United McGill Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United McGill Corporation and Charles Reed and McGill Labor Committee, Party to the Contract. Case 9-CA-10929 April 3, 1978

DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

JENKINS AND MURPHY Upon a charge duly filed the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint and notice of hearing March 23, 1977, and an order amending complaint on July 7, 1977, against United McGill Corporation (hereafter called Respondent), which were duly served on the parties. The complaint alleges that Respondent has engaged in, and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(1) and (2) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Respondent filed an answer denying the commission of unfair labor practices. On October 21, 1977, the parties executed a stipulation of facts and jointly moved to transfer this proceeding to the Board. They waived a hearing before an Administrative Law Judge and the is- suance of an Administrative Law Judge's Decision and recommended Order, and agreed to submit the case to the Board for findings of fact, conclusions of law, and Order, based on a record consisting of the motion to transfer the proceeding to the Board, the stipulation of facts, and the attached exhibits thereto. On December 21, 1977, the Board approved the stipulation and ordered the case transferred to the Board, granting permission for the filing of briefs. Thereafter, the General Counsel and the Respondent filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the stipulation, the briefs, the exhibits, and the entire record, the Board makes the following:

FINDINGS OF FACT Following an election within a production and maintenance unit, involving the Sheet Metal Work- ers' International Association (hereafter SMW) and the Teamsters, a runoff election was held between the Teamsters and no union. A majority of votes were cast for no union and the Board certified the results on January 23, 1976. After the runoff election the Teamsters, SMW, and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (hereafter UAW), engaged in vigorous organizing efforts by handbilling and soliciting authorization cards among employees in the same production and maintenance unit. The SMW demanded recognition in letters re- ceived by Respondent on May 18 and 26, 1976. The May 26 letter was submitted with authorization cards allegedly signed by a majority. The cards were placed in Respondent's safe in a sealed envelope that was returned the next day, unopened, to an employee representative of SMW. There were 100 cards. The UAW requested recognition in a letter re- ceived by Respondent on May 27, 1976. The UAW offered, but never actually presented to Respondent, authorization cards allegedly signed by a majority of unit employees. There were 93 cards. The UAW and the SMW again demanded recogni- tion by telegram respectively dated July 28, 1976, and August 4, 1976. Recognition was also demanded by the McGill Labor Committee (hereafter the Committee) on August 16, 1976, in the form of a petition authorizing representation, allegedly signed by a majority of unit employees. There were 105 signatures. After Respondent compared the signatures on the Committee's petition with those on employee appli- cations it recognized the Committee as the exclusive bargaining representative of employees, on August 18, 1976. On September 13, 1976, the employees ratified a contract negotiated by Respondent and the Committee, effective from August 30, 1976, to August 29, 1978.' There were 209 employees in the unit on August 18, 1977, the date Respondent recognized the Com- mittee. A. Contentions of the Parties Respondent contends its recognition of the Com- mittee was based on a clear demonstration of majority support obtained without unlawful assis- tance, whereas the SMW and UAW claims were "unsupportable and without foundation in fact." The General Counsel argues that uncoerced major- ity support was not established because a significant number of the signatories to the Committee's petition signed authorization cards on behalf of at least one other union. Further, Respondent demonstrated bad faith by its precipitate recognition of the Committee when it had knowledge of intense organizational

I The contract does not have a union-secunty clause.

235 NLRB No. 76 564

UNITED McGILL CORP. activity by other unions whose recent demands for recognition it had ignored. B. Analysis and Conclusions Had Respondent checked the cards submitted by

SMW and those offered by UAW, with the Commit- tee's petition, it would have found dual and triple signers. Approximately 99 of the 105 signatories to the Committee's petition had also signed an authori- zation card for at least one other union. Where an employee signs an authorization card for each of two or more unions, it is settled that, absent evidence of the signer's intent, none of the authorizations is valid because it is impossible to determine which union the employee would designate as the exclusive bargain- ing representative.2 Hence, while Respondent recog- nized the Committee on the barest majority-105 of 209 employees-the signatures are not valid indica- tors of the employees' choice of a bargaining repre- sentative and the Committee had not obtained majority status when it was recognized by Respon- dent.3 Furthermore, Respondent precipitately recog- nized the Committee without a card check by an impartial third party, and without making any effort to cross-check signatures against the cards from the two other unions that had demanded recognition, or offering them the opportunity to participate in the card check for the Committee. In view of the foregoing we find that Respondent violated the Act as alleged.

CONCLUSIONS OF LAW i. Respondent, an Ohio corporation, is an em- ployer within the meaning of Section 2(2) of the Act.

2. Respondent, which during the past 12 months purchased and received goods and materials valued in excess of $50,000 from points outside the State of Ohio, is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act.

3. The McGill Labor Committee, the Sheet Metal Workers' International Association, and Internation- al Union, United Automobile, Aerospace & Agricul- tural Implement Workers of America, are labor organizations within the meaning of Section 2(5) of the Act.

4. By recognizing and executing a contract with the McGill Labor Committee as the exclusive bar- gaining representative of its employees, at the time when that labor organization did not enjoy majority status, Respondent has engaged in and is engaging in

2 Hi Tamp Inc., a Division of Beatrice Foods Co., et at, 203 NLRB 753 (1973).

3 We find it unnecessary to consider whether or not Respondent would have violated Sec. 8(aX2) under the doctrine of Midwest Piping and Supply unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act.

THE REMEDY Having found that Respondent engaged in unfair labor practices, we shall require it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We shall order Respondent to withdraw all recog- nition from the Committee as representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of em- ployment, unless and until that labor organization demonstrates its exclusive majority representative status pursuant to a Board-conducted election among the unit employees. We shall also order Respondent to cease and desist from giving any force or effect to the collective-bargaining agreement executed and maintained, but nothing herein shall be construed as requiring Respondent to vary any wage, hour, seniority, or other substantive feature of its relations with its employees which was established in the performance of that contract.

ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United McGill Corporation, Columbus, Ohio, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Contributing support to the McGill Labor Committee or to any other labor organization of its employees.

(b) Recognizing the McGill Labor Committee as the representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said labor organization shall have demonstrated its exclusive majority representa- tive status pursuant to a Board-conducted election among the Company's employees.

(c) Giving effect to the collective-bargaining agree- ment dated August 30, 1976, between Respondent and the McGill Labor Committee, or to any exten- sion, renewal, or modification, provided, that nothing in this Decision and Order shall require Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its Co., Inc., 63 NLRB 1060(1945), even had it recognized in good faith a union which had received otherwise valid authorization cards from a majonty of employees. 565

DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees established in the performance of that agreement, or to prejudice the assertion by employ- ees of any rights they may have thereunder.

(d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as autho- rized in Section 8(a)(3) of the Act.

2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act:

(a) Withdraw and withhold all recognition from the McGill Labor Committee as the exclusive bargaining representative of its employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, unless and until the said labor organization shall have demon- strated its exclusive majority representative status pursuant to a Board-conducted election among Respondent's employees.

(b) Post at its Columbus, Ohio, plant involved herein copies of the attached notice marked "Appen- dix." 4 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with.

4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."

APPENDIX NOTICE To EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

WE WILL NOT contribute support to the McGill Labor Committee or to any other labor organiza- tion of the employees.

WE WILL NOT recognize the McGill Labor Committee as the representative of any employees for the purpose of dealing concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said labor organization shall have demonstrated its exclusive majority repre- sentative status pursuant to a Board-conducted election among the employees.

WE WILL NOT give effect to the collective- bargaining agreement dated August 30, 1976, between United McGill Corporation and the McGill Labor Committee, or to any extension, renewal, or modification, provided, that nothing in this Decision and Order shall require us to vary or abandon any wage, hour, seniority, or other substantive feature of relations with employees established in the performance of that agreement, or to prejudice the assertion by employees of any rights they may have thereunder.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act.

WE WILL withdraw and withhold all recogni- tion from the McGill Labor Committee as the exclusive bargaining representative of employees for the purpose of dealing concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said labor organization shall have demonstrated its exclusive majority repre- sentative status pursuant to a Board-conducted election among the employees.

UNITED MCGILL

CORPORATION 566