Channel Master Corp.

National Labor Relations Board - Board DecisionsSep 25, 1964

148 N.L.R.B. 1343 (N.L.R.B. 1964)

CHANNEL MASTER CORPORATION 1343 Channel Master Corporation and Joseph P. Carey and Channel Master Corporation and' Local Union No. 445 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America and Over-the-Road Truck Drivers Griev- ance Committee , Party in Interest . Cases No. 3-CA-2182 and 3-CA-2202. September 25, 196 . DECISION AND ORDER On June 22, 1964, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and, desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a sup- porting' brief. The Respondent filed an answering brief to General Counsel's exceptions. Pursuant 'to `the provisions of Section 3 (b) of the National Labor Relations Act, the Board has, delegated its powers in connection with these cases to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has'considered the Trial Examiner's Decision, the General Counsel's exceptions and brief, the Respondent's answering. brief to the -.General Counsel's exceptions, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions herein set forth.' ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the'Order recom- ' We find merit in the General Counsel's contention that to effectuate fully the policies of the Act it is essential that the discriminatory provision " in Respondent 's profit-sharing plan be eliminated . We shall, accordingly, modify the Trial Examiner ' s Recommended Order with respect ' thereto by ordering the Respondent to amend its profit -sharing plan by eliminating therefrom nonrepresentation by a union as a requirement for participation in the said plan . Of. To ,ffenetti Restaurant Company, Inc ., 136 NLRB 1156; Melville Con- tectIons, Inc., 142 NLRB 1334, enfd . 327 F. 2d 689 (C.A. 7 ). We find it unnecessary, however, to modify the Trial Examiner 's Recommended Order with respect to posting the required notices since it is clear that the language of the posting provision requires the Respondent to post notices in conspicuous places, including all places throughout its plant where notices to employees are customarily posted. 148 NLRB No. 130. 1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mended by the Trial Examiner, and orders that the Respondent, its. officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below : Reletter the present paragraph 2(a) to 2(b) and add the following as paragraph 2(a) : - "2(a) Amend Section 3 of its profit-sharing plan by eliminating therefrom that part which excludes from participation any employee represented by a recognized bargaining agent." Add the following as paragraph 2 (c) : "Notify George Roe if presently serving in the Armed Forces of' the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." The subsequent' paragraphs are accordingly relettered. Add the following as the fourth indented paragraph to the Ap- pendix of the Trial Examiner's Decision : WE WILL amend Section 3 of our profit-sharing plan by elimi- nating therefrom that part which excludes from participation any employees represented by a recognized bargaining agent. . TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on October 11, 1963, by Attorney Carey in Case No. 3-CA-2182, and a charge filed on November 12, 1963, by the above-named labor organization in Case No. 3-CA-2202, the General Counsel of the National Labor Relations Board on January 31, 1964, issued an order consolidating the two cases, a complaint , and a notice of hearing . The Respondent thereafter duly filed an. answer . The complaint alleges and the answer denies that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the , National Labor Relations Act, as amended. Pursuant to notice , a hearing was held'' in Ellenville, New York, on May 5 and 6, 1964, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented, except the Grievance Committee, and, were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. A brief has been received from the Respondent. Disposition of the Respondent's motion to-dismiss the complaint, upon which, ruling was reserved at the hearing, is made by the following findings , conclusions, and recommendations. Accompanying the Respondent's brief was a motion that certain typographical corrections be made in the official transcript of the proceedings . The covering letter shows that service of this motion was made upon the other parties. No objections having been received, the motion is hereby granted , the transcript may be corrected in accordance therewith, and said motion is made a part of the record. Upon the record thus made, and from my observation of the witnesses, I'make. the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Channel Master Corporation is a New York corporation , with principal office and plant in Ellenville, New York , where it is engaged in the manufacture , sale, and dis- tribution of television antennas , accessories, aluminum tubing , and related products- CHANNEL MASTER CORPORATION 1345 During the year preceding issuance of the complaint the Respondent: (1) pur- chased and had delivered to its Ellenville. plant, directly from points outside the State of New York, materials valued at more than $50,000; and (2) sold and shipped directly to points outside the State of New York products valued at more than $50,000. The complaint alleges, the answer admits, and it is here found that the Respond- ent is engaged in commerce within the meaning of the Act. II. THE CHARGING UNION Local Union No. 445, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization admitting to membership employees of the Respondent. M. THE UNFAIR LABOR PRACTICES A. Setting and major issues The Respondent has about 1,000 employees at its plant, but only its truckdrivers, numbering about 30, are directly involved in these proceedings. Background events, relevant to the unfair labor practice allegations of the com- plaint, include the following, and as to them there is no substantial dispute: (1) Organization of the truckdrivers began late in 1962. (2) On January 8, 1963, the Union filed its petition in Case No. 3-RC-3042. (3) On February 27 the Regional Director issued his Decision and Direction of Election. (4) On March 5, a few days after receipt of the Direction of Election, General Manager Resnick issued the following letter, addressed to "All Over The Road Drivers": , Please be advised that I have just received the following letter from Frank Marchese, Trustee of the Channel Master Employees Profit Sharing Retirement Plan: Dear Mr. Resnick: I would like to direct your attention to Paragraph I, Section 3, of the Channel Master Employees Profit Sharing Retirement Plan, which reads as follows: Every employee in the service of the company on September 30, 1952, who worked for the company for three months or more since October 1, 1951, shall become a participant. Every other employee and every new employee shall become a participant on September 30th of a subsequent year for which a contribution is made, if during said year, he shall have worked for the company on that date, but shall not include any such person whose compensation, hours of work, or' conditions of employment, are determined by collective bargaining with a recognized bargaining agent. A participating employee shall lose his status as such, if during any annual period ending on Septem- ber 30th of any year, such participant's compensation, hours of work, or conditions of employment, are determined by collective bargaining with a recognized bargaining agent. Briefly, this means that any Channel Master employee who chooses to be represented by a union ceases to be a participant of the Plan and the Company has no obligation to make any further contribution for them. Those employees who do not join a union lose no benefits under the Plan. As General Manager of this Company, I feel that this information must be made known to you since it is of the utmost importance at this time. (5) About the same time Resnick instructed Personnel Director Stengel to "set up" a grievance procedure committee among the drivers. (6) On March 9 management called a meeting of such drivers. Resnick, Stengel, and other management representatives were present, and about a dozen drivers. Management informed the men that it was "setting up" the committee, and they would be expected to submit nominations for it. (7) On March 14 Stengel issued the following letter to the drivers: At the drivers' meeting held on Saturday, March 9th, it was decided to set up a formal grievance procedure, the same as that in the plant. The Commit- tee would consist of three drivers, one from each of heavy equipment, picture 760-577-65-vol. 14 8- 8 6 1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tubes, and refrigerated units.. This Committee will meet with the Traffic Man- ager and Personnel Director once each month and with Harry Resnick once every two months. So that we :may get up a ticket for elections, I would like to have your'nomina- tion for grievance committeeman from your section. Please write the'name of your choice on the enclosed ballot. Do not sign your name. Send it to me through the in-plant mail. As soon as your nominations are in, elections will be held. (8) Upon receiving the "ballots" above referred to, Stengel, according to his own testimony, "made up a slate of the nominees," conducted, an election among the drivers, counted- the ballots alone, decided who the committeemen were 'to be, and so notified the traffic department. (9) Three drivers were thus "elected": Maier, Champagne, and Gaynor. (10) The National Labor Relations Board, apparently unaware that Channel Master had ignored its Direction of Election and had decided for itself that a "com- mittee" should be the bargaining representative of the drivers, conducted an election on April 1. As might well be expected, 14-drivers voted against the Union, 12 voted for-it. (11) Objections were duly filed by the Union. (12) On May 17, after'an investigation; the Regional Director issued a Sup- plemental Decision, setting aside the Board election, basing his decision in part upon the company letter of March 5, quoted above. A new election was ordered. (13) Despite the pendency of the second election, the Respondent proceeded to recognize and deal with the Grievance Committee as the representative of its drivers, as will be described.more fully below.' . ' The complaint alleges'and the'answer',denies that management"representatives violated the Act after May 12, 1963,' by: (1) Threatening economic reprisals if drivers supported the Union; (2)' inter- rogating drivers • concerning their - union activities; (3) recognizing -and dealing with the Committee concerning wages and other employment matters; (4) prom- ising and granting benefits and wage increases to discourage union member- ship; (5) creating. the impression among employees that their union activities were being kept under surveillance; (6) maintaining in effect the discriminatory provision in its profit-sharing plan, as set out above; (7) altering its seniority system to discourage union activity; and (8) discharging employee George Roe, and the same day indefinitely laying off employees James Allison, Michael Cusato, Henry Maier, and Henry Miller, to discourage union membership. B. The Grievance Committee Having initiated , formed , sponsored , and promoted the three-man committee of its drivers, as described in the preceding section , and even after the Regional Direc- tor had ordered that a new election be held to permit the employees to select their own bargaining representative without interference by the employer , the Respondent proceeded to bypass Board procedure and to restrain its employees in the exercise of a free choice, by: , (1) Convening and dealing with the three-man committee concerning wages and working conditions. (2) Announcing on May 25 to the Committee that mileage payments to drivers would be raised from 8 cents to 8'h cents. (3) Announcing a change in the existing method of reimbursing employees for expenses incurred. - (4) Agreeing to consider the establishment of a single , master seniority list, in- stead of the existing three lists ( one for each type of equipment driven). The complaint alleges that the assistance and support thus given by the Respond- ent to the Committee it had itself set up constituted interference , restraint, and coercion : The above facts, as to which there is no dispute , fully sustain such allegations.2 'Events after May 12, 1963, of course , come within the 10 ( b) period, and cease to be mere background. - 2 The same facts , of course , would also support a conclusion of violation of Section 8(a) (2) of the Act, although the complaint fails to so allege. Since in this case the remedy would be the same , this conclusion seems unnecessary. CHANNEL MASTER CORPORATION ' 1347 C. Other interference, restraint, and coercion Despite the existing question of representation , Stengel admitted , and it is found, that on May 15 the Respondent granted the drivers in the group termed the "light fleet" an increase in wages. In the absence of any other reasonable explanation by management, and in view of other concurrent unlawful acts plainly designed for the same purpose, I conclude and find that his raise was granted to discourage union membership and support. The Union, however, won the second election held in late June. Overruling cer- tain objections raised by the employer, the Regional Director on September 30, 1963, .certified the Union as the exclusive bargaining representative of all the drivers. In September , after the result of the election was known to management, it is un- disputed that General Manager Resnick told employee Ballard that the Union would probably call a strike, and that any employee who declined to cross a picket line would be discharged. The complaint alleges, the answer admits, and it is found that the provision in the profit-sharing plan, quoted heretofore and discriminating against employee mem- bers of a union, has been since May 12 and is still being maintained in effect. Resnicks' threat and the discriminatory clause in the plan constitute interference, restraint, and coercion of employees in the exercise of rights guaranteed by the Act. D. The discharge and indefinite layoffs of August 2 1. Relevant facts After the Union won the election, but before the certification, management sud- denly discharged and indefinitely laid off four other of its seven heavy-duty drivers. As will be pointed out below, it is undisputed that Resnick considered drivers" of this group to be the union instigators. . George Roe was the driver discharged .. It is the Respondent's contention ' that he was dismissed because he threatened another driver, Huffman, with "violence" and "destruction of equipment." According to Huffman's testimony, as a witness for the Respondent, this alleged "threatening" consisted of the following minor incident . On Sunday afternoon, .July 28, Mrs. Roe called him by telephone, seeking his advice as to a good place locally to take their children swimming.. After discussing this matter for awhile Huffman asked where George was. She said he was there,' and turned the tele- phone over to him. After talking more about the swimming problem Huffman, according to his own testimony, raised the union question, by asking Roe how it was "coming," a fact which, while not establishing that he opposed it, makes it clear that he had little sympathy with it. Then he asked Roe if there would be a "picket line." Roe indicated that there might be. Huffman then, himself, ventured the belief that "if they set up a picket line, it would lead to fights and bloodshed." Roe -agreed, and replied, "Yes, it probably would." Also according to Huffman another driver, Papageorge, was visiting with Huffman at the time, and after hanging up the latter told him of his conversation with Roe. "We sat there and thought about it a couple of minutes" declared Huffman as a witness, and then decided that "the man had threatened us." Papageorge , it appears , for some reason undisclosed since he was not a witness at the hearing, went to the telephone and told Traffic Manager Geller, according to the latter's testimony, that Roe had called Huffman, "threatening him with violence and destruction of equipment." Papageorge, Geller testified, said that Huffman was too "upset" to call him directly. The next day Roe was called to the office and accused of threatening Huffman. Roe promptly denied the accusation, pointing out that even over the telephone he would hardly threaten a man 6 feet, 5 inches, and weighing 300 pounds. (In pass- ing, I would say, from my observation of Huffman as a witness, that Roe's estimate was not far wrong.) He demanded that Huffman be called in to face him. Stengel declined, saying he already had an affidavit from that driver. (If such had been obtained, it was not offered in evidence.) Roe was then told he was suspended while they "investigated" the matter. There is no credible evidence that Stengel or anyone else investigated the Roe-Huffman matter. Roe went to Resnick and protested this summary action without any investigation. Resnick told him that he would not interfere with Stengel's decision, and added that he had had no trouble until the "Mid-west fellows" had come in (Roe being one of .them) and now he was having "all kinds of trouble" because they were trying to run 1348 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD his Company . Roe replied that it was not the Midwest men who wanted the Union, but the older drivers. Resnick then asked why , if he didn 't want the Union, he went to union meetings. Roe was formally told of his discharge on August 2. On the same day Geller laid off drivers Allison , Maier , Miller , and Cusato, leav- ing but two heavy-equipment drivers at work . It is his claim that he did so because a certain mill was to be shut down temporarily and there would be no work for them. Other testimony by Geller , however , establishes that before calling the four back to work in late August or early September , there were at least 21 full days of driving of this type of equipment given to common carriers . He also admitted that al- though there had been periods of slack work in the past there never before had been a general layoff like this one, and that heretofore when there was no work for the men in this group they had been assigned temporarily to the "light fleet" or to work in.the yard . He also admitted that new drivers for the light fleet were hired during this period. 2. Conclusions If I had not, in the past 27 years, heard employers advance equally astonishing reasons for firing employees , I would be inclined to believe that Geller , as a witness, was merely spoofing me . The spectacle depicted by Geller and Huffman , of that Sunday afternoon telephonic "threat" in the little Catskill town of Ellenville, would cause old Henry Hudson 's laughter to rumble in disbelief . And I will long remember the strange moment when that huge bulk of a truckdriver, Huffman, who smothered and overdraped his chair like Nero Wolfe, quite seriously declared that he and Papageorge, also an over-the-road driver, sat back for a "couple of minutes," after he had hung up the receiver, and the two had then decided that they had been threatened! Nor does Geller's claimed reason for the sudden layoff of the other four drivers withstand scrutiny in the light of his admissions , noted above. In short, I am convinced and find that the reasons given by management for both the discharge and the layoffs were but pretexts, and that the reason was the Re- spondent 's resentment against the Union for having won the election , and manage- ment's desire further to discourage union membership and activity . Such discrimina- tion constituted interference, restraint , and coercion. E. The alleged change in the seniority system As to this allegation , I am of the opinion that evidence adduced by General Counsel fails to sustain it. His own witnesses made it clear that in March 1963, when the "committee" was meeting with management , it was trying to have the Respondent set up a "master" list, that is, seniority of service and not in the three different groups. It is clear that had such existed int he past , there would have been no need to ask for it .3 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that ' the Respondent has engaged in unfair labor practices I will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It has been found that the Respondent unlawfully discharged one employee and laid off four others. It will be recommended that it offer George Roe immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges . It will also be recom- mended that the Respondent make Roe, Allison , Cusato , Maier, and Miller whole 3 Nor is the evidence sufficient , in the opinion of the Trial Examiner , to sustain the allegation of creating the impression of surveillance. About the only item to support it, that the Trial Examiner discerns, is the remark made by Resnick to Roe to the effect that he apparently knew this driver attended union meetings . It appears to be too minor to deserve a separate finding of unlawful interference or restraint. CHANNEL MASTER CORPORATION 1349 for any loss of earnings they may have suffered by reason of the unlawful discrimina-' lion against them, by payment to each of them of a sum of money equal to that which he would normally have earned absent the discrimination, and in the manner proscribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest on the backpay due in accordance with Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the extended and serious nature of the Respondent's unfair labor prac- tices it will be recommended that it cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local Union No. 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating as to the tenure of employment of employees, to discourage membership in, and activity on behalf of, the above-named labor, organization, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed-by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER, Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Channel Master Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local Union No. 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by discharging, laying off, refusing to reinstate, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Promising or granting benefits, or threatening economic reprisals, to dis- courage membership in and activity on behalf of any labor organization. (c) Recognizing or dealing with the above-described Grievance Committee as the bargaining representative of any of its drivers. - (d) Maintaining or giving effect to the provision, herein described, of its profit- sharing retirement plan. (e) In any other manner interfering with, restraining, or- coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer George Roe immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him and employees Allison, Maier, Miller, and Cusato whole for any loss of earnings suffered by them as a result of the discrimination against them, in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to determine the amounts of backpay due. (c) Post at its plant at Ellenville, New York, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for Region 3, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- 'In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board' s Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Deci- sion and Order." 1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writing, within 20 days from' the date of the service of this Decision, what steps it has taken to comply herewith.5` 5In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from! the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to conduct our labor relations in compliance with, the National Labor Relations Act, we notify you that: WE WILL NOT unlawfully discourage you from being members of Local Union No. 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. WE WILL NOT recognize or deal with the Over-the-Road Truck Drivers. Grievance Committee as the representative of any of our drivers. WE WILL NOT maintain or give any effect to that part of Section 3 of our profit-sharing plan which excludes from participation any employee represented' by a "recognized bargaining agent." WE WILL NOT threaten employees with reprisals or promise or grant benefits, to discourage membership in any union. WE WILL NOT violate any of the rights you have under the National Labor Relations Act to join a union of your own choice or not to engage in union activities. WE WILL offer reinstatement to George Roe, and make him and James Al- lison , Michael Cusato, Henry Maier, and Henry Miller whole for any loss of pay caused by our discrimination against them. CHANNEL MASTER CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify George Roe, if presently serving in the Armed Forces. of the United States of his right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Serv- ice Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting,. and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 120, Delaware Avenue, Buffalo, New York, Telephone No. Tl. 6-1782, if they have any questions concerning this notice or compliance with its provisions. New York Paper Cutters' & Bookbinders ' Local Union No. 119, International Brotherhood of Bookbinders, AFL-CIO and Automatic Sealing Service, Inc. Case No. 2-CC-791. Septem ber 25, 1964 DECISION AND ORDER On September 16, 1963, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor 148 NLRB No. 132.