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National Labor Relations Board v. Master Touch Dental Laboratories Inc.

decided: December 16, 1968.


Lumbard, Chief Judge, and Kaufman and Hays, Circuit Judges.

Author: Hays

HAYS, C. J.:

The National Labor Relations Board petitions for enforcement of an order against Master Touch Dental Laboratories, Inc. The order is based on the Board's findings that the Company violated Sections 8(a)(1), 8(a)(3) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), 158(a)(3) and 158(a)(5) (1964). We grant enforcement in part and deny it in part.

The evidence credited by the Board shows the following:

The Company is engaged in the business of manufacturing and selling dentures and related products in Long Island City, New York. Beginning in 1951, it made collective bargaining agreements with District 65, Retail, Wholesale and Department Stores Union, AFL-CIO, covering all of its production workers. The Company was one of the very few dental laboratories in the area that had been organized by the Union without opposition from management. The last full-term agreement with District 65 expired on December 31, 1964. When the Union sought to begin negotiations for a new contract in the fall of 1964, Nagy, the Company's president, refused. He stated that the Company would not negotiate until the Union had organized some of the Company's competitors. The Union agreed to increase its efforts to organize companies in the largely unorganized dental industry and to extend the expired contract, containing a union shop clause, for four months, until May 1, 1965. Throughout this four month period, a majority of the Company's employees continued to pay dues to the Union. Attempts by the Union to begin negotiations in April, May and August of 1965 met with Nagy's refusal on the ground that the Union had not organized the rest of the industry.*fn1

In November 1965 and in early February 1966, the Union again sought to open negotiations and was refused on the same ground. During February, Nagy called a plant meeting at which he asked each of the Company's seven employees*fn2 whether he wanted the Union to be his bargaining representative. All the employees indicated that they wanted such union representation.

At a plant meeting on March 8, Nagy urged the Company's seven employees to increase their production in return for which he promised to institute a profit-sharing plan.

The Union called a strike and picketed the Company's premises beginning on March 15. All seven employees stayed away from work.

On March 15 Nagy again refused to negotiate with the Union because the rest of the industry had not been organized.

On March 18, Figueredo, one of the striking employees, requested reinstatement. Nagy rejected the request, stating that there was no work available. However at some time after March 15, Nagy refused to accept work orders that would have provided work for two employees.

The § 8(a)(5) and § 8(a)(1) violations involving the refusals to bargain, direct bargaining and offer of benefits

The Board found that the Company violated Section 8(a)(5) and, incidentally, Section 8(a)(1) in refusing to bargain in November 1965, in February 1966 and in March 1966. It found a further Section 8(a)(5) violation in Nagy's meeting with the employees on March 8, 1966 at which he promised to institute a profit-sharing plan if production increased.

Although the Union was not certified as the exclusive representative of the Company's employees, the Company recognized it as such during the fourteen year period ending on May 1, 1965. A majority of the employees paid dues to the Union until that date. These facts adequately support the Board's finding that a majority of the employees wanted the Union to represent them on May 1, 1965. On the basis of this finding, the Board properly found the existence of a rebuttable presumption of continuing majority status at the time of the November 1965, the February 1966 and the March 1966 refusals to bargain and at the time of the March 8, 1966 meeting with the employees. See Shamrock Dairy, Inc., 119 NLRB 998 (1957) and 124 NLRB 494 (1959), enforced sub nom. International Brotherhood of Teamsters v. NLRB, 108 U.S. App. D.C. 117, 280 F.2d 665 (D.C. Cir.), cert. denied, 364 U.S. 892, 5 L. Ed. 2d 188, 81 S. Ct. 224 (1960).*fn3

The Company could refuse to bargain only if the Union did not in fact represent a majority of the workers during the period from November 1965 through March 1966. The Company argues that the Union had lost its majority support because at least six of the seven employees had stopped paying dues by August 1965.*fn4 The Union had a very lax policy with respect to the collection of dues, and took no action against members who were as much as a year delinquent in their payments. The failure to pay dues was, in these circumstances, an ...

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