1 - National Labor Relations Board

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Unfair Labor Practices 79 2. Withdrawal of Recognition From Incumbent Union The Board has consistently adhered to the Celanese rule 20 under which after the first year of a union's certification there is a presumption of continued majority status flowing from the certification. An employer seeking to withdraw recognition from an incumbent union may rebut the presumption by an affirmative showing either that (1) at the time of a refusal to bargain the union in fact no longer enjoyed majority status, or (2) the employer's refusal was predicated on a good-faith and reasonably grounded doubt of the union's continued majority status. Further, the prerequisites for sustaining the "good-faith doubt" defense are that the asserted doubt must be based on objective considerations and it must not have been raised in the context of unfair labor practices aimed at causing disaffection from the union, or in order to gain time in which to undermine the union. In one case 21 decided by the Board during the report year in which an employer withdrew recognition from the incumbent union at the expiration of the certification year and attempted to raise a question concerning representation by filing an election petition, the Board rejected the employer's refusal-to-bargain defense that it had the requisite good-faith doubt of the union's continued majority status. The Board, assuming arguendo the existence of some facts constituting the type of objective considerations which reasonably could have led the employer to doubt the union's majority, found, however, that the employer did not raise the majority issue in good faith and was not in fact willing to have the representation question resolved by the election machinery. The Board pointed out that the employer filed the petition during the contract's 60-day insulated period, which made it subject to dismissal under normal contract-bar rules, and thereafter failed to appeal the regional director's dismissal of the petition. Subsequently, it intensified its unfair labor practice campaign in a patent effort to dissipate employee support for the union and to destroy the conditions necessary to a free election. The asserted good-faith doubt having been raised in this context, the Board rejected it as a defense to the violation of section 8(a) (5) by withdrawal of recognition from the incumbent union. In the Skaggs Drug case 22 the employer broke off bargaining with the incumbent union after a decertification petition sup- 2° Celanese Corp. of America, 95 NLRB 664 (1951) . 21 Ingress-Plastene, Inc., 177 NLRB No. 70. 22 176 NLRB No. 102.
80 Thirty-fourth Annual Report of the National Labor Relations Board ported by 12 of the 15 employees, once dismissed, had been reinstated. At that time the employer became concerned anew by the apparent desire of the union to thwart an employee election, since it immediately filed unfair labor practice charges having the effect of blocking the petition. The Board found that the first petition necessarily raised some doubt of the union's continuing majority, and the reinstatement of the petition reinforced that doubt. It concluded that under the circumstances the employer lawfully ceased negotiations until the majority question could be determined in an election, or until its duty to bargain could be determined through the charges filed. It noted that the fact that the employer had negotiated with the union over the terms of a new contract while the initial petition was pending was found not inconsistent with a good-faith doubt of majority, particularly when significant negotiations took place while the petition was dismissed and the employer engaged in no activity to dissipate the union's strength. The employer's widely spaced unilateral actions in changing certain conditions of employment, although themselves in violation of section 8(a) (5), were not viewed as having an overall purpose to undermine the union. In another case 23 the employer had withdrawn recognition from the union following an economic strike on the ground that the union no longer represented a majority of employees in the original unit which he viewed as consisting of the permanent replacements for strikers together with the employees who did not join the strike, but excluding the replaced economic strikers. Consistent with its Laidlaw decision, 24 holding that a replaced economic striker retains his status as an employee and is entitled to have his reinstatement request honored when an opening becomes available so long as he has not abandoned the employ of the employer, the Board held that the 79 replaced economic strikers were to be included in the unit for purposes of determining the union's majority status, and the adequacy of the employer's asserted doubt of majority. In holding that the replaced economic strikers were to be counted in the unit for purposes of assessing the adequacy of the basis of the employer's asserted doubt, the Board noted that the replaced strikers retained their status as employees, had applied for reinstatement, and would be eligible under section 9(c) (3) to vote in an election 23 C. H. Guenther & Son, d/b/a Pioneer Flour Mills, 174 NLRB No 174. See also Frick Co., 175 NLRB No. 39. 24 171 NLRB No. 75; Thirty-third Annual Report (1968).
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TMR.TY-FOURM ANNUAL REPORT
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NATIONAL LABOR RELATIONS BOARD Memb
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7 TABLE OF CONTENTS CHAPTER I. Oper
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Table of Contents ix Page 1. Preser
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PERCENT PERCENT 100 100 1111111 90
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IX Injunction Litigation Section 10
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Table 3A.—Formal Actions Taken in
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Table 4.—Remedial Actions Taken i
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Table 6.—Geographic Distribution
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Table 7.-Analysis of Methods of Dis
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it! All C cases CA cases CB cases C
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Stage of disposition ' Table 8.-Dis
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Table 11A.—Analysis of Elections
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Table 13.-Final Outcome of Represen
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Participating unions AFL-CIO v. AFL
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Table 14.-Valid Votes Cast in Repre
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Participating unions AFL-CIO v. AFL
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1.) LA, iv Table 17.-Size of Units
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Table 18.-Distribution of Unfair La
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Table 19.-Litigation for Enforcemen
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Table 20.—Injunction Litigation U
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