N.L.R.B. v. Pennco, Inc., 80-1654
| Decision Date | 16 March 1982 |
| Docket Number | No. 80-1654,80-1654 |
| Citation | 684 F.2d 340 |
| Parties | 111 L.R.R.M. (BNA) 2821, 95 Lab.Cas. P 13,842 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PENNCO, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., David Fleischer, Washington, D. C., for petitioner.
Gregory L. Monge, Van Antwerp, Hughes, Monge & Jones, Ashland, Ky., for respondent.
Before BROWN and KENNEDY, Circuit Judges and CHURCHILL, District Judge *.
The Board petitions for enforcement of its order requiring the respondent herein to bargain with the Communications Workers of America ("Union") and to cease and desist from unfair labor practices. All of the relevant facts were stipulated to by the parties below. The issue raised is whether the respondent demonstrated a good faith belief that the Union no longer represented a majority of Pennco's employees when it withdrew recognition of the Union. If the respondent failed to demonstrate this good faith belief, then it is admitted by both sides that the remedial measures ordered were within the range of options available to the Board.
On October 21, 1976, an election was held at the Pennco plant in Kentucky. The Union won that election by 114 to 62. The Union was certified by the Board on November 1, 1976. Negotiations for a new contract lasted from December, 1976 through September 21, 1977, at times with the assistance of a federal mediator. May 18, 1977, 109 employees began an economic strike and set up a picket line. The strike continued for all relevant times herein. The picket line engendered violence and property damage on more than one occasion and finally a restraining order was issued on July 18, 1977, preventing more than two picketers from picketing at any one time. Three and a half months later, on November 3, 1977, Pennco withdrew recognition from the Union.
Before the strike began, there were 173 members of the bargaining unit. One hundred and nine employees struck. During the strike, Pennco advised striking employees that they would be permanently replaced. In addition to replacing striking workers, Pennco hired additional workers so that by November 3, 1977, the date of withdrawal, there were 257 employees on Pennco's payroll. Of these 257 employees, 47 were actively working on the date of the strike. The strike continued until September 15, 1978, when 42 strikers unconditionally offered to return to work.
The facts as outlined above constituted Pennco's claim that it entertained a good faith belief that the Union no longer represented a majority of the bargaining unit. Pennco argues that it is appropriate for it to conclude that the original employees who had all along crossed the picket line, and the employees who replaced the strikers, would not support a Union which fomented violence on a picket line they had to cross each morning. The number of replacements was greater than the number of strikers. Furthermore, Pennco argues, the interests of the two groups-strikers and workers-were diametrically opposite to one another since returning strikers would take the jobs of the replacements.
The Board, on the other hand, argues that it has always maintained a presumption that new hires support the union in the same percentage as those they have replaced and this case presents no justification for departing from that presumption. The Board also raises a number of policy arguments supporting its contentions, including the desirability of unfettered employee choice of a bargaining representative, stability of bargaining relationships and industrial stability. Finally, the Board correctly points out that the failure to join an economic strike may not indicate a lack of support for the union, but rather may demonstrate employees' economic concerns.
The broad contours of the law in this area are well settled. It is clear that a union is irrebuttably presumed to have majority status for one year following its certification. After the expiration of this year, a rebuttable presumption of majority status ensues. The employer is entitled to withdraw recognition in this period if he can show that the...
To continue reading
Request your trial
-
National Labor Relations Board v. Curtin Matheson Scientific, Inc
...that new employees support the union applies equally to striker replacements. Pennco, Inc., 250 N.L.R.B. 716, 717-718 (1980), enf'd, 684 F.2d 340 (CA6), cert. denied, 459 U.S. 994, 103 S.Ct. 355, 74 L.Ed.2d 392 In 1987, after several Courts of Appeals rejected the Board's approach,3 the Boa......
-
N.L.R.B. v. Jarm Enterprises, Inc.
...accord); with NLRB v. Windham Community Memorial Hospital, 577 F.2d 805, 813 (2d Cir.1978) (approving Board presumption); NLRB v. Pennco, Inc., 684 F.2d 340 (6th Cir.), cert. denied, 459 U.S. 994, 103 S.Ct. 355, 74 L.Ed.2d 392 (1982). See also Pennco, Inc., 459 U.S. at 996, 103 S.Ct. at 356......
-
Curtin Matheson Scientific, Inc. v. N.L.R.B.
...but still desire union representation and would support other union initiatives." 125 L.R.R.M. at 1286. See also NLRB v. Pennco, Inc., 684 F.2d 340, 342 (6th Cir.), cert. denied, 459 U.S. 994, 103 S.Ct. 355, 74 L.Ed.2d 392 (1982); NLRB v. Windham Community Memorial Hospital, 577 F.2d 805, 8......
-
Bickerstaff Clay Products Co., Inc. v. N.L.R.B.
...Thompson, Inc., 449 F.2d 1333, 1336 (5th Cir.1971), cert. denied, 405 U.S. 1065, 92 S.Ct. 1497, 31 L.Ed.2d 795 (1972); NLRB v. Pennco, Inc., 684 F.2d 340 (6th Cir.1982). A good faith doubt of the Union's majority status is a defense to a refusal-to-bargain charge based on the withdrawal of ......