Retired Persons Pharmacy v. N.L.R.B.

Citation519 F.2d 486
Decision Date02 July 1975
Docket NumberNos. 567,914,D,s. 567
Parties89 L.R.R.M. (BNA) 2879, 77 Lab.Cas. P 10,970 RETIRED PERSONS PHARMACY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. ockets 74-1651, 74-1870.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Roger S. Kaplan, New York City (Jackson, Lewis, Schnitzler & Krupman, New York City, on the brief, Robert Lewis, of counsel), for petitioner.

Robert G. Sewell, N.L.R.B., Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Michael W. Josserand, Atty., on the brief), for respondent.

Thomas Canafax, Jr., Chicago, Ill. (Gerard C. Smetana, Chicago, Ill., Milton Smith, Gen. Counsel, Richard Berman, Labor Relations Counsel, Washington, D. C., on the brief), for the Chamber of Commerce of the United States, amicus curiae.

Before HAYS, GURFEIN and VAN GRAAFEILAND, Circuit Judges.

HAYS, Circuit Judge:

Retired Persons Pharmacy petitions this court to set aside a determination of the National Labor Relations Board holding it in violation of sections 8(a)(1) and 8(a)(5) of the Labor Management Relations Act, 29 U.S.C. § 158(a)(1), (5) (1970). The Board cross-applies for enforcement of its order. We enforce the Board's order.

I.

Petitioner is a corporation engaged in the sale and distribution of drugs to members of the National Retired Teachers Association and the American Association of Retired Persons. On November 29, 1971, after the Metropolitan Guild of Pharmacists had won an N.L.R.B. election of representatives by a vote of 20 to 10, the Board certified the Guild as the exclusive bargaining representative of the pharmacists employed by petitioner at its Washington, D. C. location. On September 1, 1972, petitioner and the Guild entered into a collective bargaining agreement which was to run from May 29, 1972, to May 29, 1973.

On March 7, 1973, the Guild notified petitioner that it intended to terminate the agreement at its expiration date and to modify its terms through collective bargaining. At a meeting on April 19, petitioner informed the Guild's attorney that it believed that the Guild no longer had the support of the majority of the employees. The next day petitioner filed a representation petition with the Board, but the petition was dismissed as untimely because it was filed within the sixty day insulation period prior to the expiration of the contract. 1 Since April 19, 1973, petitioner has refused to meet or bargain with the Guild.

On May 14, 1973, the Guild filed an unfair labor practice charge against the Pharmacy for refusing to engage in collective bargaining. A week later, attorneys for petitioner questioned 27 of the 28 unit members about their association with the Guild. The interviews began with a prefatory statement that the Pharmacy did not believe that the Guild represented a majority of its employees and that it was asking these questions in preparation for its defense against unfair labor practice charges. Petitioner's attorneys then proceeded to ask each of the employees to state his name and to answer 46 questions dealing with the Guild, the Guild's activities, and the employee's relationship with it. The employees were told that they did not have to participate in the interviews and that their jobs would not be affected. Sixteen of the pharmacists chose to answer all or most of the questions. On May 22, the Guild filed an unfair labor practice charge alleging that the interviews constituted coercive interrogation as to the union activities of the employees in violation of section 8(a)(1) of the Act.

On May 30, the Pharmacy announced that the work week for pharmacists would be reduced by two hours. This change was made without notice to the Guild.

At the hearing on the unfair labor practice charges, the Pharmacy argued that it had withdrawn recognition of the Guild because it had a good faith reasonable doubt that the Guild continued to represent a majority of its employees. To substantiate this doubt, petitioner relied primarily on the testimony of Supervisor Brault and Manager Altman. Brault testified that in conversations with him, 14 out of the 28 pharmacists employed on April 19 had expressed dissatisfaction with the Guild. Altman testified that he too had had conversations with various employees who were dissatisfied with the Guild. Altman also testified that the Guild had been inactive since shortly after the collective bargaining agreement was signed.

The administrative law judge found that the Guild continued to be active during the life of the contract and that petitioner was aware of that fact. He also found that the statements of six of the 14 pharmacists included by Brault and Altman among those opposed to the Guild did not indicate lack of support for the Guild as bargaining representative. He concluded that petitioner had not shown the basis for a good faith reasonable doubt of the Guild's majority status. He therefore held that the Pharmacy had violated sections 8(a)(1) and (5) of the Act by refusing to bargain with the Guild after April 19 and by unilaterally changing working conditions. The administrative law judge also held that the interviews conducted on May 21 violated section 8(a)(1) as coercive and were not justified either as a means of determining employee sentiment or as preparation for the defense of an unfair labor practice charge. In a brief order, the National Labor Relations Board affirmed the rulings, findings, and conclusions of the administrative law judge and adopted his recommended order that the Pharmacy cease and desist from all unfair labor practices, resume bargaining with the Guild, and post appropriate notices. Retired Persons Pharmacy, 210 N.L.R.B. No. 65 (1974).

II.

A union which has been certified by the Board as the bargaining representative for a particular unit enjoys an irrebuttable presumption of majority status for one year, absent special circumstances. Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954). Following the one year certification period, there continues to be a presumption in favor of a union majority though the presumption is then rebuttable. See, e. g., NLRB v. Gallaro, 419 F.2d 97, 100 (2d Cir. 1969); NLRB v. Gulfmont Hotel Co., 362 F.2d 588, 589 (5th Cir. 1966); Celanese Corp., 95 N.L.R.B. 664, 672 (1951). An employer who wishes to withdraw recognition from a certified union after a year may rebut the presumption of continued representation in one of two ways: 1) by showing that on the date recognition was withdrawn, the union did not in fact enjoy majority support, or 2) by presenting sufficient evidence to show that the refusal to bargain was based on a serious good faith doubt of the union's majority. See Allied Indus. Workers Local No. 289 v. NLRB, 155 U.S.App.D.C. 112, 476 F.2d 868, 881 (1973); Terrell Machine Co. v. NLRB, 427 F.2d 1088, 1090 (4th Cir.), cert. denied, 398 U.S. 929, 90 S.Ct. 1821, 26 L.Ed.2d 91 (1970), enforcing 173 N.L.R.B. 1480 (1969). It is well settled that in order to establish a good faith doubt the employer must present clear and convincing evidence of loss of union support capable of raising a reasonable doubt of the union's continuing majority. See Orion Corp. v. NLRB, 515 F.2d 81, 85 (7th Cir. 1975), enforcing 210 N.L.R.B. No. 71 (1974); Retail, Wholesale and Dep't Store Union v. NLRB, 151 U.S.App.D.C. 209, 466 F.2d 380, 393 (1972); NLRB v. Frick Co., 423 F.2d 1327, 1330-31 (3rd Cir. 1970); Gulf Machinery Co., 175 N.L.R.B. 410, 413 (1969).

Petitioner contends that the testimony of Altman and Brault was sufficient to establish a reasonable doubt of the Guild's majority status. It argues, first, that the administrative law judge and the Board erred in holding that the remarks of at least six of the 14 employees who spoke to Brault did not indicate lack of support for the Guild. We disagree. Evidence of mere dissatisfaction with certain union activities does not lead to the conclusion that the complainer no longer wishes to be represented by the union for purposes of collective bargaining. See Gulf Machinery Co., supra at 413-14. See also Allied Indus. Workers Local No. 289 v. NLRB, supra at 881; NLRB v. Frick Co., supra at 1333-34 (crossing of union picket line indicating disagreement with strike not repudiation of union representation). The six employees in question indicated displeasure with the Guild's treatment of fellow employee Kim, complained about noisy Guild meetings, or indicated a lack of interest in Guild activities. Lack of interest in union activities or a disinclination to join the union does not imply opposition to the union as bargaining representative. See Terrell Machine Co. v. NLRB, supra at 1090. We accept the Board's conclusion that petitioner failed to show objective grounds for doubting that these six employees wished to be represented by the Guild.

Petitioner also argues that even without the six employees, to whose views we have referred, the conversations with the other eight provided sufficient justification for withdrawing recognition. Again, we disagree. The employer may rebut the presumption of continued majority status only by showing objective grounds for doubting that a majority of employees support the union. The fact, even if we were to accept the evidence as establishing such a fact, that eight of 28 employees do not support the union does not provide the basis for a serious doubt that the majority's preference has changed, particularly when ten employees voted against the union from the very start.

We reject the analogy, suggested by petitioner, between this case and that of a decertification petition filed by employees. The Board has decided that when 30% of the employees sign a decertification petition, there is generally "reasonable cause to believe that a question of representation . . . exists," § 9(c)(1) of the Labor...

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