619 F2d 586 National Labor Relations Board v. Triplett Corporation

619 F.2d 586

105 L.R.R.M. (BNA) 2369, 89 Lab.Cas. P 12,189

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
TRIPLETT CORPORATION, Respondent.

No. 78-1127.

United States Court of Appeals,
Sixth Circuit.

April 14, 1980.

Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., William Stewart, Supervisor, Lawrence E. Blatnik, Atty., Washington, D. C., Bernard Levine, Director, Region 8, N. L. R. B., Cleveland, Ohio, for petitioner.

Donald F. Woodcock, Calfee, Halter & Griswold, David E. Bishop, Cleveland, Ohio, for respondent.

Before WEICK, LIVELY and KENNEDY, Circuit Judges.

ORDER

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1

The Board seeks enforcement of its decision and order, reported at 234 NLRB No. 143, in which the company was found in violation of Section 8(a)(5) and (1) of the Act by withdrawing recognition from, and refusing to bargain with, a union previously certified by the Board. The primary issue was whether the company had a good faith doubt, based on objective considerations, that the union no longer represented a majority of the employees in the bargaining unit. After hearing evidence, the administrative law judge found that the presumption of continued representation by a certified union was rebutted by the company's showing of good faith doubt based on a number of objective considerations.

2

Among the factors considered by the administrative law judge were the union's lack of success in obtaining new members among eligible employees, a steady decline in grievances and several indications by union officers that they recognized a diminishing adherence to the union. Most noteworthy was the receipt by the company during a one-week period of notices from one-sixth of the unit employees that they were terminating union membership and rescinding their previous authorizations for dues checkoff. With these defections from the union, fewer than one-third of the eligible employees were continued under checkoff authorizations.

3

Upon consideration of the briefs and oral arguments of counsel and the record on appeal, the court concludes that the Board erred in reversing the decision of the administrative law judge. The administrative law judge based his holding on this court's decision in Automated Business Systems v. NLRB, 497 F.2d 262 (6th Cir. 1974), and the Board failed to distinguish Automated Business Systems or to set forth any acceptable reasons for its failure to follow it.

4

Accordingly, enforcement of the decision and order of the Board is denied.