Teamsters Local Union 769 v. N.L.R.B.

Decision Date13 May 1976
Docket NumberNo. 75-1250,75-1250
Parties92 L.R.R.M. (BNA) 2077, 174 U.S.App.D.C. 310, 78 Lab.Cas. P 11,370 TEAMSTERS LOCAL UNION 769, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Peoples Gas System, Inc., Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Seymour A. Gopman, North Miami Beach, Fla., for petitioner. William T. Coleman, Jr., Miami, Fla., was on the brief for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., with whom John C. Miller, Acting Gen. Counsel and John S. Irving, Jr., Deputy Gen. Counsel, N. L. R. B., Washington, D. C., were on the brief for respondent.

Jesse S. Hogg, Coral Gables, Fla., with whom W. Reynolds Allen, Coral Gables, Fla., was on the brief for intervenor.

Before BAZELON, Chief Judge, TAMM, Circuit Judge and JUSTICE, * United States District Judge for the Eastern District of Texas.

Opinion for the court by Chief Judge BAZELON.

Circuit Judge TAMM dissents from the opinion.

BAZELON, Chief Judge:

In September, 1966 Teamsters Local Union 769, the petitioner, was certified by the NLRB as the exclusive bargaining representative of the production, maintenance and distribution employees of Peoples Gas System Inc.'s Miami operations. The Union and employer signed a three-year contract in 1967 and, after a strike in February, 1970, signed a second three-year contract that expired on February 6, 1973. Negotiations on a third contract began on January 9, 1973. After six bargaining sessions and several communications by phone and letter, the Company, on April 23, 1973, filed a representation election petition with the Board and thereafter refused to bargain further with the Union.

On May 15, 1973, the Union filed an unfair labor practice charge with the Board, alleging that the employer's refusal to bargain violated § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5). The General Counsel issued a complaint, and after conducting hearings, the Administrative Law Judge found the Company guilty of an unfair labor practice. His decision was reversed by a three-member panel of the Board. After the Union's petition for reconsideration was denied, the Union filed this appeal.

I

A threshold question has been raised by the Intervenor-Employer in a motion to dismiss the appeal as moot. In support of this motion Intervenor notes that the record, as supplemented by order of this court in response to an earlier motion by Intervenor, reveals that on the day after its motion for reconsideration was denied, the Union filed a petition for certification of representative with the Board. An election was held on May 30, 1975, which the Union lost by roughly a 3-2 margin. No objections to the election were filed, and on June 10, 1975, the results were certified. Intervenor contends that even if its refusal to bargain were unlawful, the likelihood of repetition is now almost nil, since there currently is no bargaining representative for the unit. Intervenor therefore urges this court to exercise its discretion 1 to decline to adjudicate this case.

Implicit in Intervenor's argument is the assumption that even if the Union were to prevail on the merits, the only appropriate remedy after the Union's election defeat would be a cease and desist order aimed against future refusals to bargain. If all that were at issue were the possible issuance of a cease and desist order, Intervenor's argument might be persuasive. 2 But we agree with the position taken by counsel for the Board that the Board's remedial powers are not so limited. 3 At least at this stage of the proceedings, we are not prepared to say that were the Board's decision to be reversed, the Board would be powerless to mandate a new election or even to issue a bargaining order. To be sure, the Board's practice has been not to issue a bargaining order on the basis of pre-election refusals to bargain if a union thereafter loses an election and the results are certified. 4 Nor has the Board entertained challenges to elections based on conduct occurring before the election petitions were filed. 5 But these rules were developed to prevent parties from bypassing the Board, seeking an election, and then, if unsuccessful in a fair election, seeking relief from the Board. Intervenor concedes that this appears to be the first case in which an election was requested and held only after all Board remedies had been exhausted and solely as a means of "bypassing" the courts that is, of avoiding the delay attendant upon appellate review. We do not believe the Board would lack the power and will not speculate as to whether it would have the will to create an exception to its rules in this case. Accordingly, we reach the merits of the petition for review.

II

The Board's decision begins with a statement of the well-established principle applicable to withdrawals of recognition from incumbent unions: 6

After the certification year has run, an employer may lawfully withdraw recognition from an incumbent union because of an asserted doubt of the union's continued majority, if its withdrawal occurs in a context free of unfair labor practices and is supported by a showing of objective considerations providing reasonable grounds for a belief that a majority of the employees no longer desire union representation.

This formulation is in general conformity with our requirement 7 that serious doubt of the Union's majority be shown, 8 and essen tially is not contested on this appeal. What is at issue here is whether there was a sufficient objective basis to give rise to such a doubt.

The Board relied on a combination of three factors to find an objective basis for a reasonable doubt. First, it noted that from February, 1970, immediately before a strike, to April, 1973, there was a "severe and dramatic" decline in the number of dues-checkoff authorization cards on file with the Company. 9 In 1970, 76% of all members of the unit, and 90% of all non-probationary members persons who had been employed for over 90 days and under company policy were eligible for checkoff had submitted authorizations; in 1973 the comparable figures were 39% and 51%. 10

Second, the Board discussed what it termed "a sudden and unexplained change in bargaining posture under circumstances strongly suggestive of a lack of confidence by the Union itself as to the degree of support it had maintained." Specifically the Board noted that the Union, after having insisted throughout the 1973 negotiations that it would strike if no agreement had been reached when the old contract expired, announced on February 2, four days before the expiration date, that the bargaining committee would submit the employer's final but incomplete offer to the membership, but would recommend rejection; that on February 5th the bargaining committee reversed itself and recommended acceptance of the offer; and that after a series of communications, concerning what agreement, if any, had been reached, the Union, on April 11, 1973 and again several times after the Company withdrew recognition, announced its willingness to sign whatever agreement the Company drafted, subject to the Union's right to proceed through the Board to vindicate its claim that agreement already had been reached on certain issues.

Third, the Board noted substantial changes in the composition of the unit since 1970. During the strike, 40% of the work force had been permanently replaced. In September, 1972, the size of the unit increased 17% by the addition of previously non-unionized employees acquired in a merger with a competitor; none of those employees had submitted checkoff authorization cards as of April, 1973 despite an organizational effort beginning in January, 1973. And from September, 1972 to April, 1973, the unit experienced a 36% turnover. 11

Relying on "the totality of these circumstances," the Board found that the employer had an objective basis for doubting the Union's continuing majority.

III

Petitioner contends that the employer could not reasonably have doubted the Union's majority when a majority of the eligible employees had submitted checkoff authorizations. Insofar as petitioner argues for a per se prohibition on employers ever withdrawing recognition from an incumbent union under these circumstances, we cannot agree. Just as an employee's decision not to submit an authorization card does not necessarily mean he opposes the union, 12 so, too, a decision to submit a card or not to withdraw an already submitted card does not necessarily mean the employee supports the union. Decisions to submit or not withdraw authorizations may be attributable to confusion, ignorance, peer pressure, and, in cases of failure to withdraw, to procrastination or inertia. 13 For these reasons, the Board has more than once upheld an employer's refusal to bargain with an incumbent union even though a majority of the employees had submitted checkoff authorizations. 14 In an appropriate case, we would agree.

But insofar as petitioner is contending that the employer bears a heavy burden in this case, petitioner is clearly correct. The Union can claim the benefit of two well-established presumptions (in addition to the general presumption that an incumbent union has a continuing majority): (1) that all the employees on checkoff 51% of the nonprobationary employees supported the Union as their bargaining representative; 15 and (2) that the same proportion of new or probationary employees 51% also supported the Union. 16 In light of these presumptions, the employer could reasonably doubt the Union's continuing majority if, but only if, there were an objective basis for believing either that (a) the checkoff cards overstated the Union's support among the nonprobationary employees, or (b) a...

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