Petition for Writ of Certiorari — Hollaender Manufacturing Co. v. National Labor Relations Board

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q Bupreme Court, U.S.

~9l+949 | FILED

- NOV 15 i99t

—— DBBCE OF THE CLERK

In The a

Supreme Court of the United States

October Term, 1991

HOLLAENDER MANUFACTURING COMPANY,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

DoNnaLp B.. Horpes

Counsel of Record

Scuwartz, Manes & Rusy

2900 Carew Tower

441 Vine Street

Cincinnati, Ohio 45202-3090

(513) 579-1414

Attorneys for Hollaender

Manufacturing Company, Inc.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Once an employer is found by the National Labor

Relations Board (NLRB) to have unlawfully with-

drawn recognition from an incumbent union, may the

NLRB order the employer to continue recognizing the

Union where, subsequent to and independent of the

employer’s withdrawal of recognition, an uncoerced

majority of the employees no longer wish to be repre-

sented by the Union?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

TABLE OF AUTTORIITS .. 25.6.4 iv

CPTPRONS URLEWN. «065.0 ocicc esd 2

FAFREME IL, LORIN nin: s 6 0.0045 cece we Pat eee 2

CONSTITUTIONAL PROVISIONS AND STATUTES

OVO OD ik ive ss vnnhascacns ace 2

STATEMENT OF THE CASES. cc cc diets 4

FORSUIOAEINT, . . ones ssacaunuaeeae cee ee: 7

I. REASONS FOR ALLOWANCE OF THE WRIT

OF CERTIORARY . . «..is.-0c0sse ee eee 7

Il. QUESTION PRESENTED FOR REVIEW ...... 9

Once an employer is found by the National

Labor Relations Board (NLRB) to have

unlawfully withdrawn recognition from an

incumbent Union, may the NLRB order the

employer to continue recognizing the union

where, subsequent to and independent of the

employer’s withdrawal of recognition, an

uncoerced majority of the employees no

longer wish to be represented by the Union?

A. FOR ALL RELEVANT TIMES, SUBSE-

QUENT TO THE UNLAWFUL WITH-

DRAWAL OF RECOGNITION BY THE

PETITIONER ON MAY 8, 1989, AN

UNCOERCED MAJORITY OF

EMPLOYEES HAVE EXPRESSED A

DESIRE TO NO LONGER BE REPRE-

SENTED BY THE UNION............... 10

ili

TABLE OF CONTENTS - Continued

Page

B. IF THE SIXTH CIRCUIT’S ENFORCE-

MENT OF THE RESPONDENT'S REME-

DIAL BARGAINING ORDER IS

ALLOWED TO STAND, PETITIONER

WILL BE FORCED TO RECOGNIZE AND

BARGAIN WITH A UNION AGAINST

THE WISHES OF THE BARGAINING

UNIT EMPLOYEES, THEREBY VIOLAT-

ING § 8(A)(2) [29 U.S.C. § 158(a)(2)] OF

THE NATIONAL LABOR RELATIONS

EO cee Luke wh ss see ee ea aes xis 12

C. THE SIXTH CIRCUIT’S DECISION IS

UNSUPPORTED BY THE AUTHORITIES

Sos | ey oe: 2 | _.. ie 13

D. THE SIXTH CIRCUIT’S ENFORCEMENT

OF THE RESPONDENT’S BARGAINING

ORDER, WHICH GAVE INSUFFICIENT

WEIGHT TO THE EMPLOYEES’ DESIRES,

IS IN CONFLICT WITH DECISIONS OF

RE EES 8 kc cevbwevecewwss 15

eer ga nteepetveven 19

APPENDIX

co en On ORIS CIDIMION. ...... 22.2 cece e wees: la

2. National Labor Relations Board (NLRB) Opinion. . .18a

3. Court of Appeals Order Denying Rehearing en

SLU ee ee rie cet heeds nerercteness 43a

TABLE OF AUTHORITIES

Page

Cases

Automated Business Systems v. NLRB, 497 F.2d 262

See MM NON as dds nds wevsadne sets res ekeeatnes 10, 11

Bureau of Alcohol, Tobacco and Firearms v. Federal

Labor Relations Authority, 464 U.S. 89 (1983)........ 9

Detroit Edison Co. v. NLRB, 440 U.S. 301 (1980)....... 9

Fall River Dyeing & Finishing Corp. v. NLRB, 482

Se EE Li ravers eee ceree Reisen eke ute ies 12

Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944)... 13, 14, 15

Garment Workers Union (Rernhard-Altmann Texas

Corp.) v. Union, 366 U.S. 731 (1961)......... e, 42, 33

NLRB v. Bakers of Paris, Inc., 929 F.2d 1427 (9th Cir.

PRR EN SO RLERETN EUR ACT TRE REGT CORE OCT EREN TES 16, 18

NLRe 0. Brown, SOO US. 276 CIGGS) «oon icc ccessess 9

NLRB v. Curtin Matheson Scientific, Inc., __ US.

cei Oe, OE SUM Os sa ves evens arena 10, 11

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)... .9, 10

NLAS ©. Katt, 369 US. 736 (CI9GZ). ... ccc eesseess 14, 15

NLRB v. LaVerdiere’s Enterprises, 933 F.2d 1045 (1st

SA 2 BAR ee aR oe runt eee gra yer 8, 17

NLRB v. Pace Oldsmobile, Inc., 739 F.2d 108 (2d Cir.

oak LEE PAT ae aD nari Serta a 9 Pare ae 10

Peoples Gas System, Inc. v. NLRB, 629 F.2d 35 (D.C.

MR eases ORNs codaks Coat wkanr asec eek 8, 16

St. Agnes Medical Center v. NLRB, 871 F.2d 137

Ea Peo nat cs vance wah esucecrasteke 8, 16

einai

TABLE OF AUTHORITIES —- Continued

Page

Snepard v. NLAG, 459 US. SOG (USGS) oon c sce seween vcs 9

Sterling Processing Corp., 291 N.L.R.B. 208 (1988)..... 14

Texas Petrochemicals Corp. v. NLRB, 923 F.2d 398

Coe Go Fees bined csaeecervccceenceseecuses 8, 17

NaTIONAL LABOR RELATIONS Act oF 1935

oe UR. BH Fs 6 sab es ose cndiendendeeneeeeees r

De TE. OV son hn cn se cavaeeeeis secre 3, 7, t2

am US. & Vek ols nes cv ckcc wenn: fieeonseeee

oP UB. © Petes oboe. Sa vee neue eis pe en eee

ee Whe. © TOD oon cs hn eh cna cen eee 3

USE. 6410S... 5. ote eee 3

eal,

No. 91-

In The

Supreme Court of the United States

October Term, 1991

HOLLAENDER MANUFACTURING COMPANY,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner requests that a Writ of Certiorari be issued

to review the decision and judgment of the United States

Court of Appeals for the Sixth Circuit entered on August

13, 1991, enforcing a Decision and Order of the National

Labor Relations Board (hereinafter “NLRB”) directing

Petitioner to continue recognizing and bargaining with

the International Association of Machinists and Aero-

space Workers, Local Lodge 789, District 34 (hereinafter

“the Union”).

OPINIONS BELOW

The opinion of the Court of Appeals is contained in

the Appendix at la, and is reported at 942 F.2d 321 (6th

Cir. 1991). The opinion of the NLRB is contained in the

Appendix at 18a, and is reported at 299 N.L.R.B. No. 59.

wan

JURISDICTION

The judgment of the Court of Appeals was entered

on August 13, 1991. A Petition for Rehearing en banc was

timely filed by Petitioner on August 27, 1991. The Petition

for Rehearing en banc was denied on October 1, 1991.

Jurisdiction to review the judgment of the Sixth Circuit in

this cause by a Writ of Certiorari is conferred on this

Court by 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

National Labor Relations Act of 1935, as amended (29

U.S.C. 151, et seq.)

§ 158 - Unfair Labor Practices

(a) It shall be an unfair labor practice for an

employer -

(1) to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed in

Section 157 of this title;

(2) to dominate or interfere with the formation

or administration of any labor organization or contribute

financial or other support to it... .

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of employment

to encourage or discourage membership in any labor

organization. .. .

(5) to refuse to bargain collectively with the

representatives of his employees subject to the provisions

of Section 159(a) of this title.

§ 159 — Representatives and Elections

(a) Exclusive representatives’, employees’ adjustment of

grievances directly with employer.

Representatives designated or selected for the pur-

poses of collective bargaining by the majority of the

employees in a unit appropriate for such purposes, shall

be the exclusive representatives of all the employees in

such unit for the purposes of collective bargaining in

respect to rates of pay, wages, hours of employment or

other conditions of employment.

§ 160 — Prevention of Unfair Labor Practices

* * *

orders of Board.

The testimony taken by such member, agent, or

agency of the Board shall be reduced to writing and filed

with the Board. Thereafter, in its discretion, the Board

upon notice may take further testimony or hear argu-

ment. If, upon the preponderance of the testimony taken,

the Board shall be of the opinion that any person named

in the complaint has engaged in or is engaging in any

such unfair labor practice, then the Board shall state its

findings of fact and shall issue and cause to be served on

such person an order requiring such person to cease and

desist from such unfair labor practice, and to take such

affirmative action, including reinstatement of employees

with or without back.pay, as will effectuate the policies of

this subchapter.

STATEMENT OF THE CASE

The basic facts of this case, as set forth fully in detail

in the Sixth Circuit and NLRB Opinions, are not in dis-

pute. Petitioner is engaged in the manufacture and sale of

structural fittings from its manufacturing facility in Even-

dale, Ohio. Petitioner and the Union enjoyed long and

harmonious bargaining relations since the Union was

certified in 1965 as the exclusive bargaining representa-

tive for the Petitioner’s production and maintenance

employees. The most recent three-year collective bargain-

ing agreement expired on May 31, 1989.

On Friday, May 5, 1989, Petitioner was furnished a

petition signed by 16 out of 30 employees stating that

they no longer wanted the current Union to represent

them for purposes of collective bargaining. The circula-

tion of the anti-Union petition was carried out in an

atmosphere free from coercion or interference by Peti-

tioner. Based on receipt of the anti-Union petition, Peti-

tioner, on Monday, May 8, 1989, withdrew recognition

from the Union and refused to bargain over a new con-

tract.

Subsequently, the Union filed unfair labor practice

charges against Petitioner alleging that it unlawfully

withdrew recognition from the Union at a time in which

it still represented the majority of the production and

maintenance employees at Petitioner’s facility. The NLRB

Cincinnati Regional Office ultimately issued a complaint

alleging that Petitioner violated § 8(a)(5) of the National

Labor Relations Act [29 U.S.C. § 158(a)(5)] by withdraw-

ing recognition from the Union at a time in which it still

represented a majority of the employees.

On September 8, 1989, an Unfair Labor Practice Hear-

ing was held before an Administrative Law Judge

appointed by the NLRB, whereafter the Administrative

Law Judge ruled that the employer had unlawfully with-

drawn recognition from the Union on May 8, 1989,

because at that time, there were 34, not 30 members of the

bargaining unit. The Administrative Law Judge ruled that

the bargaining unit should have included four (4) proba-

tionary employees. Therefore, the 16 signatures on the

anti-Union petition did not represent a majority of bar-

gaining unit employees no longer desirous of Union rep-

resentation. The Administrative Law Judge further

recommended the issuance of a remedial order requiring

Petitioner to continue bargaining with the Union over a

new collective bargaining agreement even though within

a few weeks after the unlawful withdrawal of the recog-

nition on May 8, 1989, and prior to the Hearing, three (3)

probationary employees and three (3) permanent

employees who had not signed the anti-Union petition

left the employment of the Petitioner,’ thereby rendering

' Two of the probationary employees quit within a couple

of hours after the May 8, 1989, withdrawal of recognition.

the 16 employees who originally signed the anti-Union

petition an uncoerced majority in a bargaining unit of 28

employees.?

On August 16, 1990, the NLRB issued its opinion

adopting in toto the decision of the Administrative Law

Judge as well as her recommended bargaining order rem-

edy without comment.

On October 15, 1990, the NLRB filed with the United

States Court of Appeals for the Sixth Circuit its Applica-

tion for Enforcement of its Order. After briefing and

argument, the Court of Appeals rendered its opinion and

judgment on August 13, 1991, affirming in its entirety the

Decision and Order of the NLRB including its remedy

requiring the Petitioner to continue recognizing and bar-

gaining with the Union.

The Court of Appeals agreed with the NLRB that

even though a majority of the employees may have no

longer wanted the Union to represent them, the fact that

the Petitioner had unlawfully withdrawn recognition

from the Union at a time a majority of employees still

supported the Union rendered a remedial bargaining

order absolutely necessary to restore as far as possible the

status quo that existed prior to the alleged withdrawal of

recognition. The Court deferred to the NLRB’s choice of

remedies, acknowledging NLRB’s broad discretion which

was subject to very limited judicial review.

2 While one employee withdrew his name subsequently,

another employee added her name to the Petition at about the

same time.

Petitioner filed a Motion for Rehearing en banc, on

August 27, 1991, which was denied by the Sixth Circuit

Court of Appeals on October 1, 1991.

ARGUMENT

I. REASONS FOR ALLOWANCE OF THE WRIT OF

CERTIORARI

This case presents a labor issue of first impression,

namely, to what extent the NLRB may order an employer,

who unlawfully withdraws recognition from the majority

union, to continue to recognize and bargain with that

union where, subsequent to, and unrelated to, the with-

drawal of recognition, an uncoerced majority of

employees no longer wish the union to represent them.

The United States Supreme Court has ruled that an

employer violates § 8(a)(2) of the National Labor Rela-

tions Act, [29 U.S.C. § 158(a)(2)] when it recognizes and

bargains with a union which does not, in fact, represent a

majority of the bargaining unit employees. Garment

Workers Union (Bernhard-Altmann Texas Corp.) v. NLRB,

366 U.S. 731 (1961). Bernhard-Altmann involved a non-

union employer who, faced with an initial organizational

campaign, unlawfully recognized the union under a good

faith belief that the union represented an uncoerced

majority of the employees when, in fact, it did not. The

Berhard-Altmann rule proscribing employer recognition of

a so-called “minority” union has never been extended to

a withdrawal-of-recognition case like the one at bar

where the Sixth Circuit has enforced an NLRB order that

an employer recognize a union which used to represent a

majority but no longer does.

Furtherm re, the decision of the Sixth Circuit Court

of Appeals ii. the instant case is in direct conflict with

decisions of the District of Columbia, First, and Fifth

Circuits. Those courts, when faced with substantially sim-

ilar factual situations, have refused to enforce NLRB

remedial bargaining orders in the face of an uncoerced

majority of employees who no longer want the union to

represent them. In Peoples Gas System, Inc. v. NLRB, 629

F.2d 35 (D.C. Cir. 1980), the District of Columbia Circuit

Court of Appeals, while finding that an employer had

unlawfully withdrawn recognition from a union at a time

in which it still represented a majority of the employees

in the bargaining unit, nonetheless refused to enforce the

NLRB’s remedial order on the basis that subsequent to

the withdrawal of recognition, a clear majority of the

employees exhibited an uncoerced desire that the union

no longer represent them. The Court reasoned that the

NLRB’s choice of bargaining order remedy gave too

much weight to the interests of the union and too little

weight to the statutory rights of the employees to reject

their bargaining representative and to refrain from collec-

tive bargaining. Id., at 45-48; See also, St. Agnes Medical

Center v. NLRB, 871 F.2d 137 (D.C. Cir. 1989). The First

Circuit Court of Appeals recently ruled in NLRB v. LaVer-

diere’s Enterprises, 933 F.2d 1045 (1st Cir. 1991), that a

remedial bargaining order that refuses to take into con-

sideration the employees’ desires to be free of union

representation should not be enforced. Accord, Texas

Petrochemicals Corp. v. NLRB, 923 F.2d 398 (5th Cir. 1991).

Section 10(c) of the National Labor Relations Act [29

U.S.C. § 160(c)] clothes the NLRB with broad remedial

authority subject to the proviso that whatever remedy is

chosen must “effectuate the policies of this [Act.]” Id. The

Supreme Court has acknowledged the NLRB’s wide dis-

cretion in fashioning its remedies, given its unique exper-

tise in the area of industrial relations, Shepard v. NLRB,

459 U.S. 344, 349 (1983); NLRB v. Gissel Packing Co., 395

U.S. 575, 612 n.32 (1969). The Court, however, has refused

to enforce NLRB remedial orders when they frustrate or

run counter to the clearly-established purposes of the

underlying statute. See e.g., NLRB v. Brown, 380 U.S. 278,

291-292 (1965); Detroit Edison Co. v. NLRB, 440 US. 301,

316 (1980); Cf. Bureau of Alcohol, Tobacco and Firearms v.

Federal Labor Relations Authority, 464 U.S. 89, 97 (1983).

Employee disaffection with unions has been a common

phenomenon in industrial relations in recent years. It

manifests itself in spontaneous circulation of anti-union

petitions or other attempts by employees to effectuate

their employer’s withdrawal of recognition from the

union. By failing to take into consideration this growing

anti-union majority in cases such as the one at bar, and

foisting unions on employees who no longer want them,

the Sixth Circuit Court of Appeals would enforce an

NLRB remedial order totally at odds with the underlying

statutory purpose of the National Labor Relations Act, to

protect employee free choice.

II. QUESTION PRESENTED FOR REVIEW

Once an employer is found by the National Labor

Relations Board (NLRB) to have unlawfully withdrawn

recognition from an incumbent union, may the NLRB

order the employer to continue recognizing the union

where, subsequent to and independent of the employer’s

withdrawal of recognition, an uncoerced majority of the

employees no longer wish to be represented by the

union?

A. FOR ALL RELEVANT TIMES, SUBSEQUENT

TO THE UNLAWFUL WITHDRAWAL OF REC-

OGNITION BY THE PETITIONER ON MAY 8,

1989, AN UNCOERCED MAJORITY OF

EMPLOYEES HAVE EXPRESSED A DESIRE

TO NO LONGER BE REPRESENTED BY THE

UNION.

It is well-settled federal law that a fundamental pred-

icate for the NLRB’s issuance of a remedial bargaining

order is the existence of an uncoerced majority of

employees who wish the Union to represent them for the

purposes of collective bargaining. Gissel Packing Co., 395

U.S. 575 (1969); NLRB v. Curtin Matheson Scientific, Inc.,

_ US. __, 110 S.Ct. 1542 (1990). However, in the

absence of a clear, uncoerced majority of employees sup-

porting representation by the union, federal courts gener-

ally hold that bargaining orders are clearly inappropriate.

NLRB v. Pace Oldsmobile, Inc., 739 F.2d 108 (2d Cir. 1981);

Automated Business Systems v. NLRB, 497 F.2d 262 (6th Cir.

1974). This majoritarian principle obtains both in the

context of an initial organizational campaign where the

union is attempting to represent employees for the first

time in a bargaining unit, Gissel, supra; Pace Oldsmobile,

supra, and in the context of a withdrawal of recognition,

present here, where the question is whether the majority

of the employees still wish to be represented by the

incumbent union. Curtin Matheson, supra; Automated Busi-

ness Systems, supra.

In the instant case, at the time of the withdrawal of

recognition from the Union on May 8, 1989, only a minor-

ity of employees, 16 out of 34, signed the anti-Union

petition. However, it is also uncontroverted that within a

few weeks of the withdrawal of recognition, a sufficient

number of non-petition signers left employment of Peti-

tioner that the solid ~ucleus of sixteen anti-Union

employees became a clear majority in the existing bar-

gaining unit of 28 employees.

More importantly, there is no causal relationship

between Petitioner’s withdrawal of recognition on May 8,

1989, and the subsequent manifestation of majority

employee discontent with the Union. The 16 employees

who signed the anti-Union petition did so before the Peti-

tioner withdrew recognition from the Union in an atmos-

phere free of Petitioner’s interference and coercion. These

16 employees remained anti-Union afterwards. Other

employees subsequently left the employment of Peti-

tioner, for reasons unrelated to the withdrawal of recog-

nition. Thus, the emergence of an uncoerced anti-Union

majority occurred despite the withdrawal of recognition,

and not because of it.

B. IF THE SIXTH CIRCUIT’S ENFORCEMENT

OF RESPONDENT’S REMEDIAL BARGAIN-

ING ORDER IS ALLOWED TO STAND, PETI-

TIONER WILL BE FORCED TO RECOGNIZE

AND BARGAIN WITH A UNION AGAINST

THE WISHES OF A MAJORITY OF THE BAR-

GAINING UNIT EMPLOYEES, THEREBY VIO-

LATING § 8(a)(2) [29 U.S.C. § 158(a)(2)] OF THE

NATIONAL LABOR RELATIONS ACT.

In Bernhard-Altmann, supra, the Supreme Court ruled

that an employer violates § 8(a)(2) of the National Labor

Relations Act [29 U.S.C. § 158(a)(2)] when extending rec-

ognition to a union which in reality does not represent a

majority of the bargaining unit employees, even if the

employer believed in good faith that it did. By extending

recognition to such a “minority” union, the employer

unlawfully assists the union. Bernhard-Altmann arose, of

course, in the context of an initial organizational cam-

paign. However, the Supreme Court has extended its

reasoning to a successorship case. Fall River Dyeing and

Finishing Corp. v. NLRB, 482 U.S. 27 (1987). The issue in

Fall River Dyeing was the extent to which an employer

who purchased the assets of a unionized predecessor

employer was obligated to bargain with the incumbent

union. The Court, relying on Bernhard-Altmann, ruled that

until a representative complement of employees was

hired by the successor, and it was determined that the

majority of that complement was composed of ex-

employees of the unionized predecessor, the successor

employer would be precluded from recognizing the

union. Id. at 51, n.18.

The holding of Bernhard-Altmann has never been

extended to the withdrawal-of-recognition situation

obtaining in the instant case. However, given the overrid-

ing public policy objective of the National Labor Rela-

tions Act to preserve the right of employees to freely

choose whether or not they wish to be represented by

unions for purposes of collective bargaining, there is no

basis for limiting the applicability of Bernhard-Altmann to

an organizational or successorship case. Indeed, if a peti-

tion for a writ of certiorari is not granted, and if the Sixth

Circuit’s enforcement of the NLRB’s remedial bargaining

order is allowed to stand, the Petitioner will be forced to

do exactly what Bernhard-Altmann prohibits him from

doing: recognizing and bargaining with a union which is

not supported by the majority of the bargaining unit

employees.

C. THE SIXTH CIRCUIT’S DECISION IS UNSUP-

PORTED BY THE AUTHORITIES UPON

WHICH IT RELIES. .

The Sixth Circuit Decision in this case relies very

heavily on the forty-seven year old decision of the

Supreme Court in Franks Bros. Co. v. NLRB, 321 U.S. 702

(1944). However, such reliance is misplaced. In Franks

Bros., the union’s majority was dissipated in the wake of

several acts of employer misconduct violative of

§§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

[29 U.S.C. §§ 158(a)(1) and (a)(3)]. In the wake of these

unfair labor practices, several Union employees resigned

or otherwise left the employment of the Company and

were replaced by individuals whose Union sympathies

were unknown. The Court held that it would be unfair in

that situation to expect the union to maintain its majority

status over such a long period of time. In fact, it ruled

that individuals who replace these employees would vote

for the union in the same proportion as the incumbent

employees who initially supported the union.

Franks Bros. reflects an altogether reasonable appre-

hension on the part of the Sixth Circuit that employee

disaffection from a union in the wake of an employer's

unfair labor practices is oftentimes the result of those

very unfair labor practices. Thus, to exonerate the

employer from bargaining with the union which once

represented a majority of the employees would in effect

allow the employer to profit from its own misconduct. In

its brief in opposition to certiorari, Respondent, too, may

rely upon Franks Bros. and other cases cited in its brief to

the Sixth Circuit Court of Appeals in support of its bar-

gaining order remedy. See, e.g., NLRB v. Katz, 369 U.S.

736 (1962); Sterling Processing Corp., 291 N.L.R.B. 208

(1988). All of these cases involve the very typical scenario

wherein the loss of the Union’s majority was the result of

independent egregious unfair labor practices. Respon-

dent and the federal courts correctly forbade employers

from relying on the resultant employee disaffection as an

excuse for refusing to bargain. Petitioner does not quarrel

with this line of cases or the rationale contained therein.

However, what sets the instant case apart is that

Petitioner did of commit independent unfair labor prac-

tices which caused or contributed to the Union’s loss of

majority. Petitioner did not promise benefits, cut benefits,

discharge employees, etc., any or all of which may have

influenced employees to sign the anti-Union petition on

May 5, 1989. On the contrary, the circulation of the anti-

Union petition and the execution of the petition by 16

employees took place prior to the withdrawal of recogni-

tion, in an atmosphere free of illegal coercion and inter-

ference by Petitioner. Moreover, the same employees

remained anti-Union long after the withdrawal of recog-

nition took place.

To be sure, if Petitioner was relying on additional

employees who signed the Petition after its withdrawal of

recognition of the Union, it might arguably be profiting

by its own misconduct. However, the 16 employees

signed the anti-Union petition prior to the withdrawal of

recognition. Therefore, cases like Franks Bros., Katz, and

Sterling are clearly inapposite.

D. THE SIXTH CIRCUIT’S ENFORCEMENT OF

THE RESPONDENT’S BARGAINING ORDER,

WHICH GAVE INSUFFICIENT WEIGHT TO

THE EMPLOYEES’ DESIRES, IS IN CONFLICT

WITH DECISIONS OF OTHER CIRCUITS.

Respondent’s approach to this case was to focus only

on May 8, 1989, the date of withdrawal of recognition and

automatically issue a bargaining order, notwithstanding

all events occurring afterwards, even hours later. Respon-

dent, without much forethought, ruled that once there

was a withdrawal of recognition, a bargaining order was

the only remedy to restore the status quo. Indeed, the

Respondent noted that “it is difficult to conceive of any

other remedy.” (Appendix at 37a). The Sixth Circuit Court

of Appeals, in enforcing the Board’s remedy with mini-

mal comment, again alluded to “need to restore the status

quo.” (Appendix at 17a). This inflexible, mechanical

approach in granting bargaining orders appears to be that

of the Ninth Circuit as well. NLRB v. Bakers of Paris, Inc.,

929 F.2d 1427, 1448 (9th Cir. 1991).

However, federal appeals courts of other circuits

have rejected such rigid guidelines for granting bargain-

ing orders. They have refused to enforce NLRB bargain-

ing orders which fail to give sufficient weight to events

which take place after the unlawful withdrawal of recog-

nition, namely, the extent to which an uncoerced majority

of employees no longer wish the union to represent them.

In Peoples Gas System, Inc. v. NLRB, 629 F.2d 35 (D.C.

Cir. 1980), the District of Columbia Circuit Court of

Appeals refused to enforce an NLRB bargaining order

which failed to take into consideration the fact that subse-

quent to withdrawal of recognition, the uncoerced major-

ity of employees voted against continued union

representation in an election requested by the union

itself. While the bargaining order effectively punished the

employer for wrongfully withdrawing recognition in the

first place, and served the interests of the union which

wished to preserve its bargaining status, the issuance of a

bargaining order, the Court reasoned, gave too little

weight to the statutory rights of employees to select for

themselves whether or not they wanted continued union

representation. Id., at 45-50. The raticnale of Peoples Gas

has been reaffirmed by the D.C. Circuit Court in St. Agnes

Medical Center v. NLRB, 871 F.2d 137, 147-149 (D.C. Cir.

1989).

Similarly, in NLRB v. LaVerdiere’s Enterprises, 933 F.2d

1045 (1st Cir. 1991), the First Circuit Court of Appeals,

facing a fact situation which is almost identical to the one

at hand, again refused to enforce the NLRB’s bargaining

order, since it took insufficient account of employees’

anti-union sentiment. The First Circuit relied heavily on

the fact that employee anti-union sentiment did not

evolve in the wake of the unlawful withdrawal of recog-

nition, but had manifested itself in a decertification effort

by anti-union employees prior to the employer’s with-

drawal of recognition. The First Circuit also took note of

the de minimis nature of the employer’s unfair labor prac-

tice (mere withdrawal of recognition) and the lack of

egregious coercive misconduct directed at the employees.

The Court thus could not justify the issuance of a bar-

gaining order as a deterrent measure against the

employer. [d., at 1053-1055.

This requirement to consider uncoerced employee

sentiment when fashioning bargaining orders has been

echoed by the Fifth Circuit as well. See Texas Petrochemi-

cals Corp. v. NLRB, 923 F.2d 398, 406 (5th Cir. 1991).

In the final analysis, the appropriateness of a bar-

gaining order depends on a balancing of a triad of inter-

ests: (1) deterring employers from embarking on a course

of unfair practices designed to dissipate employee sup-

port for the union; (2) protecting the status of the union

as the collective bargaining representative in the wake of

passage of time and loss of employee support caused by

employer’s unfair labor practices and, finally (3) safe-

guarding the interests of employees in exercising their

uncoerced freedom of choice as to whether they continue

to want a union to continue to represent them.

The ruling of the Sixth Circuit below and the Ninth

Circuit in Bakers of Paris, Inc., supra, focuses exclusively

on the first two interests to the exclusion of the third. The

Sixth and Ninth Circuits blindly enforce NLRB bargain-

ing orders whenever the employer unlawfully withdraws

recognition from the union. The Sixth and Ninth Circuit

pay no attention to events that take place subsequent to

the withdrawal of recognition, most notably, the un-

coerced views of the employees themselves.

The First, Fifth and D.C. Circuits, on the other hand,

require the Board to take into consideration the un-

coerced view of the majority of the employees, both

before and after the unlawful withdrawal of recognition,

in determining whether the Board’s bargaining order

should be enforced.

Given this sharp conflict between the Circuits as to

enforcement of bargaining orders, this Court should

grant Petitioner’s Petition for Writ of Certiorari to resolve

this conflict and adopt the reasoning of the First, Fifth

and D.C. Circuits.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

DoNALD B. Horpes

Counsel of Record

ScHWARTZ, Manes & Rusy

2900 Carew Tower

441 Vine Street

Cincinnati, Ohio 45202-3090

(513) 579-1414

Attorneys for Hollaender

Manufacturing Company, Inc.

RECOMMENDED FOR FULL TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

J-2974

No. 90-6288

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ON ApPLICATION FOR

Enforcement of an Order

of the National Labor

Relations Board

NaTIONAL LaBor RELATIONS

Boarb.

PETITIONER,

HottAENDER MANUFACTURING

Company,

)

V. )

)

RresrpONDENT.

Decided and Filed August 13, 1991

Before: MARTIN and MILBURN, Circuit Judges; and

CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge. Petitioner National

Labor Relations Board (hereinafter “Board”) seeks

enforcement of its August 16, 1990 order entered against

respondent Holaender Manufacturing Company (here-

inafter “Hollaender”). For the following reasons, we

enforce the Board’s order.

Hollaender manufactures structural fittings at its

manufacturing facility in Evendale, Ohio. International

Association of Machinists and Aerospace Workers (Local

Lodge 789, District 34) (hereinafter “Union”) has been the

certified collective bargaining representative of Hol-

laender’s production and maintenance employees since

December 1965. Since 1965, the parties have entered into

a series of successive collective bargaining agreements.

Because the most recent three-year collective bargaining

agreement (hereinafter “agreement”) expired on May 31,

1989, Hollaender and the Union agreed to begin labor

negotiations on May 8, 1989.

On May 2 or 3, 1989, Phyllis Dugger (a Hollaender

employee and Union member) telephoned the Board's

office in Cincinnati to ascertain how to decertify the

Union at Hollaender. After learning from Dugger that

there were thirty (30) Union members at Hollaender, the

unidentified Board official purportedly told Dugger that

she needed to obtain ten (10) signatures on a decertifica-

tion petition to initiate decertification proceedings. Con-

sequently, on May 5, 1989, Dugger circulated a petition

which read (in its entirety):

DECERTIFICATION

We the undersigned are rejecting Local Union

787 [sic]. We no longer want them to represent

us, the Hollander [sic] Manufacturing Inc.,

employee [sic].

Joint Appendix at 121.

After asking at least 23 of the 30 Union members to

sign the petition, Dugger obtained 16 signatures. Though

Dugger solicited signatures in the presence of the four

probationary production and maintenance employees,

Dugger did not attempt to obtain the probationary

employees’ signatures because Dugger did not believe

that the probationary employees were part of the certified

bargaining unit which the collective bargaining agree-

ment defined as:

All production and maintenance employees of

the Company at its plant and operations located

at 10285 Wayne Avenue, Cincinnati, Ohio, 45215,

including truckdrivers, building maintenance

man, shipping and receiving clerk and all other

plant clerical employees, but excluding all office

clerical employees, guards and professional

employees and supevisors [sic] as defined in the

Act.

Join Appendix at 86.

The agreement between Hollaender and the Union

defined the status and rights of probationary employees

in Article XIII (“Seniority”):

and

13.8 During the first three (3) months of contin-

uous employment, a new employee shall be con-

sidered a probationary employee; he shall not be

entitled to any of the benefits of this contract

other than the wage rates, and his employment

may be terminated at any time during such

period. At the end of the probationary period he

shall acquire seniority as of the date of his latest

hiring.

Article XXIV (“Union Shop”):

24.2 Newly hired employees shall, as a condi-

tion of employment during the term of this

Agreement, become and remain members of the

Union in good standing thirty (30) days after the

date of their employment by the Company.

Despite the express wording of section 24.2 of the

agreement, however, the parties stipulated to the truth,

but not to the relevance, of the following statement: “In

practice, and notwithstanding the provisions of the Union

Security Clause, employees were not requested to join the

Union until after they had completed their 90-day proba-

tionary period.” Joint Appendix at 51. Moreover, the par-

ties stipulated “[t]hat the probationary employees

perform the same kind of work as the (non-probationary)

production employees.” Joint Appendix at 37.

After obtaining the sixteen signatures, Dugger appar-

ently placed a copy of the anti-Union petition on Foreman

Marvin Kates’ desk where it was discovered by Produc-

tion Manager Gary Thomas. Thomas subsequently tele-

phoned Hollaender’s labor attorney, Donald B. Hordes,

for guidance. When asked by Hordes how many

employees were in the bargaining unit, and how many

employees had signed the decertification petition,

Thomas responded that sixteen of Hollaender’s thirty

production and maintenance employees in the bargaining

unit had signed the petition. Believing that a majority of

the bargaining unit employees had repudiated the

Union's authority, Hordes advised Thomas that the com-

pany was no longer obligated to recognize and bargain

with the Union.

On May 8. 1989, Hordes (operating under the

assumption that probationary employees need not be

counted when determining the total number of bargain-

ing unit employees) informed the Union representatives

that Hollaender would no longer bargain with the Union

in light of the decertification petition. Subsequent to the

May 8 meeting: three of the four probationary employees

separated from Hollaender under unspecified circum-

stances; one employee removed his name from the decer-

tification petition; and, one employee added her name to

the decertification petition.

On May 9, 1989, Hollaender management circulated a

notice, signed by Hollaender’s Executive Vice-President

and General Manager A. David Echert, to all production

and maintenance employees which read (in its entirety):

To all of the Hollaender Mfg. Co. shop

employees:

On Friday, May 5, 1989, we received a petition

signed by a majority of you stating that you no

longer wanted the Machinists Union to repre-

sent you for the purposes of collective bargain-

ing.

Based on this employee sentiment, we informed

the union at our first bargaining session on

Monday, May 8, 1989 that we were now

unwilling to enter into negotiations for a new

labor agreement.

We will, of course, continue to abide by the

current union contract which expires on May 31,

1989. After that time, however, we will no

longer recognize the Machinists Union as your

bargaining representative.

One immediate consequence of all of this is that

effective June 1, 1989, we will no longer be

deducting union dues of $20.15 per month from

your pay check. Secondly, we will implement a

new salary package for all of our machine shop

employees which will be competitive with other

similar companies in the Cincinnati metro-

politan area, and which also recognizes your

past and current contributions to The Hol-

laender Mfg. Co.

YOU WILL NOT LOSE ANY OF THE SALARY

AND FRINGE BENEFITS YOU CURRENTLY

ENJOY.

We will provide further details concerning your

salary and benefits in the next couple of weeks.

In the meantime, thanks for your continued

patience and support.

THE HOLLAENDER MFG. CO.

A. DAVID ECHERT

Executive Vice-President and General Manager Joint

Appendix at 81.

On May 24, 1989, the Union filed a charge against

Hollaender with the National Labor Relations Board for

refusing to recognize the Union’s representative status.

On July 12, 1989, the Board issued its “Complaint and

Notice of Hearing” alleging that Hollaender violated Sec-

tion 8(a)(1) and (5) of the National Labor Relations Act by

withdrawing recognition from, and refusing to bargain

with, the Union.

On January 10, 1990, Administrative Law Judge

Nancy Sherman (hereinafter “ALJ”) issued her Decision

ordering Hollaender to “recognize and bargain collec-

tively” with the Union “as the exclusive bargaining repre-

sentative of Respondent’s employees”:

I find that [the four probationary employees]

were in the bargaining unit. Initially, | conclude

that the probationary employees were within

the certified unit, which is described as “All

production and maintenance employees” with-

out any exclusions material here. More speci-

fically, it was admitted by Respondent’s counsel

that the probationary employees “are produc-

tion and maintenance employees . . . they do the

same kind of work that the regular employees

do.” .. . Moreover, when the Union was certified

in 1965, the probationary status of employees

otherwise in the bargaining unit (as probation-

ary production and maintenance employees

would have been) would not have excluded

them from the unit or rendered them ineligible

to vote. .. . Also, while two of the probationary

employees who worked on the day Respondent

withdrew recognition (May 8, 1989) did not

show up for work on the following day or at any

time thereafter, this circumstance would not

have rendered them ineligible to vote either on

May 8 or on May 5, 1989, the day the petition

was signed by certain nonprobationary

employees and received by Respondent. . . .

Moreover, the bargaining agreement confirms

the inherent probability that the parties

intended the contract unit to encompass the

entire certified unit. Thus, the contract itself

defines the unit as “all employees within the

bargaining unit as defined in the National Labor

Relations Board in Case No. 9-RC-6474,” and

otherwise tracks the language of the certifica-

tion. Probationary employees were entitled

under the bargaining agreement to the “wage

rates” specified therein, a condition which goes

to the marrow of the employment relationship

and as to which the Union could not lawfully

bind either them or Respondent if the Union

were not their bargaining representative. More-

over, under the bargaining agreement a non-

probationary employee’s period of service

included his probationary period for purposes

of seniority and (perhaps) entitlement to vaca-

tion and holiday pay. The foregoing evidence

that probationary employees were in the con-

tract unit outweighs the evidence relied upon by

Respondent... .

In short, the only evidence offered by Respon-

dent in support of its claim that the Union did

not in fact enjoy majority status when Respon-

dent withdrew recognition on May 8, 1989, is a

petition signed by 16 employees in a unit of 34.

A petition thus signed by fewer than half of the

unit employees cannot be relied on as an expres-

sion of majority disaffection from the Union suf-

ficient to support Respondent’s claim of a

reasonable and good-faith doubt of majority sta-

tus. Nor can a claim of reasonable and good-

faith doubt be supported by the legally erro-

neous belief of production control manager

Thomas that the 4 probationary employees were

not in the bargaining unit, in view of Respon-

dent’s knowledge of all the facts which showed

that such employees were indeed in the unit.

For the foregoing reasons, | find that Respon-

dent violated Section 8(a)(5) and (1) of the Act

by withdrawing recognition from the Union on

May 8, 1989.

Administrative Law Judge’s January 10, 1990 Decision at

6-8.

Thereafter, on August 16, 1990, the Board “affirm[ed]

the judge’s rulings, findings, and conclusions and

adopt[ed] the [ALJ’s] recommended Order.” National

Labor Relations Board’s August 16, 1990 Decision and

Order at 1, which requires Holaender to recognize the

representative status of, and bargain with, the Union.

The Board thereafter applied to this court for enforce-

ment of its August 16, 1990 Order pursuant to 29 U.S.C.

§ 160(e).

Il.

“Upon certification by the NLRB as the exclusive

bargaining agent for a unit of employees, a union enjoys

an irrebuttable presumption of majority support for one

year.” NLRB v. Curtin Matheson Scientific, Inc., 110 S. Ct.

1542 (1990). See also Fall River Dyeing & Finishing Corp. v.

NLRB, 482 U.S. 27, 37 (1987) (“[A]fter a union has been

certified by the Board as a bargaining-unit representative,

it usually is entitled to a conclusive presumption of

majority status for one year following the certification.”).

“During that time, an employer’s refusal to bargain with

the union is per se an unfair labor practice under

§§ 8(a)(1) and 8(a)(5) of the National Labor Relations

Act.” Curtin Matheson Scientific, Inc., 110 S. Ct. at 1544.

After the first year, the presumption of majority status

continues, but is rebuttable:

Under the Board’s long-standing approach, an

employer may rebut that presumption by show-

ing that, at the time of the refusal to bargain,

either (1) the union did not in fact enjoy majority

support, or (2) the employer had a “good faith”

doubt, founded on a sufficient objective basis, of

the union’s majority support.

Id. at 1545.

10a

Pursuant to the National Labor Relations Act’s “over-

riding policy” of achieving “industrial peace,” Fall River

Dyeing & Finishing Corp., 482 U.S. at 38, 29 U.S.C.

§ 158(a)(5) provides that “[i]t shall be an unfair labor

practice for an employer to refuse to bargain collectively

with the representatives of [its] employees.” In Fall River,

the Supreme Court held that the presumption of continu-

ing majority support for a union:

promot[es] stability in collective-bargaining,

relationships, without impairing the free choice

of employees. In essence, [it] enable[s] a union

to concentrate on obtaining and fairly adminis-

tering a collective-bargaining agreement with-

out worrying that, unless it produces immediate

results, it will lose majority support and will be

decertified. The presumptions also remove any

temptation on the part of the employer to avoid

good-faith bargaining in the hope that, by

delaying, it will undermine the union’s support

among the employees. The upshot of the pre-

sumptions is to permit unions to develop stable

bargaining relationships with employers, which

will enable the unions to pursue the goals of

their members, and this pursuit, in turn, will

further industrial peace.

Fall River Dyeing & Finishing Corp., 482 U.S. at 38-39

(citations omitted).

To prove an actual lack of majority support, the

employer must make a numerical showing that a majority

of employees opposed the union as of the date that union

recognition was withdrawn. To prove reasonable doubt as

to a union’s majority status, the employer’s doubt must

be asserted in good faith and must be supported by

lla

objective considerations. See generally Curtin Matheson Sci-

entific, Inc., 110 S. Ct. at 1550 n.8 (“The Board’s require-

ment of some objective evidence indicating . . . opposition

to the union does not amount to a requirement that the

employer prove that the union in fact lacks majority sta-

tus. To show a good-faith doubt, an employer may rely on

circumstantial evidence; to show an actual lack of major-

ity support, however, the employer must make a numeri-

cal showing that a majority of employees in fact oppose

the union.”); Cain’s Generator & Armature Co. v. NLRB, 628

F.2d 933, 934 (6th Cir. 1980) (“In order to withdraw recog-

nition, the employer must disprove majority support by a

clear, cogent, and convincing showing of actual loss of

majority status or objective considerations to support a

good faith doubt of a union’s majority status.”).

“{S]ubjective evidence may be used to bolster the argu-

ment that good faith doubts exist.” NLRB v. Pennco, Inc.,

684 F.2d 340, 342 (6th Cir.), cert. denied, 459 U.S. 994

(1982). Moreover, “[t]he relevant date to look to in deter-

mining the bona fide of the employer’s doubts is the date

that recognition is withdrawn; subsequent events cannot

validate an improper withdrawal of recognition.” /d.

Accordingly, we must affirm the Board’s findings regard-

ing majority status (or good faith doubt as to majority

status) if “on the record as a whole there is substantial

evidence to support” the Board’s determinations. Univer-

sal Camera Corp. v. NLRB, 340 U.S. 474, 491 (1951).

In the instant action, the Board argues:

Here, it is undisputed that the Union was the

certified bargaining representative of the unit’s

employees; that the Company and the Union

12a

negotiated several successive collective-bargain-

ing agreements, the most recent of which was

for a three year term from June 1986 [through]

May 31, 1989; and that on the afternoon of May

8, 1989, the Company withdrew recognition

from the Union and has, since then, refused to

bargain. Because the Union enjoyed a rebuttable

presumption of majority status on May 8, the

Company violated Section 8(a)(5) and (1) of the

Act (29 U.S.C. § 158(a)(5) and (1)) unless it can

prove its claim that it had at least a good-faith

doubt reasonably grounded on objective factors

that the Union no longer enjoyed majority status

at the time recognition was withdrawn.

The Company contends that its withdrawal of

recognition on May 8 was justified by the 16-

signature anti-union petition which it received

on May 5. This contention is premised on the

Company’s assertion that the bargaining unit

consisted of 30 employees. The Board, however,

found that there were 34 employees in the unit

including 30 non-probationary and 4 probation-

ary employees. Thus, the Company’s calculation

concerning the Union’s majority status was fac-

tually incorrect and failed to establish a reason-

ably-grounded good-faith doubt sufficient to

justify its withdrawal of recognition.

Petitioner’s Brief at 11-12. We agree.

Pursuant to the National Labor Relations Act, the

Board must determine the appropriate bargaining unit for

bargaining representative recognition (and withdrawal of

recognition) purposes. See 29 U.S.C. § 159(b) (“The Board

shall decide in each case whether, in order to assure to

employees the fullest freedom in exercising the rights

guaranteed by this subchapter, the unit appropriate for

13a

the purposes of collective bargaining shall be the

employer unit, craft unit, plant unit, or subdivision

thereof.”). See also American Hosp. Ass'n v. NLRB, 111

S. Ct. 1539, 1542 (1991) (“[W]henever there is a disagree-

ment about the appropriateness of a unit, the Board shall

resolve the dispute.”). In carrying out its statutory man-

date to determine whether a decertification election is

necessary pursuant to 29 U.S.C. § 159(c)(1), the Board

recognizes that:

In- decertification cases the appropriate unit in

which to conduct an election is the certified or

contract unit. If the certified unit has been

changed by contract, the Board relies upon the

unit recognized by collective bargaining and on

that basis holds an election to determine

whether the employees wish to continue being

represented.

Brom Machine & Foundry Co., v. NLRB, 569 F.2d 1042, 1043

(8th Cir. 1978) (quoting Continental Can Co., 217 NLRB 316

(1975)).

At Hollaender, the unit certified by the Board in 1965

(and not altered by later collective bargaining agree-

ments) consisted of:

All production and maintenance employees of

the Company at its plant and operations located

at 10285 Wayne Avenue, Cincinnati, Ohio, 45215,

including truckdrivers, building maintenance

man, shipping and receiving clerk and all other

plant clerical employees, but excluding all office

clerical employees, guards and professional

employees and supevisors [sic] as defined in the

Act.

l4a

Joint Appendix at 86. As the petitioner correctly notes,

“There is nothing in this language to suggest the exclu-

sion of probationary production and maintenance

employees.” Petitioner’s Brief at 14. In fact, Hollaender’s

attorney stipulated that the probationary employees per-

form the same work (and receive the same pay) as the

non-probationary employees do. Moreover, because the

collective bargaining agreement defines the probationary

employees’ conditions of employment, it logically follows

that, by entering such an agreement, Hollaender and the

Union impliedly agreed that the probationary employees

were members of the bargaining unit represented by the

Union.

As bargaining unit members, the four probationary

employees would have been entitled to vote in a repre-

sentation (or decertification) election held on May 5, the

day the decertification petition was circulated, or on May

8, the day Hollaender refused to recognize the Union.

Because substantial evidence supports the Board’s find-

ing that Hollaender’s actions disenfranchised four eligi-

ble voters (a potentially determinative portion of the

bargaining unit electorate), the Board correctly deter-

mined that Hollaender had violated the National Labor

Relations Act. See Bear Archery, 223 NLRB 1169, 1172

(1976) (“[P]robationary employees are clearly included in

the bargaining unit.”).

On August 16, 1990, the Board adopted the ALJ's

recommended Order which stated (in relevant part):

15a

Respondent Hollaender Manufacturing Co., its

officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to recognize and bargain col-

lectively with [the Union] as the exclusive

bargaining representative of Respondent’s

employees. . .

(b) In any like or related manner interfer-

ing with, restraining, or coercing employees

in the exercise of the rights guaranteed

them by Section 7 of the Act.

2. Take the following affirmative action neces-

sary to effectuate the policies of the Act.

(a) On request, recognize and bargain with

[the Union] as the exclusive representative

of the employees in the foregoing appropri-

ate unit concerning terms and conditions of

employment and, if an understanding is

reached, embody the understanding in a

signed agreement.

(b) Post at its facility in Cincinnati, Ohio,

copies of the attached notice marked

“Appendix.”

within 20 days from the date of this Order

what steps the Respondent has taken to

comply.

Joint Appendix at 149-50.

The Supreme Court has previously held that the

Board must fashion an order that serves as “a remedy

designed to restore, so far as possible, the status quo that

would have obtained but for the wrongful act.” NLRB v.

l6a

Rutter-Rex Mfg. Co., 396 U.S. 258, 265 (1969). Because the

Board’s power to order remedies “is for the Board to

wield, not for the courts,” Id. at 263 (quoting NLRB v.

Seven-Up Bottling Co., 344 U.S. 344, 346 (1953)), “the reme-

dial power of the Board is a ‘broad discretionary one,

subject to limited judicial review.’ ” Id. at 262-63 (quoting

Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216

(1964)).

Hollaender withdrew Union recognition at a time

when Hollaender was not privileged to do so. Accord-

ingly, the Board’s Order restored the status quo by rees-

tablishing the bargaining relationship. See, e.g., Franks

Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944) (“[A] Board

order which requires an employer to bargain with a des-

ignated union is not intended to fix a permanent bargain-

ing relationship without regard to new situations that

may develop. But, as the remedy here in question recog-

nizes, a bargaining relationship once rightfully estab-

lished must be permitted to exist and function for a

reasonable period in which it can be given a fair chance

to succeed. After such a reasonable period the Board may,

in a proper proceeding and upon a proper showing, take

steps in recognition of changed situations which might

make appropriate changed bargaining relationships.”).

Though the respondent argues that Automated Busi-

ness Sys. v. NLRB, 497 F.2d 262 (6th Cir. 1974), supports its

contention that the Board exceeded its authority by issu-

ing a bargaining order, we disagree. In Automated Business

Sys., the Sixth Circuit questioned the propriety of a bar-

gaining order following a decertification election (where

the union was handily defeated). In the instant action,

Hollaender refused to recognize, or bargain with, the

17a

Union after unilaterally (and unlawfully) determining

that the Union lacked majority support — the Board was

not given the opportunity to conduct a decertification

election prior to Hollaender’s actions. Accordingly, the

Board’s directives ordering Hollaender to “cease and des-

ist from refusing to recognize and bargain collectively”

with the Union, and to “recognize and bargain with [the

Union] as the exc usive representative of the employees,”

restore the status quo by reestablishing the bargaining

relationship between Hollaender and the Union.

ITT.

For the aforementioned reasons, we enforce the

Board’s Decision and Order.

18a

SCO

299 NLRB No. 59

D-1406

Cincinnati, OH

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

HOLLAENDER MANUFACTURING

COMPANY, INC.

and

LOCAL LODGE 789, DISTRICT

LODGE 34 OF THE

INTERNATIONAL ASSOCIATION

OF MACHINISTS AND

AEROSPACE WORKERS, AFL-CIO

Case 9-CA-26470

DECISION AND ORDER

On January 10, 1990, Administrative Law Judge

Nancy M. Sherman issued the attached decision. The

Respondent filed exceptions and a supporting brief.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The Board has considered the decision and the record

in light of the exceptions and brief and has decided to

affirm the judge’s rulings, findings, and conclusions and

to adopt the recommended Order.'

' In affirming the judge, Member Oviatt understands the

judge in her remedy to have rejected any argument that the

(Continued on following page)

19a

D-1406

ORDER

The National Labor Relations Board adopts the recom-

mended Order of the administrative law judge and orders

that the Respondent, Hollaender Manufacturing Company,

Inc., Cincinnati, Ohio, its officers, agents, successors, and

assigns, shall take the action set forth in the Order.

Dated, Washington, D.C. August 16, 1990

James M. Stephens, Chairman

Mary Miller Cracraft, Member

Clifford R. Oviatt, Jr., Member

(SEAL) NATIONAL LABOR RELATIONS

BOARD

(Continued from previous page)

employees would have repudiated the Union even had the

Respondent offered to the Union the guarantees it made directly to

employees in its May 9 handout. A withdrawal of recognition is

time specific in that at the moment an employer communicates its

decision to withdraw recognition to the union the employer must

have objective evidence that the union has lost its majority status.

Here, the petition that the employees no longer wanted the Union

to represent them was signed by 16 employees. The unit, however,

included 30 regular employees and 4 probationary employees.

Because the Respondent communicated its decision to withdraw

recognition to the Union before the two probationary employees

resigned on May 8, their resignations (which would have reduced

the unit to 32 employees) were immaterial to the question whether

the Respondent had an objective basis for withdrawing recognition

at the time it communicated that withdrawal to the Union.

20a

JD--308--89

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

HOLLAENDER MANUFACTURING

COMPANY, INC.

and

LOCAL LODGE 789, DISTRICT

LODGE 34 OF THE

INTERNATIONAL ASSOCIATION

OF MACHINISTS AND

AEROSPACE WORKERS, AFL-CIO

Case 9-CA-26470

Mark Mehas, Esq., of Cincinnati, OH,

for the Generai Counsel.

Donald B. Hordes, Esq., of Cincinnati, OH,

for the Respondent.

Mr. Richard ]. Carter, of Cincinnati, OH,

for the Charging Party.

DECISION

Statement of the Case

NANCY M. SHERMAN, Administrative Law Judge.

This case was heard before me in Cincinnati, Ohio, on

September 8, 1989, on the basis of a charge filed on May

24, 1989, by Local Lodge 789, District Lodge 34 of the

International Association of Machinists and Aerospace

Workers, AFL-CIO, (“the Union”) against Respondent

Hollaender Manufacturing Company, Inc., and a com-

plainit issued on July 12, 1989. The complaint alleges that

Respondent violated Section 8(a)(1) and (5) of the

National Labor Relations Act, as amended, (“the Act”) by

withdrawing recognition from the Union, and thereafter

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refusing to bargain with it, as the exclusive representative

of certain employees of Respondent.

On the basis of the entire record, including the

demeanor of the witnesses, and after due consideration of

the briefs filed by Respondent and counsel for the Gen-

eral Counsel (“the General Counsel”), I hereby make the

following:

Findings of Fact

I. Jurisdiction

Respondent is a corporation which manufactures and

sells structural fittings and related products at Cincinnati,

Ohio. During the 12 months preceding the issuance of the

complaint, Respondent sold and shipped from that facil-

ity products, goods, and materials valued at more than

$50,000 directly to points outside Ohio. I find that, as

Respondent admits, Respondent is engaged in commerce

within the meaning of the Act, and that assertion of

jurisdiction over its operations will effectuate the policies

of the Act.

The Union is a labor organization within the meaning

of the Act.

I]. The Alleged Unfair Labor Practices

A. Background

On December 13, 1965, the Union was certified as the

exclusive bargaining representative of the following

admittedly appropriate unit:

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All production and maintenance employees

employed by [Respondent] at its Cincinnati,

Ohio facility including truck drivers, building

maintenance man, shipping and receiving clerk

and all other plant clerical employees, but

excluding all office clerical employees, profes-

sional employees, guards and supervisors as

defined in the Act.

Thereafter, the parties had ongoing collective bar-

gaining relations for several years and entered into a

series of successive collective-bargaining agreements. The

most recent of these agreements became effective in June

1986, and expired on May 31, 1989. The recognition clause

of this agreement provided:

The Company recognizes the Union as the sole

and exclusive bargaining representative with

respect to rates of pay, wages and other condi-

tions of employment for all employees of the

Company within the bargaining unit defined in

[sic] the National Labor Relations Board in Case

No. 9-RC-6474 as follows:

“All production and maintenance

employees of the Company at its plant and

operations located at 10285 Wayne Avenue,

Cincinnati, Ohio, 45215, including truck-

drivers, building maintenance man, ship-

ping and receiving clerk and all other plant

clerical employees, but excluding all office

clerical employees, guards and professional

employees and supervisors as defined in the

Act.”

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That contract also provided:

During the first three (3) months of continuous

employment, a new employee shall be considered

a probationary employee; he shall not be entitled to

any of the benefits of this contract other than the

wage rates, and his employment may be termi-

nated at any time during such period. At the end

of this probationary period he shall acquire

seniority as of the date of his latest hiring.

Gary Thomas, Respondent’s production control man-

ager when he testified for Respondent on September 8, 1989,

credibly testified that he had never had a situation where a

probationary employee filed a grievance. Thomas was

Respondent’s production control manager as of May 5, 1989;

the record fails to show when he began to work for Respon-

dent at the plant in question. The 1986-1989 bargaining

agreement provided, “Continuous service shall be broken

and his employment shall terminate if the employee . . . is

absent for work for three (3) days without having reported

for work, unless he shall, before noon the day following such

absence, present a written statement showing a justifiable

reason for such absence . . . ” Thomas testified that although

nonprobationary employees cannot be fired for an absentee-

ism of less than 4 days, probationary employees can be

terminated at any time.

The 1986-1989 bargaining agreement included a

union-shop clause with a 30-day grace period. In practice,

employees were not requested to join the Union until

after they had completed their 90-day probationary

period.

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JD--308--89

Prior to May 5, 1989,' Respondent and the U: ion had

agreed to set up negotiation meetings for a new collec-

tive-bargaining agreement. The first meeting was sched-

uled for Monday, May 8.

B. The Employee Petition

As of about May 2, several of Respondent's

employees were dissatisfied with the Union, and wanted

to see if they “could have the Union go out.” Inferentially

in consequence of discussions among them, unit

employee Phyllis Dugger, a member of the Union, tele-

phoned the National Labor Relations Board’s Cincinnati

Regional Office at 4:15 or 4:30 p.m. on May 2 or 3. A male

voice answered the telephone, and said, ”. . . this is the

Labor Relation Board” or the “Labor Relation Office.” She

told him that “some of the union membership at our

company,” which she did not identify by name, “wanted

to find out what they should do to not have a union any

more.” He told her that “you start a decertification peti-

tion.” Dugger, who impressed me as a wholly honest

witness, testified for Respondent on direct examination:

... he asked me how many members there were

in this union at our company. | told him 30. He

told me I needed ten percent of the signature -

or ten people to sign this petition to be pre-

sented.

On cross-examination, she testified, “Ten percent of 30

people is what he told me.” On redirect, when Respon-

dent’s counsel asked, “Did he say you needed ten

1 All dates hereafter are 1989 unless otherwise stated.

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JD--308--89

signatures or ten percent?” she replied, “Ten signatures —

ten of 30 people.” She did not ask the name of the person

she talked to, he did not tell her, and she did not know it

when she testified. The other party to this conversation

did not testify. There is no evidence that Respondent

knew about this conversation at any material time.

Thereafter, the following material was typed, by an

individual unidentified in the record, at the top of a sheet

of paper:

DECERTIFICATION

We the undersigned are rejecting Local Union

787. We no longer want them to represent us,

the Hollander [sic] Manufacturing Inc.,

employee [sic}.

At that time, Respondent had in its employ 30 employees

who were in the bargaining unit, had completed their

probationary period, and were union members; and 4

probationary employees (as defined in the contract) who

performed the same kinds of work as the nonprobation-

ary employees in the unit but were not union members so

far as the record shows. Dugger asked at least 23 of the 30

union members to sign the petition. Sixteen of them,

including Dugger, did so on May 5. This solicitation

activity occurred within earshot of the probationary

employees, none of whom offered or was requested to

sign.

Late in the afternoon on May 5, production control

manager Thomas, admittedly a supervisor, saw this docu-

ment, bearing the 16 signatures, on the desk of produc-

tion foreman Marvin Kates, admittedly a supervisor.

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JD--308--89

Thomas thereupon informed David Echert, Respondent's

executive vice president and admittedly a supervisor, that

“there was a petition to decertify the Union.” Then,

Thomas telephoned company attorney Donald B. Hordes

and asked him how to proceed. Thomas said that Respon-

dent had a petition that had 16 signatures. Hordes asked

how many employees Respondent had. Thomas replied

that respondent had 30 “union employees ... SO we

didn’t have a majority.”

C. The Withdrawal of Recognition

Pursuant to arrangements made for a first bargaining

session, the parties met at Hordes’ office on Monday, May

8, at approximately 3 p.m. Present for the Union were two

union stewards, neither of whom had signed the peti-

tion,? and the union business agent. Present for Respon-

dent were, among others, Thomas, Echert, and Hordes.

Hordes advised the Union that based on Respondent’s

earlier receipt of the petition, it would no longer bargain

with the Union. Respondent expressed its belief that a

majority of the bargaining unit employees, 16 out of 30,

no longer wished to be represented by the Union. In

making the statement, Respondent was operating under

the assumption that probationary employees did not

count towards the total number of bargaining unit

employees in computing whether or not the Union had a

majority.?

2 The record fails to show whether they had been asked to

sign.

3 My findings under this heading are based on a stipula-

tion between the parties.

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JD--308--89

D. Events after the Withdrawal of Recognition

The work day of May 8 ended at 3:30 p.m., about a

half hour after Respondent withdrew recognition. Two of

the probationary employees who worked that day did not

show up for work on May 9 or at any time thereafter. On

May 9, employee Ray Schneider asked to have his name

deleted from the petition, and his name was crossed off

that same day. That same day, nonprobationary unit

employee Pat Fannon added her name to the petition. The

record fails to show whether the foregoing action by

Schneider or Fannon took place before or after Respon-

dent circulated to all its employees (inferentially, includ-

ing the probationary employees), at lunchtime on May 9,

the following handout bearing that date and signed by

Echert (emphasis in original):

To all of The Hollaender Mfg. Co. shop

employees:

On Friday May 5, 1989, we received a petition

signed by a majority of you stating that you no

longer wanted the Machinists Union to repre-

sent you for the purpose of collective bargain-

ing.

Based on this employee sentiment, we informed

the union at our first bargaining session on

Monday, May 8, 1989 that we were now

unwilling to enter into negotiations for a new

labor agreement.

We will, of course, continue to abide by the

current union contract which expires on May 31,

1989. After that time, however, we will no

longer recognize the Machinists Union as your

bargaining representative.

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JD--308--89

One immediate consequence of all of this is that

effective June 1, 1989, we will no longer be

deducting union dues of $20.15 per month from

your pay check. Secondly, we will implement a

new salary package for all of our machine shop

employees which will be competitive with other

similar companies in the Cincinnati metro-

politan area, and which also recognizes your

past and current contributions to The Hol-

laender Mfg. Co.

YOU WILL NOT LOSE ANY OF THE SALARY

AND FRINGE BENEFITS YOU CURRENTLY

ENJOY.

We will provide further details concerning your

salary and benefits in the next couple of weeks.

In the meantime, thanks for your continued

patience and support.

N. Haro, B. Shamel, and H. Jones, all of whom were

nonprobationary employees in the unit throughout May

1989 and none of whom had signed the decertification

petition, were separated as of June 9, June 16, and August

4, respectively. No new employees were hired between

April 19, 1989, and the hearing on September 8, 1989.

Of the 21 production and maintenance employees

hired by Respondent between January 3, 1989, and the

September 1989 hearing, about 14 (including the 3 who

were separated in May 1989) failed to complete their 90-

day probationary period.

E. Analysis and Conclusions

Absent unusual circumstances, there is an irrebutt-

able presumption that a union enjoys majority support

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JD--308--89

during the first year following its certification. On expira-

tion of the certification year, the presumption of majority

status continues but may be rebutted. An employer who

wishes to withdraw recognition after a year may lawfully

do so (1) if he can show that on the date recognition was

withdrawn the union did not in fact enjoy majority status,

or (2) if he can show that his withdrawal of recognition

was predicated on a good faith and reasonably grounded

doubt (based on objective considerations) of the union’s

majority status at that time. Fall River Dyeing & Finishing

Corp. v. N.L.R.B., 107 S.Ct. 2225, 2233 (1987); N.L.R.B. v.

Flex Plastics, Inc., 726 F.2d 272, 275 (6th Cir. 1984); Colfor,

Inc., 282 NLRB 1173, 1175 (1987), enfd. 838 F.2d 164 (6th

Cir. 1988); Bennett Packaging Company of Kentucky, Inc., 285

NLRB No. 80, JD slip op. 11 (August 31, 1987); Station

KKH1, 284 NLRB No. 113, slip op. 4 (July 27, 1987), enfd.

- LRRM - (9th Cir. 1989). The relevant date at which to

consider the bona fides of the employer’s doubts is the

date that recognition is withdrawn. Flex Plastics, supra,

726 F.2d at 275. Respondent evinces semantic confusion in

arguing (br. p. 7) (emphasis in original), “The issue in a

loss-of-majority case is invariably the extent to which the

majority of the employees have withdrawn their support

from the union. Indeed, the instant decertification peti-

tion stated that the incumbent employees ‘no longer

want’ the Union to represent them.” Rather, the issue in

such a case is whether, at the critical time, it can be

shown that the union in fact failed to posses majority

status. For example, in the case at bar, Respondent's

position would not have been undercut by evidence that

none of the signatories had ever wanted the Union to

represent them, and that all of them had joined the Union

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JD--308--89

solely because of the union-shop clause and for the pur-

pose of keeping their jobs.

Respondent contends that its withdrawal of recogni-

tion on May 8, 1989, was justified by the 16-signature

petition which it received on May 5. The General Counsel

stipulated to the authenticity of the signatures on the

petition, and does not appear to question that it would

justify Respondent’s withdrawal of recognition if the sig-

natcries constituted a majority of the employees in the

certified unit. However, the General Counsel contends

that this petition neither showed that a majority of the

bargaining-unit employees did not want to be repre-

sented by the Union, nor constituted sufficient objective

basis for a reasonable doubt of the Union’s majority

status, on the ground that the petition was signed by only

16 employees and the bargaining unit allegedly consisted

of 34 employees — namely, 30 nonprobationary employees

and 4 probationary employees.

Respondent concedes (brief p. 6) that “probationary

employees generally are deemed eligible to vote in a

representation election.” See, e.g., Johnson’s Auto Spring

Service, 221 NLRB 809 (1975); Erie Marine Division, The

Rust Engineering Company, 195 NLRB 815, 816 (1972); and

cases cited. However, Respondent contends that such

cases are irrelevant here, on the ground that the 4 proba-

tionary employees here in question were allegedly not in

the bargaining unit. Contrary to Respondent, | find that

they were in the bargaining unit. Initially, | conclude that

the probationary employees were within the certified

unit, which is describe as “All production and mainte-

nance employees” without any exclusions material here.

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JD--308--89

More specifically, it was admitted by Respondent’s coun-

sel that the probationary employees “are production and

maintenance employees . . . they do the same kind of

work that the regular employees do;” I infer that proba-

tionary production and maintenance employees work

together with nonprobationary production and mainte-

nance employees, under the same supervision, and under

the same physical employment cenditions.4 Moreover,

when the Union was certified in 1965, the probationary

status of employees otherwise in the bargaining unit (as

probationary production and maintenance employees

would have been) would ndt have excluded them from

the unit or rendered them ineligible to vote. National

Torch Tip Co., 107 NLRB 1271, 1272-1273 (1954); Sheffield

Corp., 123 NLRB 1454, 1457-1458 (1959); Erie Marine Divi-

sion, the Rust Engineering Company, supra, 195 NLRB at 816

(1972). Although Respondent points to the evidence that

about 62 percent of the employees hired in 1989 before

the September 1989 hearing failed to complete their pro-

bationary period, the eligibility of probationary

employees does not turn on the proportion of such

employees who, willingly or not, fail to continue in the

employer’s employ throughout the trial period. National

Torch, supra, 107 NLRB at 1273; Johnson’s Auto Spring,

supra, 221 NLRB 809; Extral Corp., 111 NLRB 878, 880

(1955). Also, while two of the probationary employees

4 Thomas credibly testified that Respondent makes safety

equipment available to any employee, whether or not he is

probationary. The 1986-1989 contract required Respondent to

“continue its practice to furnish safety devices and protective

clothing when the same may be required.”

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]D--308--89

who worked on the day Respondent withdrew recogni-

tion (May 8, 1989) did not show up for work on the

following day or at any time thereafter, this circumstance

would not have rendered them ineligible to vote either on

May 8 or on May 5, 1989, the day the petition was signed

by certain nonprobationary employees and received by

Respondent. N.L.R.B. v. General Tube Co., 331 F.2d 751 (6th

Cir. 1964); N.L.R.B. v. Res-Care, Inc. 705 F.2d 1461,

1471-1472 (7th Cir. 1983); St. Elizabeth Community Hospital

v. N.L.R.B., 708 F.2d 1436, 1444 (9th Cir. 1983); Computed

Time Corp., 228 NLRB 1243, 1250 - 1251 (1977), mod. 587

F.2d 790 (5th Cir. 1979); Personal Products Corp., 114 NLRB

959, 961 (1955); see also, Amoco Oil Corp., 289 NLRB No.

37 (June 21, 1988) (holding eligible to vote in a decer-

tification election an employee who gave pre-election

notice of his intention to retire post-election, whose last

active day of work preceded the election, but who was on

vacation during the election). Moreover, the bargaining

agreement confirms the inherent probability (Hill-Rom

Company, 297 NLRB No. 53, JD slip op. 18 - 19 (November

21, 1989)) that the parties intended the contract unit to

encompass the entire certified unit. Thus, the contract

itself defines the unit as “all employees within the bar-

gaining unit as defined in the National Labor Relations

Board in Case No. 9-RC - 6474,” and otherwise tracks the

language of the certification. Probationary employees

were entitled under the bargaining agreement to the

“wage rates” specified therein, a condition which goes to

the marrow of the employment relationship and as to

which the Union could not lawfully bind either them or

Respondent if the Union were not their bargaining

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JD--308--89

representative.° Moreover, under the bargaining agreement a

nonprobationary employee’s period of service included his

probationary period for purposes of seniority and (perhaps)

entitlement to vacation and holiday pay. The foregoing evi-

dence that probationary employees were in the contract unit

outweighs the evidence relied upon by Respondent as show-

ing their exclusion — namely, the parties’ practice of not

requiring them to comply with the contractual union-secu-

rity clause, and the contractual provision that they are not

entitled to “any of the benefits of this contract other than the

wage rates.””6

In short, the only evidence offered by Respondent in

support of its claim that the Union did not in fact enjoy

majority status when Respondent withdrew recognition

on May 8, 1989, is a petition signed by 16 employees in a

unit of 34. A petition thus signed by fewer than half of

the unit employees cannot be relied on as an expression

of majority disaffection from the Union sufficient to sup-

port Respondent's claim of a reasonable and good-faith

doubt of majority status. Superior Bakery, Inc., 294 NLRB

No. 21, slip op. 2 - 3 (May 25, 1989). Nor can a claim of

reasonable and good-faith doubt be supported by the

> I need not and do not determine whether this provision

entitled them to the contractually specified overtime payments for

weekend and holiday work and for more than 8 hours’ work a

day; to call-in or report pay; or to shift premiums. See infra fn. 6.

® I note that Respondent does not appear to contend that

nonprobationary employees with less than 6 months’ service

are excluded from the unit by virtue of the contract clause

excluding them from vacation benefits.

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legally erroneous belief of production control manager

Thomas that the 4 probationary employees were not in the

bargaining unit, in view of Respondent’s knowledge of all

the facts which showed that such employees were indeed in

the unit. Pioneer Flour Mills, 174 NLRB 1202 (1969), enfd. 427

F.2d 983 (5th Cir. 1970), cert. denied 400 U.S. 942 (1970);

Superior Bakery, supra, slip op. 3 fn. 4, JD slip op. 12 - 14

(Fafard).

For the foregoing reasons, | find that Respondent vio-

lated Section 8(a)(5) and (1) of the Act by withdrawing

recognition from the Union on May 8, 1989. I regard as

immaterial the testimony of employee Dugger about her

conversation with a Board agent before the petition was

circulated. Because Respondent withdrew recognition before

learning about this conversation, it could not have given rise

to any equities in Respondent. Further, I conclude that nei-

ther did this conversation give rise to any relevant equities in

Respondent’s employees. Dugger did not testify that the

Board agent told her that Respondent would be compelled,

or even that it could choose, to withdraw recognition if

presented with a petition signed by a majority of the Union

membership. Moreover, whether she was told that to present

a “decertification petition” required ten percent of the “mem-

bers ... in the union” (as she testified at one point) or “ten

signatures . . . of 30 people” (as she eventually testified), she

could not have supposed that the Union would be ousted by

the signatures of 5 or even 10 employees among 30 union

members. Rather, she must have realized that a “decertifica-

tion petition” with so few signatures could not have dis-

placed the Union without some intervening action by the

Board.

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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. The following employees constitute a unit appro-

priate for the purposes of collective bargaining within the

meaning of Section 9(b) of the Act:

All production and maintenance employees

employed by Respondent at its Cincinnati, Ohio

facility including truck drivers, building mainte-

nance man, shipping and receiving clerk and all

other plant clerical employees, but excluding all

office clerical employees, professional

employees, guards and supervisors as defined

in the Act.

4. At all times between December 13, 1965, and at

least through May 8, 1989, inclusive, the Union, by virtue

of Section 9(a) of the Act, was the exclusive representa-

tive of the employees in the unit described in Conclusion

of Law Number 3 with respect to rates of pay, wages,

hours of employment, and other terms and conditions of

employment.

5. Respondent has violated Section 8(a)(5) and (1) of

the Act by withdrawing recognition from the Union on

May 8, 1989, as the representative of the employees in the

unit described in Conclusion of Law Number 3.

6. The unfair labor practices described in Conclu-

sion of Law Number 5 affect commerce within the mean-

ing of Section 2(6) and (7) of the Act.

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The Remedy

Respondent contends that even if (as I have found) it

violated the Act by withdrawing recognition from the

Union on May 8, 1989, no bargaining order should be

issued because, between that date and the hearing on

September 8, 1989, all signers of the petition remained on

the payroll, 6 nonsigners were separated, and no new

bargaining-unit employees were hired. In consequence, at

all times after May 8, 1989, half or more of the bargain-

ing-unit employees consisted of employees who had

signed the petition, and, of the 28 unit employees on the

date of the hearing, 16 had signed the petition.” In thus

relying on events which occurred after Respondent's

unlawful withdrawal of recognition, Respondent over-

looks the fact that “the unlawful refusal of an employer

to bargain collectively with its employees’ chosen repre-

sentative disrupts the employees’ morale, deters their

organizational activities, and discourages their member-

ship in unions . . . for these reasons, a requirement that

union membership be kept intact during delays incident

to hearings would result in permitting employers to

profit from their own refusal to bargain.” Franks Brothers

Co. v. N.L.R.B., 321 U.S. 702, 704-705 (1944); see also, Fall

River, supra, 107 S.Ct. at 2239; N.L.R.B. v. Katz, 369 U.S.

736, 748, fn. 16 (1962); Sterling Processing Crop., 291 NLRB

No. 30, slip op. 9 - 10 (September 30, 1988). Moreover,

when advising the employees generally that Respondent

would not enter into negotiations with the Union for a

? This figure of 16 includes Fannon, who added her name

to the petition on May 9, but not Schneider, who deleted his

name on the same day.

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JD--308--89

new labor agreement, Respondent’s May 9 handout went on

to say that in consequence, after the bargaining agreement

expired the monthly dues of about $20 would no longer be

deducted from employees’ pay checks; that “we will imple-

ment a new salary package . . . which will be competitive

with other similar companies in the . . . metropolitan area,

and which also recognizes your past and current contribu-

tions” to Respondent; that (in capital letters) “YOU WILL

NOT LOSE ANY OF THE SALARY AND FRINGE BENE-

FITS YOU CURRENTLY ENJOY;” and that Respondent

“thanks” the employees for their “continued patience and

support.” It cannot be presumed that none of the petition-

signers would have undergone a change of heart if, instead

of promising employees a “new salary package” (on expira-

tion of the existing contract) as what Respondent termed a

“consequence” of Respondent’s unlawful refusal to enter

into negotiations for a successor contract, Respondent had

offered the Union that same “package” as part of such a

contract. Cf. Katz, supra, 369 U.S. at 745.

For the foregoing reasons, the customary remedial

order will issue. Indeed, if no such order is issued, it is

difficult to conceive of any other remedy. Apparently in

anticipation of this difficulty, Respondent's brief relies on

the Board’s refusal to issue a remedial order in cases

where the alleged unfair labor practice had been substan-

tially remedied by the respondent’s own conduct.®

8 American Federation of Musicians, Loca! 76, AFL-CIO (Jimmy

Wakely Show), 202 NLRB 620 (1973); United States Postal Service, 205

NLRB 624 (1973). Cf. International Union, United Automobile, Aero-

space and Agricultural Implement Worxers of America (UAW) v.

N.L.R.B. (Omni Spectra), 427 F.2d 1330, 1332 — 1334 (6th Cir. 1970).

38a

JD--308--89

However, so far as the record shows, Respondent has

taken no remedial action here. Nor can an unlawful with-

drawal of recognition from a Board-certified union be

fairly characterized as a “de minimis” or “technical” viola-

tion of the Act - and, therefore, unworthy of a remedy -

in view of the statutory purpose (Section 1 of the Act) of

“encouraging the practice and procedure of collective

bargaining.” No different result is indicated by Burger

Pits, Inc., 273 NLRB 1001 (1984), affd. 785 F.2d 796 (9th

Cir. 1986), cited by Respondent. In that case, the

employer withdrew recognition, and effected unilateral

changes in certain conditions of employment, after hav-

ing received a petition which bore at least the purported

signatures of 70 percent of the unit employees, but about

4 weeks before the expiration of the current bargaining

agreement. Although issuing a cease-and desist and

make-whole order with respect to the period which the

contract was still in effect, the Board declined to issue a

prospective bargaining order, on the ground that the

employer could have lawfully announced on receipt of

the petition an intention not to bargain with the union for

a new contract, and upon the expiration of the contract

withdrawn recognition from the union and effected uni-

lateral changes. In the instant case, Respondent's state-

ment to the Union that Respondent would no longer

bargain with it was made at a time when the Union was

not shown to possess minority status.

In addition, Respondent will be required to cease and

desist from the unfair labor practices found, and like or

related conduct, and to post appropriate notices.

Upon the foregoing findings of fact and conclusions

of law, and the entire record, and pursuant to Section

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JD--308--89

10(c) of the Act, I hereby issue the following recom-

mended Order:?

ORDER

Respondent Hollaender Manufacturing Co., its offi-

cers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to recognize and bargain collectively

with Local Lodge 789, District Lodge 34 of the Interna-

tional Association of Machinists and Aerospace Workers,

AFL-CIO, as the exclusive bargaining representative of

Respondent’s employees in the following appropriate

unit:

All production and maintenance employees

employed by Respondent at its Cincinnati, Ohio,

facility including truck drivers, building mainte-

nance man, shipping and receiving clerk and all

other plant clerical employees, but excluding all

office clerical employees, professional

employees, guards and supervisors as defined

in the National Labor Relations Act.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

9 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 purposes.

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JD--308--89

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) On request, recognize and bargain with Local

Lodge 789 as the exclusive representative of the

employees in the foregoing appropriate unit concerning

terms and conditions of employment and, if an under-

standing is reached, embody the understanding in a

signed agreement.

(b) Post at its facility in Cincinnati, Ohio, copies of

the attached notice marked “Appendix.”19 Copies of the

notice, on forms provided by the Regional Director for

Region 9, after being signed by the Respondent’s autho-

rized representative, shall be posted by the Respondent

immediately upon receipt and maintained for 60 consecu-

tive 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.

days from the date of this Order what steps the Respon-

dent has taken to comply.

10 If this Order is enforced by a Judgment of the United

States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD” shall read “POSTED PURSUANT TO A

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD.”

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JD--308--89

Dated, Washington, D.C. January 10, 1990.

/s/ Nancy M. Sherman

Nancy M. Sherman

Administrative Law Judge

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the-United States Government

After a hearing where all parties had the opportunity to

present their evidence and state their positions, the

National Labor Relations Board has found that we vio-

lated the National Labor Relations Act and has ordered

us to post and abide by this notice.

WE WILL NOT refuse to recognize and bargain with

Local Lodge 789, District Lodge 34 of the International

Association of Machinists and Aerospace Workers, AFL-

CIO, as the exclusive bargaining representative of the

employees in the bargaining unit.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce you in the exercise of the rights

guaranteed you by Section 7 of the Act.

WE WILL, on request, bargain with Local Lodge 789 and

put in writing and sign any agreement reached on terms

and conditions of employment for our employees in the

bargaining unit:

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JD--308--89

All production and maintenance employees

employed by us at our Cincinnati, Ohio facility

including truck drivers, building maintenance

man, shipping and receiving clerk and all other

plant clerical employees, but excluding all office

clerical employees, professional employees,

guards and supervisors as defined in the Act.

HOLLAENDER MANUFACTURING CO.

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered with any other material. Any questions con-

cerning this notice or compliance with its provisions may

be directed to the Board’s Office, 550 Main Street, Room

3003, Cincinnati, Ohio, 45202-3721, Telephone

513-684-3003.

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JD--308--89

No. 90-6288

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NATIONAL LABOR RELATIONS

COMPANY, INC.,

)

BOARD, ) ORDER

Petitioner, ‘ (Filed

Oct. 1, 1991)

V. )

)

Respondent

BEFORE: MARTIN and MILBURN, Circuit Judges; and

CONTIE, Senior Circuit Judge.

The Court having received a petition for rehearing en

banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

hearing panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original submis-

sion and decision of the case. Accordingly, the petition is

denied.

ENTERED BY ORDER

OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.