NLRB v. Frick Company

Decision Date01 April 1970
Docket NumberNo. 17961.,17961.
Citation423 F.2d 1327
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRICK COMPANY, Respondent.
CourtU.S. Court of Appeals — Third Circuit

Michael Rosenbloom, NLRB, Washington, D. C., for petitioner (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, John I. Taylor, Arnold A. Hammer, Attys., NLRB, on the brief).

Warren M. Laddon, Morgan, Lewis & Bockius, Philadelphia, Pa., for respondent (Robert H. Kleeb, Philadelphia, Pa., on the brief).

Before BIGGS, ALDISERT and STAHL,1 Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The National Labor Relations Board, pursuant to § 10(e) of the National Labor Relations Act, petitions for enforcement of its order2 against respondent Frick Company. The Board found that the Company had violated § 8(a) (1) and (5) of the Act by withdrawing recognition from the Union3 which had been duly designated as bargaining representative by a majority of the employees in an appropriate unit, and thereafter refusing to bargain with the Union. The Board found that the Company did not have a good faith doubt of the Union's majority status, and ordered the Company to bargain with the Union.

The parties are before us for the second time. The facts and our decision in the earlier case, N.L.R.B. v. Frick Co., 397 F.2d 956 (3 Cir. 1968) (Frick I) are directly relevant to the present issue.

There we found that,

after a one day strike, Frick agreed, on April 1, 1965, to recognize that * * * union as the bargaining representative of the production and maintenance employees of its Waynesboro, Pennsylvania plant. Between April 5 and May 14 the parties * * * met on Monday and Friday of each week in bargaining sessions aimed at concluding a mutually satisfactory collective bargaining agreement. The sessions resulted in an impasse and consequently, on May 17, the union called a strike.

Id. at 958.

During the course of the strike the Company engaged in certain conduct which we found in Frick I to constitute unfair labor practices. Specifically, we determined that:

(1) the Company "violated section 8(a) (1) of the Act by having its supervisors threaten the strikers with loss of their jobs, by improperly asserting that the strikers if they did not abandon the strike could only return, if at all, as new employees, and by taking photographs of the strikers as they solicited for strike funds," 397 F.2d at 961;
(2) the Company violated § 8(a) (1) and (3) of the act by "transferring the names of the strikers to its inactive `Quit\' file and consequently depriving the strikers of their vacation pay," id. at 961, 962-964; and
(3) by threatening the strikers with loss of vacation pay unless they returned to work, the Company had converted an economic strike into an unfair labor practice strike as of July 9, 1965. Id. at 964.

The unfair labor practice strike continued into 1966 and was ended by the Union on April 6. While the strike was in progress, many strikers returned to work. At the same time, the Company hired a substantial number of replacements for other strikers. Thus, although all but four of the approximately 525 employees in the bargaining unit walked out at the beginning of the strike, by April 4, 1966, two days before the end of the strike, 202 of the strikers had returned, and the Company had hired 246 replacements. On June 1, 1966, the day on which the Company withdrew recognition from the Union and refused to bargain further, there were still the 202 returning strikers and approximately 225 replacements. In addition, 101 of the employees, who had remained on strike for the full period, had, by then, been reinstated to their former jobs.

On January 27, 1966, while the strike was still in progress, the Company had advised the Union that it was terminating the recognition agreement as of April 1, 1966. Nevertheless, upon request of the Union for a meeting to "explore the possibility of a settlement of our differences," contract negotiations resumed on March 25, 1966, and three more meetings followed.

On June 1, 1966, in reply to a Union inquiry about a further meeting, the Company stated that "it is now uncertain as to whether or not your Union represents a majority * * *. The Company does not now believe that your Union represents a majority of the employees in an appropriate unit." Consequently, the Company informed the Union that there was nothing "to be gained by further meetings at this time." The Company reiterated its position in a letter of July 11, 1966.

The Board found that the Company had violated § 8(a) (1) and (5) of the Act because it withdrew recognition from the Union on June 1, 1966, and refused thereafter to recognize and bargain with the Union when it did not have good faith doubt of its majority status. Accordingly, the Board ordered the Company to bargain with the Union as the exclusive representative of its employees in the unit.

I.

The Board's holding that the Company violated the Act when it withdrew recognition of the Union rests in the first instance on the rules of the Board respecting the establishment and continuance of bargaining relationships. Where a bargaining relationship has been properly established either by Board certification or, as here, by voluntary recognition,4 the representative status of the Union is presumed to continue for a reasonable period and the presumption is irrebuttable. Brooks v. N. L.R.B., 348 U.S. 96, 103-104, 75 S.Ct. 176, 99 L.Ed. 125 (1954); Keller Plastics, Inc., 157 N.L.R.B. 583 (1966).

In the case of a certified union, the reasonable time during which its majority status may not be challenged is ordinarily one year. Brooks v. N.L.R.B., supra, 348 U.S. at 98, 75 S.Ct. at 176; N.L.R.B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1090 (8 Cir. 1969). And although a presumption of majority status continues after one year, it then becomes rebuttable.5 In such circumstances an employer may refuse to bargain without violating the Act "if but only if, he in good faith has a reasonable doubt of the Union's continuing majority." Laystrom Manufacturing Co., 151 N.L.R.B. 1482, 1483-1484 (1965), enforcement denied on other grounds, 359 F.2d 799 (7 Cir. 1966); accord, N.L.R.B. v. Rish Equipment Co., supra, note 5, 407 F.2d at 1101.6 An employer must, however, come forward with evidence casting "serious doubt on the union's majority status." Stoner Rubber Co., 123 N. L.R.B. 1440, 1445 (1959). As the court said in N.L.R.B. v. Rish Equipment Co., supra, note 5, 407 F.2d at 1101: "`More than an employer's mere mention of its good faith doubt and more than proof of the employer's subjective frame of mind' * * * are necessary. What is required is a `rational basis in fact.'"7

The issue presented here is whether the rules of the Board relating to the withdrawal of recognition from a certified union, after the one year certification period, may be applied equally to the withdrawal of recognition from a voluntarily recognized union after the passage of a "reasonable time."

Respondent Frick Company contends that these rules should not apply here because "a union which has not been certified should not be afforded the same status as one which has won a secret election." The Company suggests that a non-certified union is not entitled to a presumption of continued majority after it has had reasonable opportunity to obtain a contract, and that an employer should be able to withdraw recognition without being required to present evidence of "serious doubt" of the Union's majority status. If such were the rule, the burden would be on the General Counsel from the beginning to establish, unaided by any presumption, that the Union did, in fact, have a majority at the time recognition was withdrawn.8 We agree with the Board, however, that the Company's position is untenable.

It is true that the Supreme Court has noted distinctions between an exclusive bargaining agency established by election and one established by less formal means, insofar as the one year conclusive presumption of continuance is concerned. In Brooks v. N.L.R.B., supra, 348 U.S. at 101, 75 S.Ct. at 180, n.9, the Court said that "both before and after the Taft-Hartley Act, the Board and the courts did not apply the one year certification rule to a collective bargaining relationship established other than as a result of a certification election." More recently, in N.L.R.B. v. Gissel Packing Co., supra, note 6, 395 U.S. at 599, n.14, 89 S.Ct. at 1932, the Court, citing Brooks, named as one advantage enjoyed by certified unions the "protection for a reasonable period, usually one year, against any disruption of the bargaining relationship because of claims that the union no longer represents a majority."

We do not understand these observations of the Supreme Court to preclude the Board from extending to voluntarily recognized unions the benefits of either or both of the rebuttable or irrebuttable presumptions of continued majority status. This is a matter peculiarly within the province of the Board in its implementation of the policy of the National Labor Relations Act. As the Court pointed out in Brooks, the one year certification rule was developed by the Board. The Taft-Hartley Act simply approved and reinforced the Board-made rule by providing that no election to determine a bargaining representative could be held within one year of a prior election. 348 U.S. at 103-104, 75 S.Ct. 176. See N.L.R.B. v. Universal Gear Service Corp., 394 F.2d 396, 397 (6 Cir. 1968). The Court also noted that the Board's rule that an employer who has a good faith doubt of the Union's continuing majority after the passage of the certification year may refuse to bargain, "is a matter appropriately determined by the Board's administrative authority." 348 U.S. at 104, 75 S.Ct. at 182. By the same token, we are of the view that the Board may, within its...

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