September 20, 1971
MASSEY-FERGUSON, INC., PETITIONER
NATIONAL LABOR RELATIONS BOARD, RESPONDENT. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL WORKERS OF AMERICA, INTERVENOR.
Before SWYGERT, Chief Judge, CUMMINGS and STEVENS, Circuit Judges.
Per Curiam: On June 28, 1968, as a result of its victory by a vote of 52 to 50 at a Board supervised election, the Union was certified as the exclusive collective bargaining representative for employees in an appropriate unit of the Company's engineering department. Formal collective bargaining commenced in September, 1968.
On November 4, 1968, the Company granted certain cost-of-living wage increases to non-bargaining unit employees. On December 9, 1968, the Company granted the same non-unit employees a 3% wage increase. The Union promptly requested comparable benefits for unit employees. Those requests were denied, although on March 27, 1969, the Company did offer a 3% non-retroactive wage increase to employees represented by the Union. Consistent with its position throughout the prior negotiations, the Company insisted that all bargaining issues would have to be resolved before a wage increase could be put into effect. The Union did not accept the offered wage increase.
On May 6, 1969, without prior consultation with the Union, the Company announced its unilateral decision to grant the bargaining unit employees cost-of-living and 3% wage increases retroactive to December 9, 1968. The Company refused to discuss the decision with the Union representatives. A written communication from the Company to the bargaining unit employees dated May 7, 1969, explained the Company's position.
Before the Board, and in this court, the Company sought to explain its unilateral action on the ground that abnormal turnover and employee dissatisfaction made prompt action essential.The Board found, and we agree, that the economic justification for the increase does not justify the apparently deliberate decision to avoid prior consultation with the Union. The Board found that the unilateral wage increase in amounts greater than any previously offered to the Union violated § 8(a)(5). This finding is supported by substantial evidence and was appropriate. NLRB v. Katz , 369 U.S. 736; NLRB v. Crompton-Highland Mills , 337 U.S. 218.*fn1
After the unilateral wage increase had been put into effect, the Union made vigorous objection, but nevertheless agreed to continue negotiations without prejudice to its position. On June 24, 1969, a decertification petition was filed with the Board by some of the bargaining unit employees. This petition was subsequently dismissed or withdrawn.
On July 3, 1969, a Union representative advised a Company negotiator that the employees' decertification petition had been dismissed and asked for a meeting. The Company replied by expressing doubt that the Union then represented a majority of the unit employees and advised that the Company was filing its own petition. Thereafter the Company refused to meet or bargain with the Union. The Board found that the Company violated § 8(a)(5) by refusing to bargain on and after that date.
On July 3, 1969, more than a year had passed since the original certification of the Union. The presumption that it continued to represent a majority of the employees was, therefore, no longer irrebuttable. The burden of rebutting the presumption after a period of a year is upon the Company. Ingress-Plastene, Inc. v. NLRB , 430 F.2d 542, 546 (7th Cir. 1970). The Board found that that burden had not been sustained.
The Company relied on the facts that the Union's original majority was by a margin of only two votes; that there had been a high turnover of employees within the unit; that the size of the unit had been reduced; that supervisors had reported discontent among unit employees; and that approximately 30% of the employees had filed a decertification petition.*fn2 The Company also offered additional evidence of employee turnover which the Trial Examiner excluded as cumulative.Reviewing the entire record, the Board concluded that the Company had not met its burden of proving that it possessed a good-faith doubt of the Union's continued majority status.In addition it found that any loss of support would have been attributable to the Company's unfair labor practices and, therefore, might not be relied upon as a defense, relying on Franks Bros. v. NLRB , 321 U.S. 702.
The Board entered an order directing the Company to cease and desist from the unfair labor practices found, to bargain with the Union upon request, and to post appropriate notices.
In support of its petition to review and set aside the Board's order, the Company reiterates the factual and legal arguments presented before the Trial Examiner and the Board. We are satisfied that the findings of the Board are supported by the entire record*fn3 and that its choice of a bargaining order as an appropriate remedy for the violations found should be respected by this court. See NLRB v. Patent Trader, Inc ., 426 F.2d 791 (2d Cir. 1970) (en banc); cf. NLRB v. Gissel Packing Co ., 395 U.S. 575.
The order will be enforced.