and the employer was found not to have
bargained in bad faith.
As far as Pennex is concerned, it will not assume
that the union still represents its employees and, due
' to your two-year silence, it will assume that you
have waived any claim to continued status as the
representative of its employees.
On 24 September the Union filed the charges.
B. Intervening Respondent and Union Activities
In the 22 months between filing charges for alleged
bad-faith bargaining, 28 October 1982, and the Board's
Decision and Order, 23 August 1984, the Union received
six written complaints from bargaining unit members
concerning terms and conditions of employment, includ-
ing discharge. The Union forwarded the complaints to its
counsel, but did not file charges with the Board or con-
tact the Respondent.
On 2 March 1983 the Union mailed a letter to all
known bargaining unit members, "updating" them con-
cerning negotiations, or the lack thereof, charges filed
with the Board, and the approaching hearing of 9 May
1982, and exhorting them to "remain united."
James Wardrop, as member of the negotiating team on
behalf of the Union, testified without contradiction that
while working throughout the Pennex plant until April
1983, he had daily discussions with numerous employees
regarding the Union, and that after April he had discus-
sions with numerous Pennex employees who were neigh-
bors and whom he saw socially, at least once a week.
The Union conducted a meeting at a local fire hall on
19 May 1984, at which 12 individuals were present. 3 A
2 271 NLRB 1205.
3 Wardrop was present as a former, and not a current, employee.1 All dates are in 1984 unless otherwise indicated.
PENNEX ALUMINUM CORP. 441
three-person membership committee was appointed to
report to the union business agent at a stipulated time on
3 June and again on 24 June at the parking lot of a local
supermarket. All three members appeared at the first
meeting, but only one appeared at the second.
A new president for Respondent took office in Sep-
tember 1983. He testified without contradiction that he
was never contacted by the Union, and that between
September 1983 and September 1984, in several instances
employees directly approached management for the re-
soultion of complaints regarding terms and conditions of
employment, including vacation time, holiday overtime,
absentee discipline, and job slotting. Neither specific
dates nor the number of such contacts were given.
C. Discussion
It is well settled that there is an irrebuttable presump-
tion of continuing majority status for a union extending 1
year from certification. 4 After that period the presump-
tion remains in force, but is rebuttable. An employer may
withdraw recognition of a union in two instances: first,
that the union no longer has an actual majority status at
the time recognition is withdrawn, or second, that the
employer's action is predicated on a reasonably grounded
doubt at that time as to continued majority status, (a) as-
serted in good faith, (b) based on objective consider-
ations, and (c) raised in a context free of employer unfair
labor practices.s
As stated in Pennco, Inc, 250 NLRB 716, 716-717
(1980):
The presumption of continuing majority status es-
sentially serves two important functions of Federal
labor policy. First, it promotes continuity in bar-
gaining relationships. . . . The resulting industrial
stability remains a primary objective of the Wagner
Act, and to an even greater extent, the Taft-Hartley
Act. Second, the presumption of continuing majori-
ty status protects the express statutory right of em-
ployees to designate a collective-bargaining repre-
sentative of their own choosing, and to prevent an
employer from impairing that right without some
objective evidence that the representative the em-
ployees have designated no longer enjoys majority
support.
As set forth above, the employer after the certifi-
cation year may rebut the presumption of majority
status with less than actual proof that a union lacks
majority support by establishing objective evidence
forming a reasonable basis for a good faith doubt of
that status. . . . the employer's burden is a heavy
one. Thus, "it is insufficient. . . that the employer
merely intuits nonsupport," and good-faith doubt
"may not depend solely on unfounded speculation
of a subjective state of mind."
A corollary of the overall presumption of con-
tinuing majority status is that, again absent evidence
4 Brooks v. NLRB, 348 U.S. 96 (1954).
5 NLRB v. Windham Memorial Hospital, 577 F.2d 805 (2d Cir. 1978);
Retired Persons Pharmacy v. NLRB, 519 F.2d 486 (2d Cir 1975); NLRB
Dayton Motels, 474 F.2d 328 (6th Cit. 1973); Harpeth Steel, 208 NLRB
545 (1974); Restaurant Employers Bargaining Assn., 213 NLRB 651 (1974).
to the contrary, new employees are presumed to
support the incumbent union in the same ratio as
those they replace. [Emphasis added.]
See also NLRB v. Triplett, 619 F.2d 586, 587 (6th Cir.
1980); NLRB v. Flex Plastics, 726 F.2d 272 (6th Cir.
1984).
The employer, who bears the burden of proof, set
forth in its letter two grounds for its stated belief that the
Union no longer represented a majority.
The first ground was that on the then current unit
complement of 60, only 10, or 16 percent, were em-
ployed at the time of election on 19 February 1982. This
evidence of employee turnover is, however, insufficient
to support Respondent's good-faith doubt. The Board
has adopted a rebuttable presumption that newly hired
employees will support a union in the same ratio as the
employees they repla.ce. 6 The only possible evidence that
later hirees did not support the Union is the statement by
Respondent's president that a "number" of employees
approached him directly with grievances. This is uncon-
vincing in that we do not know the number of these em-
ployees and cannot but guess whether they constituted a
majority of the 60 unit members, or a significant number,
or even whether they were members of the bargaining
unit.
The second ground given by the Respondent for its
belief that the Union no longer represented a majority
was that "the last negotiating session took place over 2
years ago. You chose to wait and remain silent while the
NLRB case was litigated." This argument is equally spe-
cious. The Board has permitted employers to base a
good-faith doubt of a union majority status on breaks in
negotiations, accompanied by employee expressions spe-
cifically of dissatisfaction with the Union, 7 or by other
evidence of lack of employee support s but has refused to
find that a break in negotiations supports a good-faith
doubt when that break is explained by factors other than
loss of employee support. s The Sixth Circuit stated it
most simply, saying "the fact of stalled contract negotia-
tions cannot be the basis for the good faith belief that a
union has lost majority support.",°
In addition, the Respondent makes the argument, im-
plicit though not contained in its letter setting forth the
grounds on which its position was based, that the Union
no longer represented the employees because it was not
active on behalf of the employees. As evidence, Re-
6 Colson Equipment, 257 NLRB 78, 79 (1981); King Radio Corp., 208
NLRB 578, 583 (1974); Dynamic Machine Co., 221 NLRB 1140, 1142
(1975), enfd. 552 F.2d 1195 (7th Cir 1977), Leatherwood Drilling Co., 209
NLRB 618, 622 (1974), enfd. 513 F.2d 270 (5th Cit. 1975); 1 H. Rutter-
Rex Mfg. Co., 209 NLRB 6, 8 (1974); United Electric Ca, 199 NLRB 603,
606 (1972); Laystrom MA. Co., 151 NLRB 1482, 1484 (1964).
7 Southern Wipers, 192 NLRB 816 (1971); Viking Lithographers, 184
NLRB 139 (1970).
8 Lloyd McKee Motors, 170 NLRB 1278 (1968).
9 Leatherwood Drilling Co., supra, in which the union lacked manpower
to expeditiously negotiate simultaneous negotiations with numerous em-
ployers in a geographic area; 1 H. Rutter-Rex Mfg. Co., supra, in which
hiatus was during pendancy of NLRB charges; Little Rock Downtowner,
supra, in which hiatus was during tamely appeal of Regional Director's
dismissal of charges.
" NLRB v. Flex Plastics, supra at 275.
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent alleges lack of communication or activity by
the Union in representing the employees. In order to suc-
ceed in such argument, Respondent "must show that the
Union was neither willing nor able to represent employ-
ees at the time its status was called into question."" At
most, Respondent can be said to raise a question whether
the Union was willing or able to represent employees
while the administrative law judge's recommended Order
was pending Board review. I find that, in the totality of
the circumstances, the Union was neither unwilling nor
unable. The Union did not seek further negotiations be-
cause the recommended Order required Respondent to
again place on the table its last offer, which the Union
had indicated would be the basis of a union vote. At the
only meeting called by the Union, about half its original
members attended, and there would be no purpose in
calling additional meetings except to inflame resentment
against the Employer. Further, I credit Wardrop's un-
contested and reasonable testimony, given in a straight-
forward manner, that he maintained daily contact with
other employees until he left Pennex, and weekly contact
thereafter, to discuss the status of contract negotiations.
The issue is not the extent of union/management contact,
which may have been lacking, but of union/employee
contact, which continued to take place. NLRB v. Flex
Plastics, supra at 275, citing Penne°, Inc., supra. Thus,
though the Union decided not to file charges or take
other action, the fact that employees continued grieving
to it is most meaningful.
CONCLUSIONS OF LAW
1. Pennex Aluminum Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers Local Union
430, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica is a labor organization within the meaning of Section
2(5) of the Act, and is the exclusive designated bargain-
ing agent of the following bargaining unit:
All production and maintenance employees, includ-
ing laborers, truckdrivers and shipping and receiv-
ing employees, employed by Pennex Aluminum
Corp. at its Wellsville, Pennsylvania location; ex-
cluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
' 3. Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(1) and (5) of the Act
by failing and refusing to bargain collectively with the
designated agent of its employees.
4. This unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
" Colson Equipment, supra at 79.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of
the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edits
ORDER
The Respondent, Pennex Aluminum Corporation,
Wellsville, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from refusing to bargain with
Chauffeurs, Teamsters and Helpers Local Union 430, af-
filiated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America as
the exclusive collective-bargaining representative in the
following bargaining unit:
All production and maintenance employees, includ-
ing laborers, truckdrivers and shipping and receiv-
ing employees, employed by Pennex Aluminum
Corporation at its Wellsville, Pennsylvania location;
excluding all office clerical employees, professional
employees, guards and supervisors as defmed in the
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, resume bargaining in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of the unit of Respondent's employees de-
scribed above in paragraph 1 and, if an understanding is
reached, embody it in a written agreement.
(b) Post at its Wellsville, Pennsylvania facility copies
of the attached notice marked "Appendix."" Copies of
the notice, on forms provided by the Regional Director
for Region 4, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
12 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
13 If 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 Nation-
al 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."