On Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board
Hastings, Senior Circuit Judge, Tone, Circuit Judge, and Noland, District Judge.*fn*
HASTINGS, Senior Circuit Judge.
Star Manufacturing Company, a division of Star Forge, Inc. (the Company), has petitioned us to review and modify an order of the National Labor Relations Board (the Board) issued against the Company on September 24, 1975. The Board has cross-petitioned for enforcement, all pursuant to the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. (the Act). The Board's Decision and Order are reported at 220 NLRB No. 76 (1975).
The primary question for consideration is whether there is substantial evidence in the record as a whole to support the Board's finding that the Company violated Section 8(a)(5) and (1) of the Act by failure to bargain in good faith and by withdrawing recognition from the Union. In short, at the time it withdrew recognition from the Union, did the Company have a good faith doubt that the Union represented a majority of the employees in the appropriate collective bargaining unit? In due course, we shall also consider other subsidiary questions relating to alleged violations of Section 8(a)(1) and (3) of the Act in the Company's treatment of a single employee, Jim Scott.
The Company is engaged in the manufacture of parts for agricultural equipment in Carpentersville, Illinois. The Union in this case for all practical purposes is the Metal Trades Department of the AFL, and its successor organization of the AFL-CIO, including affiliates. The proceeding before the Board was conducted on a consolidated case and a consolidated complaint.
In 1942, the Union was certified as the exclusive collective bargaining representative of all factory employees at the Company's facility at Carpentersville. From 1942 to 1971, successive collective bargaining agreements between the parties were entered into covering all of the factory employees at the Carpentersville facility. In 1971, the Company entered into a collective bargaining agreement with the Union, effective to September 1, 1974. There were certain automatic yearly renewal provisions not relevant to the issues before us. There was a history of an amicable relationship between the parties prior to the Company's withdrawal of recognition.
The 1971 collective bargaining agreement covered all factory employees at the Carpentersville facility, excluding office employees, company executives, shop clerks, foremen, and others in a supervisory position or in confidential relations with the management. The agreement did not contain standard union security provisions, but it did contain fairly typical maintenance of membership provisions with appropriate escape clauses.
During May through July 1974, the Company had about 84 employees in the bargaining unit. On June 11, 1974, agreeable with the terms of the 1971 contract, the Union requested, in writing, a meeting to begin negotiations for a new contract, the current one expiring on September 1, 1974. On June 18, 1974, the Company replied in writing, demanding from the Union, under the terms of the contract, a list of the Union membership. The Company repeated this request on July 8, 11, 15 and 19, assuring the Union it would meet with the Union upon receipt of the membership list. The Union never produced the membership list as required by the contract.
On July 30, the bargaining unit comprised 83 employees. Company records indicated that only a small percentage were members of the Union. Only 22 individuals, 26.5 per cent of the unit, had authorized the deduction of union dues from their wages under the checkoff provision of the contract. On brief, the Company indicated that this number had further diminished to 15 employees.
As a further objective indication that the Union no longer represented a majority of its unit employees, the Company notes that the Union had failed to appoint a steward for over an entire year. Employee Frank Hayden initially began processing a grievance following the demand for bargaining negotiations. Hayden was not designated as a Union steward until the Company required notice of his authority to act.
Although the contract required that overtime be distributed as evenly as possible among all employees in each department, no grievance was ever filed by the Union with respect to the Company's failure to observe this policy.
The grievance Hayden processed in June 1974, alleging an unlawfull pay reduction, was the first one filed during the life of the 1971 contract. Neither that grievance, nor one other filed thereafter, was ever processed beyond the first stage of the contract grievance procedure even though the first step dispositions in each case were unfavorable to the grievants. After the denial of the first grievance he filed, Hayden stated that he did not know what next to do.
Alternatively, Union business representative Haderly responded to the Company's membership list requests by stating that the Union would furnish the membership list when the Company furnished data on pensioners, or that it would furnish the list after an unnamed individual at a nearby factory returned to work. On July 30, 1974, Haderly stated to Company President Ward that he would not ...