Cocker Saw Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1970

186 N.L.R.B. 893 (N.L.R.B. 1970)

COCKER SAW COMPANY, INC 893
Cocker Saw Company , Inc. and District No. 76,
International Association of Machinists and Aero-
space Workers, AFL-CIO. Case 3-CA-4038
November 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 22, 1970, Trial Examiner Frederick U. Reel
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices 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
Respondent filed exceptions to the Decision and a
supporting brief,' and the General Counsel filed
exceptions to the Decision and a supporting brief.
Whereupon, the Respondent filed an answering brief
in opposition to the General Counsel's exceptions to
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and
recommendations2 of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. For the purpose of determining the effective
duration of the certification, the initial year of
certification shall be deemed to begin on the date the
Respondent commences to bargain in good faith with
the Union as the recognized bargaining representative
in the appropriate unit.
B. Respondent Cocker Saw Company, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with District
No. 76, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
collective-bargaining representative of the employees
in the following appropriate bargaining unit.
All production and maintenance employees em-
ployed at Respondent' s Burt , New York plant,
exclusive of all office clericals, professional em-
ployees, guards, watchmen and supervisors as
defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate or represent employees as exclusive collec-
tive-bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Upon request bargain collectively with District
No. 76, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
representative of all employees in the appropriate unit
with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached.
(b) Post at its place of business in Burt , New York,
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the
Regional Director for Region 3, after being duly
signed by Respondent's authorized representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by the Respondent
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 3, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
I Respondent ' s request for oral argument is hereby denied as, in our
opinion, the record, including the exceptions and briefs , adequately present
the issues and positions of the parties No exceptions were filed to the last
paragraph of the Trial Examiner's recommended notice
1 The General Counsel has excepted. among other things , to the Trial
Examinef s failure to include in his recommended Order a provision that
the mite l year of certification be deemed to commence on the date the
Respondent begins to bargain in good faith with the Union . We find merit
in this exception as it appears that the Trial Examiner , in his discussion of
the remedy, clearly intended to provide for such language . Accordingly, we
shall correct this inadvertent error in the Order attached hereto
i In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United Stated Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
District No. 76, International Association of
Machinists and Aerospace Workers, AFL-CIO, as
186 NLRB No. 101
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exclusive collective-bargaining representative
of all our following employees:
All production and maintenance employ-
ees employed at our Burt, New York plant,
exclusive of all office clericals, professional
employees, guards, watchmen and supervi-
sors as defined in the Act.
WE WILL NOT interfere with the efforts of the
Union to negotiate for or represent employees as
exclusive collective-bargaining representative.
WE WILL bargain collectively with the Union as
the exclusive collective-bargaining representative
of the employees in the appropriate unit, and if an
understanding is reached we will sign a contract
with the Union.
Employees, pursuant to Section 9(c)(1) of the
National Labor Relations Act, may at an appropriate
time petition the National Labor Relations Board for
an election to decertify and remove the Union as their
bargaining representative. The filing of such a petition
can only be done as the voluntary act and choice of
the employees and on their own initiative, without
coercion, encouragement, or assistance from manage-
ment. All applicable rules, regulations, and standards
for conducting such an election must be met. Except
in unusual circumstances no such petition will be
acted upon during the 12 months following the
posting of this notice.
Dated By
COCKER SAW COMPANY,
INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Fourth Floor, The 120 Building, 120 Delaware
Avenue, Buffalo, New York 14202, Telephone
716-842-3100.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner' This proceeding
was initiated by a charge filed March 10, 1970,1 followed by
a complaint issued May 6 and an answer filed May 15.
Thereafter General Counsel filed a motion to strike
i Except where otherwise indicated all dates herein refer to the year
1970
2 The complaint alleges and the answer admits that "All production and
maintenance employees employed at Respondent' s Burt , New York plant,
affirmative defenses in the answer and a motion for
summary judgement, and Respondent countered with a
motion for judgment on the pleadings or in the alternative
motion for summary judgment. Upon consideration of
these motions and of the briefs in support thereof, and of
the other pleadings filed herein. I find merit in General
Counsel's motion for summary judgment which is hereby
granted. Upon the basis of the record before me, I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent , a New York corporation , engaged at Burt,
New York, in the manufacture and distribution of circular
saw blades and related products , annually ships from that
plant products valued in excess of $50 ,000 to points outside
the State , and is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The
Charging Party, herein called the Union , is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICE
A. The Case for General Counsel
On or about December 11, 1969, the Union by a vote of
31 to 29 won a Board-conducted election in the appropriate
bargaining unit at the Burt plant,2 and on or about
December 19, 1969, the Board certified the Union as the
exclusive collective-bargaining representative of the em-
ployees in that unit.
Although the answer denies the allegation in the
complaint that the Union has requested, and is continuing
to request, Respondent to bargain collectively, the affidavit
of Respondent's president, submitted in support of its
motion, recites:
4. Since the time of the election won by the
Machinists, Mr. Frank Oldham has taken care of the
Company's end of getting ready to negotiate with the
Machinists Union for a contract for our employees. In
this connection, I am aware of the fact that: There has
been an exchange of phone calls and letters between
Mr. Frank Oldham and a Mr. Marcaccio of the
Machinists Union regarding the bargaining for a
contract; the Company has provided Mr. Marcaccio
with the employment data for each employee as he
requested; the Company has received a letter setting
forth the names of the employees on the bargaining
committee; the Company has received a written
contract proposal from the Machinists Union, mailed
on February 11, 1970. During this period, Mr. Frank
Oldham had been conferring with the Company's labor
attorney, Mr. Richard L. Wolf; and they were in the
process of making preparations to commence negotia-
tions with the Machinists Union.
Notwithstanding the denial in the answer, I find that the
Union had requested, and at the time of the refusal to
exclusive of all office clericals, professional employees, guards, watchmen
and supervisors as defined by the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the
Act "
COCKER SAW COMPANY, INC. 895
bargain (described infra) was requesting, Respondent to
bargain collectively. Similarly, although the answer denies
that the Respondent refused to bargain with the Union, the
affidavit of March 20, referred to above, states that
Respondent has not bargained with the Union, and I so
find.3
General Counsel's case, in short, rests on the Union's
certification followed by its request to bargain and the
Company's refusal (at least after March 2) all occurring
within a period of 3 months. Manifestly this establishes a
prima facie case in support of the complaint.
B. The Defense Offered by Respondent
The following facts, set forth in the affidavit of
Respondent's president, are accepted as true for purposes
of this Decision. The affidavit states.
5. On February 27, 1970, Carl Sabey, an employee
of the Company, came to my office and asked to speak
with me. He showed me a paper which stated that "We
the undersigned do not wish to be represented by IAM
Union," and under which statement there were the
signatures of 44 of our employees. Mr. Sabey told me
that this was the signatures he had as of that time and
that they were in the process of getting the signatures of
the few employees who had not yet signed this petition.
I asked Mr. Sabey what had caused the employees to
sign this petition. As I recall, Mr. Sabey told me that the
employees decided that they didn't want the Machinists
Union to represent them because they didn't like the
way they had been treated by the Machinists Union
since the election. As I recall, his explanation was that
the employees felt that the Machinists Union had
ignored the employees after the election; would not let
the Company employees form their own local as they
thought they had been promised, but instead forced the
employees into a bigger local which included employees
of several other plants in the Lockport area; told our
employees that they would have to attend meetings of
the bigger local in Lockport; and when our employees
attended a couple of these meetings, they were told that
they could not vote or participate because they as yet
were not members of the union; failed to consult with
the people at our plant; and submitted a proposed
contract to our Company which was no more than the
contract from another plant in the area and that the
people had never tried to find out what our people
wanted in their contract. He also told me that. our
employees still wanted a union but that they were
planning to have a meeting of the employees to form
their own independent group which would act as a
union to represent all of our employees. I told Mr
Sabey that I didn't know what I could tell him about
this and that I would have to check the situation with
my attorneys.
6. On the following Monday, March 2, 1970, Mr.
Sabey again called on me at my office and informed me
that the employees had held a meeting the prior
afternoon and had formed their own union organiza-
tion, had elected officers and a bargaining committee,
and that they now wanted the Company to recognize
their union as the union which represented our
employees and that they wanted the Company to
bargain with their committee for a contract. Mr. Sabey
presented me with the minutes of the meeting of the
independent union which listed the names of the
employees who had attended the meeting. There were
22 names on the list. He also said that he was getting a
list to be signed by the employees who were unable to
attend the meeting but were in agreement with what had
been done at the meeting of the previous afternoon.
Confronted with this situation, Respondent on March 3
filed an RM petition (Case 3-RM-453), requesting an
election with the Union and "Cocker Saw Company
Employees" as participating unions. On the same date
Respondent filed a petition in Case 3-AC-11, requesting an
amendment to certification to change the name of the
bargaining representative from the Union to "Cocker Saw
Company Employees." While these petitions were pending
before the Regional Director, the Union on March 9 filed
the unfair labor practice charge initiating this proceeding.
On March 25 the Regional Director dismissed both
petitions. His letter of dismissal in the RM case recites that
the petition was untimely because it was filed within 12
months of the Union's certification. His Decision and
Order in the AC case recites that "careful investigation and
consideration have taken place" and concludes:
Amendment of the certification is not warranted
inasmuch as District 76 was certified as the bargaining
representative on December 19, 1969, and no election
may be held within a 12-month period under Section
9(c)(3). Since it appears that the Employer-Petitioner is
attempting to change the bargaining representative, the
request is for more than a mere change in the certified
bargaining representative's name. Further, there are no
circumstances present which constitute an exception to
the 12 month-bar rule heretofore mentioned.
Respondent requested the Board to review the action of
the Regional Director dismissing the RM and AC petitions.
In its statement to the Board Respondent set forth not only
all the facts heretofore set forth but also the additional facts
that the leader of the new independent had been the chief
steward designated by the Union, and that of the 41
employees on the Company's active payroll, 36 signed the
petition for the new independent and rejecting the Union.
On April 17 the Board by telegraphic order denied the
request to appeal "as lacking in merit."
Respondent before me renews the arguments it presented
to the Board, defending the refusal to bargain on the
ground that the Union had lost its status as bargaining
representative, and that the employees had changed their
affiliation so that they were now represented by another
bargaining agent.
C. Discussion
Orderly administrative procedure seems to require that I
accept the Board's characterization of Respondent's
3 Respondent' s counsel states in his motion that the Company fulfilled
its obligation to bargain with the Union "up to March 2. 1970"
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request to appeal in the RM and AC cases as "lacking in
merit." Respondent may seek to persuade the Board to
change that view, and it may press the issue on judicial
review, but it would be inappropriate for a Trial Examiner
to take a position contrary to the Board under the
circumstances of this case.4 Respondent's position is
preserved by my acceptance, for purposes of the instant
motion, of all the facts alleged in the affidavit as well as of
the additional facts stated in Respondent's prior appeal to
the Board.
In essence the issue presented here is whether the
circumstances related by Respondent suffice to take this
case out of the general scope of Ray Brooks v. N. L. R. B., 348
U.S. 96. The issue is not whether a new election can or
should be held (the Regional Director properly dismissed
the RM petition because no such election could be held at
that time), but whether the certification must be honored or
whether there are "unusual circumstances" (348 U S. at
98-99) justifying disregard of the certification. The Board
by finding no merit in the AC petition appears to have
upheld the Regional Director's determination that what is
involved here is an attempt to change the bargaining
representative, and not a mere change in that representa-
tive's name . I adhere to that view, not only because I regard
the determination as binding, but also because it appears to
be correct.
Many cases, Ray Brooks among them, present the
situation in which employees have apparently quickly
repented of their choice of bargaining representative. The
Board's longstanding position, sustained by the Supreme
Court in Ray Brooks, is that such defections cannot unseat a
bargaining representative within a year of its certification,
because the need for stability in industrial relations
outweighs for that period the countervailing principle of
self-determination. The rule is no different where the
defection is widespread or where it is led by erstwhile
leaders of the successful union.
The cases relied on by Respondent do not require a
different result. In Rocky Mountain Phosphates, Inc., 138
NLRB 292, the certified local formally dissolved within the
certification year and its treasury was transferred to
another labor organization which quickly attained majority
status. The Board, noting that the certified organization
had become defunct and was not "pressing a representative
claim," held that the employer was obligated to recognize
the newly elected organization. In Equipment Manufactur-
ing, Inc., 174 NLRB No. 74, the certified union, an
independent, voted to affiliate with the Steelworkers
approximately I month before the end of the certification
year, and the Steelworkers filed a petition to amend the
certification to substitute itself as the bargaining represent-
ative. All subsequent events, including the hearing and the
Board's decision amending the certification issued after the
certification year.
Both Rocky Mount and Equipment are distinguishable
here as there was no formal dissolution, merger, or
affiliation which terminated or changed the entity of the
certified representative. Respondent suggests that if the
Union had created a separate local to cover Respondent's
plant such a change of affiliation would have occurred. The
fact remains, however, that the employees voted in the
election to be represented by District 76, not by a local.
Their disaffection with their choice for the various reasons
set forth in the affidavit quoted above furnishes no "special
circumstances" warranting departure from the Ray Brooks
rule.
CONCLUSION OF LAW
By refusing on and after March 3, 1970, to bargain
collectively with the certified representative of its employ-
ees, Respondent has engaged in an unfair labor practice
affecting commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
THE REMEDY
Respondent urges that any bargaining order should
require bargaining only to the expiration of the certification
year. This would be manifestly improper as this litigation
may well continue beyond that date, and in any event the
Union has lost the benefit of its bargaining rights since
March. At best, Respondent might claim that as it
bargained in good faith for nearly 3 months, the
certification year should run for only the remaining 9 or 10
months after bargaining has resumed. Under all the
circumstances, I think it preferable to give the Union a full
year of uninterrupted opportunity to bargain, as the period
between the certification and the rupture was not
sufficiently long to permit the bargaining relationship to get
fairly under way.
Respondent also urges that the "notice to employees"
customarily required as part of the remedy for an unfair
labor practice should include language which notifies the
employees of their right to file a decertification petition.
Although Respondent states that such language is
"mandated" by the decision in N.L.R.B. v. Patent Trader,
Inc., 426 F.2d 791 (C.A. 2) the court in that case merely
"suggests" such a notice. The court in support of its
suggestion cites N.L.R.B. v. Priced-Less Discount Foods,
Inc., 405 F.2d 67, 407 F.2d 1125 (C.A. 6), where the court
required such a notice but did not have the problem of
phrasing it to allow for the "certification year." It must be
remembered also that the instant case is before me on the
pleadings, and the allegations that Respondent bargained
in good faith for 2 or 3 months, and that it in no way
stimulated the antiunion movement, are accepted as facts
for purposes of the motion because General Counsel
regards them as irrelevant. Considering all aspects of the
matter, however, I am recommending inclusion in the
notice of language patterned after that prescribed by the
Sixth Circuit. If General Counsel or Charging Party regard
this language as objectionable, either or both may raise the
issue by appropriate exception.
[Recommended order omitted from publication.]
4 Notwithstanding that broad generalization, I must add that if the Employer was seeking to change the bargaining representative, and not
Regional Director had relied solely on the I-year rule in dismissing the AC merely to change the representative's name This ground is not so
case, I would regard this as such patent error as to justify not adhering to insubstantial as tojustify my differing from it after the Board has sustained
the ruling But the order of dismissal also rests on the ground that the it