Dura Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1965

153 N.L.R.B. 592 (N.L.R.B. 1965)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Noru.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of America of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed Forces.
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, 612
Lincoln Building, 208 SW. Fifth Avenue, Portland Oregon, Telephone No. 226-3361,
if they have any questions concerning this notice or compliance with its provisions.
Dura Corporation and Local 620, Allied Industrial Workers of
America, AFL-CIO and John Zarate, James Skinner, Hal L.
Myers, and Billy Ireland . Cases Nos. 7-CA-4899 and 7-CB-
1266. June 28, 1965
DECISION AND ORDER
On April 16, 1965, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled case, finding that the Respondents had
engaged in certain unfair labor practices alleged in the complaint and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondents filed exceptions to the Decision and
briefs in support thereof. The General Counsel filed a brief in answer
to Respondent's exceptions and the Charging Party filed cross-excep-
tions to the Decision and a supporting 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 these cases 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 and the entire record in the case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner to the extent consistent
herewith.
1. We agree with the Trial Examiner that Respondent Company,
hereinafter referred to as Company, violated Section 8(a) (2) and
(1), and Respondent Union, hereinafter referred to as the A.I.W.,
violated Section 8(b) (2) and 8(b) (1) (A), by executing a union-secu-
rity agreement (called the supplemental agreement) covering the
employees at its new Adrian plant at a time when the A.I.W. did not
enjoy a majority status at that plant.
153 NLRB No. 54.
DURA CORPORATION 593
As disclosed in the Trial Examiner's Decision and the record, the
Company's plant in Ypsilanti, Michigan, manufactures convertible
top frame assemblies for the leading automobile manufacturers includ-
ing General Motors, Ford, Chrysler, and American Motors. Since
1946 the employees at this plant have been represented by the A.I.W.
About the beginning of 1964, the Company for economic reasons
decided it needed additional facilities and thereafter acquired a plant
at Adrian, Michigan, which it approximately 50 miles away from
Ypsilanti. The Company divided its manufacturing operations
equally between the two plants, leaving the Ford and certain Chrysler
lines at Ypsilanti and moving its General Motors, American Motors,
and its remaining Chrysler lines to Adrian. While a small amount of
manufacturing equipment was also moved, most of the machinery
installed at Adrian was acquired elsewhere. However, the Ypsilanti
plant continued to manufacture and supply the Adrian plant with
most of its requirements of unfinished bows, a component of the top
frame assembly.
On August 3, 1964, the Company and the A.I.W. agreed to the terms
of a supplemental agreement covering the Adrian plant which incor-
porated the union-security and checkoff provisions of the existing
Ypsilanti contract and conferred bumping rights upon Ypsilanti
employees to the Adrian plant and special seniority and other rights
on those employees who transferred from Ypsilanti to Adrian. The
supplemental agreement also conferred economic and noneconomic
benefits on the newly hired employees at the Adrian plant. Early in
August the UAW instituted an organizing campaign at Adrian, and
on August 6 it sent a letter to the plant superintendent claiming to
have been designated the bargaining agent by a majority of the Adrian
employees, suggesting that contract negotiations begin, and caution-
ing the Company against entering into an agreement with any other
organization. On August 14 the supplemental agreement which had
been reached on August 3 and was executed and signed by the A.I.W.
and the Company.
There is no evidence in the record that the A.I.W. ever claimed to
represent a majority of the Adrian employees prior to the signing of
the supplemental agreement. However, both Respondents contend
that the Adrian plant was a normal accretion to the established bar-
gaining unit at Ypsilanti, and at that time the A.I.W. represented a
majority of the employees at both plants. We, like the Trial Exam-
iner, find no merit in this contention.
The record indicates that administratively and operationally the
Adrian plant is a separate entity. Thus, geographically it is 50 miles
away from Ypsilanti. It has its own plant superintendent and indus-
79 6-027-6 6-vol. 153-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trial relations director. It does its own hiring, handles its own pay-
roll, and administers its own grievance machinery. While the jobs at
both plants are virtually interchangeable, there has in fact been no
interchange among employees. Furthermore, there has been no sub-
stantial transfer of employees between the plants. While 5 of the ini-
tial 25 supervisors came from Ypsilanti, the initial complement of 40
nonsupervisory employees contained no such transferees.' Although,
as noted above , the Adrian plant relies on the Ypsilanti plant for most
of its supply of unfinished bows, the former has its own tools and
machinery and produces top frame assemblies for its own customers.
Therefore, its manufacturing operations cannot be viewed as func-
tionally integrated to any significant degree with those of the Ypsi-
lanti plant.
The contractual differences in economic and noneconomic benefits
enjoyed by the employees in each of the plants further point up the
absence of a community of interest between them. Thus, wages and
life and health insurance benefits are significantly higher at Ypsilanti.
The employees at Ypsilanti have an incentive-wage plan while those
at Adrian work under a day-rate arrangement. Probationary periods
and grievance procedures differ between the plants. Finally, the
employees at Ypsilanti enjoy a preferential position by reason of the
supplemental agreement which superimposed the seniority scheme of
Ypsilanti upon that of Adrian.
Upon these facts, and in accord with the Trial Examiner, we find
that the Adrian plant was a new or different operation rather than an
accretion to an existing unit .2 Therefore, the Respondent Employer
and Respondent Union by executing the supplemental agreement at a
time when the A.I.W. was not the majority representative of the
Adrian plant employees, acted unlawfully by infringing upon the stat-
utory right of said employees to express a free choice as to their bar-
gaining representative. Accordingly, we conclude that the Respond-
ent Company violated Section 8(a) (2) and (1) of the Act and
Respondent Union violated Section 8(b) (2) and 1(A) of the Act by
their conduct.
2. We also concur with the Trial Examiner that, under the circum-
stances of this case, including the A.I.W.'s lack of majority status and
the existence of the unlawfully executed union-security agreement,
the Respondent Union independently violated Section 8(b) (1) (A)
1 From late August through November , 10 employees did transfer to the Adrian plant,
but all of them returned to Ypsilanti before the end of the year The record also indicates
that just before Christmas of 1964 , about 100 employees were laid off at Ypsilanti and
that the A I w. filed a grievance protesting the Company ' s failure to transfer these em-
ployees pursuant to the agreement Since a complaint alleging the illegality of the agree-
ment had already been issued on November 25, 1964, we have accorded no weight to this
evidence
2 See Essex Wire Corporation, 130 NLRB 450
DURA CORPORATION 595
when its agent, on or about September 23, 1964, threatened Adrian
plant employees with the loss of employment unless they signed dues
checkoff authorization cards. We further agree that Respondent Com-
pany engaged in further unlawful assistance and interference by
attempting to enforce the checkoff provision 3 in the agreement. Thus,
on September 14 the Company sent the letter to all of its employees
at the Adrian plant calling their attention to the contract with the
A.I.W., quoting the union-security and checkoff provisions, and
requesting that they sign and return the enclosed dues deduction
authorization card. Furthermore, the Company at that time also
requested newly hired Adrian employees to sign such cards at the time
of hire.4 Accordingly, we conclude that Respondent Company thereby
violated Section 8(a) (2) and (1) of the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order5 the Order recommended by the Trial Examiner and orders
that the Respondent, Dura Corporation, Adrian, Michigan, its officers,
agents, successors, and assigns, and Respondent Union, its officers,
agents, and representatives, shall take the action set forth in the Trial
Examiner's Recommended Order, except that section A, 2(b) of the
Recommended Order is modified by deleting the words "and at its
Motor State Products Division plant at Ypsilanti, Michigan" in the
first and second sentences thereof.6
3 We find it unnecessary to pass on the legality of the checkoff provision as extended
to the Adrian plant employees inasmuch as the agreement in its entirety has been found
to be unlawful.
'Jack W. Sellers et al., d/b/a Coca- Cola Bottling Company of Sacramento , etc., 146
NLRB 1045, 1046
5 The telephone number for Region 7, appearing at the bottom of the Appendix attached
to the Trial Examiner 's Decision , is amended to read * Telephone No 226-3244.
6 We find merit in Respondent Company 's exception to the Trial Examiner 's recom-
mendation that the notice herein be posted at the Ypsilanti plant As the conduct in
issue here occurred solely at the Adrian plant, and there is no indication that employees
at Ypsilanti were aware of Respondent 's unfair labor practices , we shall not require post-
ing at the Ypsilanti plant. See Lawler's Cafeteria if Catering Company, 138 NLRB 352,
footnote 2.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended 29 U.S C. Sec. 151 et seq., herein called the Act.
On October 1, 1964,1 John Zarate, James Skinner, Hal L. Myers, and Billy Ireland,
individuals, filed a charge against Dura Corporation, herein sometimes called
Respondent Employer or the Company, stating as a basis therefor that the Respondent
Employer by certain described acts had engaged in and was engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (2) of the Act. Case No. 7-
CA-4899 On the same day the same individuals filed a charge against Local 620,
Allied Industrial Workers of America, AFL-CIO, herein sometimes called the
i Unless otherwise shown , all dates hereinafter mentioned are for the year 1964.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union or AIW, stating as a basis for this charge that the Respondent
Union had engaged in and was engaging in unfair labor practices within the meaning
of Section 8(b)(1)(A) and (2) of the Act. Case No. 7-CB-1266. On Novem-
ber 25 the General Counsel of the National Labor Relations Board, by the acting
Regional Director for Region 7, issued an order consolidating cases, complaint, and
notice of hearing, the complaint setting forth certain acts by the Respondent Em-
ployer whereby , it is alleged , the Respondent Employer "did engage in , and is engag-
ing in, unfair labor practices affecting commerce within the meaning of Section
8(a) (1) and (2) and Section 2(6) and (7) of the Act." The complaint also set forth
certain acts of the Respondent Union, whereby it "did engage in, and is engaging in,
unfair labor practices affecting commerce within the meaning of Section 8(b) (1) (A)
and (2) and Section 2(6) and (7) of the Act."
Each Respondent filed a timely answer to the complaint, effectively denying that
it had engaged in or was engaging in the acts complained of, and each setting up
certain affirmative defenses.
On the issues framed by the complaint and the answers thereto, and pursuant to
notice, these consolidated cases came on to be heard before Trial Examiner Arthur E.
Reyman at Adrian, Michigan, on January 20, 1965, and the hearing was closed on
the following day. At the hearing the General Counsel, the Respondent Employer,
the Respondent Union, and the Charging Parties each was represented by counsel,
was afforded full opportunity to be heard, to call and examine and cross-examine
witnesses, to argue orally upon the record, to submit proposed findings and conclu-
sions or both, and to file briefs. A brief has been submitted on behalf of each of the
parties and has been carefully considered.
Upon the whole record, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
At all times material herein, Dura Corporation has maintained its principal office
and place of business at 21800 Greenfield in the city of Oak Park and State of Michi-
gan, and maintains other plants and places of business in the States of Michigan, Ohio,
Kentucky, South Dakota, Illinois, and Indiana. Respondent Employer is, and has
been at all times material herein, engaged in the manufacture, sale, and distribution
of automotive and appliance hardware, window regulators, automobile convertible
top frame assemblies, and mechanisms and related products. During the year imme-
diately preceding the issuance of the complaint herein, which period is representative
of its operations during all times material herein , Respondent Employer, in the course
and conduct of its business operations, manufactured, sold, and distributed at its
Ypsilanti and Adrian, Michigan, plants, products valued in excess of $1 million, which
were shipped from said plants directly to points located outside the State of Michigan.
Respondent Employer is now, and has been at all times material herein , an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
IT. THE LABOR ORGANIZATIONS INVOLVED
Local 620, Allied Industrial Workers of America, AFL-CIO, the Respondent
Union, and International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL-CIO , hereinafter sometimes called
UAW, are, and have been at all times material herein, labor organizations within the
meaning of Section 2(5) of the Act.
IH. THE UNFAIR LABOR PRACTICES
A. Corporate organization
Dura Corporation operates 13 plants throughout the United States. It is orga-
nized on a divisional basis, with separate automotive divisions at Toledo, Ohio (Dura
Division); Monroe, Michigan (Paragon Aluminum Company); Ypsilanti, Michigan
(Motor State Products Division); and, since April 1964, at Adrian, Michigan (Adrian
Division). In its automotive division plants at Toledo, Ohio, and Ypsilanti, Adrian,
and Monroe, Michigan, it is engaged in the manufacture of parts and components
which are sold to automobile manufacturers. It also manufacturers lawnmowers,
farm instruments, and service station equipment.
In the year 1946 the Company bought the Motor State Products Company plant
in Ypsilanti, Michigan, where since then it has manufactured convertible top frame
assemblies which are sold to automotive manufacturers , including General Motors,
Ford, Chrysler, and American Motors.
DURA CORPORATION 597
Each one of the three automotive divisions has a manager who reports directly to
Dura Corporation Vice President Maxwell M. Wochowiak, who heads the manufac-
turing and sales activities of these divisions. Each division has a complement of staff
personnel to run the manufacturing end of the business.
In late 1963 or early 1964, the Company determined that additional facilities were
needed in connection with its operations at its Ypsilanti plant. At that time, that plant
was operating on a 7-day-week, 24-hour-day, schedule. In the words of Vice Presi-
dent Wochowiak:
Approximately about a year and a half ago now we realized that we were
working our people and working our plant on an extended overtime schedule,
that we were killing our people and wearing out our machinery trying to keep
up with the business that we had. So, we took a good hard look at the picture
and as we saw it we had two or three avenues to take and one would be to expand
the Ypsilanti plant, that is the Motor State Products Division plant. So we
hired a firm of consulting engineers and had them prepare the necessary layout
to see what would be needed to fulfill the production requirements as we saw
them. As a result of this study we found out that it was economically unsound
from the cost standpoint to expand that plant and we also found that lust to get
the space that we felt that we needed, there wasn't enough property available for
parking facilities for any future growth.
So then we took the second approach. We tried to purchase a going business
that would be compatible with the type of equipment and space and facilities to
manufacture these convertible tops. This we could not find.
The third step was to look for existing plants that might be for sale or even
looking for land area where we could build and in the course of this survey we
saw this plant here in Adrian which suited our needs and pure economics. We
got the plant which we thought was at a fair price and this is how come we made
the decision to set up the Adrian Division.
The plant acquired at Adrian is approximately 45 to 50 miles from Ypsilanti.
When it was determined to operate the new plant at Adrian as an additional facility,
the Company decided that it could divide its manufacturing operations between the
two plants by leaving the Ford products manufactured by it, which constitute about
50 percent of the convertible top frame assemblies produced, in the Ypsilanti plant,
and moving to Adrian the product lines sold to other manufacturers.
Convertible tops are now produced at Ypsilanti for the Ford Motor Company and
the Chrysler Corporation (Valiant and Imperial tops). The Adrian plant produces
convertible tops for Fisher Body, Chrysler Corporation (C line), and American
Motors. Convertible tops manufactured at one plant are not moved to another for
additional operations. Some bows, stamped at Ypsilanti, are sent to Adrian for
finishing and painting, and installation on Adrian products. Dura Division (Toledo)
manufactures actuators for windows and convertible tops supplied to Ypsilanti and
Adrian. Paragon Aluminum Company produces various types of automotive parts
at Monroe. The operations at Ypsilanti and Adrian are more fully discussed below.
Paragon Aluminum Company has a separate collective-bargaining agreement with
UAW, as does Dura Division. During the entire time that the Company has owned
and operated the Ypsilanti plant, the employees there have been and now are repre-
sented by AIW. The collective-bargaining agreement for the Motor State Products
Division now in effect is for the period December 4, 1962, to October 13, 1965, with
Local 620, AIW. A supplemental agreement covering the Adrian Division was en-
tered into between the Company and Local 620, AIW on August 3, 1964, covers the
Adrian Division employees, and confers certain superior seniority, bumping, and other
rights on Motor State Products Division employees transferred to the Adrian Division.
B. Questions presented
The Respondent Employer correctly states that the question with respect to it to be
decided is whether the Company illegally aided and assisted AIW by signing a
collective-bargaining agreement which contained a union -security provision. The
Company agrees that a collective -bargaining agreement was executed ; however, it
claims that the existing collective-bargaining agreement was merely extended with
certain necessary modifications to cover employees in the Adrian operation , which it
says was an accretion to the Ypsilanti plant
Counsel for the General Counsel correctly states the three ultimate questions to be
decided:
1. Whether Respondent -Employer violated Section 8 (a) (2) of the Act by
executing and maintaining a Supplemental Agreement with Respondent-Union
covering its Adrian , Michigan plant.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. Whether Respondent-Union violated Section 8(b)(1)(A) and (2) of the
Act by requesting and becoming a party to said Supplemental Agreement
ffi. Whether Respondent-Union violated Section 8(b)(1) (A) of the Act by
threatening Adrian plant employees with loss of employment if they did not
join said Union.
The Respondent Union takes the same position as the Company, which is that the
Adrian operation was an accretion to the Ypsilanti plant. The General Counsel dis-
putes this contention.
C. Pertinent contract provisions
Certain provisions of the 1962-65 agreement, and the supplemental agreement,
between the Company and Local No. 620, AIW may, for convenience, be noticed
before discussing the events occurring before, at, and after the opening of the Adrian
plant.
Article V, SENIORITY, provides in part
Section 6. TRANSFERS
(a) When new job classifications are created, or vacancies occur in present
classifications the oldest employee in point of service shall be given preference
filling such new job or vacancies as may be desirable to him, so far as it is prac-
ticable and consistent with proper ability to perform the services required.
Such new jobs or vacancies shall be posted for a five (5) day period.
(b) After the job has been filled the employee that transfers shall be given
a thirty (30) plant working day period in which to determine whether or not
he wishes to permanently keep the new job.
(e) An employee who has bid into a department but who has less than thirty
(30) days in a new department will be the first man laid off if there is a layoff
in that department. However, if an employee bumps into a department where
there are bid-in employees working, the junior employees in the department, or
the employee with the least seniority, will be the employee to be laid off. This
junior employee may or may not be a "bid-in" with less than thirty (30) days
seniority No job will be posted until all men on the permanent departmental
list of that department are called back. Then when there is an increase in
working force the job will be posted . .
Section 25.
(a) The Company will grant hiring preference in seniority order to Motor
State Products employees who are members of Local No 620 AIW, AFL-CIO,
at a new company location in event a substantial portion of, or any complete
Department of the Company's manufacturing facilities are moved from 103
South River Street 2 This preference of hire will extend for a period equal to
the length of the Company's seniority subject to the employee's reporting after
recall according to provisions of Section XIV (c) and (b) of this article.
(b) Should a substantial portion of, or any complete department of the manu-
facturing operations at 103 South River Street be moved to a new company
location which has an existing collective bargaining agreement. the Company
will grant the above preferential hiring at the new Company location for its
employees in Motor State collective bargaining unit so long as this does not
conflict with the existing collective bargaining agreement at that location or
local, State or Federal laws.
In the supplemental agreement, there is recited in a number of "whereas" clauses
concerning the transfer of work operations, machinery and equipment, and employees
from Ypsilanti to Adrian- The anticipated transfer or offer of transfer of Ypsilanti
employees to Adrian; the transferred members would include "a substantial number
of the representative complement of employees" within the bargaining unit. the desire
of the parties to protect and implement the seniority rights and job opportunities of
seniority employees transferred from Ypsilanti to Adrian: the giving of full force and
effect to the 1962-65 contract. the agreement between the parties that "the Adrian
plant represents a partial transfer of operations presently performed at the Ypsilanti
plant, and that there will be interchange of personnel between the said plants", and
the recognition of the parties that certain conditions peculiar to the extention and
transfer of operations and prevailing local or area practice required amendments and
additions to the 1962-65 agreement, all are mentioned. This supplemental agree-
2 The Ypsilanti plant location
DURA CORPORATION 599
ment contains certain provisions applicable to employees on the seniority list in the
Ypsilanti plant as of August 1 in the event of their transfer to Adrian, including notice
to each employee whose job might be affected, the preservation of all seniority rights,
posting of job openings arising at Adrian resulting from transfer and reassignment
of any operation from Ypsilanti to Adrian, seniority preference for jobs, modifications
of the grievance procedure for and applicable to the Adrian plant, and the provision,
among others, that
(d) Article V (Seniority) shall apply to the Ypsilanti and Adrian plants
separately, provided however, that a master seniority list shall be maintained on
which shall be listed in order of seniority all emloyees of Ypsilanti having senior-
ity as of August 1, 1964, and all employees of Adrian. An employee of Ypsilanti
whose name is on such seniority list shall have the rights set forth in this Supple-
mental Agreement and shall continue to maintain seniority in Ypsilanti.
Special seniority rules were provided to govern the Adrian plant, new production
standards were provided for the Adrian plant, and there were certain changes made
in respect to provisions relating to rates of pay. Group life insurance, group sick-
ness, and accident policies were provided; and, at the end, the supplemental agree-
ment provided that "in the event of a conflict between this Supplemental Agreement
and the Agreement dated December 4, 1962, the provisions of the Supplemental
Agreement shall control."
D. Company and union meetings regarding Adrian plant opening
Upon the conclusion of preliminary plans for the opening of the Adrian plant,
company representatives met with union representatives a number of times, the first
meeting being in late April or May. Vice President Wochowiak, John W. Falahee,
industrial relations director of the Motor State Products Division, and Homer Riddle,
president of Local 620, testified concerning the discussions had at these several
meetings regarding moving of plant equipment, and employees' rights both at
Ypsilanti and the new Adrian plant. Their testimony, in substantial or material part,
does not noticeably vary as to what was said and what transpired.
Prior to this first meeting, the Company during the course of its survey in anticipa-
tion of expanding the facilities then wholly located at Ypsilanti, reviewed the history
of orders previously received, orders on hand, and orders reasonably foreseeable; in
short, the Company had canvassed the situation thoroughly and had done a consider-
able amount of production planning. The Company had a monopoly of the business
of Ford Motor Company in the manufacture of top assemblies,3 and the amount
of orders received in 1964 had not been anticipated; it appears that the Ford Motor
Company alone in coming months, judged on the basis of orders received and on
hand, would supply enough work to provide full-time, normal production at the
Ypsilanti plant. Seasonal layoffs were considered The industry has its peak seasons
during the fall and late winter and spring and at Ypsilanti, during seasonal slackness,
approximately 100 out of a peak of approximately 300 employees could be expected
to be laid off. This, because of the volume of orders from Ford, did not occur to
that extent in the year 1964.4
At the first meeting the Company was represented by Vice President Wochowiak,
Personnel Director John W. Falahee, his assistant, Clark, and Division Manager
Brodeur, and one or two others. AIW was represented by President Homer Riddle
of Local 620 and a committee of five, and Ira Luplow and Lester Enochs, Interna-
tional representatives. The meeting was called by the Company to announce the
purchase of the Adrian plant. Wochowiak referred to the increased volume of work,
the inadequacy of the Ypsilanti facility necessitating extreme overtime schedules and
leading to inefficient operation, and described the extent of investigation to which
the Company had gone before deciding to open the Adrian plant. Luplow inquired
about which division or product lines the Company proposed to manufacture in
Ypsilanti and in Adrian. Wochowiak replied that the first analysis showed that the
"The main competitor of Dura Corporation in the Production of convertible tops is said
to be Ashtabula Bow and Socket Company
'About 285 employees were on the payroll at Ypsilanti in January, about 275 in Decem-
ber, and about 395 In the fall of 1964. The minimum-maximum spread of employment in
the year 1964 was approximately 265 to 400 employees, with about 125 layoffs, quits, and
probationary employees not working during that year During the year 1963 the ap-
proximate spread of employment , minimum to maximum, was 150 to 340 employees. Just
before the Christmas period in 1964, 100 employees were on layoff and 89 were on layoff
status on January 19, 1965.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ford Motor Company product line was approximately 50 percent of the business, that
this was what would be retained at Ypsilanti , the rest to be moved to the Adrian loca-
tion. Other production at the time consisted of the Chrysler lines, the Fisher Body
product lines , and the American Motors product lines together with what remained
of the Studebaker product line .5 What was then said in prospect proved out accord-
ingly, except that two of the Chrysler lines still remain in the Ypsilanti plant for
manufacture . In answer to a question by AIW representatives as to what provision
would be made for the employees in the contemplated move, company representatives
referred to the 1962-65 agreement and the provisions providing for preferential hiring
in the event of the movement of operations.
At a second meeting held about the middle of May , at which the parties were repre-
sented by the same individuals who had been present at the first meeting, AIW repre-
sentatives asked for specific provisions to guarantee the rights of the Ypsilanti employ-
ees beyond what was specified in the 1962-65 contract . AIW suggested that if the
Company moved the work and laid off any persons from Ypsilanti , the Company
move the work back to Ypsilanti to keep Ypsilanti employees employed. Wochowiak
replied that such would be a practical impossibility . AIW was informed by
Wochowiak-
. that based on the split of the businesses as we saw it , and we calculated out
the number of tops that would be produced and man hours, our direct and
indirect labor in this projected production , we felt that we would end up with an
average, and I stressed the word average in the discussion , but we felt that we
would end up with an average of somewhere between 260 and 270 people at
these plants.
During this discussion AIW apparently assumed that collective -bargaining representa-
tive rights would carry over to Adrian from Ypsilanti . When Wochowiak referred
to the practical impossibility to accept the Union 's suggestion , there followed , accord-
ing to Falahee-
a rather stern exchange , with the Union maintaining that they stand for human
rights and equities , and the corporation is only talking about economic prob-
lems and economic factors, rather than human factors. That was about the
extent of that meeting.
The Union took the position that they wanted a memorandum agreement on the
transfer of work back from Adrian to Ypsilanti and that the Company guarantee work
for the employees of Ypsilanti , to which the Company responded that they could
not give such a guarantee "because we cannot have a written guarantee from our
customers ." Again , according to Falahee , the Union stated that the Company and
the Union "had better have an agreement prior to the movement of anything from
Ypsilanti to Adrian." 6
5 There is in evidence a document prepared by the Company at the request of AIW
showing the Motor State Division product lines for the years 1948 through 1964 For
1964 the product lines at Ypsilanti by description were Ford , C4AB, Lincoln C4VB,
T-Bird C4SB , Falcon C4DB , Mustang C4ZB , Rambler 350 , Studebaker 133 Lark , Chrysler
2424 Imperial , Chrysler 225 Valiant , Fisher A-B-C-Bows, and Fisher A-B-C-Sides.
9 Falahee and Wochowiak placed the first meeting as late April or early May. Riddle
testified concerning a meeting he said was held between AIW representatives and com-
pany representatives , naming the same individuals , which he placed as being held on
February 13, when operations in the plating department were discussed . Riddle said he
had heard in 1963 about the proposed enlargement of the Ypsilanti operation . At a follow-
ing meeting on February 20 he said that Division Manager Brodeur "was wanting to sub-
contract out this plating again " and that Luplow , speaking for the Union , brought up,
"Where is this work going to be done , this hundred jobs that you're talking about. You
might build another plant and build these hundred jobs or maybe even 300 jobs and hire
people, we might end up with 200 people working at Motor State and 300 in another
shop " He said , "We are not going to let these jobs go out unless we have an agreement,
an agreement that our contract will cover the work "
As this report at the February 20 meeting had to do with contracting out work seems
apparent from Riddle 's further testimony that Luplow said at that meeting that "he didn't
want new employees building up our jobs in some other town while people at Motor State
with seniority back to 1929 were laid off and that he just wouldn ' t stand for it"-that
Luplow said that he would allow plating jobs to go out if our contract covered the work
wherever it went."
The record does not show that the question of contracting work out to another employer
was over again raised by either Union or Company.
DURA CORPORATION 601
At a third meeting held on June 6, with the same representatives present for AIW
and the Company, the Union again requested a guarantee of employment at Ypsilanti,
claiming that the Union had a legal right to the work performed, to which the Com-
pany replied that such a guarantee was impossible and requested written proposals
from the Union. Subsequently, in a letter dated June 8 from Luplow to the Company,
two alternate proposals were advanced. After consultation with management repre-
sentatives and the Company's attorneys, Falahee replied to Luplow's letter, stating
that there were some legal and practical objections to the proposals as submitted and
suggested a meeting for June 17 at which, he said, the Company would have an
attorney present and that it might be well for A1W to have their attorney with them.
A meeting was held on June 17 with the same representatives of AIW and the
Company present and also Mr. Tracy, counsel for the Company, and Mr. Gregory,
counsel for AIW. At that meeting, according to Falahee:
We first discussed the practical problems and that of movement of work back
and forth between Adrian-Ypsilanti and Adrian. This, we, the corporation,
maintained, was an uneconomical type of operation and would be practically
impossible due to the fact that how much of each product line, or how much
of each particular series of operations would be moved and how much would
be retained in the plant in order to retain the Ypsilanti work force in employ-
ment in Ypsilanti. The Union did not agree with these contentions and reiterated
their position that the Company was only thinking of economics, rather than
human equities and human interest in the matter. In regard to the legal prob-
lems, I referred the discussion of the legality to our counsel, Mr. Tracy, who, in
brief summary, stated that he didn't know whether it was possible that the Com-
pany could discuss the representation of non-existent Adrian employees. As he
understood the law, the law would guarantee the Adrian employees a right to
choose their representatives. And, without trying to get into the legal argument
which transpired between Mr. Tracy and Mr. Gregory, citing various sections
of the labor law-federal law-this was the Company's position, that it was very
difficult to give representation on a legal basis. The union counsel, on the other
hand, arguing that it, in their theory of the case, would be quite possible and
quite legal to do this. There were long discussions relative to both the legal
problem and the practical problem, and this consumed about the entire meeting
with break up of the meeting with no real solution to the question. There was
discussion of permanent layoff versus seasonal layoff. In the event a seasonal
decline in work, how many would be affected, by the transfer of work; how many
would be affected, more or less, by seasonal decline of work. There was no
real concrete solutions to any of these discussions.
At a meeting held on July 2, with the same individuals present who attended the
June 17 meeting, Falahee described the events of this meeting:
The Union accused the Company of not taking negotiations seriously. And,
we intended to-they reiterated that not one tool or die would be moved from
the Ypsilanti premises until an agreement was reached. There were various
positions of strength to back up that plan, that they would use whatever eco-
nomic and legal force they had. And, they clarified economic, by means of
strike threat, and asked if the Company was going to make any offer at this
point. I stated that the Company was willing, in addition to the preferential
hiring, that is granted in the 1962 contract, that we'll offer that plus seniority
rights for people who are employed at Adrian from the Ypsilanti unit, in con-
sideration for this granting of full seniority at Adrian, to extend the Ypsilanti
agreement. I did not specify any term of the extension, but sort of a quid pro
quo-"we'll give you seniority rights if and when you were hired at Adrian, your
seniority dating back to the date of hire at Ypsilanti. And, in exchange for this,
we want some extension of the 1962 agreement without any further changes."
The Union did not accept this too happily, and again reiterated their right to
strike or other economic action, and asked the Company to propose something
in writing. To this I agreed We would give a written proposal, and when such
a proposal was ready, we would schedule another meeting.
At a subsequent meeting held on July 17, Falahee presented the AIW representa-
tives with a written proposal, which the Union rejected, holding to their original
proposals submitted to the Company. Various provisions of the Company's proposal
were discussed. AIW objected that there was no recognition for Local 620 or the
AIW contained within the proposal; the Company stated that it still had legal prob-
lems concerning recognition of the AIW at Adrian, and that its proposal in terms
granted grievance procedure protection for transferred Ypsilanti employees.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 27 at a meeting at which the same representatives of AIW and the Com-
pany were present, Falahee presented a complete draft of a form of supplemental
agreement, constituting in effect a complete new contract with specific reference to
the Adrian plant. After considerable discussion without substantial agreement, the
draft was referred to counsel who, after conferring, brought back a new proposal
presented at a meeting held on August 1. After discussion, the meeting was adjourned
to August 3. Again in the words of Falahee:
The August 3 meeting was a very lengthy meeting and lasted most of the day
and on into the evening, at which a final agreement was reached. There were
many proposals and counterproposals. Nothing in writing beyond what we
already had in written proposals; but oral proposals made back and forth to
resolve the agreement down to and including the final economics agreed to. It
was a very tense situation. And, to the best of my knowledge, it ended at 7:30,
or so, at night, with us a nickel apart, and we were holding at that point. And,
then the Union were on their feet leaving the room, I believe, when-in fact,
I think Mr. Luplow did leave the room, saying he was all finished and they were
going to walk out-and we considered the final nickel, which was in wages,
within the final living area, and this settled the agreement, and we stated that
the attorneys draw the final draft of the agreement and that we convene as soon
as possible-reconvene as soon as possible-and sign a completed document.
Riddle testified on redirect examination by AIW's attorney:
Q. (By Mr. GOLDBERG) On August 1st, the Saturday before the contract sup-
plemental agreement was finally consummated, did the Company make any state-
ment to the Union regarding the dies at Ypsilanti?
A. Yes, sir. They wanted to move the dies, so, we said that if you move the
dies we won't be working for you on Monday. They said, "We are going to
move the dies." We said, "We are not telling you not to move the dies, but if
you move the dies we are not going to work for you." So they said-the Com-
pany said that they guess they wouldn't move the dies until we finalized the
contract.
The supplemental agreement agreed to August 3, which on its face says August 4,
actually was executed on August 14. Again briefly summarizing the provisions of
the supplemental agreement applicable to employees at Ypsilanti who might go to
Adrian or to employees employed at Adrian, it provided for a general bidding proce-
dure in the Ypsilanti plant for anyone to bid on jobs opening in Adrian, transfer
rights into the Adrian plant, the carrying of seniority from Ypsilanti to Adrian, dif-
ferences in rates of pay for Adrian employees as compared to Ypsilanti rates, differ-
ences regarding insurance, with vacations and holidays remaining the same as stated
in the Ypsilanti contract-that is, the 1962-65 agreement.
As noted above, the supplemental agreement signed August 14 contained a require-
ment that employees be members of AIW as a condition of employment, and also
contained a provision for voluntary checkoff of dues. In the subsequent application
of the contract, however, between June and December only 10 or 12 employees out
of 280 to 290 signed checkoff authorizations, and dues were never checked off for
any employee. The union membership requirement was not enforced and the Union
advised the Company sometime in July that it waived enforcement of that provision.
On August 3, when agreement was reached which resulted in the signing of the
supplemental agreement between the Company and the Union regarding a contract
covering the Adrian employees, there were approximately 40 bargaining unit employ-
ees working in the plant. Each of these employees received a wage increase as pro-
vided for in the supplemental agreement.
E. The manning of the Adrian plant
In early July, R. Greenawalt became plant manager at Adrian and Lewis R. Kalb
became director of industrial relations, both being transferred from the Dura Divi-
sion, Toledo, to the Adrian plant. Among the duties of Kalb were the hiring of
employees, both salaried and hourly rated, the handling of the grievance procedure
through the third step, plant security, safety, first aid, and other personnel matters.
On August 3 or 4 Wochowiak and Falahee announced to the employees then
employed at the Adrian plant that an agreement had been reached with AIW at
Ypsilanti covering those Adrian employees in the maintenance and shipping depart-
ments and those employees classified as press operators, toolmakers, welders, inspec-
tion, machine shop drills, handmills, and spray painter, the classifications of employ-
DURA CORPORATION 603
ees for which men had been hired into as of that date. Approximately 30 employees
were working at Adrian when the announcement was made. During this early
hiring, men were assigned to a classification but did not necessarily work at the job,
but were used in what was called a work gang on maintenance. A man may have
been hired who had assembly experience, and as assembly work opened up, he would
be transferred from the maintenance work gang into the assembly job. As a practical
matter, practically each new employee at that time was assigned to the labor gang
where he worked until a particular job opened up in his classification.
The result of a survey of wage rates prevalent in the Adrian area was used by the
Company to establish rates for the several job classifications in the Adrian plant, and
were made effective as of about June, when pilot manufacturing began. These rates
were superseded, however, by those set forth in the wage schedule in the supplemen-
tal agreement. Twenty-five persons were employed at Adrian as supervisors. Divi-
sion Manager R. Greenawalt, Kalb, and a foreman, Jones, were transferred from the
Dura Division, Toledo, two from Motor Mower-Dura, one from Dura-Paragon, and
the rest of the supervisory staff were newly hired for their respective jobs. Of the
employees in the bargaining unit transferred from Motor State Products Division,
Ypsilanti to Adrian, one who was transferred in September returned to Ypsilanti in
October, seven transferred in October returned to Ypsilanti in October except for
one who returned to Ypsilanti in November, and one transferred to Adrian in Novem-
ber returned to Ypsilanti in December. The principal source of manpower for the
Adrian Division came from Lenawee County, wherein Adrian is situated, and a few
from the adjacent county of Monroe, wherein Toledo is situated. The approximate
distance between the Toledo plant and the Adrian plant is 35 miles. It seems to have
been the practice for the personnel office at Adrian to refer applicants to an employ-
ment office maintained in the city of Adrian and if that office referred the employees
to the Company they were interviewed for hire. On August 1 the Adrian plant had
employed approximately 40 people. During the next month approximately 60 people
were hired so that on September 1 there were approximately 100 employees, and by
November 1 approximately 250 employees were on the payroll. There were approxi-
mately 275 to 300 employees on December 1. See footnote 4, above. About Octo-
ber 1 the plant was in what was considered to be "good production."
The hiring procedure put into effect at Adrian contemplated affording new employ-
ees the opportunity to sign a checkoff authorization card authorizing the remission
of dues to AIW. A few employees whose attention, when hired, was not called to
the checkoff authorization card later were called back to Kalb's office, a day or two
after their hiring, and given the opportunity to sign the authorization if they so
desired. Riddle, the president of Local 620, was present on some of these occasions.
Under date of September 14 Kalb, as director of industrial relations of the Adrian
Division, sent a letter to all employees, calling their attention to the contract with
Local 620, A1W as the exclusive bargaining representative of all employees in the
bargaining unit, quoting the Union's security clause, enclosing a blank dues deduc-
tion authorization card, and quoting the contract provision with respect to authori-
zation to the Company to deduct the current union membership fee and deduction
of union dues each month and assessments The letter concluded: "You are accord-
ingly requested to sign and return this card." 7
F. The advent of UAW and subsequent occurrences
The AIW has represented the employees in the bargaining unit at Motor State
Products Division, Ypsilanti, since 1946 and prior to that the employees of the prede-
cessor employer, Detroit Harvester. On and before August 3, 1964, when the supple-
mental agreement was agreed to between the Respondent Employer and the Respond-
ent Union, no other union had sought recognition as bargaining representative of the
employees of the Company at Adrian. United Automobile, Aerospace and Agricul-
tural Implement Workers of America, AFL-CIO, (UAW) began an attempt to
organize the employees at the Adrian plant on or about August 6.
7The authorization card sent to the employees appeared in the following form:
AUTHORIZATION FOR DEDUCTION OF UNION DUES
I, the undersigned employee of Dura Corp, Adrian Div., authorize the Company to
deduct from my first paycheck of each month such amounts as may be necessary to pay
dues, initiation fees and assessment owing by me to Allied Industrial Workers of
America, AFL-CIO, Local No. 620 and to mail or deliver such amount to the financial
secretary of the Local Union.
Dated Signed
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under date of August 6 Robert MacLean , International representative of UAW,
addressed a letter to the Dura Corporation at Adrian , Michigan , for the attention of
Richard Greenawalt , plant superintendent , in which MacLean claimed that the major-
ity of the production and maintenance employees at Adrian had designated UAW as
its exclusive representative of the production and maintenance employees at that
plant . This letter expressed a desire of the Union to "institute negotiations ," expressed
the opinion that no other person or organization then represented a majority of such
employees , and further advised that in the event of the failure of the Company to
comply with his request, charges "may be filed by us with the National Labor Rela-
tions Board."
Although UAW did not make a demand for recognition known at Adrian before
August 5, its letter of August 6, sent prior to the signing of the supplemental agree-
ment on August 14 , constituted at least notice to the Company that the claim of
AIW as representative of the Adrian plant employees was disputed . Certainly, there
is nothing in the record here to sustain a finding that AIW claimed at any time to
represent a majority of the Adrian employees prior to the signing of the supplemental
agreement.
On August 7 UAW filed a petition for certification of representative with the
Regional Director for Region 7, the petition setting forth that the unit involved was
all production and maintenance employees , excluding all office, clerical , plant guards,
and supervisors as defined in the Act , comprised of some 45 employees in the Adrian
Division of Dura Corporation. Case No. 7-RC-6419.8
I have mentioned above the practice of the Company of giving each person inter-
viewed for employment at the Adrian plant a checkoff authorization card, and that
Riddle, Local 620, AIW president, was present on two or three occasions when an
authorization card was given to an employee. The practice was continued by the
Company for about a week or 10 days after the signing of the settlement agreement.
Thereafter , however, Riddle insisted that the Company live up to the contract clause
and it was then, on September 14, that the Company mailed to each Adrian plant
employee a copy of the letter referred to above in which the employee was requested
to sign and return the card.
Three witnesses called by the General Counsel testified concerning interviews by
either Industrial Relations Director Kalb or his assistant. Lester Boyd testified that
2 or 3 days after his employment on September 16 he was called into Kalb's office,
that an AIW representative was there , and that Kalb handed Boyd a checkoff authori-
zation card and told him he was supposed to sign it . Riddle denied that Kalb told
Boyd he was "supposed" to sign the card. However, I am convinced , from the
straightforward testimony of Boyd, both on direct and cross -examination , that he was
told that he was supposed to sign. Tony Ashby was hired on September 15. On the
following day he was called into Kalb's office and in the presence of Riddle was
asked to sign a checkoff authorization . Boyd said that Kalb informed him that he
(Ashby) should have signed it on the day that Ashby was hired, but there was an
oversight , and that Kalb therefore had called him to ask him to sign the card. John
Limbacher, employed on September 18, was told on that day by a person in the per-
sonnel office that he would have to sign a dues checkoff authorization in order to be
hired. This person , whom I take to have been Kalb's assistant , according to Lim-
bacher told the latter "that it was a union shop and in order to hire in you had to
8 After a hearing on November 10, David L . Cole , Impartial Umpire under the AFL-CIO
Internal Disputes Plan, on December 14 filed his determination of a dispute between AIW
and UAW on complaint of AIW that UAW was "engaging in raiding activities in viola-
tion of Article XXI of the AFL-CIO Constitution" at the Adrian plant of Dura Corpora-
tion. This determination , in evidence herein, sets forth the Umpire's interpretation of
the facts presented to him by the two unions . The here Respondent Employer was not
a party to that proceeding There is also in evidence herein a letter dated November 4,
1964, from the Acting Regional Director to Local 620 AIW in which reference is made
to the charge filed in Case No. 7-CB-1266 in which the Acting Regional Director notified
the Union that "It is anticipated that a complaint will issue on or immediately after
November 10, 1964 , . . I received the copy of the determination and the copy of the
letter of the Acting Regional Director of November 4 in evidence for the sole purpose
of considering the weight to be given to the fact that a hearing was held and that the
Regional Director wrote the letter he did to Local 620. In the consideration and resolu-
tion of these instant cases , I have attached no evidentiary weight or value to either of
these documents . See Local 130, International Union of Electrical etc. Workers, AFL-
CIO v. McCulloch et al., 58 LRRM 2699 (C A D.C.).
DURA CORPORATION 605
sign this paper." The testimony of Ashby and Limbacher is uncontradicted; I choose
to credit the testimony of Boyd over that of Riddle on the basis of comparative
demeanor and manner when testifying.
John Zarate, one of the Charging Parties herein, was employed at Adrian on
July 6, having been referred to the Company by the Adrian unemployment office.
Zarate testified to a meeting of the Adrian plant employee held on August 4, when
Falahee, with Kalb and Greenawalt present, informed the employees that the Com-
pany would within 4 or 5 days come to an agreement with the AIW, at which time,
Falahee said, according to Zarate, "that there would be 70 or 75 people coming over
from Adrian and they would have top seniority." On September 7 Foreman Nof-
zinger called Zarate and other employees to the company office, where Kalb informed
them that he had some papers to be signed, insurance papers, and that he also said
he had the "checkoff authorizations"; Zarate said he asked Kalb, "Do we have to
sign that slip for the Union?", and that Kalb replied, "Well, I'm just asking. You
don't have to do it if you don't want to." The checkoff card was for authorization
for the deduction of dues to AIW.
Zarate testified to having attended several meetings in September conducted by
Riddle of Local 620 and attended by Frank Daniels, financial secretary and treasurer
of Local 620, and Larry MacDonald, an employee at the Adrian plant who, Zarate
said, was nominated with him by Local 620 to represent "the people at Adrian Dura
Corporation." Zarate related that he and MacDonald went into the meeting, that
Riddle informed him that "We're here to help you fellows. We know you're under-
paid," and promised them a number of things. Zarate said that he asked, "How can
you be here to help us, when all you're doing is harassing us and threatening us?"
Then, Zarate said, Daniels said that "We are here to help you" and further said,
"You know, we can easily bring maybe a hundred people or more over and take
your jobs and you fellows will be out in the street." At this meeting, Riddle urged
Zarate to sign an AIW authorization card. Zarate testified with respect to a second
meeting at which McDonald, Riddle, and Daniels were present, this meeting as well
as the first being held in Kalb's office. Riddle explained how much the AIW could
do for the others, that they could collect backpay amounting to perhaps about $300;
and that he, Zarate, told Riddle that they did not want backpay• "We'd like to have
our seniority rights." Zarate said that Daniels told him that "we," meaning AIW,
were negotiating on seniority rights, and that he replied, "Well, you fellows have
been promising us a lot of things and we never see anything; just promises and
promises; and never come to an agreement on nothing."
Zarate related a conversation he said he had with Daniels at the Adrian plant in
September, at which time Daniels told him that he would have to sign and have to
agree with this-that is, joining the AIW-and further said to Zarate, "If you don't,
you know a lot of things can happen . . . we can bring some people from Ypsilanti
and take over your job."
Zarate said he signed an authorization card for UAW about August 5 and that
other people signed UAW authorization cards at a meeting attended by approxi-
mately 37 employees. It appears from his testimony that 37 persons besides himself
signed UAW authorization cards. Under cross-examination by counsel for AIW,
Zarate denied signing an AIW authorization card. Riddle testified that he had
approached Zarate and Larry McDonald and tried to get them to "come in to my
union" and wanted to make them officers to help him administer and enforce the
contract; that he told Zarate that "unionism is to help the people and he could join
in and help the people," and that he never threatened Zarate with loss of his job if
he did or did not sign a card or join the Union. Riddle testified further that Zarate
did sign an application for membership in Local 620 and there is in evidence a
copy of such a card purporting to bear Zarate's signature. The card is undated;
Riddle says Zarate signed it in the early part of December. Riddle's testimony in
this respect is uncontradicted. He said he took Zarate's card back to Ypsilanti where
he kept his records, had it run off on a Xerox, carried it with him for 2 days, and
then returned it to Zarate whom, he said, he had appointed chief steward. He
returned the card to Zarate, he said, because "he was going to sign up more people
to join the Union, to try to get more people interested." I have difficulty, in relating
one proven fact to another, in believing that Zarate at any time solicited membership
in AIU. There is no explanation to be found in the record concerning Zarate's sign-
ing of a UAW card in December after the position taken by him in September.
The authenticity of the copy of the card was not questioned. I would credit the
testimony of Zarate in full except for this; as it is, his credibility is impaired only to
the extent that it is inconsistent with the inherent probabilities and permissible infer-
ences of the whole case as evidenced by the testimony of other witnesses.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hal Myers, one of the Charging Parties herein with Zarate and others, was
employed at Adrian on July 7. He said that sometime during the month of Sep-
tember Daniels approached him while he was at work:
We started talking. I don't recall the exact conversation. We started dis-
cussing the Union, and he told us that if we didn't sign there would be a pos-
sibility that they could bring 200 men over-100 men or 200 men-whatever
it was, I don't recall for sure-and strike this plant over here. And, I don't
remember any more right at the present time.
James Skinner, another of the Charging Parties, was hired July 13 as an assem-
bler, starting in as a member of the work gang. He testified to a conversation with
Daniels on September 23, who approached him and asked him if he would be inter-
ested in signing up with the AIW, to which he replied "No." Then Skinner said,
Daniels said, "Well, let's leave it this way. You first 40 guys that were hired into
this plant and will not sign any AIW, when our union gets in here, and believe me,
it is, you'll be fired." To which Skinner replied, "Well, I'll leave it go on as I
believe." Skinner had signed a UAW authorization card in the latter part of August.
Skinner was at the meeting on August 4 when the Adrian employees were informed
of the supplemental agreement between the Company and AIW, was told at that
meeting that there would be a wage increase, that Blue Cross and Blue Shield Insur-
ance would be provided, and that his seniority as well as the seniority of the other
employees at Adrian would be less, that the 40 men working at Adrian at the time
would have less seniority than employees transferred from Ypsilanti. Referring to
Daniels,
he said that it would be 75 men, at the time I was talking to him. I don't
remember the date, as I said before. He said they would come down here with
top seniority all over the Adrian plant.
Billy Ireland, the other Charging Party, started work on July 20, classified as a
welder. He said that on September 21 he engaged in a conversation with Daniels,
that he questioned Daniels concerning wage rates and brought up the subject about
"having to join" AIW. He said that Daniels told him that "the ones that didn't join
the Union would be discharged or relieved after they had their 60 days in; in other
words, 60 days probationary period." Ireland signed a UAW authorization card on
one of the first 3 days in August.
Riddle conceded that either in his capacity as president of Local 620 or as an
International representative of the Union, he solicited membership from new employ-
ees at the Adrian plant and discussed with the plant manager and the director of
industrial relations the enforcement and observance of the terms of the supplemen-
tal agreement after it was agreed to on August 3. He denied having threatened
Zarate, Boyd, or any other employee with loss of his job if he did not sign a card
for or join AIW. He said that he had approached Zarate and McDonald, tried to
get them to come into AIW, because "I wanted to make officers out of them so they
could help me administer the contract and enforce the contract." During the course
of his policing of the supplemental agreement, he filed a grievance "in November or
September" claiming company failure to fully live up to the provisions of the sup-
plemental agreement in connection with, as he described it, "closing of jobs, posting
of jobs properly at Motor State. We thought they were violating the interpreta-
tions of the intent of the contract we were in disagreement on."
Frank Daniels, Jr., financial secretary and treasurer of Local 620, an employee of
the Motor State Products division, Ypsilanti,9 testified to his presence at the meetings
with Zarate, McDonald, and Riddle. He said that at the first meeting Riddle
"explained to them that they should try to help the people in Adrian and to enforce
the contract that we now have or had at that time," and that at some other time he
might have discussed with Adrian employees the possibility that Ypsilanti employees
"would come down to Adrian"; that he told these employees, whose names he did
not remember, that "the Company had failed to live up to our contract on the bid-
ding of jobs and that we were going to ask that the Company repost all jobs that
they had hired at the Adrian plant under our contract." Daniels denied ever threat-
ening any employee with the loss of his job if he did not join or cooperate with AIW.
He said that during the time he was in Adrian, and when he was representing AIW,
he had been instructed by the Union's International director not to coerce any per-
son or threaten him, and further was told not to enforce or attempt to enforce the
union-security clause of the supplemental agreement.
0 Daniels transferred to Adrian on September 14 and returned to Ypsilanti on October 9.
DURA CORPORATION 607
It is not too difficult to infer from the testimony of Riddle and Daniels that in
discussing the provisions of the supplemental agreement with Zarate, McDonald,
Boyd, Skinner, Myers, Ireland, and others, they very clearly pointed out the seniority
and transfer provisions contained therein, in a manner which easily could be con-
strued by the Adrian employees as being threats to their jobs. The proof shows
that the Charging Parties did construe the explanations of Riddle and Daniels as
threats to the permanency of their jobs.
The manner in which company representatives rendered assistance in an attempt
by AIW to obtain signed checkoff forms as part of the hiring process, and the Sep-
tember 14 letter addressed to Adrian employees, with an enclosed checkoff form,
constituted active assistance to AIW The furnishing of office space to Riddle and
Daniels certainly was of assistance to the Union both in soliciting membership and
in obtaining signatures of new employees to checkoff cards. At the times Riddle
visited the plant, when he was present when employees were asked to sign authori-
zation cards, he was in the personnel office of the Company. It is implicit in the
testimony of Riddle and Daniels that they also solicited membership in AIW in that
office or near it. Furthermore, I do not credit Daniels' denial that he made threats
that employees at Adrian would lose their jobs unless they joined AIW. An infer-
ence that he did reasonably may be drawn from his testimony alone concerning his
"explanations" of the terms of the supplemental agreement; beyond this, however,
I credit the testimony of those witnesses who testified to direct threats to them from
him. At these times, he clearly was acting as an officer and agent of Local 620;
therefore, his statements which constitute violations of Section 8(b)(1)(A) may be
attributed directly to Local 620. Local 3, International Brotherhood of Electrical
Workers, AFL-CIO (New Power Wire and Electric Corp. et al.), 144 NLRB 1089,
1091-92; United Mine Workers of America (L. E. Cleghorn), 95 NLRB 546, enfd.
198 F. 2d 389 (C.A. 4), cert. denied 344 U.S. 884; Local 542, International Union of
Operating Engineers v. N.L.R.B. (Giles & Ransome, Inc.), 328 F. 2d 850, 852-853
C.A. 3).
CONCLUDING FINDINGS
The question as to whether the new operation at Adrian is such as to constitute
an accretion to the existing operation at Ypsilanti, so as to make the two plant opera-
tions constitute a single bargaining unit, can be answered only upon a consideration
of those essential factors present which I have set forth above. Primarily, the exist-
ence or nonexistence of an overlapping community of interest among the employees
in each operation must be found.
There is a history of collective bargaining between the Company and AIW at
Ypsilanti; on the other hand, there is no such history of bargaining between the
Company and any union at the Adrian plant. Each plant has its own manager and
industrial relations director, all of whom report to Vice President Wochowiak, the
head of sales and manufacturing for Dura Corporation. Historically, Motor State
Products Division employees perform all the production duties involved in manu-
facturing convertible tops for Ford, Fisher, American Motors, and Chrysler.
As counsel for AIW aptly points out, the acquisition of the Adrian plant imposed
upon the Employer and the Union the task of attempting to find a solution in the
event employees at either plant should be laid off from their work. When the prob-
lem first arose as to representation of the employees at Adrian, the Company neces-
sarily faced the finding of a proper and legal solution of the representation problem
on the basis of forecasts of normal production at Ypsilanti and projected normal
production at Adrian. As an approximation, the Company figured it would need
approximately 120 additional employees and, by the employment of 120 additional
employees could cut the 400 employees at Ypsilanti back to 260 to 270 employees
to work on a 5-day, 40-hour week. The high customer demand, particularly from
Ford, has been noted above. The Respondent Employer accepted IAW as bar-
gaining representative, and reluctantly executed the supplemental agreement. That
it yielded to expediency is reflected by the tenor of the record as a whole. It had
the choice of standing a strike at Ypsilanti when production was high, or of taking
the calculated risk of violating the Act by recognizing the Respondent Union at
Adrian. It chose the second course, and now contends, as it consistently must, that
in so doing it had not contravened Section 8(a)(2) or (I). The Respondent Union
has always maintained the legality of its position even though asserted at a time
when at first none and later when only 40 to 45 employees at Adrian were on the
payroll, and when sound planning showed an anticipated need there for at least 250
employees.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The manufacturing equipment moved from Ypsilanti to Adrian was, as described,
"minimal": some $15,000 in value for use in a multimillion dollar enterprise. Actu-
ators are supplied by Dura-Toledo to Motor State Products Division and Adrian
Division.10 The practicality of the separation of the Ford product lines from the
Adrian operation has been clearly demonstrated. The supplying of unfinished bows
by Ypsilanti to Adrian in itself does not demonstrate that Adrian Division is ines-
capably a part of Motor State Products Division.
The unworkability of the contract seniority provision is vividly shown by the very
fact that only 12 Ypsilanti employees transferred to Adrian, where they remained
for a comparatively short period of time. Further, lack of sureness of position is
demonstrated by AIW in not enforcing the dues checkoff clause. The filing of the
grievance by Riddle in September or December I consider to have been only empty
gesture.11 I cannot find that a natural accretion occurred solely on the basis of the
fact that some 40 or 45 employees first employed at Adrian received certain wage
and other benefits as a result of the execution of the supplemental agreement. Nor
can I find that "community of interest" between Ypsilanti and Adrian employees
which would constitute a real overlapping of work; to the contrary, it seems to me
that logically, under existing plant organization, the overriding interest of each
employee is directed to that plant wherein he does his work. Presently, under nor-
mal seasonal operations, layoffs would occur with no greater frequency or number
than in the past.
To argue, as the Respondent Union does, that in negotiating the present supple-
mental agreement, the parties "in a rough, tough economic battle came to an agree-
ment which permitted the employer to expand its operations, protected old employ-
ees in their employment security and benefits built up through the years, and obtained
for the new employees in the short term supplement most of the fringes of the base
plan and benefits superior to the employees in the area in which they work," is to
ignore the rights of newly employed persons from the Adrian area to have a voice
in the selection of their collective-bargaining representative.
General Extrusion Company, Inc., et al., 121 NLRB 1165, relied upon by
Respondent Union here, involves a question concerning whether a contract barred
an election. That case affords only weak support to the Respondent Union's case.
There, the Board held (p. 1167-1168):
Apart from the foregoing, present Board policy concerning the effect of
changed circumstances upon the operation of contracts as bars has not been
revised in any material sense. Thus, we shall adhere to the rule that a con-
tract does not bar an election if changes have occurred in the nature as distin-
guished from the size of the operations between the execution of the contract
and the filing of the petition, involving (1) a merger of two or more operations
resulting in creation of an entirely new operation with major personnel changes;
or (2) resumption of operations at either the same or a new location, after an
indefinite period of closing, with new employees. However, a mere relocation
of operations accompanied by a transfer of a considerable proportion of the
employees to another plant, without an accompanying change in the character
of the jobs and the functions of the employees in the contract unit, does not
remove a contract as a bar. The heretofore existing rules relating to the changes
described above have been modified only to the extent that the requirement has
been added that to remove the contract as a bar the change must have involved a
considerable proportion of employees. [Emphasis supplied.]
The facts in the instant case do not meet either (1) or (2) of the conditions quoted
above. Here, too, the contract bar is removed simply because the opening of the
Adrian plant did not involve a considerable proportion of employees. It involves,
except for 40 new employees, such employees as the Company might engage in the
future after the execution of the supplemental agreement. Saco-Lowell Shops, 107
NLRB 590, and Richfield Oil Corporation, 119 NLRB 1425, are distinguishable on
the facts simply because the similarity or identification of job classifications listed in
10 In evidence are lists of tools, dies, jigs, and fixtures necessary to the fabrication of
Fisher and American Motors products. This equipment is owned by the automotive
customer company. It is in possession of and insured by Dura Corporation. The various
pieces of equipment were involved in the first move to Adrian and are, generally speak-
ing, permanently placed there.
11In writing this, I have in mind the contention that no more transfers occurred than
(lid from Ypsilanti to Adrian because of the suspension of the checkoff clause and the
nonenforcement of the union-security clause at Adrian
DURA CORPORATION 609
the supplemental agreement , covering nonexistent employees, covered only those new
employees who actually were working in the maintenance gang at Adrian pending the
accomplishment of normal or full operation of that plant.
In Borg-Warner Corporation, 113 NLRB 152, the Board, disagreeing with its
Trial Examiner, found "that the newly hired employees of the transmission depart-
ment constituted an accretion to the established production and maintenance unit."
The Trial Examiner had found that the employees of the transmission department
did not constitute an accretion to the existing unit of production and maintenance
employees, but that they could be represented either as a separate appropriate unit
or as part of the existing unit, and were therefore entitled to a self-determination
election in which to decide whether they wished to be separately represented. He
concluded that in such circumstances the employer's execution of union-security pro-
visions applicable to the employees of the transmission department before the group
came into existence, and the application of the provisions thereafter, coerced those
employees in their choice of representatives in violation of Section 8(a)(1). That
case may be distinguished in that there the Board based its decision on the fact that
the new department was staffed with a substantial number of transferees from the
Respondent's other operation, and the proximity of the new building B to the other
buildings of the employer within the same fenced area. Presently, we are consider-
ing a situation where the new plant is 40 to 50 miles away, the labor market is local,
and that the few employees who did transfer from Ypsilanti to Adrian, all eventually
within 30 days or thereabouts returned to Ypsilanti.
In the following cases the Board, while acknowledging that a larger unit might
also have been appropriate, found a single-plant unit to be appropriate in view of
the geographical separation between plants, the existence of intermediate supervi-
sion at the plant level, the lack of prior bargaining history on a multiplant basis,
and the fact that no union was seeking the larger unit: Rose Marie Reid, 103 NLRB
498 (company had two plants in Los Angeles, California, about 15 miles apart, both
under centralized control); Harris Langenberg Hat Company, 106 NLRB 19, enfd.
216 F. 2d 146 (C.A. 8) (company had five plants, the nearest 10 miles away, all
under centralized administration and labor relations policy); Wm. R. Whittaker Co.,
Ltd., 117 NLRB 339 (company had two plants within 20 miles of each other in
California, both under centralized administration and labor relations policy); Temco
Aircraft Corp., 121 NLRB 1085 (company had three plants near Dallas, Texas,
within 40 miles of each other, all under central administration and labor relations
policy); American Linen Supply Co., Inc., 129 NLRB 993 (company had laundries
in New Haven, Stanford, and Hartford, Connecticut, and Springfield, Massachusetts,
within 35 to 60 miles of each other, all under centralized management and labor
relations policy).
A number of factors necessary to be considered in determining the issue here
include the nature of the manufacturing operations, whether there is a substantial
community of interest existing among the employees of both plants, whether there
is a substantial interchange of employees or equipment, the matter of separate imme-
diate supervision, geographical location, wage rates, separate hiring arrangements
and labor relations, and separate plant management or next level of management as
between each of the two plants and the other.
In Welsh Co., 146 NLRB 713, the Board held:
A single-plant unit is presumptively appropriate, unless the employees at
such plant have been merged into a more comprehensive unit by bargaining his-
tory, or the plant has been so integrated with the employees in another plant as
to cause their single-plant unit to lose its separate identity. The facts here do
not reveal such a degree of integration or merger of the two operations as would
require our rejection of the requests for a separate single-plant unit.
In view of the foregoing ... including the geographic separation of the Tren-
ton plant from the St. Louis plant; the substantial authority of the Trenton plant
foreman ; the lack of substantial interchange or transfer of employees; the
absence of any bargaining history for the employees involved; and the fact that
no labor organization is seeking to represent a more comprehensive unit, we
find that the requested single-plant unit confined to the Trenton plant is
appropriate.
I disagree with the contention that in the instant case there is no special factor pres-
ent as in Welsh Co. For one thing, UAW here seeks to represent the employees at
the Adrian plant , and a showing has been made that some employees, at least, at
Adrian have signified a desire for UAW representation.
796-027-66-vol. 15 3-4 0
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Illinois Malleable Iron Company, et al., 120 NLRB 451, reversed sub nom.
N.L.R.B. v. Appleton Electric Co., 296 F. 2d 202 (C.A. 7) does not support the
proposition that, integration of manufacturing operations being a relevant factor,
the facts show here that there is integration between the Adrian and Ypsilanti plants,
in that the rear bows for convertible tops are obtained by the Adrian plant from the
Ypsilanti plant. I take "integration" in its usual sense and view it as meaning the
the integrating of parts into a whole. In Illinois Malleable, the Board held (p.
453-454):
This basic difference in the type of work done at the Malleable foundry and
at the Appleton Chicago plants persuades us that, for all intents and purposes,
the Malleable operation amounted to a new enterprise and that the Malleable
employees comprised a distinct unit entitled to express their choice of a bargain-
ing representative. The validity of this conclusion is further demonstrated by
other factors present in this case. Thus, Malleable employees worked in sepa-
rate buildings from Appleton employees . . . . They had separate seniority
rights from Appleton employees and were not entitled to membership in the
Appleton Profit Sharing Plan which was of considerable value as an incidence
of employment. In addition, there was no substantial interchange between
Appleton and Malleable employees. Job classifications at Malleable were dif-
ferent from those at Appleton as the latter was essentially a machine shop and
the former a foundry. Moreover, Malleable employees had a long continuous
history of separate collective bargaining....
. [W]e find that, by extending the IBEW union-security contract and the
supplemental agreements to the Malleable employees, without affording these
employees an opportunity to express their free choice of a bargaining represen-
tative, and by engaging in the other conduct outlined above and discussed in the
Intermediate Report, the Respondent gave the IBEW unlawful assistance within
the meaning of Section 8(a)(2) of the Act. By reason of this conduct, we
further find that the Respondents interfered with, restrained, and coerced
employees in violation of Section 8(a)(1) of the Act
In that case, in finding that Malleable employees did not constitute a normal accre-
tion to the established Appleton bargaining unit as to deprive them of their right
freely to designate their own bargaining representative, the Board recognized "that
Appleton utilizes castings in the manufacture of its products, [but] it is clear from
past production that the operation of a foundry is not an essential element of its
manufacturing process." 12
Radio Corporation of America, 127 NLRB 1563, where accretion was found to
have occurred, involved a situation where the employer had a California plant called
the Olympic Boulevard plant and a second plant called the Van Nuys plant, 17 miles
away. There, the Board found employee classifications to be the same at both loca-
tions as were wages and benefits; operations at both facilities were directed by a
plant manager at Van Nuys; there was a manufacturing manager at Olympic Boule-
vard responsible to the plant manager at Van Nuys; and personnel and labor rely
tions, including wages, salaries, services, training, and employment, of both plants
were directed by the personnel manager located at Van Nuys, to whom a personnel
director at Olympic Boulevard was responsible. There was a single payroll for both
facilities, and test equipment was transferred back and forth. The Board held
(p. 1566) :
On the basis of all the foregoing and the entire record, including the similarity
of operations, centralized control of managerial and labor relations policies,
12 Among other cases cited in Respondent Employer's brief are The Arrow Company,
147 NLRB 829, where a consolidation of warehouses resulted in an interim period when
employees worked from the one place to the other ; Simmons Company, 126 NLRB 656,
where the employer was round to be engaged in the same functional activity in the manu-
facturing of home furniture, both operations being closely integrated and a clearly exist-
ing community of interest between employees in the two departments, living-room and
bed-room operations, existed, and American Cyanamid Company, 146 NLRB 1415, wherein
the Board found that: There appeared to be little or no interdependence between two
plants in the same city ; the process used at one plant was novel and completely different
from that utilized at the other plant, equipment and physical layout at each plant were
different , job classifications varied somewhat, and wages and fringe benefits for employ-
ees were different ; the two plants were serviced by different personnel arrangements ;
employees at each plant were under separate supervision , and there had been no employee
interchange In those cases there was a different "community of interest" existing among
employees than the community of interest asserted here ( which I do not think exists).
DURA CORPORATION 611
geographic proximity, and uniformity of wages and working conditions, and the
original staffing of the new plant, we find ... that the Van Nuys facility is essen-
tially an extension of the Olympic Boulevard operation and that its employees
are an accretion to the Olympic Boulevard production and maintenance unit.
Thus, it clearly appears from the facts and the holdings in the cases above cited that
combinations of certain factors must be used to determine the accretion question in
each case. No rigid formula or listing of factors can be found to apply to each case
as it arises. Such guidelines as have been established by the Board clearly must be
applied with flexibility, the more important factors to be given the greater weight.
The Welch Scientific Co., Inc. v. N L R B, 340 F. 2d 199 (C.A 2), enfg. in part
146 NLRB 1451, I believe applicable to the facts here. There, the court agreed with
the findings of the Board that the employer, who in April 1962 had purchased its
New York plant (which was the subject of the Board Order under review) had com-
mitted an unfair labor practice violative of Section 8 (a) (1) by erroneously assuming
that the new operation automatically accreted to its preexisting companywide unit and
applying its contract with the unit's bargaining representative to the new operation.
For more than 20 years the contracts between the company and the union representing
employees in the preexisting unit had provided for coverage of employees of the main
company "and its subdivisions and subsidiaries," and had further provided for recog-
nition of the union as "the sole collective-bargaining agent for all employees of the
company." After purchasing the new plant, the employer applied the terms of the
contract to employees there; paid wages and sick benefits and established holidays and
vacations in accordance with such agreement, and told several employees it was doing
so because it considered the agreement applicable to the New York plant. The Board
later found in a representation case that there had been no accretion. The court
rejected the employer's contention that since it had acted in good faith, it had com-
mitted no unfair labor piactices, concluding that if the conduct otherwise violated
Section 8(a) (1), good faith is no defense. The employees, prior to the employer's
action, had not designated the contracting union as their representative, and the
Board's conclusion that the company's conduct had a tendency to interfere with the
fundamental right of the employees to choose their own representative was clearly
correct. Other actions found violative of Section 8(a)(1) were the employer's
announcement of application of the contract to the employees, and permitting a
representative of the contracting union to solicit memberships on company time after
a demand for recognition by a rival union had been rejected.
If here there has been no accretion, as I shall find, N.L.R.B. v. International Associ-
ation of Machinists, Aeronautical Industrial District Lodge 727 and Local Lodge 758
(Menasco Mfg. Co.), 279 F. 2d 761 (C.A. 9), is of interest. In that case, the company
and the union entered into a collective-bargaining agreement which provided, inter
alia, that employees of the production unit who transferred to unrepresented units
within the company would retain seniority in the production unit as of the date of
hire; while employees of the production unit who transferred to union-represented
units would have seniority only from the date of their return to the production unit
who transferred to union-represented units would have seniority only from the date
of their return to the production unit. The agreement further provided, however,
that the union and the company could, by "mutual agreement," restore seniority as
of the date of hire to any employee returning to the production unit from an unrepre-
sented unit, and that such returning transferees could "bump" employees within the
production unit with less than the restored-by-mutual-agreement seniority. There,
the court held in part (p. 766) :
Here logic compels the conclusions that, as a "natural consequence" of the
contractual provisions in question, employees in the production unit would be
discouraged from seeking new union representation upon transfer to other
units, if the price of such representation were loss of seniority and "bumping-
back" privileges within the production unit. Moreover, respondents' attempt
to justify the contract on the theory that the first duty of IAM is to protect the
interests of the employees within the bargaining unit must fall for want of merit,
since the contract clearly provides that some employees, while employed outside
the production unit, may retain their seniority within the unit, if only they are
working in a unit not represented by a union.
It follows that the Board's finding that IAM is maintaining a contract in viola-
tion of § 8(b) (1) (A) of the Act [29 U.S.C.A. § 158(b) (1) (A) ] must be upheld;
and this result in turn leads to the holding that respondents violated § 8(b) (2)
of the Act [29 U.S.C.A. § 158(b)(2)] by causing Menasco to deny employment
to Gibbs, Madison and Light in derogation of § 8(a) (3) of the Act [29 U.S.C.A.
§ 158(a)(3)].
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Adrian Division is not an accretion to Motor State Products Division,
Ypsilanti , and that the execution of the supplemental agreement between the Respond-
ent Employer and the Respondent Union and its application by them to employees at
the Adrian plant are clearly violative of Section 8(a)(1) and ( 2) and 8(b)(1) (A)
and (2).
Any doubt that the Respondent Employer and the Respondent Union violated Sec-
tion 8(a)(1) and ( 2) and 8(b)(1) (A) of the Act by entering into and executing
the supplemental agreement , according exclusive recognition to AIW at a time when
the Union represented none or very few of the employees at the Adrian plant, is
dispelled by Bernhard-Altmann Texas Corporation , 122 NLRB 1289, enfd. sub nom.
International Ladies Garment Workers Union , AFL-CIO v. N.L.R.B., 280 F. 2d
616 (C.A.D.C.), affd. 366 U.S. 731 . Because a union-security clause is found in the
supplemental agreement , there is also a violation of Section 8(b)(2). Dancker &
Sellew, Inc., 140 NLRB 824, 825-826.
Negotiations concerning and the execution of the supplemental agreement were
not bona fide in the sense and within the meaning of Bernhard-Altmann Texas Cor-
poration , supra ( p. 1291-1292):
As stated , the Union contends that the General Counsel must allege and prove
that the unit covered by the "memorandum of agreement" is appropriate. We
find no merit in this contention . This is not a "refusal to bargain " case. The
Respondent Company is charged with having unlawfully contributed support to
the Respondent Union by according it recognition as the exclusive bargaining
representative of an agreed -upon group of employees , although it had no right
to act as such representative . The vice of such action is the extension of recog-
nition. The assistance is not rendered any the less potent and unlawful by the
fact that in a "refusal to bargain" case the Board might not find the agreed-upon
unit appropriate.
[W]e find . . . that the Respondent Company violated Section 8(a)(2)
and (1) of the Act by executing and maintaining a contract with the Union
which recognized the Union as the exclusive bargaining representative of the
employees in the specified unit at a time when the Union did not represent a
majority of such employees.
We also agree ... that the Respondent Union violated Section 8(b) (1) (A) by
executing and maintaining the above agreement as the exclusive bargaining
representative of certain employees, a majority of whom it did not represent
on the date the agreement was executed....
Section 8(b) (1) (A) makes it an unfair labor practice for a labor organization
or its agents to restrain or coerce employees in the exercise of the rights guar-
anteed in Section 7. And there can be no more direct deprivation of these
rights, particularly of the right to choose their own bargaining representative
or to refrain from so doing, than to impose upon employees a collective-
bargaining agent they have not chosen.... Therefore, just as an employer violates
Section 8(a)(1) (as well as 8(a)(2)) by recognizing and contracting with a
minority union, so, too, does a minority union violate Section 8 (b) (1) (A) by
executing and maintaining a collective-bargaining agreement in which it is
recognized as the exclusive bargaining representative.
Having found that the Adrian plant is not an accretion, it is found to be a sep-
arate establishment. This finding is based principally upon the complete lack of
operational integration between the two plants, the minimal transfer of employees,
supervision, and equipment from Ypsilanti, and with regard to the geographical sep-
aration of the two plants. Also considered is the fact that the Adrian plant draws
on the Adrian area for new employees through a public employment office at Adrian.
I find that the execution of the supplemental agreement by the Respondent Union
was a violation of Section 8(b)(1)(A) and (2) of the Act; further, that the threats
made by representatives of the Respondent Union to employees of the Employer at
Adrian in order to obtain their membership in AIW constitute restraint and coercion
within the meaning of Section 8(b) (1) (A).
I therefore find, as the General Counsel contends, that the execution, maintenance,
and implementation of the supplemental agreement containing union-security and
checkoff clauses were unlawful, and that no defense of accretion exists under the
facts and circumstances of this case.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, as set forth in section III, above, which have
been found to constitute unfair labor practices, occurring in connection with the
DURA CORPORATION 613
operations of the Respondent Company, described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, it shall
be recommended that they be required to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
It shall be recommended that the Respondent Company be ordered to withdraw
all recognition from the Respondent Union as representative of any of its employees
at its Adrian Division plant for the purpose of dealing with it concerning grievances,
labor disputes , wages, rates of pay, hours of employment , and conditions of employ-
ment, unless and until the said labor organization shall have demonstrated its exclu-
sive majority representative status pursuant to a Board -conducted election among the
Company's employees at said plant . It shall be recommended that the Respondent
Company also be ordered to cease and desist from giving any force or effect to the
aforementioned supplemental agreement executed and maintained by the Respond-
ents. However, nothing herein shall be construed as requiring the Respondent Com-
pany to vary any wage, hour , seniority , or other substantive feature of its relations
with its employees which the Company has established in the performance of this
supplemental agreement.
It shall further be recommended that the Respondent Union be ordered to cease
and desist from acting as the collective -bargaining representative of any of the Com-
pany's employees at the Adrian Division plant unless and until said Union shall
have demonstrated its exclusive majority representative status pursuant to a Board-
,conducted election among the Company's employees at said plant. It further shall
be recommended that the Respondent Union be ordered to refrain from seeking to
enforce the supplemental agreement executed and maintained by the Respondents.
Upon the findings of fact set forth above, and upon the whole record of the case,
I make the following:
CONCLUSIONS OF LAW
1. Dura Corporation is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. Local 620, Allied Industrial Workers of America, AFL-CIO , is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By recognizing Local 620, Allied Industrial Workers of America, AFL-CIO, as
agreement, mentioned above in section III hereof , at a time when said Union did
sole bargaining representative , and executing a contract called the supplemental
not enjoy a majority status in the Adrian Division , Adrian, Michigan , Respondent
Company has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (2) and (1) of the Act.
4. By executing and maintaining the aforementioned supplemental agreement, the
Respondent Union has restrained and coerced , and is restraining and coercing, the
employees of the Respondent Company employed at its Adrian Division plant in the
exercise of the rights guaranteed in Section 7 of the Act, in violation of Section
8(b)(1)(A ) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recommended that the Board order that
A. The Respondent Dura Corporation, its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Contributing support to Local 620, Allied Industrial Workers of America,
AFL-CIO, or to any other labor organization of its employees.
(b) Recognizing Local 620, Allied Industrial Workers of America, AFL-CIO, as
the representative of any of its employees at its Adrian Division plant for the purpose
of dealing with the Company concerning grievances, labor disputes, wages, rates of
pay, hours of employment , or other conditions of employment, unless and until the
said labor organization shall have demonstrated its exclusive majority representative
status pursuant to a Board-conducted election among the Company's employees at
the aforesaid Adrian plant.
(c) Giving effect to the aforementioned supplemental agreement between the
Respondent Company and Local 620, Allied Industrial Workers of America,
AFL-CIO, or to any extension , renewal, or modification thereof: provided, however,
that nothing in the order here recommended shall require the Respondent Company
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to vary or abandon any wage, hour, seniority, or other substantive feature of its
relations with the employees which the Company has established in the performance
of this supplemental agreement or to prejudice the assertion by employees of any
rights they may have thereunder.
(d) In any like or related manner interfering with, restraining, or coercing its
employees at its Adrian Division plant in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act:
(a) Withdraw and withhold all recognition from Local 620, Allied Industrial
Workers of America, AFL-CIO, as the exclusive bargaining representative of its
employees at its Adrian Division plant for the purpose of dealing with the Company
concerning grievances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until the said labor organization shall
have demonstrated its exclusive majority representative status pursuant to a Board-
conducted election among the Respondent Employer's employees employed at its
said Adrian Division plant.
(b) Post at its Adrian Division plant, Adrian, Michigan, and at its Motor State
above and as soon as they are forwarded by the Regional Director, copies of
Products Division plant at Ypsilanti, Michigan, copies of the attached notice marked
"Appendix A " 13 Copies of such notice, to be furnished by the Regional Director
for Region 7, shall, after being duly signed by its authorized representative, be posted
by the Respondent Employer immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places at its Adrian Division
plant and at its Motor State Products Division plant, including all places where
notices to its employees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that such notices are not altered, defaced, or covered by
any other material.
(c) Post at the same places and under the same conditions as set forth in (a)
Respondent Union's notice herein, marked "Appendix B."
(d) Notify the Regional Director for Region 7, in writing, within 10 days from
the date of this Recommended Order, what steps the Respondent has taken to comply
therewith
B The Respondent, Local 620, Allied Industrial Workers of America, AFL-CIO,
its officers, representatives, and agents, shall.
1 Cease and desist from
(a) Acting as the exclusive bargaining representative of any of the employees of
Respondent Dura Corporation at its Adrian Division plant, Adrian, Michigan, for
the purpose of dealing with said corporation concerning grievances, labor disputes,
wages, rate of pay, hours of employment, or other conditions of employment, unless
and until said Union shall have demonstrated its exclusive majority representative
status pursuant to a Board-conducted election among the Company's employees
employed at its said Adrian Division plant.
(b) Giving effect to the supplemental agreement described in section III of this
Trial Examiner's Decision, between the Respondent Union and Dura Corporation, or
to any extention, renewal, or modification thereof.
(c) In any like or related manner, restraining or coercing the employees of Dura
Corporation at its said Adrian Division plant in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act:
(a) Post at its offices and meeting halls at Adrian and Ypsilanti, Michigan, copies
of the attached notice marked "Appendix B." 14 Copies of said notice, to be furnished
by the Regional Director for Region 7, shall, after being signed by the Respondent
Union's representative, be posted by it immediately upon receipt thereof and main-
is In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board 's Order is enforced by a
decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
11 See footnote 13.
DURA CORPORATION 615
tamed by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted. Reasonable steps shall be
taken by the Respondent Union to ensure that said notices are not altered, defaced,
or covered by any other material.
(b) Mail to the Regional Director signed copies of Appendix B, for posting by
Respondent Company, at its Adrian Division, Adrian, Michigan, plant and at its
Motor State Products Division plant, Ypsilanti, Michigan, as provided above. Copies
of said notice, to be furnished by the said Regional Director, shall, after being signed
by the Respondent Union's representative, be forthwith returned to the Regional
Director for disposition by him.
(c) Notify the Regional Director for Region 7, in writing, within 10 days from
the date of this Recommended Order, what steps it has taken to comply therewith.
It is further recommended that if, within 10 days from the date of this Trial
Examiner's Decision, the Respondent Dura Corporation and the Respondent Union,
or either of them, has not advised the said Regional Director in writing what steps
it has taken to comply with the said Trial Examiner's Decision, the Board enter an
order requiring each of said Respondents, or either of them, to comply with the
Recommended Order herein.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT contribute support to Local 620, Allied Industrial Workers of
America, AFL-CIO, or to any other labor organization of our employees, at
our Adrian Division plant, Adrian, Michigan.
WE WILL NOT recognize Local 620, Allied Industrial Workers of America,
AFL-CIO, as the exclusive bargaining representative of our employees at our
Adrian Division plant, Adrian, Michigan, unless and until said labor organiza-
tion shall have demonstrated its exclusive majority status pursuant to a Board-
conducted election among our employees employed at that plant.
WE WILL NOT give effect to the supplemental agreement dated August 4, 1964,
between Local 620, Allied Industrial Workers of America, AFL-CIO, and our-
selves, which covers certain employees at our Adrian Division plant, Adrian,
Michigan: provided, that nothing in this Recommended Order requires us to
vary or abandon those wage, hour, seniority, or other substantive features of
our relations with our employees at our Adrian Division plant, established in
performance of any such agreement, or to prejudice the assertion by employees
of any rights they may have undertaken.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed in Section 7 of the Act.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of the above-named labor organizations or any other labor
organization.
DURA CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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 any employee has any question concerning this notice or compliance with its
provisions; they may communicate directly with the Board's Regional Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No.
963-9330.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 620, ALLIED INDUSTRIAL WORKERS, AFL-CIO,
AND TO ALL EMPLOYEES OF DURA CORPORATION AT ITS MOTOR STATE PRODUCTS
DIVISION, YPSILANTI, MICHIGAN, AND ITS ADRIAN DIVISION AT ADRIAN, MICHIGAN
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that-
WE WILL NOT act as the exclusive bargaining representative of any of the
employees of Dura Corporation at its Adrian Division plant, Adrian, Michigan,
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless and until we have demonstrated our exclusive majority representative
status of the employees at that plant pursuant to a Board-conducted election
among the employees of the said Company.
WE WILL NOT give effect to the Supplemental Agreement dated August 4,
1964, between Dura Corporation and ourselves, or to any extension, renewal, or
modification thereof.
WE WILL NOT in any like or related manner restrain or coerce the employees
of Dura Corporation at its Adrian Division plant, Adrian, Michigan, in the
exercise of the rights guaranteed in Section 7 of the Act.
LOCAL 620, ALLIED INDUSTRIAL WORKERS OF
AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
In the event of any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330.
The Wm . H. Block Company and Retail , Wholesale and Depart-
ment Store Union, AFL-CIO. Cases Nos. 25-CA-1879 and 25-
CA-19093. June 28,1965
DECISION AND ORDER
On November 2,1964, Trial Examiner Sidney D. Goldberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in certain of the unfair labor practices alleged in
the complaint and that a prior settlement agreement precluded his
consideration of the other unfair labor practices alleged, and recom-
mending that the complaint be dismissed, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General Counsel filed
exceptions to the Decision and a brief in support thereof, and the
Respondent filed a brief in support of the 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 these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 these cases, and finds merit in certain of the General Counsel's excep-
tions. Accordingly, the Board adopts the Trial Examiner's findings,
conclusions, and recommendations only to the extent consistent with
our Decision and Order.
153 NLRB No. 30.