Druwhit Metal Products Co.

National Labor Relations Board - Board Decisions

Jun 23, 1965

153 N.L.R.B. 346 (N.L.R.B. 1965)

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but excluding all employees working in the radio and television, appli-
ance, furniture, and floor covering workrooms and fur storage vaults,
invoice clerks and other office clerical employees,14 cafeteria employees,
nurse-photocopier, vehicle mechanics and their helpers, drivers and
helpers, electricians and carpenters and their helpers, watchmen,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
14 The parties stipulated at the hearing that the secretary to Superintendent Kelly is
an office clerical employee
Druwhit Metal Products Company; A .J. Architectural Prod-
ucts; Fletcher Aviation Company; and A.J. Industries, Inc.
and Paul Pershing . Case No. f1-CA-5359. June 23, 1965
DECISION AND ORDER
On October 26, 1964, Trial Examiner Howard Myers issued his
Decision in the above-entitled proceeding, finding that Druwhit Metal
Products Company, A.J. Architectural Products, Fletcher Aviation
Company, and A.J. Industries, Inc., herein called the Respondent, had
engaged in certain unfair labor practices, and recommending that they
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 Trial Examiner's Decision and a
supporting brief. The General Counsel filed exceptions and an answer-
ing brief, and the Charging Party filed a reply brief.
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 [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
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 exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent
herewith.
The interrelationship of the Respondent Corporations is as follows:
A.J. Industries, Inc., is a holding company which wholly owns, inter
alia, Druwhit Metal Products Company and Fletcher Aviation Com-
pany. A.J. Architectural Products is a division of Fletcher Aviation.
For several years prior to 1963, Druwhit produced, as part of its busi-
ness, certain aluminum curtainwall products. Because the aluminum
153 NLRB No. 35.
DRUWHIT METAL PRODUCTS COMPANY, ETC. 347
operations at Druwhit had been operating at a loss for several years,
the board of directors of A.J. Industries voted, late in 1962, to permit
Fletcher to purchase the aluminum operation from Druwhit on the
assumption that Fletcher could make the operation profitable because
of its experience in the field.
The Trial Examiner found that the Respondent violated Section
8(a) (5) of the Act because it did not bargain with the Union 1 with
regard to the sale of Druwhit's aluminum operation to Fletcher. In
making that finding, the Trial Examiner found that section 6 (A) of
the contract between Druwhit and the Union did not constitute a
waiver of the right to negotiate over the decision to sell the aluminum
operation, and on the further conclusion that the failure to negotiate
was a part of Druwhit's overall attempt to conceal the impending sale
from the Union.
In Ador Corporation 2 we found that section 6 (A) of the Union's
contract, a clause identical to that contained in the present case, effec-
tively waived the Union's right to bargain over the decision to discon-
tinue a phase of the Company's operation. As no obligation to bar-
gain existed, the withholding of information concerning the impend-
ing sale did not constitute a violation of Section 8(a) (5). For the
reasons fully stated in Ador, we conclude that the Respondent here did
not violate Section 8(a) (5) by its failure to bargain with the Union
or by its withholding of information from the Union concerning the
sale .,3
The Trial Examiner also found that the Respondent violated Sec-
tion 8(a) (3) because it failed to inform the Union of the impending
sale, and the sale was motivated, at least in part, by its desire to avoid
employing members of the Union at Fletcher. We have already found
that Druwhit was under no obligation to bargain with the Union
about the sale. We further find that the evidence does not support the
finding that the sale was, in part, discriminatorily motivated.
Prior to the sale, Derlachter, vice president of Fletcher, met with
the representatives of the AIW,4 the labor organization representing
Fletcher's employees. At that meeting, Derlachter told the AIW rep-
resentatives of the impending purchase of Druwhit's aluminum opera-
tions by Fletcher. He also told them that he did not want two unions
at Fletcher, and that he had been advised that the way to avoid that
situation was not to hire any Druwhit employees at Fletcher. The
I Shopmen 's Local Union No 509 , International Association of Bridge , Structural and
Ornamental Iron Workers, APL-CIO, the representative of the employees at Druwhit
21,50 NLRB 1658
'In view of our rejection of the Trial Examiner ' s findings that the Respondent violated
Section 8 ( a) (5), we deem it unnecessary to decide or pass on the Trial Examiner's sub-
sidiary finding that an appropriate unit consisted of certain employees of Druwhit and
Architectural
4Amalgamated Local No. 990 , International Union of Allied Industrial Workers of
America, AFL-CIO, herein called AIW
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement made by Derlachter to AIW representatives at Fletcher,
and Fletcher's subsequent refusal to hire former Druwhit employees,
do not, however, justify the conclusion that Druwhit's decision to sell
its aluminum operations to Fletcher was discriminatorily motivated.
To the contrary, the record shows that the aluminum operation was
unprofitable and was a prime factor in Druwhit's unhealthy financial
position prior to the sale. In view of the undisputed fact that economic
motivation for the sale existed, and the satisfactory bargaining rela-
tionship which had existed and exists today between the Union and
Druwhit, we cannot agree that the sale of the aluminum operation was
in any degree discriminatorily motivated.
However, as noted previously, Derlachter did in fact state that
Fletcher could "avoid the problem" of two unions by not hiring any
former Druwhit employees. For such employees, Jackson, Scrima,
Rivers, and Tafoya, did apply for employment at Fletcher within a
week of their termination by Druwhit and were refused employment.
The record indicates that at the time he interviewed them, Cordell,
Fletcher's personnel manager, was aware that Jackson and Scrima
were former Druwhit employees, and in fact, had been good workers
at Druwhit.5 Notwithstanding the fact that the four applied the same
week that the aluminum operation was being set up at Fletcher, and as
former Druwhit employees had experience in the aluminum operation,
Cordell nevertheless did not hire them although commenting on their
prior employment at Druwhit. However, he did thereafter hire some
29 employees between that time and June 1963. In view of their timely
applications, their past experience. Cordell's awareness of their work
records, and their prior affiliation with the Union, the hiring of 29 new
employees subsequent to their application, and Derlachter's earlier
statement concerning the advisability of not hiring former Druwhit
employees to avoid having two unions, we conclude that Jackson,
Scrima, Rivers, and Tafoya were denied employment at Fletcher
because of their membership in the Union at Druwhit.
Three former Druwhit employees, Pershing, Perea, and Saavedra,
filed written applications for employment at Fletcher some months
after their termination at Druwhit. The applications were filed despite
the fact that they were told by the receptionist at the Fletcher office
that no jobs were available and the company was not accepting appli-
cations. As a consequence, they were not interviewed by Cordell. The
record indicates that approximately 2,500 applications for employ-
ment were made to Fletcher from January to June 1963. In view of
these facts, it appears that these three former Druwhit employees were
not hired for nondiscriminatory considerations; namely, Fletcher was
5 The record does not indicate the work performance of Rivers and Tafoya As they
were terminated with the entire complement of employees when the sale was made, their
work performance was presumably satisfactory
DRUWHIT METAL PRODUCTS COMPANY, ETC. 349
not accepting applications at that time because of the huge number of
applicants who preceded them. Therefore, Cordell, who did the hir-
ing, had no occasion to implement the Company's discriminatory hir-
ing policy as to them.
Ten of the seventeen former Druwhit employees did not apply to
Fletcher for employment at any time. While it is probable that had
these 10 applied shortly after their termination at Druwhit they would
have been discriminatorily denied employment, there is nothing in the
record to indicate they had any interest in being employed at Fletcher
or that they did not apply because they were aware of any discrimina-
tory hiring policy. It would be inequitable, therefore, to require either
reinstatement or backpay for such employees absent evidence they
were available and did in fact attempt to secure employment at
Fletcher.
THE REMEDY
Having found that the Respondent violated Section 8(a) (3) and
(1) of the Act by refusing to hire Jackson, Scrima, Rivers, and Tafoya
because of their union affiliation, we will order that they be given
employment at Fletcher Aviation and that they be made whole for the
losses suffered by them as a result of the Respondent's discriminatory
actions. Backpay is to be computed and paid in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB 289,
together thereon at the rate of 6 percent per annum, as set forth in
Isis Plumbing c0 Heating Co., 138 NLRB 716. As the record does not
establish the exact dates such employees would have been hired absent
the discrimination against them, such determination will be left to
compliance proceedings.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
the Respondent, Druwhit Metal Products Company, A.J. Architec-
tural Products, Fletcher Aviation Company, and A.J. Industries, Inc.,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to employ any person making full and proper appli-
cation for employment because of such person's affiliation, or former
affiliation, with Druwhit Metal Products and Shopmen's Local Union
No. 509, International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO.
(b) In any like or related manner interfering with, restraining, or
coercing its employees or prospective employees in the exercise of their
rights to self-organization, to form labor organizations, to join or assist
Shopmen's Local Union No. 509, International Association of Bridge,
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Structural and Ornamental Iron Workers, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in any other concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from engaging in any such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-Manage-
nlent Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the
policies of the Act:
(a) Offer to Robert J. Jackson, Frank Scrima, Robert Rivers, and
Ray Tafoya employment at Fletcher Aviation Company at a wage
scale and with the same seniority and other rights as if they had been
hired by Fletcher after they made application for employment, and
make each of them whole as provided for in the section of this Deci-
sion entitled "The Remedy."
(b) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to employment upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all employment records, social
security payment records, payroll records, and other records in their
respective possessions necessary, or useful, to determine the amount
of backpay due and the rights of employment under the terms of this
Order.
(d) Post at the plants of Druwhit Metal Products Company and
Fletcher Aviation Company copies of the attached notice marked
"Appendix.`* 6 Copies of said notice, to be furnished by the Regional
Director for Region 21, shall, after being duly signed by their respec-
tive authorized agents, be posted immediately upon receipt thereof,
and be maintained by them for 60 consecutive days thereafter, in con-
spicuous places in their respective plants where notices to their employ-
ees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order "
DRUWHIT METAL PRODUCTS COMPANY, ETC. 351
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges violations of Section 8(a) (5), (3), and (1) not found herein.
MEMBER BROWN, dissenting in part :
I dissent from my colleagues' failure to find a violation of the Act
in the discharge of the 17 Druwhit employees.
As found by the Trial Examiner and my colleagues, Druwhit and
Fletcher, together with A.J., are a single employer in this case. At
a meeting of A.J.'s board of directors, a plan suggested by Derlachter,
a vice president of A.J. and Druwhit and the operating head of
Fletcher, was approved calling for the acquisition by Fletcher of Dru-
whit's aluminum operation. This plan was executed by the parties
involved and Druwhit's aluminum operation was moved to premises
leased by Fletcher to house it. Upon transfer, 17 employees employed
by Druwhit in its aluminum operation were discharged; their work
was assigned to others. The reason for the discharge of these employ-
ees is to be found in the following testimony, reported in the Trial
Examiner's Decision, of a conversation between Fletcher officials and
representatives of the union representing Fletcher employees : 7
A. Todd Derlachter, stating that they were looking down the
road for future business and that they had purchased the alumi-
num division of Druwhit, and that they had leased two buildings
on Potrero . ... He says, "Now this is the problem, this coin-
pany that we purchased has a union and we sure as hell don't want
two unions," and like I said before, I said, "Well, I thought you
were going to say you didn't want any union."
He said, "No, we have had legal advice; we find that we can get
away from this problem by completely dismissing all the employ-
ees; not hiring any of them."
These facts make it plain that, upon a centrally directed rearrange-
ment of operations between divisions of a company agreed to by all
concerned, it was deemed advisable, for reasons which cannot justify
the action, to discharge 17 employees because of their union affiliation.
This is a clear violation of Section 8 (a) (3) of the Act.
7 Druwhit' s employees were represented by a different union
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT refuse to employ any person making full and
proper application for employment because of such person's affili-
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ation, or former affiliation, with Druwhit Metal Products and
Shopmen's Local Union No. 509, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO.
WE WILL offer to Robert J. Jackson, Frank Scrima, Robert
Rovers, and Ray Tafoya employment at Fletcher Aviation Com-
pany at a Wage scale and with the same seniority and other rights
as if they had been hired by Fletcher Aviation after they made
application for employment.
WE WILL make Whole Robert J. Jackson, Frank Scrima, Robert
Rivers, and Ray Tafoya for the discrimination practiced against
them by our refusal to employ them at Fletcher Aviation
Company.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees or prospective employees in the
exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Shopmen's Local No. 509, International
Association of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in any other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
DRUWIIIT METAL PRODUCTS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
A.J. ARCHITECTURAL PRODUCTS,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
FLETCHER AVIATION COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
A.J. INDUSTRIES. INC.,
Employer.
Dated----------------- By-------------------------------------
(Repr,•s(,ntative) (Title)
DRUWHIT METAL PRODUCTS COMPANY, ETC. 353
NoTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right to
employment upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948, as
amended, after their 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.
If employees have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 849 South Broadway, Los Angeles, California, Tele-
phone No. 688-5229.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges duly filed by Paul Pershing,' the General Counsel of the National
Labor Relations Board, herein respectively called the General Counsel 2 and the
Board, through the Regional Director for Region 21 (Los Angeles , California),
issued an amended complaint , dated January 22, 1964,3 against Druwhit Metal Prod-
ucts Company, herein called Druwhit, A.J. Architectural Products, herein called
Architectural, Fletcher Aviation Company, herein called Fletcher, and A.J Industries,
herein called A.J., alleging that Respondent 4 has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8(a)
(1),(3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as
amended from time to time , 61 Stat. 136 , herein called the Act.
Copies of the charges , the complaints , and notices of hearing were duly served
upon Respondents and copies of the complaints and notices of hearing were duly
served upon Pershing.
Specificially , the amended complaint, as amended at the hearing , alleges that (1)
On or about August 1, 1961, Druwhit and Shopmen's Local Union No 509, Interna-
tional Association of Bridge, Structural and Ornamental Workers, AFL-CIO, herein
called the Union , entered into a union-shop collective-bargaining agreement cover-
ing the employees of Druwhit in a certain appropriate unit; (2 ) said agreement was
to be effective until May 31 , 1963 , ( 3) at all times material the Union was, and still
is, the duly selected and designated collective -bargaining representative of Druwhit's
employees covered by the aforesaid agreement ; ( 4) since on or about January 28,
1963, the Union has been requesting Respondent to bargain collectively with it as
the exclusive collective -bargaining representative of all the employees in the appro-
priate unit (including Architectural 's maintenance and production employees) with
respect to rates of pay , wages , hours of employment , and other conditions of employ-
ment ; ( 5) in January 1963, A.J ., without prior notice to or consultation with the
Union, transferred the assets of Druwhit 's aluminum operations to Fletcher; (6) in
January 1963 , without prior notice to or consultation with the Union , Respondent
organized Architectural as an operating division and transferred the aforementioned
Druwhit aluminum production assets from Fletcher to Architectural ; ( 7) in January
1963, as a result of the above-referred - to transfer, Druwhit, without prior notice to
or consultation with the Union , ceased its aluminum operations ; ( 8) on or about
January 28 , 1963, Respondent , without prior notice to or consultation with the
Union and in order to avoid its obligation under aforesaid Druwhit-Union collective-
1 The original charge was duly filed on May 22 , 1963 , the first amended charge was
duly filed on September 24, 1963 , and the second amended charge was duly filed on
December 19, 1963
2 This term specifically includes counsel for the General Counsel appearing at the
hearing.
3 The original complaint , which was received in evidence as General Counsel 's Exhibit
No. 1(e ), is dated October 7, 1963
Conjointly Druwhit. Architectural, Fletcher, and A J are herein called Respondent
79 6-02 7-6 G-v o f 15 3-2 4
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining contract, discharged 17 named employees of Druwhit, all of whom were
within the unit described in said Druwhit-Union contract, (9) since the discharge of
the said 17 named employees Respondent has refused to reinstate them at either
Druwhit or Architectural because of their membership in the Union; and (10) since
on or about January 28, 1963, Respondent has refused to recognize the Union or to
bargain collectively with it as the exclusive collective-bargaining representative of all
Architectural production and maintenance employees.
On January 31, 1964, Respondent duly filed an answer to the amended complaint,
denying the commission of the unfair labor practices alleged. 5
Pursuant to due notice, a hearing was held at Los Angeles, California, between
February 10 and 20, 1964, before Trial Examiner Howard Myers. All parties were
represented by counsel and participated in the hearing. Full and complete oppor-
tunity was afforded the parties to be heard, to examine and cross-examine witnesses,
to introduce evidence pertinent to the issues, to argue orally on the record at the con-
clusion of the taking of the evidence, and to file briefs on or before March 13, 1964.6
Each party filed a brief. Said briefs have been carefully considered.
At the conclusion of the taking of the evidence, Respondent's counsel renewed the
various motions to dismiss the amended complaint which they had made at the begin-
ning of the hearing and at the close of the General Counsel's case-in-chief. Decisions
on said motions were reserved. The motions are now disposed of in accordance with
the findings, conclusions, and recommendations hereinafter set forth.?
Upon the entire record in the case and from my observation of the witnesses, I
make the following-
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
A.J , a West Virginia corporation, is a holding company doing business through its
various subsidiaries and divisions which are engaged in, among other things, the
fabrication, manufacture, and sale of aluminum, steel, and airplane components.
A.J.'s officers and directors are, and during all times material were, C. J. Ver Halen,
Jr., president and director; Edward J. Sargent, vice president and director; Robert C
Hill, vice president and director; George T. Fox, vice president and director; Todd
Derlachter, a vice president; 8 and J. J. Brandlin, secretary and director.
Fletcher, which prior to April 1, 1963, was known as Fletcher Aviation Company
but since said date is known as Sargent-Fletcher Company, is a division of A J. and
is engaged in the manufacture and sale of aviation components. During 1963 Fletcher
performed services valued in excess of $7 million for the United States Air Force,
United States Navy, and the United States Corps of Engineers.
During the 12-month period immediately preceding October 7, 1963, (the date of
the issuance of the original complaint herein), Fletcher shipped from its California
plant finished products valued in excess of $50,000 to points located outside the State
of California.
Todd Derlachter, a vice president of A J. and also of Druwhit, is Fletcher's operat-
ing head and, as such, reports directly to Ver Halen, president of A.J.
c Respondent ' s answer to the original complaint was duly filed on October 30 , 1963, and
was received in evidence as General Counsel 's Exhibit No. 10).
O At the request of Respondent 's counsel the time to file briefs was extended to
April 10, 1964.
7 After the close of the hearing, the General Counsel filed a motion to correct certain
inaccuracies appearing in the stenographic transcript of the hearing. The motion is
hereby granted and the motion papers , copies of which have been duly served upon Re-
spondent 's counsel and upon counsel for the Charging Party, are received in evidence as
Trial Examiner 's Exhibit No. 1.
On March 4 , 1964, the General Counsel filed a stipulation signed by counsel for each
party wherein the parties stipulated that the General Counsel may withdraw the photostat
copy of the union membership book of Robert Carroll Jackson , Jr. which was received
in evidence as General Counsel ' s Exhibit No. 19 and substituted In lieu thereof a photo-
stat copy of the union membership book of Robert Jackson The stipulation also pro-
vided that the General Counsel may withdraw the union membership book of Alejandro
Marquez Trujillo , which was received in evidence as General Counsel ' s Exhibit No 27
and substitute in lieu thereof a photostat copy of the union membership book of D. S
Trujillo . The stipulation is hereby approved
s Although officially not an elected vice pi esident of A J , Derlachter assumed that
title for business reasons.
DRUWHIT METAL PRODUCTS COMPANY, ETC. 355
Druwhit , a Nevada corporation , is a wholly owned subsidiary of A.J , and is
engaged in the manufacture and sale of metal sash and other steel products. At all
times material Druwhit has been under the management of Glenn G. Whitaker, an
A.J. employee . Whitaker was appointed general manager of Druwhit by Ver Halen
and reports directly to Ver Halen.
Druwhit's officers and board of directors are, and at all times material were:
Ver Halen , president and director ; Wendell Fletcher , vice president and director,
J. J. Brandlin , secretary and director ; Derlachter , vice president , treasurer , and direc-
tor, Joseph Malone, assistant treasurer and director ; Sargent, a director ; and Hill,
a director.
During the 12-month period immediately preceding the issuance of the original
complaint herein, Druwhit shipped finished products valued in excess of $50,000 from
its Los Angeles , California , plant to points located outside the State of California.
Architectural was established by A.J. in January 1963 for the sole purpose of con-
ducting certain aluminum operations then being performed by Druwhit . Derlachter
is, and during all times material has been , Architectural 's operating head. Howard
Cordell , Fletcher's personnel manager, is , and during all times material has been,
responsible for the hiring of Architectural 's employees . Architectural 's top mana-
gerial personnel reports, through Fletcher , to A.J. In addition , Architectural's top
supervisory staff is composed of the same persons who were Druwhit's top supervisors
at the time Architectural was formed.
Ver Halen , the president of A J . and of each of the above -named subsidiaries,
appoints the managerial personnel of each subsidiary , and these persons report
directly to him. In addition , Ver Halen , on behalf of Druwhit, signed the aforemen-
tioned 1961-63 Druwhit-Union collective -bargaining contract and Derlachter, vice
president of both A.J. and Druwhit, signed , on behalf of Fletcher, a collective-bar-
gaining agreement , dated May 11, 1962, between Fletcher and Amalgamated Local
No 990, International Union of Allied Industrial Workers of America , AFL-CIO,
herein called AIW.
Upon the basis of the above facts, I find that Druwhit, A . J., Fletcher, and Archi-
tectural constitute a single integrated business enterprise and, as such , it is, for the
purpose of this proceeding , a single employer within the meaning of the Act
I further find, in line with established Board authority , that Respondent is engaged
in, and during all times material has been engaged in , a business affecting commerce
within the meaning of Section 2(6) and ( 7) of the Act , and that its business opera-
tions meet the standards fixed by the Board for the assertion of jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
The Union and AIW are labor organizations admitting to membership employees
of the Respondent
A. Prefatory statement
The amended complaint , as amended at the hearing, alleges , the answer to the
amended complaint, as amended , denies, and upon the entire record in the case
I find that all production and maintenance employees of Druwhit and Architectural
engaged in the fabrication of iron, steel , and metal products ; or in maintenance work
in or about the Los Angeles, California plants of Druwhit and Architectural , exclud-
ing office and clerical employees , draftsmen , engineering employees , employees
engaged in erection , installation , or construction work, watchmen , guards, and super-
visors as defined in the Act, at all times material constituted , and now constitute, a
unit appropriate for the purposes of collective bargaining , within the meaning of
Section 9(b) of the Act, with respect to grievances , labor disputes , rates of pay,
wages, hours of employment , and other conditions of employment . I further find
that said unit insures to said employees the full benefit of their right to self-organiza-
tion, to collective bargaining , and otherwise effectuates the policies of the Act.
Uncontroverted credited evidence clearly establishes that at all times material the
Union was, and still is, the exclusive collective -bargaining representative of the
majority of the employees in the unit hereinabove found appropriate . Accordingly,
pursuant to Section 9(a) of the Act , the Union was at all times material , and still is,
the exclusive collective -bargaining representative of all the employees in said appro-
priate unit for the purposes of collective bargaining with respect to grievances, labor
disputes , rates of pay , wages, hours of employment, and other conditions of
employment.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The pertinent facts9
For the alleged reason that Druwhit's aluminum operations had been for a long
time financially unprofitable, Ver Halen, in the fall of 1962, asked Derlachter to
find some solution whereby Druwhit could rectify this unhealthy financial condition.
Derlachter suggested to Ver Halen that Fletcher purchase the aluminum portion of
Druwhit because of Fletcher's "know-how" of fabricating aluminum.
In either November or December 1962, the board of directors of A J. approved
Derlachter's suggestion, referred to immediately above, and Ver Halen then notified
Derlachter, by letter, that the board of directors of A.J. had approved the acquisition
by Fletcher of Druwhifs aluminum operations.
Early in January 1963 10 Derlachter, after informing Dave Carey, Druwhit's sales
manager, Glenn Whitaker, Druwhit's general manager, and Clayton Blum, Fletcher's
treasurer, of A.J 's decision to have Fletcher purchase Druwhit's aluminum opera-
tions, the four of them decided that, to quote from Derlachter's testimony, "the equip-
ment would be moved with the least possible waste of time and money, preferably
over a week-end to a location which we had leased in the meantime; and that we
hoped to, we targeted the date of February 1st" to complete the move
Either over the weekend of January 19 and 20 or over the weekend of January 26
and 27, all the tools, equipment, inventory, and everything else necessary for fabri-
cating Druwhit's aluminum was moved, under the supervision of Lawrence McHenry,
Fletcher's control manager, to the recently leased Fletcher premises.1'
In the latter part of December 1962 or early in January 1963, Derlachter and
Howard Cordell, Fletcher's personnel manager, met in Fletcher's conference room
with George Grisham, the secretary-treasurer of AIW, the statutory representative of
all Fletcher's employees in the unit found by the Board to be appropriate, and four
members of the AIW bargaining committee.12
Regarding the meeting referred to immediately above, Martin credibly testified,
under questioning by Respondent's counsel, as follows:
Q. Tell me what happened at the meeting The meeting took place, you said,
in the conference room at Fletcher. Now give me the sequence of events.
You seem to remember the times and the events pretty well.
A. He started out-
Q. Who is "he"?
A Todd Derlachter, stating that they were looking down the road for future
business and that they had purchased the aluminum division of Druwhit, and that
they had leased two buildings on Potrero, and I believe it was a six-months lease
and then after that, if they didn't have facilities built on the present property that
it is now on, over at Fletcher Aviation, that they were going to lease the property
on a month-to-month basis.
He says, "Now this is the problem, this company that we purchased has a
union and we sure as hell don't want two unions," and like I said before, I said,
"Well, I thought you were going to say you didn't want any union "
He said, "No, we have had legal advice, we find that we can get away from this
problem by completely dismissing all the employees; not hiring any of them "
In fact, he did mention that they were going to bring just three employees
and-
9 In the light of my observation of the conduct and deportment at the hearing of all the
persons who testified herein, and after a very careful scrutiny of the entire record, all
of which has been carefully read and parts of which have been reread and rechecked
several times, and being mindful of the contentions of the parties with respect to the
credibility problems here involved, of the fact that in many instances testimony was
given regarding events which took place many months prior to the opening of the hear-
ing, and of the fact that very strong feelings have been generated by the circumstances
of this case, coupled with the fact that it would unnecessarily protract this Decision to
summarize all the testimony or to spell out fully the confusion and inconsistencies therein,
the following is a composite picture of all the factual issues involved and the conclusions
based thereon The parties may be assured that in reaching all solutions, findings, and
conclusions herein, the record as a whole has been carefully considered; relevant cases
have been studied ; and each contention advanced has been weighed, even though not
specifically discussed
10 Unless otherwise noted, all dates hereinafter mentioned refer to 1963.
11 Prior to the so-called "big move" some inventory and small tools were moved to the
aforesaid location
12 Robert Blockburger, Robert Klein, Richard Martin, William Armstrong
DRUWHIT METAL PRODUCTS COMPANY, ETC. 357
Q. Did he name them?
A. I don't believe he did at that time.
He said just by occupation, I believe.
Q. How did he describe them?
A. An engineer, and a draftsman and the plant superintendent, I think he said.
Q. Anything else?
A. No.
Q. What happened, everybody just got up and walked out of the room?
A. No. He said both parties would have to lean toward trying to resolve the
wages; that they couldn't afford to pay the wages that were presently being paid
at Druwhit and couldn't afford to pay the wages that were being paid at Fletchei
Aviation.
Then he said after they got rolling we would sit down and discuss the wages.
Q. Did you say anything else?
A. No.13
Although, as found above, Derlachter had notified the bargaining committee and
the secretary-treasurer of AIW, in late December 1962 or early January 1963, that
Fletcher would acquire Druwhit's aluminum operations, it was not until Thursday,
January 24, that Respondent informed Druwhit employees of the impending change
On that date Druwhit's General Manager Whitaker posted the following notice on the
plant's bulletin board:
NOTICE
Druwhit Metal Products Company regrets to advise you that, after the close
of business Monday, January 28, 1963, it will no longer engage in the fabrication
of aluminum products. Therefore, it is necessary to terminate those employees
connected with this operation. Such termination will be effective at the close of
business Monday, January 28, 1963. Druwhit Metal Products will, however,
continue to fabricate steel products as it has in the past and employees engaged in
this operation will not be affected by this termination notice.
Under date of January 24 Whitaker sent the Union a copy of the notice referred to
in the preceding paragraph This notice, which was the first and only notification
Respondent gave the Union of its decision to discontinue Druwhit's aluminum opera-
tions, was received by the Union on Monday, January 28, the day Respondent termi-
nated the 17 persons then employed in Druwhit's aluminum fabrication department.
Robert J. Jackson credibly testified that He was first employed by Druwhit in
May 1960, and at the time of his termination by Druwhit he was a member of Local
509, on January 22, because he had heard certain rumors in the plant that the
Druwhit aluminum operations were going to be transferred to Fletcher, he spoke to
Marvin Budgett, a Druwhit foreman. and asked Budgett whether the Fletcher people
were going to hire men upon the acquisition by Fletcher of Druwhit's aluminum
operations; Budgett advised him to go to Fletcher and apply there for a job; the first
time he actually knew that the Druwhit aluminum operations were to be terminated
was when he read the notice on the bulletin board on January 24; on January 28
he was terminated by Druwhit; on the afternoon of January 29 he, accompanied
by Robert Rivers and Roy Tafoys, two Druwhit aluminum fabrication department
employees, went to the employment office of Fletcher, they asked the young lady in
Fletcher's employment office for employment application forms; they filled out the
i3 Martin's testimony, in the main, is corroborated by the credited testimony of Block-
burger, Klein, and Armstrong Derlachter's and Cordell's versions of what was said and
what occurred at this meeting are at great variance with that of the four named com-
mittee members When questioned by Respondent's counsel regarding the statements the
four named committee members testified that Derlachter made at the aforementioned
meeting, Grisham repeatedly replied, "I did not hear him say that." In view of the
fact that -Martin, Blockburger, Klein, and Armstrong each impressed me as being a
person who is careful with the truth and meticulous in not enlarging his testimony
beyond his actual memory of what was said and what occurred, while, on the other
hand, Cordell, Derlachter, and Grisham each gave me the distinct impression that he
was studiously attempting to conform his testimony to what he believed to be to the
best interest of Respondent, I find that Martin's version of what was said and what
occurred at the aforementioned meeting to be substantially in accord with the facts
In its brief, Respondent argued that Martin's testimony should be disregarded because
"Martin was obviously a hostile witness who is presently engaged in a grievance pro-
ceeding with Fletcher pertaining to his layoff He is also the leader in a movement to
oust [AIW] from the Fletcher plant. " As found above, Martin impressed me as
a truthful witness and hence his testimony is credited
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applications and handed them to the young lady who then advised them to have seats
and wait for Cordell to interview them; shortly thereafter the three of them were
called into Cordell's office and, in their presence, Cordell examined their applications;
Cordell then told them that he would let them know when Fletcher would commence
hiring, and they thereupon left Cordell's office
Jackson further credibly testified that. On May 7 he went to the newly leased
premises of Fletcher and there spoke to William C. Williams 14 and to Budgett, 15 he
asked Williams about securing a job and Williams replied that he, Williams, had an
order in with the employment office for experienced sashmen, and then advised him to
go to the personnel manager and say that he, Williams, had sent him, he went to the
Fletcher employment office and saw the young lady there and informed her that he
had been sent by Williams to apply for a job; the young lady got out his application
and asked him to sit down and wait for Cordell to come because he was not in the
office at that time; when Cordell came, he was usheied into Cordell's office and after
Cordell had examined his application for employment, remarked, to quote from
Jackson's credible testimony, "Oh, you worked at Druwhit .. . Mr Williams has
no order for experienced sash men here and we have men laid off that we will have
to put back to work first", he left Cordell's office and returned to where Wilhanis was
working, and told Williams what Cordell had said, that he, Williams, didn't have any
"order for experienced sash men"; and Williams said, to further quote from Jackson's
credible testimony, "Well, I'll straighten it out, . you know that A.J Industries
and Fletcher owns [sic] Druwhit and they are having a little union trouble", 16
Williams then asked him to leave his addiess and phone number, adding that he
would call him; and he did as Williams suggested and then left. Williams never
called Jackson nor was Jackson hired by Fletcher or rehired by Druwhit 17
Frank Scrima credibly testified that* He first started to work at Druwhit in July
1959, and he was terminated on January 28, during all his employment with Druwhit
he was classified as steel straightener; the first time he knew he was to be terminated
was when he read the notice of January 24, which was placed on Druwhit's bulletin
board; at the time of his termination on January 28, he was a union member; on or
about January 30 he went to Fletcher and saw Budgett who asked him whether he
wanted to go to work; when he replied in the affirmative, Budgett told him to go to
Fletcher's personnel office and make application for employment, when he got to
Fletcher's personnel office, he informed the young lady that he wanted to make appli-
cation for employment and that Budgett had sent him, after filling out the application
form which the young lady had given him, she instructed him to wait there to be
interviewed; he was interviewed by Cordell who stated, after examining the applica-
tion form and certain Fletcher files, that there were "older employees there that had
to be hired first before I was hired." adding, "I see you are a good worker." Nonethe-
less, Scrima was not hired by Fletcher, nor was he rehired by Druwhit.
Concluding Findings
It is undisputed that the Union was during all times material the statutory collective-
bargaining representative of the employees here involved It thus follows that any
change by Respondent in the terms and conditions of employment of these employees
without prior notice to, or consultation with, the Union constitutes a refusal to bar-
gain within the meaning of Section 8(a) (5) and (1) of the Act.
Respondent takes the position that the determination to sell the Druwhit aluminum
operations to Fletcher and to terminate the Druwhit aluminum operators was not
violative of the Act because (1) such acts and conduct were a matter of managerial
prerogatives, (2) under the provisions of the contract between Druwhit and the
Union, Druwhit was privileged to unilaterally sell its business; and (3) the Union, if it
felt aggrieved by the aforesaid act and conduct, Druwhit should have invoked the
grievance procedure of the aforementioned bargaining agreement.
"Williams was the former production superintendent of Druwhit 's aluminum opera-
tions and when Druwhit ceased its aluminum operations , Williams was terminated. How-
ever, on the following day Williams was hired by Fletcher as its production superintendent
and he held that position on May 7.
la Budgett was a former foreman in Druwhit's aluminum fabrication department, and
was such on January 22 , when Jackson spoke to him about the rumors that the aluminum
operations were to be acquired by Fletcher . At the time Jackson spoke to Williams and
Budgett at the Fletcher plant, Budgett was shop foreman thereat.
19 Williams testified but he was not questioned about this incident
17 Neither Rivers nor Tafoya was hired by Fletcher nor was either rehired by Druwhit.
DRUWHIT METAL PRODUCTS COMPANY, ETC. 359
As to (1), controlling law is basically as the Tenth Circuit pointed out in N.L.R.B.
v. Brown-Dunkin Company, Inc., 287 F. 2d 17, regarding a case very similar to the
instant one;
The contention i,- also made that the respondent did not deny the Union the
right to bargain concerning the terms and conditions of employment in violation
of Section 8(a) (5). The unassailed facts are, however, to the contrary. While
the Union appears to have had some intimation of the impending Anderson-
Rooney contract, it was not until the morning of the effective date of the contract
that the Union learned it had been consummated. And this information was
obtained through the employees, not the employer. Under no stretch of the
imagination can it be said that these circumstances gave the Union a fair oppor-
tunity to bargain with respondent about not subcontiacting the work, of with
Anderson-Rooney concerning the conditions of the new employment . This is
not to say that the Union must first approve before an employer may contract
out work, but it is to say that reasonable notice and a chance to bargain must
be afforded before an employer enters into a contract affecting the hire or tenure
of the Union workers' employment. This is so because "Such unilateral action
minimizes the influence of organized bargaining. It interferes with the right of
self-organization by emphasizing to the employees that there is no necessity for
a collective bargaining agent." May Dept. Stores v. N.L.R.B., 326 U.S. 376,
385. See also N.L.R.B. v. Crompton-Highland Mills, 337 U.S. 217; N L R.B.
v. Bur ton-Dixie Coi p., 210 F. 2d 199.
As to (2), I am not unmindful of the fact that a laboi organization may waive the
statutory rights granted to it and to the employees it represents , but the Board has
said that it will not lightly infer such a waiver. The waiver, the Board said, must be
in clear and unmistakable terms. Tide Water Associated Oil Company, 85 NLRB
1096; Hekman Furniture Company, 101 NLRB 631.
The management prerogative provision of the contract between Druwhit and the
Union, in existence and in full force and effect at the time of the sale of the Druwhit's
aluminum operations to Fletcher,ls does not spell out a waiver of negotiations over
Respondent's decision to sell and transfer to Fletcher Druwhit's aluminum operations.
The record is very clear that Fletcher's aluminum fabricating employees now perform
the same work which was performed by Druwhit's 17 aluminum operators before
January 28. That this was merely a transfer of functions to Fletcher's employees is
quite clear and the transfer was not altered or obscured by the elimination, which
accompanied the transfer of the same functions presently performed by said Fletcher
employees and those which were previously performed by Druwhit's 17 employees.
It by some legal legerdemain one chooses to call this transfer the right to "abolish or
change existing jobs" under the terms of the collective-bargaining agreement between
Druwhit and the Union, or a right to "decrease the number of jobs, change materials,
processes, products, equipment and operation," as provided for by section 6(A) of
the agreement, the fact remains that the Druwhit fabrication operations weie merely
transferred from one A.J. subsidiary to another A.J subsidiary and the transfer was
made in part, at least, for reasons violative of the Act Accordingly, I find that section
6(A) cannot be construed as a waiver over bargaining. Tide Water Associated Oil
Company, supra.
Furthermore, the "managerial clause" of the contract does not clearly and unmis-
takably waive bargaining about the application and implementation of the agreement.
which is a continuing duty. In other words, whether the Union waived its right to
make proposals and to negotiate on the general subject of the transfer of the alumi-
num fabricating operations from Druwhit to Fletcher is not here in issue What is
in issue is the Union's right to negotiate on the specific decision to transfer from one
subsidiary of A.J. to another subsidiary of A.J., and the above contract clause does
not waive that right.
18 Section 5(A) reads as follows:
The management of the Company's plant and the direction of its working forces, in-
cluding the right to establish new jobs, abolish or change existing jobs, increase or
decrease the number of jobs , change materials , processes , products , equipment and
operation shall be vested exclusively in the Company. Subject to the provisions of
this agreement, the Company shall have the right to schedule and assign work to be
performed and the right to hire or rehire employees, promote, recall employees who
are laid off , demote, suspend , discipline or discharge for proper cause, transfer or
lay off employees because of lack of work or other legitimate reasons, it being under-
stood, however, the Company shall not discipline or discharge an employee except
for proper cause, or otherwise improperly discriminate against an employee
360 DECISION S OF NATIONAL LABOR RELATIONS BOARD
As to (3), th grievance procedure outlined in the above-referred-to contract does
not constitute a waiver or bar of any sort. Hekman Furniture Company, supra
The grievance procedure and arbitration is not the proper forum in which to deter-
mine what constitutes a waiver of rights established by the Act. Further, the process-
ing of a grievance, after the fact, is not an adequate substitute for full and open
negotiations prior to the final decision and effectuation of the change. It is this factor
of anticipatory negotiation that the Board emphasized in Town & Country 11) and
Fibreboard 20 decisions as being necessary for meaningful collective bargaining 21
Furthermore, the credited evidence, as epitomized above, clearly disclosed that
Respondent made all available efforts to conceal from the Union the impending sale
and transfer of Druwhit's aluminum fabricating operation to Fletcher and have the
latter's employees do the very work then being performed by Druwhit's employees.
This finding becomes inescapable when consideration is given to the fact that after
A.J.'s board of directors had approved the plan of transferring the aluminum opera-
tions of Druwhit to Fletcher and had instructed Derlachter to undertake the afore-
said transfer, it met with the representatives of the labor organization which repre-
sented the Fletcher employees and advised them of the move and also cautioned them
not to divulge the transfer to any of the Druwhit employees. At the same time Der-
lachter informed the aforesaid labor organization representatives that he did not want
any of the employees of Druwhit in Fletcher's employ because that would mean that
Fletcher would have to deal with two unions in its plant and that was what Fletcher
did not want to do. In fact, the Union was not advised by Respondent or by Druwhit
that Druwhit's aluminum operators would be discharged until the very day that the
discharges took place and the transfer of the aluminum operations from Druwhit to
Fletcher had been made, thus not affording the Union an opportunity to exeicise its
statutory right of bargaining.
I find that upon the entire record in the case, that Respondent did not bargain with
the Union as the statutory representative of its employees in the appropriate unit.
and thus has engaged in unfair labor practices within the meaning of Section 8(a) (5)
of the Act. I further find that by the foregoing the Respondent has interfered with,
restrained, and coerced Druwhit's employees in the exercise of rights guaranteed
them in Section 7 of the Act, within the meaning of Section 2(a)(1) thereof
I also find that Respondent also acted in violation of Section 8(a)(3) of the Act
by its failure to inform the Union of its intended sale and transfer of Druwhit's alum-
inum operations to Fletcher and that said sale was motivated, at least in part, by its
desire to avoid employing members of the Union at Fletcher. This conclusion
becomes inescapable when consideration is given to the fact that: (1) Derlachter,
in the December or January meeting with the representatives of the labor organization
representing Fletcher's employees, informed them that Fletcher would not hire any
employees because he did not want two unions in the Fletcher plant: (2) when
Jackson and Scrima applied to Fletcher for employment, they were denied employ-
ment because they were former Druwhit employees; and (3) Rivers and Tafoya were
also refused employment because they were former employees of Druwhit
Respondent contended at the hearing and in its brief that the amended complaint,
as amended at the hearing, should be dismissed mainly on the ground that these pro-
ceedings are barred by Section 10(b) of the Act, which provides that "no complaint
shall issue based upon any unfair labor practice occurring more than six months
prior to the filing of the charge with the Board and the service of a copy thereof
upon the person against whom such charge is made." This contention is refuted by
N L R.B v Fant Milling Company, 360 U.S. 301.
In Fant the Supreme Court, after noting that the purpose of a charge filed with the
Board "is merely to set in motion the machinery of an inquiry" (360 U S. at 307),
held that the Board was not restricted "to the precise particularizations of a charge,"
but could include in the complaint " `unfair labor practices which are related to those
alleged in the charge and which grow out of them while the proceeding is pending
before the Board.' V National Licorice Co v N L.R.B , 309 U S. 350, at 369 " The
Court further pointed out in Fant at 360 U S. 307 that in National Licorice, "the
" Town & Country Mfq Co., Inc, 136 NLRB 1022, enfd, 316 F. 2d 846 (C A 5)
25 Fibreboard Paper Products Corp , 138 NLRB 550, enfd sub nom East Bay Union of
Machinists, etc. v . N L R B , 322 F. 2d 411 (CAD C ).
'-1 See. Adams Dairy, Inc., 137 NLRB 815; Carl Rochet et al. d /b/a Renton Nev's
Record, 136 NLRB 1294; American Manufacturing Company of Texas, 139 NLRB 815
Hawaii Meat Company, Ltd, 139 NLRB 966, Esti Neiderman et al , d/b/a Star Baby Co,
140 NLRB 678; Brown Transport Corp., 140 NLRB 954; National Food Stores, Inc. 142
NLRB 340; Northwestern Publishing Company, 144 NLRB 1069; Royal Plating and
Polishing Co., Inc. 14S NLRB 545
DRUWHIT METAL PRODUCTS COMPANY, ETC. 361
unilateral wage increase was `of the same class of violations as those set up in the
charge .' The wage increase was `related to' the conduct alleged in the charge
and developed as one aspect of that conduct 'while the proceeding [was] pending
before the Board.' 11 22
By the same reasoning, the General Counsel was justified in this case in including
in the complaint allegations of refusal to bargain.
The original charge upon which the instant proceeding is based was served upon
the charged employers on May 22 The charge alleges that Druwhit and "A and J
Architectural Industries" violated Section 8(a)(1) and (3) of the Act by Druwhrt's
discharge of 16 named employees and their moving "machinery and raw materials to
the premises of A and J Architectural Industries, a related enterprise, for the purpose
of avoiding further dealings with [the Union] and to rid themselves of employees
who were members of said union." The charge also alleges that "By these and other
acts said Employers have interfered with, restrained and coerced their employees in
the rights guaranteed in Section 7 of the Act."
On September 24 Pershing filed an amended charge, which was served upon
Respondent the same day, and which (a) added A J. and Fletcher as charged
employers, (b) correctly named Architectural; and (c) added an additional disciimi-
natee. Other than these additions and changes, the allegations in both the original
charge and the amended charge are identical.
On October 7 the Regional Director issued a complaint, based upon the charge
and amended charge, alleging, inter alia, that Respondent discharged the 17 named
employees "to avoid its obligation to bargain with the Union as the statutory col-
lective bargaining representative of employees engaged in the operations transferred
from Druwhit through Fletcher to Architectural "
On December 9 Pershing filed a second amended charge, which was served upon
Respondent the same day, alleging that Respondent violated Section 8(a)(1). (3),
and (5) of the Act by (a) discharging the 17 named employees and moving "the
machinery and raw materials to the premises of A J. Architectural Products, a related
enterprise, for the purpose of avoiding further dealing with [the Union]," and (b) "at
no time did the above-named Employer discuss either the proposed move or the
actual move with the collective bargaining representative."
Here there can be little doubt that the original charge which states that the charged
employers discharged the named employees and moved machinery and raw materials
"for the purpose of avoiding further dealings with [the Union] ." in fact alleges
a violation of Section 8(a)(5) as well as Section 8(a)(3) and (1) of the Act23
Nor, in view of the close relationship among A. J., Druwhit, Fletcher, and Archi-
tectural, as described above, is Respondent prejudiced by the subsequent inclusion of
A J. and Fletcher as party respondents 24
I have given careful consideration to the other grounds advanced by Respondent
for a dismissal of the amended complaint, as amended, and find each and every one
of them to be without merit or substance
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connection
with the business operations of Respondent, as described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and such of them as have been found to constitute unfair {aboi prac-
tices tend to lead to labor disputes burdening and obstructing commeice and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8 ( a)(5), (3), and ( 1) of the Act , I will recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of the
Act.
12 Also see N.L.R.B. v. Indiana & Michigan Electric Company , 318 U S. 9 ; Kansas lfill-
ing Company v. N.L.R B., 185 F. 2d 413 (C.A. 10) ; N.L.R B. v Jay Company, Inc 227
F. 2d 416 (C.A 9) ; NLRB. v. Dimon Coil Company. Inc, 201 F 2d 484 (CA 2) ;
N.L R B. v. Pecheur Lozenge Co, Inc, 209 F 2d 393 (C.A 2).
w Town & Country Mfg. Co, Inc. v. N.L.R.B ., supra ; N.L R B v Jay Company, file,
supra
21 Israel Taub , d/b/a Dove Floclling and Screening Co , 145 NLRB 682
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondent failed and refused to fulfill its statutory bargaining
obligations within the meaning of Section 8(a)(5) and (1) of the Act when, without
prior notice to, or consultation with, the Union, Druwhit contracted with Fletcher
to have the latter perform the aluminum operations which Druwhit formerly per-
formed, in violation of the Act, I will recommend that Respondent be ordered to bar-
gain with the Union respecting such transaction.
Having also found that Druwhit, on January 28, 1963, terminated 17 of its alumi-
num fabricating employees without prior notice to, or consultation with, their
statutory collective-bargaining representative, for the purpose of ridding itself of all
union members who worked in its aluminum fabricating department, I will recom-
mend that Respondent and/or Druwhit be ordered and directed to take appropriate
steps to reinstate the aforementioned 17 Druwhit employees by resuming its aluminum
fabricating operations at the Druwhit plant or by having Fletcher employ said 17
persons at the same wages and under the same working conditions as when they were
in Druwhit's employ It will also be recommended that Respondent make the afore-
said 17 employees whole for earnings lost by them as a result of the discrimination
against them It is important to note in this connection that an order reinstating the
aforesaid 17 employees by Druwhit or their hiring by Fletcher and making them whole
for loss of earnings would be warranted on the basis of 8(a) (5) violations alone and
without regard to 8(a)(3) violations. The termination of employment of the afore-
said 17 men flows directly from Respondent's unilateral actions In order, therefore,
to adapt the remedy to the situation which calls for redress and to give substance to
the remedial order to bargain. it is necessary to restore the status quo ante without
which effective bargaining in behalf of the 17 employees here involved cannot be con-
ducted. The broad remedial powers vested in the Board by the Act afford ample
authority in the Board to order Respondent and/or Druwhit to reinstate said 17
employees, or, in the alternative, to order Fletcher to hire these 17 persons at the
same pay and under the same working conditions they enjoyed while in Druwhit's
employ, where deprivation of employment status is a consequence of an 8(a)(5)
violation.
Backpay is to be computed and paid in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the
rate of 6 percent per annum. Isis Plumbing & Heating Co, 138 NLRB 716
The unfair labor practices found to have been engaged in by Respondent are of
such a character and scope that in order to insure Respondent's employees of their
full rights guaranteed them by the Act, it will be recommended that Respondent
cease and desist from in any manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization.
On the basis of the foregoing findings of fact and upon the record as a whole. I
make the following:
CONCLUSIONS OF LAW
1. The Union and AIW are labor organizations within the meaning of Section
2(5) of the Act.
2. Druwhit Metal Products Company, A.J. Architectural Products, Fletcher Avia-
tion Company, and A.J. Industries, Inc., are engaged in, and during all times material
were engaged in, commerce within the meaning of Section 2(6) and (7) of the Act.
3. All production and maintenance employees of Druwhit and Architectural
engaged in the fabrication of iron, steel, and metal products, or in maintenance work
in or about Druwhit's and Architectural's plants located in Los Angeles, California,
and vicinity; excluding office or clerical employees, draftsmen, engineering employees,
employees engaged in erection, installation, or construction work, and watchmen,
guards, or supervisors within the meaning of the Act, constitute, and at all times
material constituted, a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has represented a majority of Respond-
ent's employees in the appropriate unit and by virtue of Section 9(a) of the Act has
been, and now is, the exclusive representative of all employees in said unit for the
purposes of collective bargaining with respect to grievances, labor disputes, rates of
pay, wages, hours of employment, and other terms and conditions of employment
5 By unilaterally discontinuing and transferring to Fletcher the Druwhit's alumi-
num fabricating operations on January 28, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act
6. By closing its aluminum fabricating operations and transferring that work to
Fletcher from Druwbit and by terminating the employment of Druwhit's 17 aluminum
fabricating operators, all without prior notice to. or consultation with, the Union.
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (5) and (1) of the Act
THE DIVIGARD BAKING COMPANY 363
7. By discriminatorily terminating the employment of Druwhit 's 17 aluminum
fabricating employees in the manner set forth above, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1)
of the Act.
8. Inasmuch as Druwhit Metal Products Company, A.J. Architectural Products,
Fletcher Aviation Company, and A.J. Industries , Inc., are, for the purposes of this
case, a single employer , they are jointly and severally liable for the unfair labor
practices found.
9. Inasmuch as the Druwhit Metal Products Company, A.J. Architectural Products,
Fletcher Aviation Company, and A.J. Industries , Inc., business operations affect com-
merce, the aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
The Divigard Baking Company and International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 677. Case No. 1-CA-4718. June 24, 1965
DECISION AND ORDER
On March 30, 1965, 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
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision
together with a supporting brief, and the General Counsel filed a brief
in support of 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 [Members Fanning, Brown, and Jenkins].
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 exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
' We agree with the Trial Examiner ' s general conclusion that the Respondent violated
Section 8 ( a) (5) and (1) of the Act since July 28, 1965 , because it refused to bargain with
the Union at that time when the Union, in fact , represented a majority of its employees.
In so finding , we rely particularly on the evidence which shows, as detailed in the Trial
Examiner 's Decision , that , both prior and subsequent to the Union ' s request to bargain,
the Respondent embarked on an intensive antiunion campaign by interfering with and
coercing its employees to such an extent as to make a free election impossible . In these
circumstances , we find that the Respondent was not motivated by a good -faith doubt of
the Union 's majority status , but that the real reason it rejected the Union 's July 28
request to bargain and insisted on a Board election was based on a desire to gain time
within which to undermine the Union 's support . Joy Silk Mills, Inc. v. N.L.R.B., 185
P. 2d 732, 741 (C.A.D.C.), cert. denied 341 U. S. 914.
153 NLRB No. 36.