N.L.R.B. v. Hollaender Mfg. Co.
| Decision Date | 01 October 1991 |
| Docket Number | No. 90-6288,90-6288 |
| Parties | 138 L.R.R.M. (BNA) 2391, 119 Lab.Cas. P 10,861 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOLLAENDER MANUFACTURING COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Aileen A. Armstrong, Dep. Associate Gen. Counsel, Collis Suzanne Stocking, Joan Hoyte (argued), N.L.R.B. Office of the Gen. Counsel, Washington, D.C., James L. Ferree, N.L.R.B., Region 9, Cincinnati, Ohio, for petitioner.
Donald B. Hordes (argued and briefed), Mona F. Spitz (briefed), Schwartz, Manes & Ruby, Cincinnati, Ohio, for respondent.
Before MARTIN and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.
Petitioner National Labor Relations Board (hereinafter "Board") seeks enforcement of its August 16, 1990 order entered against respondent Hollaender Manufacturing Company (hereinafter "Hollaender"). For the following reasons, we enforce the Board's order.
Hollaender manufactures structural fittings at its manufacturing facility in Evendale, Ohio. The International Association of Machinists and Aerospace Workers (Local Lodge 789, District 34) (hereinafter "Union") has been the certified collective bargaining representative of Hollaender'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 decertification petition to initiate decertification proceedings. Consequently, 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].
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 agreement 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.
The agreement between Hollaender and the Union defined the status and rights of probationary employees in Article XIII ("Seniority"),
13.8. 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 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.
and Article XXIV ("Union Shop"):
24.2. Newly hired employees shall, as a condition 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 probationary period." Joint Appendix at 51. Moreover, the parties 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 apparently placed a copy of the anti-Union petition on Foreman Marvin Kates' desk where it was discovered by Production Manager Gary Thomas. Thomas subsequently telephoned 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 company 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 bargaining 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 circumstances; one employee removed his name from the decertification 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 represent you for the purposes of collective bargaining.
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 metropolitan area, and which also recognizes your past and current contributions to The Hollaender 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
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 Section 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 collectively" with the Union "as the exclusive bargaining representative of Respondent's employees":
I find that [the four probationary employees] were in the bargaining unit. Initially, I conclude that the probationary employees were within the certified unit, which is described as "All production and maintenance employees" without any exclusions material here. More specifically, it was admitted by Respondent's counsel that the probationary employees "are production 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 probationary 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 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 representative. Moreover, under...
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