NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,559, ROCK-TENN COMPANY and UNITED PAPER WORKERS INTERNATIONAL UNION, AFL-CIO, CLC et al., (Nov. 30, 1994), National Labor Relations Board, (Nov 30, 1994)

ROCK-TENN COMPANY and UNITED PAPER WORKERS INTERNATIONAL UNION, AFL-CIO, CLC et al.

315 NLRB No. 93.Case Nos. 25-CA-21739-1-2, -21758, -21879, -22003, -22051-2, -22051-4, -22051-5 and -22137. November 30, 1994 Michael O. Miller, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Ann Rybolt, for General Counsel. Larry E. Forrester (Smith, Currie & Hancock), for Respondent. Nora L. Macey (Macey, Macey & Swanson), for Charging Party.

Doubt of Union Majority--Decertification Petition as Basis--Two Petitions During Year.--Two decertification petitions, circulated by employees a few months apart, did not furnish an employer with an appropriate basis to anticipatorily withdraw recognition from a union. The initial decertification petition was stale because the employer waited six months before acting upon it, and the second petition was tainted by the employer’s own unlawful conduct in instigating it. Moreover, the second petition contained clearly less than a majority of the bargaining unit employees. Section 8(a)(5).

Back reference: ¶3044.57.

Refusal to Bargain--Refusal to Recognize Union--Initial Certification Year.--During a union’s initial certification year, an employer violated its bargaining duty by committing several unfair labor practices designed to undermine union support. These unlawful acts included insisting upon a bargaining contract term coextensive with the certification year, withdrawing recognition without a good-faith doubt that the union lacked unit majority support, withdrawing recognition at the end of the certification year, refusing to furnish the union with necessary information, and unilaterally changing employees’ terms and conditions of employment. Section 8(a)(5).

Back reference: ¶3082.144.

Discrimination--Fact Finding--Antiunion Motives.--On the facts, an employer discriminated against its employees, on the basis of their union activities, by disciplining them for engaging in union activities and by denying them leaves of absence. Section 8(a)(3).

Interference--Reprisal for Union Activity--Undermining Certified Union.--After a union became certified as an employees’ representative, an employer engaged in several unfair labor practices designed to undermine the union’s majority support. These coercive unlawful acts included encouraging the filing of a decertification petition, threatening discipline for talking about the union at work, interrogating employees concerning their union activities, denying employees their right to have a union representative present during meetings, threatening discipline or discharge for union activities and attempting to induce employees to withdraw NLRB charges. Section 8(a)(1).

Back reference: ¶3830.1105.

From Text of Board’s Decision

On May 25, 1993, Administrative Law Judge Michael O. Miller issued the attached decision. The Respondent filed exceptions with a supporting brief and an answering brief, the General Counsel filed cross-exceptions with supporting argument and an answering brief, and the Charging Party filed an answering brief.

* * *

The Board has considered the decision and the record in light the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [1] and conclusions, and to adopt his recommended Order as modified. [2]

A central issue in this case is whether two employee petitions, circulated some months apart during the certification year, furnished the Respondent with objective evidence sufficient to support a good-faith reasonable doubt of the Union’s majority status that justified its otherwise unlawful announcement that it would withdraw recognition from the Union at the end of the certification year. Finding that they did not, the judge concluded that the Respondent violated Section 8(a)(5) by anticipatorily withdrawing recognition from the Union. [3] Because the judge found that the Union continued in its status as the exclusive bargaining representative of the unit employees after the certification year, he also found that the Respondent violated Section 8(a)(5) by refusing to furnish the Union requested information, by refusing to bargain with the Union for a successor agreement, and by withdrawing recognition from the Union at the end of the certification year.

The Respondent excepts, inter alia, to the judge’s finding that it lacked objective evidence of the Union’s loss of majority status and to his finding that it violated Section 8(a)(5) by the conduct described above. In support of these exceptions, the Respondent contends that it was entitled to rely on both the May and September 1991 employee petitions as objective evidence of the Union’s loss of majority status and that the judge erred in finding that such reliance was improper. In this regard, the Respondent asserts that the judge erred in finding that the May petition was “stale” by the time the Respondent announced its belief that the Union had lost its majority support and in finding that it had been “supplanted” by the September petition. The Respondent also asserts that the judge erred in finding that the September petition was not objective evidence of employee sentiment because it was tainted by the Respondent’s unfair labor practices. We find these exceptions without merit and, for the reasons explained below, adopt the judge’s findings of these 8(a)(5) violations.

The facts, as are more fully set out by the judge, are as follows. In brief, the Respondent manufacturers, sells, and distributes recycled paperboard and related products from its Columbus, Indiana facility. On February 22, 1991, the Union was certified as the collective-bargaining representative of the Respondent’s production and maintenance employees. [4] The parties began collective bargaining on May 20, 1991, [5] and held 15 meetings through October 10. Although the parties made some progress in negotiations, they had not reached agreement on certain economic issues, dues checkoff, and contract terms of 1 to 3 years. The Respondent had not responded to these proposals, nor had it ever challenged the Union’s majority status.

Meanwhile, in late May, employee Glenda Sowders gave Young, the Respondent’s general manager, an employee petition dated May 23, 1991, that contained approximately 60 signatures. The petition stated that the undersigned felt “that it [was] not in [their] best interest to be represented by the [Union],” Sowders retrieved the petition from Young in June and returned it to him later that month with 80 signatures. [6]

A few months later, on September 24 or 25, Sowders and fellow employee Holly Trimble discussed the Union with Young. When Trimble stated that the Union was in and nothing could be done about it, Young responded that with their help, the “Union could be taken out of here.” When they asked how, Young responded that they would need to circulate a petition for a decertification election. Young dictated the language of the petition to Trimble. [7] Trimble and Sowders then circulated the petition both on their own time and on worktime. In mid-October, Sowders gave Young part of the September 25 petition. As of October 16, the list contained 66 names. [8] Included on the list were the names of 11 employees who had not signed the May petition. Adding these 11 employees to the 80 who had signed the earlier petition, Young concluded that 91 employees, over half the bargaining unit, were dissatisfied with the Union.

Relying on this “objective evidence” of the Union’s loss of majority status, at the October 16 bargaining session the Respondent for the first time conditioned agreement on an initial contract to a term coextensive with the certification year that ended February 22, 1992. Forrester, the Respondent’s counsel, explained that the Respondent had evidence that the Union no longer had majority support and that in those circumstances it would be inappropriate for the Respondent to bargain with the Union beyond the certification year. When the Union representatives expressed surprise at the Respondent’s position and noted that they were getting favorable responses from employees, Forrester responded that the Respondent’s position was “for real” and was based on objective evidence.

The negotiating session set for the following day, October 17, was preceded by a rally at the plant gates. At the negotiating session, Ferson, the Union’s spokesman, claimed that more employees had attended this rally than any held previously. When Young contradicted him, Ferson replied that Young had come through the plant gates after the employees had gone to work. Forrester then stated that recognition was based on the election of February 1991 and that the Respondent had concrete evidence that the Union had lost majority support. Forrester added that the Respondent would fulfill its bargaining obligation to the extent of the law, but would not bargain beyond February 22, the end of the certification year. The Union neither asked for nor was shown the Respondent’s “objective evidence.” After the Respondent repeated its offer of a 4-month contract through February 22, Ferson asked for and received the Respondent’s “final offer” so that the unit employees could vote on the proposal. On October 18, the bargaining unit employees overwhelmingly rejected the Respondent’s offer.

Immediately thereafter, Ferson and other local union officials decided to launch a membership drive to prove that the Union enjoyed the continued support of a majority of the Respondent’s employees. Consequently, they solicited signatures on actual membership applications. [9] After the Union had collected cards from a majority of the unit employees, Ferson requested the mediator to arrange another bargaining session. When the parties met again on December 6, Ferson had 91 membership cards in his possession. At the December 6 bargaining session Ferson stated that the Union had applications from a majority of the unit employees and offered a modified contract proposal with a 1-year term. The Respondent replied that its October 17 offer was final. The Respondent rejected the Union’s offer to allow a neutral third party to conduct a card check and insisted on its October 17 proposal. Following the December 6 negotiating session, the bargaining unit employees again voted on the Respondent’s final offer. They approved the contract on the recommendation of their leadership. [10]

On December 9, Sowders told Trimble that it was time to file the decertification (September 25) petition. Sowders said that she was going to Indianapolis the next day on an errand for Brian Bramble, her supervisor, and that they could file the petition at that time. Sowders and Trimble clocked in on the morning of December 10 and then drove to Indianapolis where they filed the petition with the Board’s Regional Office after Sowders had completed her business errand. [11] On their return to the Respondent’s facility, they informed Young that they had filed the petition. Both Sowders and Trimble clocked out at 3:30 p.m. Although Young knew that Sowders had detoured from her errand to file the petition and that Trimble had accompanied her, and that both employees were on the clock at that time, the Respondent desciplined neither employee for performing personal business on company time.

Also on December 10, Ferson wrote to Young requesting negotiations to modify the agreement set to expire February 22. Ferson also requested that the Respondent supply information regarding the wages and fringe benefits of unit employees. Young replied on December 18. He declined to furnish the requested information based on “clear, objective evidence” that the Union had lost its majority support. [12] . Young added that the Respondent would not recognize the Union beyond February 22. On Febraury 22, 1992, the Respondent formally withdrew recognition from the Union.

As the judge explained, a union is entitled to an irrebutable presumption of majority status during the certification year; at the end of the certification year, the presumption becomes rebuttable. See e.g., Suzy Curtains, Inc., 309 NLRB 1287 (1992). Thus, the Respondent was precluded from challenging the Union’s majority status during the certification year, but could challenge that status when the certification year ended. When the Union requested bargaining during the certification year for a successor agreement to the initial contract, the Respondent, in essence, anticipatorily challenged the Union’s majority status by announcing that it would withdraw recognition from the Union at the end of the certification year and that it would not bargain with the Union for a successor agreement. The “test” to determine whether such an anticipatory withdrawal of recognition is lawful is set out in Abbey Medical/Abbey Rents, [1982-83 CCH NLRB ¶15,328] 264 NLRB 969, 969 (1982):

Such an “anticipatory withdrawal of recognition” in relation to a future contract is lawful if and only if the employer can demonstrate that, on the date of withdrawal and in a context free of unfair labor practices, the union in fact had lost its majority status, or respondent’s withdrawal of recognition was predicated on a reasonable doubt based on objective considerations of the union’s majority status. [13] [Emphasis added.]

Thus, the issue here is whether the Respondent’s December 18, 1991 withdrawal of recognition from the Union “was predicated on a reasonable doubt based on objective considerations of the [U]nion’s majority status.”

[Petition Defects]

We find initially, in agreement with the judge, that the May 1991 petition did not provide the Respondent with objective evidence sufficient to support a reasonable doubt of the Union’s majority status. We agree with the judge that its circulation only a few days after the first bargaining session was premature and that it therefore cannot be relied upon as evidence of the Union’s loss of majority support. We also find that at the time the Respondent withdrew recognition on December 18, 1991, the May petition was stale and thus did not accurately indicate the employees’ true sentiments regarding the Union. In reaching this conclusion, we rely not only the passage of time between the circulation of the petition and the Respondent’s withdrawal of recognition, but also on the facts that unit employees showed their support for the Union in the intervening time by rallying in support of the Union on the morning of October 17 before overwhelmingly rejecting the Respondent’s 4-month contract offer on October 18 and that a majority signed union membership cards prior to the December 6 negotiating session. Although such evidence is not dispositive of union sentiment, we note that although the Union brought these displays of employee support the Respondent’s attention and even offered to verify the membership cards through an impartial third party, the Respondent chose to totally disregard such evidence without any investigation. In the circumstances here, particularly where substantial time had elapsed between the circulation of the May petition and the Respondent’s announced intent to withdraw recognition from the Union, we find that the Respondent was obligated to test its “objective evidence” of the Union’s loss of majority status by fully considering more recent evidence to the contrary. Having failed to do so, the Respondent cannot then rely selectively on only part of the conflicting evidence regarding the union sentiments of its employees. For all these reasons, we find that the May petition does not constitute objective evidence sufficient to support a reasonable doubt of the Union’s majority support among the bargaining unit employees.

We turn next to the other asserted objective evidence that the Respondent relied on in withdrawing recognition from the Union, the September 25 petition which Trimble and Sowders subsequently filed at the Board’s Indianapolis Regional Office on December 10 as a decertification petition. As explained above, the Respondent suggested to Sowders and Trimble that the employees rid themselves of the Union through a decertification petition, and allowed the two employees to circulate the petition during working hours. The judge found, and we agree, that the Respondent violated the Act by these actions. The judge also found that during the period that the decertification petition was circulating among the unit employees, the Respondent committed other unfair labor practices which inhibited employee support for the Union. In this regard, the judge found that during this time the Respondent unlawfully prohibited employees from discussing the Union on worktime, interrogated an employee about his union sentiments, and gave a written warning to and suspended an employee because of his support for the Union. Thus, the petition was not circulated in a context free of unfair labor practices. Accordingly, we agree with the judge that the petition is tainted and that it does not provide objective evidence of the bargaining unit employees’ sentiments regarding the Union.

Because we agree with the judge that the Respondent lacked a reasonable doubt of the Union’s majority support when it withdrew recognition on December 18, we adopt his findings that the Respondent violated Section 8(a)(5) by anticipatorily withdrawing recognition from the Union, by refusing to furnish to the Union requested information, by refusing to bargain with the Union over a successor agreement, and by withdrawing recognition from the Union at the end of the certification year. [14]

Finally, we also agree with the judge that the Respondent violated Section 8(a)(5) by conditioning agreement to an initial contract on a contract term conextensive with the certification year. As the Board stated in Suzy Curtains, Inc., [1992-93 CCH NLRB ¶17,686] 309 NLRB 1287, 1288 (1992):

Because of the special protection afforded bargaining relationships during their first year, the same standards apply to assessing the lawfulness of an employer’s insistence on a contract duration coextensive with the certification year as apply to postcertification year withdrawals of recognition. Thus, in order to find lawful the Respondent’s adherence to the certification year contract duration proposal, it has the burden of showing either that the Union had actually lost its majority standing, or that the Respondent held an objectively based good-faith doubt of the Union’s majority. [Emphasis added.]

In the circumstances present here, the evidence establishes that the Respondent lacked a reasonably grounded doubt of the Union’s majority status not only on December 18, when it anticipatorily withdrew recognition, but also on December 6, when it conditioned agreement to an initial contract. As explained above we agree with the judge that the May petition was stale by December. Thus, on December 6, the Respondent could rely only on the September 25 decertification petition as evidence of the Union’s loss of majority support. That petition, however, as we have found, was tainted by the Respondent’s unlawful conduct in instigation the petition. Moreover, on December 6, the petition contained at most only 69 valid signatures, clearly less than a majority of unit employees. Therefore, the applicable legal analysis and the relevant facts compel the finding that the Respondent lacked a good-faith and reasonable grounded doubt, supported by objective considerations, of the Union’s majority status on December 6 as well as on December 18. [15] In these circumstances, the Respondent could not legitimately premise its contract duration proposal on the Union’s supposed loss of majority support. Accordingly, the Respondent acted unlawfully in conditioning agreement to an initial contract on a contract term coextensive with the certification year. [16]