Dyna Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1976

223 N.L.R.B. 1200 (N.L.R.B. 1976)

1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dyna Corporation and District Lodge 82 of the Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO. Cases 9-CA-9252-1 and 9-
CA-9252-2.
April 30, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On November 26, 1975, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Dyna Corporation,
Washington Court House, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951 ). We have carefully
examined the record and find no basis for reversing his findings.
In affirming the Administrative Law Judge's findings and conclusions, we
do not adopt the finding at fn. 21 of his Decision as no demand for bargain-
ing was made until June 16, 1975.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on July 17, 1975, at Washington Court House, Ohio.
The charge and amended charges were filed on March
28 and April 28, 1975, and July 15, 1975, respectively. The
complaint in this matter was issued on May 22, 1975, and
was amended at the hearing on July 17, 1975. The issues
concern (1) whether the Respondent has engaged in con-
duct of interrogation of employees concerning employee
union activity and in the maintenance and enforcement of
rules prohibiting solicitation of employees on behalf of the
Union, and thereby has violated Section 8(a)(1) of the Act,
(2) whether Respondent has aided and assisted a Union
and thereby has violated Section 8(a)(1) and (2) of the Act;
(3) whether the Respondent discriminatorily (because of
union beliefs) discharged two employees in violation of
Section 8(a)(3) and (1) of the Act; (4) whether the Respon-
dent has violated Section 8(a)(4) and (1) of the Act by
discharging one of the employees referred to above, in
whole or part because said employee had given testimony
under the Act; and (5) whether the Respondent has violat-
ed Section 8(a)(5) and (1) of the Act by refusing to bargain
with District Lodge 82 of the IAM. The issues also concern
questions as to the status of District Lodge 82, and the
"Old" and "New" Employees Independent Union of
Washington Court House as labor organizations.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel and the Respondent and have been considered.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and ad-
missions therein.
Dyna Corporation, the Respondent , is an Ohio Corpora-
tion engaged in the manufacture and sale of electric motors
at Washington Court House, Ohio. During a representative
12-month period, Respondent had a direct inflow of pro-
ductions in interstate commerce, valued in excess of
$50,000, which it purchased and caused to be shipped di-
rectly from points outside the State of Ohio to its said
Washington Court House, Ohio, location.
As conceded by Respondent and based upon the fore-
going, it is concluded and found that the Respondent is,
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.
II. THE LABOR ORGANIZATIONS INVOLVED
A. The pleadings reveal an issue as to whether District
Lodge 82 of the International Association of Machinists
and Aerospace Workers, AFL-CIO,2 is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act. The facts, based upon
1 AU Exh. 2, an affidavit of service , dated November 11, 1975, relating to
service of AU Exh. I, an Order issued on November 11, 1975, is hereby
received into the record.
2 Sometimes referred to herein simply as District Lodge 82 or as District
Lodge 82 of the IAM.
223 NLRB No. 190
DYNA CORPORATION 1201
the credited aspects of the testimony of Vaughan, Bunch,
and Shoemaker, and the findings in the amendment of cer-
tification proceeding's Decision and Amendment of Certi-
fication in Case 9-AC-56, issued on April 28, 1975,3 clearly
reveal that said District Lodge 82 is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act. Apparently because of
the foregoing, Respondent, in its brief, proposes a finding
of fact that the IAM is a labor organization within the
meaning of the Act.
Briefly stated, the facts clearly show that District Lodge
82 exists for the purpose of assisting employees and repre-
senting employees in dealings with employers, that the Em-
ployees' Independent Union of Washington Court House,4
existing before and to January 29, 1975, was, on January
29, 1975, affiliated into said District Lodge 82, became dis-
solved as an independent union, and members thereof were
placed as a group into Local 148 of the IAM in substantial
effect as a separate entity, a part of said Local 148. District
Lodge 82, at the time of affiliation of said Independent
Union and dissolution of said Independent Union, desig-
nated the former officers thereof to act as a shop commit-
tee. Following this, District Lodge 82 has attempted to get
the Respondent to recognize it as the bargaining agent for
the employees involved, has utilized a petition to amend
the certification previously in effect for the said Indepen-
dent Union, and has indicated its desire to assume and
administer the existing collective-bargaining agreement.
Accordingly, I conclude and find that District Lodge 82 of
the International Association of Machinists and Aerospace
Workers, AFL-CIO, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Acts
B. The General Counsel alleges that "At all times mate-
rial herein, until on or about January 29, 1975, the Employ-
ees' Independent Union of Washington Court House, here-
in sometimes called the Old Independent was a labor
organization as defined in Section 2(5) of the Act." The
Respondent's answer admits that the said Union is a labor
organization as defined in the Act.
The dispute arises in that the General Counsel alleges in
effect and contends that the said "Old Independent," re-
ferred to above, became affiliated with District Lodge 82
on January 29, 1975, was dissolved as a separate union at
such time, and that later a new union was created which
used the same name as the "Old Independent" and which
was improperly recognized by the Respondent. The Re-
spondent contends in effect that the said "Old Indepen-
dent" has continued in being.
Critical findings and the decision and amendment of
certification in Case 9-AC-56, issued on April 28, 1975,
are binding upon me and accordingly, considering all of
the foregoing, I conclude and find that the Employees' In-
dependent Union of Washington Court House was a labor
3 Involving the same parties as in this case . The Board on June 6, 1975,
denied the Employer 's request for review of the decision in Case 9-AC-56.
Herein sometimes simply referred to as EIU or the EIU.
5 The Respondent 's dispute is essentially based upon a position that it
does not accept the legitimacy of the action of the said EIU's affiliation with
District Lodge 82 . The findings , decision , and amendment of certification
referred to above are controlling and binding upon the trier of facts herein.
organization within the meaning of Section 2(5) until Janu-
ary 29, 1975.
C. The General Counsel alleges and the Respondent de-
nies that "at all times material herein, since on or about
April 10, 1975, the Employees' Independent Union of
Washington Court House, herein sometimes called the
New Independent, is, and has been, a labor organization as
defined in Section 2(5) of the Act."
Substantially, the dispute as to the "New Independent"
union is the same. The General Counsel contends that the
Old Independent, ceased existence as of January 29, 1975,
and that a new independent union using the same name
was formed on April 10, 1975, and that the Respondent
improperly recognized the New Independent Union. The
Respondent contends that the Old Independent existing
before January 29, 1975, has continued in effect at all
times. There is no dispute that, whatever the prior existing
status or lack thereof, the New Independent Union is a
labor organization.
The facts clearly reveal a meeting of some five employ-
ees on April 10, 1975, an election of officers, and a usage of
the name of a union as Employees' Independent Union of
Washington Court House. The facts are also clear that
such union has members and has dealt with the Respon-
dent with respect to employees' conditions of work and
benefits. As previously stated, I am bound by the findings
and decision and amendment of certification in Case 9-
AC-56. Considering all of the foregoing, I conclude and
find that a new independent union, designated as Employ-
ees' Independent Union of Washington Court House came
into being on April 10, 1975, and has since that date been
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
1. Supervisory and/or agency status
The pleadings establish and I conclude and find that at
all times material herein James H. Diehl was president un-
til April 28, 1975, Stephen Brown was vice president, and
both were agents of the Respondent. The pleadings estab-
lish and I conclude and find that at all times material here-
in Joseph Daugherty was plant manager and a supervisor
and agent of the Respondent within the meaning of Sec-
tion 2(11) of the Act.
2. Background
The Respondent and the Employees' Independent
Union of Washington Court House, herein sometimes
called the EIU or the Old Independent, have had a collec-
tive-bargaining relationship for a number of years. Said
Old Independent on or about January 23, 1964, in Case 9-
RC-5692, was certified by the National Labor Relations
Board as the collective-bargaining representative of the
employees in the appropriate bargaining unit involved
herein at Respondent's Washington Court House plant,
and from that date until January 29, 1975, was the exclu-
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive collective-bargaining representative of said employees
in said appropriate bargaining unit .6
The appropriate collective-bargaining unit referred to
above consists of "all production and maintenance em-
ployees including tool and die makers and working group
leaders, but excluding plant protection employees, office
and engineering employees, foremen and others having the
right to hire and fire."
On or around April 11, 1974, the Respondent and the
Old Independent entered into a collective -bargaining
agreement , effective until April 10, 1976, covering the
terms and conditions of employees in the appropriate col-
lective-bargaining unit covered by the January 23, 1964,
certification in Case 9-RC-5692. Said agreement con-
tained, inter alia, union-security and dues checkoff provi-
sions.
Around January 1, 1975, John Bunch, president of the
Employees' Independent Union of Washington Court
House, the Old Independent, contacted James Vaughan,
an IAM organizer with District Lodge 82 of the Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO. Bunch and Vaughan discussed the possibility
and ways of affiliating the Old Independent with District
82. It was agreed that Vaughan would speak to employees
at a meeting, scheduled for January 13, 1975, and explain
the purported advantages of representation by the IAM.7
Prior to January 13, 1975, Bunch discussed the affilia-
tion (of the Old Independent with District Lodge 82 of the
IAM) with fellow officers of the Old Independent and ad-
vised them that he had been in contact with the IAM. On
January 13, 1975, at the Old Independent meeting there
were around 10 or 11 members out of a total membership
of 30 members in attendance. Bunch, president of the Old
Independent, advised those present that he had been in
touch with the IAM. What occurred at such time is re-
vealed by the following credited excerpts from Bunch's tes-
timony.
A. What occurred at the meeting? After the finan-
cial report and minutes were read the floor was turned
over to me. And then I told the employees that I had
met with the IAM and would like to have a vote from
you people on what you might think about the possi-
bility of affiliation and allowing them in to our meet-
ing to speak. Which this vote was taken openly. And
they all agreed. The members agreed and the officers
agreed. So then Jim Vaughan and Pete MacCagno
6 The facts are based upon the pleadings and admissions therein , stipula-
tions. exhibits, and credited testimony of the witnesses . The only dispute
essentially is whether the said Old Independent affiliated with District
Lodge 82 and dissolved itself as a union on January 29, 1975. The finding of
fact relating to this dispute is based upon the findings , decision , and amend-
ment of certification in Case 9 -AC-56 . Such case involved the same parties
as herein , and the decision in such case amended the certification previously
issued in Case 9-RC-5692 by substituting District Lodge 82 of the IAM in
place of Employees' Independent Union of Washington Court House as the
certified exclusive collective-bargaining agent of the employees in the ap-
propriate bargaining unit . Although such amended certification issued
(Case 9-AC-56), on April 28, 1975, it determined the effect of the affiliation
of the Old Independent , and dissolution thereof , concerning the events of
January 29, 1975. The petition in Case 9-AC-56, was filed on February 28,
1975, the hearing thereon was held on March 24, 1975, and as indicated the
Decision issued on April 28, 1975.
7 As so found in the decision and amendment of certification in Case 9-
AC-56.
came into our meeting and spoke on pension, wages,
bargaining power, dues and other fringe benefits.
At this Old Independent meeting, the members voted to
hold a meeting on affiliation with the IAM. Said meeting
was to be held on January 29, 1975. On January 15, 1975,
the Old Independent's secretary posted a notice on the
Union's bulletin board in the plant. Said notice referred to
an upcoming meeting concerning an affiliation vote be-
tween the Independent Union and the IAM. The notice set
forth that the meeting would be within 30 days but did not
specify the date of the meeting.
On January 16, 1975, Vaughan for the IAM, as organizer
for District Lodge 82, sent a telegram to Respondent's
president, Diehl, in Dayton, Ohio. Such telegram advised
the Respondent that the IAM was working with a commit-
tee of employees to affiliate the Employees' Independent
Union of Washington Court House with District Lodge 82
of the IAM.
B. Interference, Restraint, and Coercion
1. Interrogation, promise of benefits, and no-solicitation
rule
a. Events of January 17, 1975 8
On January 17, 1975, Respondent's President Diehl,
Plant Manager Daugherty, and Vice President Brown met
with the Old Independent's stewards and officials (Presi-
dent Bunch, secretary Shoemaker, and Fisher) in
Dougherty's office.
At this meeting Diehl showed the officials of the Old
Independent (Bunch, Shoemaker, and Fisher) a copy of the
telegram he had received from the IAM and a copy of an
IAM pamphlet depicting "Uncle Sam" and relating to em-
ployees' rights to organize and join a union. Diehl told the
employees, who were officials of the Old Independent, that
someone had been passing out leaflets in the parking lot.
Diehl asked the union officials if they were aware of such
activity. The three employees replied to Diehl that they
were aware of such activity. Diehl told them that the Old
Independent had rights under Section 7 of the Act as did
any other union, that they could fight to keep the IAM out,
and that the Company would assist the Old Independent in
fighting the IAM. Diehl related to them that the Company
had a no-solicitation rule, that distribution of literature on
company time and property was against company policy.
In addition to the foregoing, the facts reveal that the
Respondent has had a no-solicitation rule as referred to
since 1936, that such rule covered solicitation and distribu-
tion of literature on company property at any time.
8 The facts are based upon a composite of the credited aspects of the
testimony of Bunch, Shoemaker, and Diehl and upon a consideration of the
logical consistency of the facts. On the basis of testimonial appearance and
testimony Diehl did not appear as complete, frank, forthright, and truthful
as did Bunch and Shoemaker. To a large extent the ultimate versions of fact
are similar . I credit Bunch and Shoemaker 's testimonial versions of facts
over Diehl's where such is in conflict , except that I do not credit their
testimony relating to a specific offer of help by a lawyer. Considering the
questioning and cross-examination of Bunch and Shoemaker , I am persuad-
ed that their testimonial reference to Diehl's offer of help by a lawyer is a
rationalization of what his promise of help included.
DYNA CORPORATION
Contentions and Conclusions
The General Counsel contends in effect that the Respon-
dent , by Diehl, on January 17, 1975, engaged in unlawful
interrogation and promise of benefits and assistance relat-
ed to employee union activities , and maintained and pro-
mulgated an unlawful no-solicitation rule.
The Respondent contends in effect that its interrogation
of the employees on January 17, 1975, was not unlawful,
that it made no promise of benefits , and that its no-solicita-
tion rule had not constituted interference , restraint, and
coercion within the meaning of Section 8(a)(1) of the Act.
Considering the contentions and the facts , I am persuad-
ed that the Respondent has violated Section 8 (a)(1) of the
Act by the interrogation of employees , by making promises
of assistance , and by the announcement relating to its no-
solicitation rule.
Interrogation of employees concerning their union activ-
ities , or others , is not a per se violation of the Act. If a
legitimate purpose exists , if assurances of nonreprisals are
given , and if the interrogation is not done in a coercive
manner , interrogation is not violative of the Act. In the
instant case , perhaps the Respondent could have, under
proper conditions , questioned the employees as to the sta-
tus and details of affiliation developments regarding the
Old Independent and IAM, but it could not do so in a
manner wherein it injected itself into the employees' deci-
sion thereto. On January 17, 1975, when Diehl interrogated
the employees , he gave no assurances of nonreprisal but
instead revealed the Respondent's interest in opposing
such affiliation . Diehl also promised assistance if the Old
Independent opposed the affiliation , and further interfered
with the employees ' right to engage in union activities by
reminding them of an unlawful no -solicitation rule. Under
such circumstances , Diehl's interrogation of employees as
to their knowledge of union activity on behalf of the IAM
constituted conduct violative of Section 8(a)(1) of the Act.
Although the General Counsel alleges and contends that
the Respondent offered assistance and made promises of
benefits by Diehl on January 17, 1975, the facts do not
reveal , in my opinion , any promise of benefits to employ-
ees. Rather , the facts reveal an offer of assistance to the
employees in fighting the IAM 9 The offer by Diehl to as-
sist the employees in fighting the IAM clearly constitutes
conduct which interfered with employees ' rights to de-
termine their own union activity and choice . Such offer of
assistance reveals conduct violative of Section 8(a)(1) of
the Act. The evidence relating to Respondent 's no-solicita-
tion rule clearly reveals a rule violative of the Act in that it
prohibited such activity (solicitation and distribution of
union literature) at any time on the Respondent 's premises.
The Respondent 's contention that such rule was not uti-
lized is rejected on the basis of the facts . The rule was
referred to in connection with union activity that was on-
going and clearly was referred to for the purpose of dis-
couraging union activity . The Respondent's no-solicitation
rule is clearly violative of Section 8(a)(1) of the Act, and it
is concluded and found.1°
9 If an offer of assistance is construed as a promise of benefit, the findings
and remedy as to the specifics of assistance completely remedy the actual
violation, whatever called.
10 Groendyke, Transport, Inc., 211 NLRB 921 (1974), and cases cited there-
in.
b. Miscellaneous facts
(1) January 17-April 1975
1203
On January 27, 1975, Shoemaker posted a notice on the
Old Independent bulletin board at the plant. The notice
announced a union meeting to be held on January 29,
1975, at 4:30 p.m., but made no reference other than the
time and place of the meeting.
On January 29, 1975, a meeting of the Employees' Inde-
pendent Union of Washington Court House was held.
Twenty-two of the thirty-one members of the Independent
Union attended. By a vote of 21 to 1, the members passed
the following resolution which in effect dissolved the union
and took appropriate steps for affiliation with District
Lodge 82 of the IAM.
The resolution was as follows:
WHEREAS: We recognize the need for broader and
more current research, arbitration and labor relations
assistance in the administration of our labor contract,
and
WHEREAS: We recognize that we can benefit our-
selves more by becoming a part of the main stream of
the labor movement; now therefore be it
RESOLVED: That we disband the Employees' Inde-
pendent Union of Washington Court House, and
forthwith affiliate with District 82 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO, and be it further
RESOLVED: That District 82 of the International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO be and hereby is requested to forthwith as-
sume and administer all the terms, conditions and
covenants contained in the labor agreement executed
April 11, 1974, between Dyna Corporation and the
Employees' Independent Union of Washington Court
House , and it be further
RESOLVED: That the present negotiating committee-
man and stewards continue in'the same capacity fol-
lowing our affiliation with District 82 of the Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, and continue to administer the
terms and conditions and convenants of the agree-
ment dated April 11, 1974, until such time as their
successors are duly elected and installed, and be it
further
RESOLVED: That the membership application fees for
the transfer of all present members of the Employees'
Independent Union of Washington Court House to
District 82 of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, be paid
forthwith from the treasury of the Employees' Inde-
pendent Union of Washington Court House, and be it
further
RESOLVED: That the status of the Employees' Inde-
pendent Union of Washington Court House as a labor
organization be terminated as of 6:00 o'clock P.M. the
29th day of January, 1975
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Approved and signed this 29th day of January, 1975
/s/ John Bunch None
President Vice President
/s/ Charlotte Shoemaker None
Secretary Treasurer
Thereafter, on January 30, 1975, District Lodge 82 of
IAM transmitted a letter to the Respondent. Such letter is
as follows: II
January 30, 1975
Mr. Diehl
General Manager
DYNA CORPORATION
Washington Court House
Ohio 43160
Dear Sir:
This is to advise that a majority of your Production
and Maintenance employees at your plant in Wash-
ington Court House have voted to authorize the Inter-
national Association of Machinists and Aerospace
Workers , AFL-CIO as their Collective Bargaining
Representative.
We request a meeting with you at the earliest possi-
ble date , but not later than Thursday , February 6,
1975 for the purpose of discussing recognition of the
International Association of Machinists and Aero-
space Workers , AFL-CIO.
A prompt reply will be appreciated.
Sincerely yours,
/s/ James Vaughan
James Vaughan
District 82 Organizer
104 North Wittenberg Avenue
Springfield , Ohio 45502
(2) Events of February 4-6, 1975
On February 4, 1975, 18 of Respondent's employees
were laid off. Although employees Bunch and Shoemaker
would normally have been involved in the number of em-
ployees laid off because of their seniority status, Bunch
and Shoemaker were not laid off because they were ac-
corded superseniority status as officers or shop committee-
men of the exclusive collective-bargaining agent , pursuant
11 Although the letter of January 30, 1975. did not specify that Employ-
ees' Independent Union of Washington Court House had been affiliated
into and merged with District Lodge 82 of the IAM , it is clear that the
Respondent in substantial effect was apprised thereof or shortly thereafter
knew of such affiliation and merger . Thus, the Respondent was aware of the
affiliation efforts as early as January 17. 1975, by virtue of District Lodge
82's letter to such effect . Respondent 's plant is a small plant having some 31
employees. Based upon the small plant doctrine . I infer that Respondent
had knowledge of the dissolution of the Employees ' Independent Union of
Washington Court House . the affiliation of the members thereof as a group
with District Lodge 82 of the IAM , and the placement of such members as
a group into Local 148 of the IAM with their functioning therein substan-
tially as a separate entity. I would note that Diehl. in his questioning of
employees as to ongoing union activity , was told of the Employees' Inde-
pendent Union of Washington Court House efforts to be replaced by the
[AM. I further note that Plant Manager Daugherty testified in effect to
Respondent 's awareness of what goes on in a small plant.
to section 10 of the existing collective-bargaining agree-
ment.
Bunch, who had been president of the Employees' Inde-
pendent Union of Washington Court House prior to Janu-
ary 29, 1975, and the affiliation of such union with District
Lodge 82 of the IAM, filed a grievance over the February
4, 1975, layoffs on the grievance forms of the Employees'
Independent Union of Washington Court House. The
grievance was filed with Plant Manager Daugherty and
was adjusted.
On February 6, 1975, Bunch attempted to file two griev-
ances with Plant Manager Daugherty. These grievances
were on IAM forms, indicated that the employees were
represented by Local Lodge 148 of the IAM, and were
signed by Bunch as president. Daugherty refused to accept
grievances on the IAM forms and insisted that the griev-
ances be on EIU forms.12
Shoemaker, former secretary of the Employees' Indepen-
dent Union of Washington Court House, deposited the
dues checkoff check received from the Respondent during
the month of February 1975 into the Old Independent's
bank account. Later Shoemaker wrote President Diehl of
the Respondent and indicated that Diehl should stop de-
ducting dues and transmitting them to her. The Respon-
dent, however, continued its deduction of dues and trans-
mitting them to Shoemaker until April 1, 1975. Shoemaker
held the dues checkoff check of March 1, 1975, until after
mid-April 1975, when, after having her books audited and
closing the checking account, she endorsed the March 1,
1975, dues check and turned it and other moneys over to
the IAM.
(3) Interrogation : January and February 1975
As has been found , the Respondent , by Diehl, on Janu-
ary 17, 1975, unlawfully interrogated Bunch , Shoemaker,
and Fisher about their and other employees ' union activi-
ties , in violation of Section 8(a)(1) of the Act.
President Diehl credibly testified to the effect that after
receipt of the January 30, 1975, letter from District Lodge
82 of the IAM he engaged in other interrogation of em-
12 Bunch had been president of the Employees' Independent Union of
Washington Court House prior to the dissolution of such union on January
29, 1975. and affiliation with District Lodge 82, IAM. It is clear from the
usage of this form that the process of placement of the former membership
of the Employees ' Independent Union of Washington Court House into
Local 148 of the lAM had already occurred by February 6, 1975, or was in
the process of so being done . Daugherty , as indicated , refused to accept
grievances on the IAM grievance forms . Later, on March 12 , Daugherty
prepared minutes relating to settlement of grievances . These minutes in-
clude reference to the Employees ' Independent Union of Washington Court
House and to Bunch as president of said Union . Bunch signed such min-
utes . I have considered the question of inconsistency of the filing of griev-
ances on the Old Independent 's forms, of Bunch 's signature on the March
12, 1975. minutes, and of Shoemaker's actions with respect to dues. I am
persuaded that the circumstances of Daugherty's refusal to accept griev-
ances on IAM forms, the necessities of closing out checking accounts and
books, and the overall facts reveal Bunch's and Shoemaker 's acts to be
practical acts and to have little weight against the overall facts of dissolution
of the EIU and affiliation with District Lodge 82 of the IAM. Although
Bunch 's testimonial description of this status at the amendment to certifica-
tion hearing and in the instant trial reveals some confusion , it is clear from
the overall facts that he recognized this change in status as essentially tech-
nical in nature , that he essentially had the same duties as president of the
"local" when he served as shop committeeman for District Lodge 82 of the
IAM.
DYNA CORPORATION 1205
ployees about whether they were cognizant of the union
organizing activities being made. Diehl also credibly testi-
fied to the effect that he was certain that every time he saw
Bunch , he asked him if he knew any more facts about out-
side union activity.
Considering all of the foregoing and the testimony at the
hearing, it is clear that Bunch and Shoemaker were some-
what confused as to how to handle some of the details of
the affiliation and merger of the Old Independent with the
IAM. Bunch, from his testimony, appears to still think of
himself as president of the local bargaining agent. In prac-
tical effect, the facts support such belief, although techni-
cally not true. The usage of the Old Independent's griev-
ance form by Bunch on February 4, 1975, and of
Shoemaker's endorsement of checks for the Old Indepen-
dent after January 29, 1975, create some confusion. Con-
sidering this, such confusion might afford, perhaps, a legiti-
mate basis for some questions by the Respondent
regarding the status of the exclusive collective-bargaining
agent . However, considering Respondent's knowledge of
the District Lodge 82's telegram of January 16, 1975, relat-
ing to affiliation efforts, and the fact that I infer from the
small plant doctrine, as previously indicated, that the Re-
spondent became aware shortly after January 29, 1975,
that the Employees' Independent Union of Washington
Court House had been dissolved, and had been affiliated
with District Lodge 82 and merged as a separate entity into
Local 148 of the IAM, I am persuaded that such interroga-
tion on a continuous basis after knowledge of said affilia-
tion and merger constituted conduct violative of Section
8(a)(1) of the Act. Thus, no legitimate basis existed for the
continued questioning as to union activity, no assurance of
nonreprisal was given , and the question went to the point
of union organizing efforts and not merely to status. Fur-
ther, with the background of unlawful assistance and hos-
tility as expressed on January 17, 1975, and as reiterated
later on March 21, 1975, such questioning was clearly coer-
cive in nature . Accordingly, as alleged, I conclude and find
that the Respondent , by Diehl, in January and February
1975, engaged in unlawful questioning of employees about
their union activities in violation of Section 8(a)(1) of the
Act. It is so concluded and found.
(4) Interrogation: March 21, 1975
The General Counsel alleges that the Respondent, by
Diehl, engaged in unlawful interrogation of employees as
to their union activities on March 21, 1975.
In addition to the facts previously set forth, I find it
proper also to set forth certain other background facts hav-
ing a bearing upon the interrogation issue of March 21,
1975.
On February 10, 1975, Bunch, who had tried to file
grievances on IAM forms on February 6, 1975, again tried
to file a grievance on an IAM form. Plant Manager Daugh-
erty again refused to accept a grievance on the IAM form.
In mid-February 1975, Shoemaker, former secretary of
the Old Independent, spoke to Plant Manager Daugherty
about doing away with a candy machine that had been
sponsored by the Old Independent. Daugherty told Shoe-
maker in effect that efforts to replace the Old Independent
with the IAM union was a "bunch of foolishness," that the
employees were not going to get the IAM union in.
District Lodge 82 of IAM filed a petition for amendment
of certification with respect to the unit of employees for
which Employees' Independent Union of Washington
Court House was certified on February 28, 1975. On
March 7, 1975, the NLRB served notice of an amendment
of certification hearing to be held on March 24, 1975. The
proceeding was docketed as proceeding 9-AC-56.
On March 20, 1975, Bunch had an occasion to speak to
Plant Manager Daugherty about work. Daugherty brought
up the subject of the IAM and told Bunch that there was
no way that "you people are going to get in here because
there's too many legal procedures you have to go through."
During the processing of the above-mentioned petition,
John W. Bunch, as ex-president of the Old Independent,
submitted a letter to the NLRB Region Office. The letter
was as follows:13
Employees Independent Union of Washington C. H.
Ohio
Gentlemen:
This will notify you that so far as the Independent
Union is concerned there are no issues that we are
aware of and that we are willing to enter into a stipula-
tion that will provide for the orderly transfer of the
recognition to the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO.
We further certify that the membership of this
Union did vote to affiliate with the Machinists Union
in a legally called for and conducted election.
The date of March 24 is agreeable with us for a
hearing, if I can be of any further assistance please call
on me.
Sincerely,
John W. Bunch,
Ex President , E.I.U.
Charlotte Shoemaker
Ex Recording Secretary. E.I.U.
By March 21, 1975, President Diehl had received a copy
of the above letter. On March 21, 1975, President Diehl
and Plant Manager Daugherty met with employees Bunch
and Shoemaker and engaged in a conversation with them
about the foregoing letter.
Diehl questioned the employees about who had signed
the letter and as to what the terminology "Ex" by the
words "Secretary" and "President" meant. Bunch told
Diehl that the Employees' Independent Union had been
disbanded and he was now a shop committeeman for the
IAM. Diehl inquired as to who had typed the letter. Diehl
also asked Shoemaker if the word ex meant that she was
executive secretary. Showmaker replied in effect that it
could mean that. Diehl, in anger, told Bunch and Shoe-
maker that if they wanted to change their minds as to how
they had signed the letter and take ex off as a prefix to the
designation of secretary and president, he would be there
for half an hour.
13 The letter was signed by Bunch but not by Shoemaker.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
Considering all of the foregoing, I am persuaded and
conclude and find that the Respondent , by Diehl, engaged
in coercive interrogation of Bunch and Shoemaker regard-
ing their union activities or beliefs on March 21, 1975.
Considering the activity that had gone on concerning the
efforts of the Old Independent and the IAM to affiliate,
the Janaury 16, 1975, telegram from the IAM to the Re-
spondent, the efforts of Bunch to use IAM grievance
forms, the small size of Respondent's employee comple-
ment , Diehl's questioning of employees and knowledge
therefrom that the Old Independent was trying to replace
itself with the IAM , and the letter that Diehl was referring
to in his conversation on March 21, 1975, it is clear that the
Respondent, including Diehl, knew that the letter involved
referred to Shoemaker and Bunch as ex or former re-
cording secretary and ex or former president of the Old
Independent. It is clear that Diehl was attempting to per-
suade Shoemaker and Diehl to take a position that the
letter was prepared by someone else, that it was incorrect,
and that Diehl was suggesting that ex could mean "Execu-
tive" instead of "former." The facts do not reveal that the
questioning of Bunch and Shoemaker was for legitimate
purposes. Nor do the facts reveal that Diehl gave Bunch or
Shoemaker assurances of nonreprisals . Further, the overall
facts reveal that the questioning was done in a coercive
manner. Accordingly, as indicated, it is concluded and
found that the Respondent, by Diehl, on March 21, 1975,
engaged in coercive interrogation of Bunch and Shoemaker
concerning their union activities . Such conduct is violative
of Section 8(a)(1) of the Act. 14
2. Unlawful assistance to the New Independent
The facts are simple and as follows:
1. The Employees' Independent Union of Washington
Court House, in existence until January 29, 1975, dissolved
itself on such date, and became affiliated with District
Lodge 82 of the IAM, at least by March 24, 1975. Further,
the Old Independent's membership was merged into Local
Lodge 148, at least by March 24, 1975.15
2. Certain employees met together and formed a union,
known as Employees' Independent Union of Washington
Court House, on April 10, 1975. The number of employees
who formed this new union constituted a minority of the
employees in the appropriate bargaining unit and were a
minority of the number of employees who had been in the
former Employees' Independent Union of Washington
Court House.l
14I have considered the fact that Bunch and Shoemaker were former
officials of the Old Independent . It is clear that the Old Independent was a
small labor organization and the officers were employees from a small unit
of employees . The effect of coercive conduct upon such employees is sub-
stantially the same whether officials of a small union or nor.
15 Based upon the facts , conclusions, and decision in Case 9-AC-56,
heard on March 24, 1975, and decision issued on April 28, 1975. with Board
denial of review on June 6, 1975.
16 The facts are based upon a composite of the credited aspects of the
testimony of Ackley, exhibits, and the aforesaid facts, conclusions , and deci-
sion in Case 9-AC-56, heard on March 24 , 1975. decision issued on April
28, 1975. and Board denial of review on June 6, 1975.
3. Commencing on April 11, 1975, the Respondent has
forwarded dues, pursuant to a checkoff provision of the
contract which was in existence between Dyna Corpora-
tion and the Employees' Independent Union of Washing-
ton Court House,17 to the newly formed Employees' Inde-
pendent Union of Washington Court House.
4. Respondent's Plant Manager Daugherty met with
Ackley, president of the Employees' Independent Union of
Washington Court House (formed on April 10, 1975) and
discussed issues relating to grievances, vacation time,
equipment, and wages.
Contentions and Conclusions
The General Counsel's major contention is that the Em-
ployees' Independent Union of Washington Court House
has affiliated with and merged into District Lodge 82 of the
IAM, that District Lodge 82 is the exclusive collective-bar-
gaining representative of the employees in the appropriate
collective-bargaining unit,18 that thus, the recognition of
the Employees' Independent Union of Washington Court
House, formed on April 10, 1975, and the transmittal of
dues under checkoff provisions of the contract, therefore,
constituted unlawful assistance.
The Respondent contends in effect that the Employees'
Independent Union of Washington Court House has not
been dissolved, has continued to exist, and that transmittal
of such union dues therefore was lawful and not unlawful
aid and assistance in violation of Section 8(a)(1) and (2) of
the Act.
The determinations, conclusions, and decision in Case
9-AC-56, involving the same parties as herein, and involv-
ing the question of dissolution of the Employees' Indepen-
dent Union of Washington Court House as existed on Jan-
uary 29, 1975, and affiliation thereof with District Lodge
82 of the IAM and merger of said Union into Local Lodge
148 of the IAM, are conclusive in this case. The decision
amending the certification of the exclusive collective-bar-
gaining agent so as to reveal the certified union to be Dis-
trict Lodge 82 of the IAM instead of Employees' Indepen-
dent Union of Washington Court House was issued on
April 28, 1975. However, the issues in such proceeding re-
quired the determination of the status of Employees' Inde-
pendent Union of Washington Court House as affected by
the events of January 29, 1975, and thereafter. Further,
such decisions and conclusions were based upon evidence
presented at the March 24, 1975, hearing in the said case.
Thus, it is clear that it has been determined factually, as of
April 28, 1975, that the Employees' Independent Union of
Washington Court House had been dissolved, had affiliat-
ed with District Lodge 82 of the IAM, and had been
merged into Local Lodge 148 of the IAM. It is clear that
the Respondent, as a result of the presence of its officials at
17 Said contract was in existence between Dyna Corporation and the Em-
ployees' Independent Union of Washington Court House , as it existed on
January 29, 1975. The terms of said contract expire in 1976.
18 The appropriate collective -bargaining unit is not in dispute. Said unit is
"all production and maintenance employees including tools and die makers
and working group leaders, excluding plant protection employees, office
and engineering employees , foremen, and others having the right to hire and
fire."
DYNA CORPORATION
the March 24, 1975, hearing in Case 9-AC-56, was aware
of such dissolution of the Employees' Independent Union
of Washington Court House as of January 29, 1975, of the
affiliation of such union with District Lodge 82 of the
IAM, and of the merger of the employee members of the
dissolved Union as a group with Local 148 of the IAM.
Further, the facts reveal that a minority of Respondent's
employees formed a new union on April 10, 1975, also
known as Employees' Independent Union of Washington
Court House, that Respondent was aware that such em-
ployees who formed such union were a minority of its em-
ployees, and that the Respondent knowingly recognized
said new Union by the transmittal of dues on April 11,
1975, and thereafter, and by discussing grievances, wages,
and other issues with Ackley, president of said Union.
Considering all of the foregoing, it is clear and I con-
clude and find that the Respondent has engaged in con-
duct violative of Section 8(a)(1) and (2) of the Act by re-
cognizing and rendering unlawful assistance to a minority
union, not the exclusive collective-bargaining representa-
tive of its employees, and at a time when it was refusing to
recognize or deal with the exclusive collective-bargaining
representative of its employees.
C. The Refusal To Bargain
The facts, determinations, conclusions, and the decision
in Case 9-AC-56, involving the same parties herein, with
the hearing in such proceeding being held on March 24,
1975, and the decision therein being issued on April 28,
1975,19 compel findings that District Lodge 82 of the Inter-
national Association of Machinists and Aerospace Work-
ers, AFL-CIO, has been, since on or about January 29,
1975, the exclusive collective-bargaining representative of
Respondent's employees, at Washington Court House, in
the appropriate bargaining unit of "all production and
maintenance employees including tool and die makers and
working group leaders, excluding plant protection employ-
ees, office and engineering employees, foremen, and others
having the right to hire and fire."
It is undisputed and the facts clearly reveal that the Re-
spondent, since on or about January 29, 1975, has refused
to recognize and bargain with District Lodge 82 of the
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive collective-bargaining
representative of the employees in the appropriate bargain-
ing unit, referred to above, concerning wages, hours of em-
ployment, and other terms and conditions of employment.
The facts are clear that the Respondent, by virtue of its
appearance at the March 24, 1975, hearing Case 9-AC-56,
became aware at least by March 24, 1975, of the details
concerning the dissolution of Employees' Independent
Union of Washington Court House on January 29, 1975,
the affiliation of the membership body of said Union with
District Lodge 82 of the IAM, and the placement of such
membership body into Local Lodge 148 of the IAM, and
thus became aware of the substituted status of District
Lodge 82 of the IAM for said Employees' Independent
19 The Board , by telegram , on June 6, 1975, denied Respondent 's request
for review of the decision in Case 9-AC-56.
1207
Union of Washington Court House as exclusive collective-
bargaining representative for the appropriate bargaining
unit.
The facts are also clear that the decision, in Case 9-AC-
56, issued on April 28, 1975, amended the certification pre-
viously issued in Case 9-RC-5692 that Employees' Inde-
pendent Union of Washington Court House was the exclu-
sive collective-bargaining representative of employees in
the above-referred to appropriate collective-bargaining
unit by substituting District Lodge 82 of the International
Association of Machinists and Aerospace Workers, AFL-
CIO, as the certified exclusive bargaining representative
for such employees in said bargaining unit.
The facts are further clear that District Lodge 82 of the
IAM, on June 16, 1975,20 made an appropriate demand
that the Respondent bargain collectively with it. The facts
are also clear that the Respondent has refused to recognize
or meet and bargain with District Lodge 82 of the IAM
following receipt of the aforesaid demand for bargaining.
Conclusion
Considering the foregoing, it is clear and I conclude and
find that the Respondent has violated Section 8(a)(5) and
(1) of the Act by refusing to recognize, and by refusing to
bargain collectively with District Lodge 82 of the Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, after June 16, 1975.
The Respondent, in its defense in this case to the refusal-
to-bargain issues, essentially contends that the findings, de-
terminations, and decision in Case 9-AC-56 are erroneous.
Such findings, determinations, and decision in Case 9-AC-
56, involving the same parties, with hearing thereon March
24, 1975, decision issued on April 28, 1975, and Board de-
nial of review on June 6, 1975, are conclusive for the pur-
pose of this case.
I have found that the Respondent has violated Section
8(a)(5) and (1) of the Act by conduct after June 16, 1975. I,
therefore, do not find it necessary to determine whether the
Respondent's conduct violative of Section 8(a)(5) and (1)
commenced on or about January 29, 1975. A finding of
Respondent's conduct violation of Section 8(a)(5) and (1)
in refusing to bargain, commencing on or about January
29, 1975, or on and after March 24, 1975, would not affect
the remedy in this case.21
D. The Discriminatory Layoff of Bunch and Shoemaker on
March 25, 1975
The facts relating to John Bunch and Charlotte
Shoemaker's official relationship with the Employees' In-
dependent Union of Washington Court House until Janu-
ary 29, 1975, their involvement with the dissolution of the
Old Independent and affiliation of membership of said
20 At the hearing the General Counsel amended his pleadings to allege a
demand for bargaining made by letter on June 16, 1975. The parties were in
agreement as to said June 16, 1975, letter, and it is in the record. The G.C.'s
written amendments, by apparent inadvertence, allege the demand as of
Ju 16. 1975.
21 If necessary, however, I would find that the facts are clear that the
Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to
recognize District Lodge 82 of the IAM on and after March 24, 1975.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union with District Lodge 82 of the IAM at such time,
their continuation as shop committeemen by District
Lodge 82, the January 17, 1975, interrogation by Diehl of
Bunch, Shoemaker, and Fisher as to the IAM organizing
activity, President Diehl's expressed opposition to the
IAM, Diehl's offer of assistance to combat the IAM,
Diehl 's reiteration of an unlawful "no-solicitation" rule,
Bunch 's attempt to file grievances in February 1975, on
IAM forms, and the unlawful interrogation by Diehl of
Bunch and Shoemaker , have already been set forth in this
decision.
It should further be noted that prior to March 21, 1975,
I would infer, based upon the small plant doctrine, that
Respondent knew Bunch and Shoemaker no longer consid-
ered themselves as officers of the defunct Employees' Inde-
pendent Union of Washington Court House but as shop
committeemen for District Lodge 82.
The facts are also clear that following a layoff on Febru-
ary 4, 1975, the Respondent accorded Bunch and Shoe-
maker superseniority status and did not lay them off be-
cause of contractual provisions and practice for such
seniority status for employees who were officials or shop
committeemen for the exclusive collective-bargaining
agent.
The details of what occurred on March 21, 1975, with
respect to President Diehl's interrogation of Bunch and
Shoemaker with reference to a letter Bunch had sent to the
NLRB concerning the position of the Old Independent
have previously been set forth . It is sufficient to add that
the total facts of the event of March 21, 1975, persuade me,
and I conclude and find, that Diehl knew that Shoemaker
and Bunch were no longer officials of the Old Independent
but were shop committeemen for District Lodge 82. Simi-
larly, I conclude and find that the Respondent, at such
time , knowingly continued to accord them superseniority
status while attempting to persuade them to change their
viewpoint as regards their status with the Old Independent
and with District Lodge 82.
On March 23, 1975, both Bunch and Shoemaker request-
ed leave to attend the amendment to certification hearing
on March 24, 1975. The Respondent would not allow
Shoemaker to have leave to go to said hearing . On March
24, 1975, Bunch attended the amendment to certification
hearing in Case 9-AC-56, and gave testimony as to the
details of dissolution of the Old Independent and affilia-
tion of the membership body with District Lodge 82 of the
IAM. It is thus clear that Bunch 's testimony was to the
effect that he and Shoemaker were no longer officers or
shop committeemen of the Employees ' Independent Union
of Washington Court House but were shop committeemen
for District Lodge 82 of the IAM. Respondent's President
Diehl was present at such hearing.
On March 25, 1975, the Respondent laid off employees
Bunch and Shoemaker , telling them in effect that since
they were no longer officers or shop committeemen for the
Employees' Independent Union of Washington Court
House, they were not entitled to superseniority status ac-
corded by the collective-bargaining agreement in effect be-
tween the Respondent and the Old Independent.
Contentions and Conclusions
The General Counsel contends that the layoff of Bunch
and Shoemaker was based upon discriminatory consider-
ations and violative of Section 8(a)(3) and (1) of the Act.
Thus, the General Counsel contends in effect that the Re-
spondent laid off Bunch and Shoemaker because of its dis-
pleasure at their support of District Lodge 82 of the IAM.
The General Counsel further contends that part of
Respondent's discriminatory motivation for the layoff of
Bunch was based upon his giving testimony adverse to the
Respondent 's position in the amendment to certification
hearing. The Respondent contends that the layoffs of
Bunch and Shoemaker were not based upon discriminatory
considerations, that the layoffs of Bunch and Shoemaker
on March 25, 1975, occurred because on March 24, 1975, it
obtained actual knowledge that Bunch and Shoemaker
were no longer officers or shop committeemen for the Old
Independent and that, accordingly, they were no longer
entitled to "superseniority" status pursuant to the collec-
tive-bargaining agreement.
Considering all of the facts, I am persuaded and con-
clude and find that the Respondent laid off Bunch and
Shoemaker on March 25, 1975, because Bunch and Shoe-
maker would not cooperate with the Respondent in oppos-
ing District Lodge 82 of the IAM and because they sup-
ported said District Lodge 82 of IAM. Such conduct is
violative of Section 8(a)(3) and (1) of the Act. I am also
persuaded and conclude and find that the Respondent was
partially discriminatorily motivated in its layoff of Bunch
because he gave testimony adverse to the Respondent's po-
sition in the amendment to certification hearing (9-AC-56)
held on March 24, 1975.
The overall facts clearly reveal that the Respondent, on
March 21, 1975, knew Bunch and Shoemaker were sup-
porting District Lodge 82 of the IAM in its petition for
amendment to the certification (Case 9-AC-56); that Re-
spondent attempted to persuade Bunch and Shoemaker to
take action which in effect would tend to negate evidence
that the Old Independent had been dissolved and thus sup-
port Respondent's contentions; that Bunch and Shoemak-
er refused to take such steps; that the Respondent know-
ingly at that time continued Bunch and Shoemaker in their
superseniority status; that Respondent refused to allow
Shoemaker leave to attend the amendment to certification
hearing; and that only after Shoemaker had attended such
hearing and given testimony adverse to the Respondent,
Respondent laid off Shoemaker and Bunch on the alleged
reason that they were no longer entitled to superseniority
status . I am persuaded and conclude and find that Respon-
dent continued Bunch and Shoemaker in their supersenior-
ity status after March 21, 1975, with the hope that the ef-
fect of the hostile and unlawful interrogation of March 21,
1975, would result in a change in their viewpoints. When it
became clear on March 24, 1975, that such change in view-
point had not occurred and Bunch had given testimony
adverse to Respondent's position, Respondent laid off
Bunch and Shoemaker. Considering this, it is clear and I
conclude and find that the layoffs of Bunch and Shoemak-
er were discriminatorily motivated in violation of Section
8(a)(3) and (1) of the Act and based on the pretext that
DYNA CORPORATION
Bunch and Shoemaker were no longer entitled to supersen-
iority status pursuant to the collective-bargaining agree-
ment. It is also clear and I conclude and find that part of
Respondent's motivation in the layoff of Bunch was based
upon resentment to his having testified in the amendment
to the certification hearing and thus reveals conduct viola-
tive of Section 8(a)(4) and (1) of the Act.22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's op-
erations described in section I, above, have a close, inti-
mate, and substantial relationship 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 Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that the Respondent discriminato-
rily laid off Charlotte Shoemaker on March 25, 1975, a
violation of Section 8(a)(3) and (1) of the Act, and discrim-
inatorily laid off John Bunch on March 25, 1975, in viola-
tion of Section 8(a)(4), (3), and (1) of the Act, the Order
will provide that the Respondent offer each reinstatement
to his or her job or status that each would have had, absent
such discrimination, and make each whole for loss of earn-
ings or other benefits within the meaning and in accord
with the Board's decisions in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962), except as specifically modified by the
wording of such recommended Order.
Since Bunch and Shoemaker enjoyed "superseniority"
status as a result of being officers or shop committeemen of
the bargaining agent and in accordance with the collective-
bargaining agreement, since subsequent to the discrimina-
tory layoffs, District Lodge 82 of the IAM has notified the
Respondent of other selected officers or shop committee-
men entitled to "superseniority" status,23 the Respondent
will be required to notify Bunch, Shoemaker, and District
Lodge 82 of its offers of reinstatement to Bunch and Shoe-
maker, so as to ascertain if District Lodge 82 is willing and
wishes to have Bunch and Shoemaker to continue as offi-
cers or shop committeemen entitled to "superseniority"
status . Backpay shall be computed from the date of the
discriminatory layoffs to the date of such reinstatement, if
District Lodge 82 be willing as indicated, or to the date of
22 The facts elicited in the amendment to the certification hearing, at
which Diehl was present , reveal that the District Lodge 82 of the IAM was
in fact the exclusive collective -bargaining entity (substituted for the Old
Independent). Thus, the superseniority status provisions of the contract af-
forded no basis for a contention that Bunch and Shoemaker , shop commit-
teemen , were not entitled to their superseniority status . If necessary , I would
find that their layoffs , even without discriminatory motivation , constituted
conduct of an 8(a)(5) and ( 1) nature requiring appropriate reinstatement
and backpay remedy.
23 It would appear that , as a matter of necessity , District Lodge 82 had to
designate different shop committeemen in order to insure proper represen-
tation of employees.
1209
such bona fide offer of reinstatement, if District Lodge 82
decides not to continue Bunch and Shoemaker as officials
or shop committeemen.
It having been found that the Respondent has rendered
unlawful aid and assistance to Employees' Independent
Union of Washington Court House (formed on April 10,
1975), by recognition of said Union as exclusive collective-
bargaining unit.24 and by the remitting of union dues, de-
ducted from employees' pay, to such Union, the Respon-
dent will be required to withdraw such recognition, to
cease and desist from such recognition, and to forward to
the District Lodge 82 of the IAM a sum of money equal to
the amount of dues withheld from employees' pay from
April 1, 1975, to date, and to cease remitting such dues to
the Employees' Independent Union of Washington Court
House (formed on April 10, 1975).
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing to recognize and
bargain with District Lodge 82 of the IAM, the Order will
require the Respondent to recognize and bargain collec-
tively, upon request, with said District Lodge 82, concern-
ing wages and other conditions of employment of the em-
ployees in the appropriate collective-bargaining unit.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Dyna Corporation, the- Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. District Lodge 82 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, is, and has
been at all times material herein, a labor organization with-
in the meaning of Section 2(5) of the Act.
At all times material herein, until on or about January
29, 1975, the Employees' Independent Union of Washing-
ton Court House, herein sometimes called the Old Inde-
pendent, was a labor organization within the meaning of
Section 2(5) of the Act.
At all times material herein, since on or about April 10,
1975, the Employees' Independent Union of Was
Court House, herein sometimes called the New Indepen-
dent, is and has been a labor organization as defined in
Section 2(5) of the Act.
3. By laying off Charlotte Shoemaker and John Bunch
on March 25, 1975, the Respondent has discouraged mem-
bership in a labor organization by discriminating in regard
to tenure of employment, thereby engaging in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act.
4. By laying off John Bunch on March 25, 1975, the
Respondent has discriminated against an employee be-
cause he gave testimony under the Act and thereby has
engaged in conduct violative of Section 8(a)(4) and (1) of
the Act.
24 The appropriate collective-bargaining unit is undisputed and previously
set forth herein.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By rendering unlawful aid and assistance to the New
Independent, Employees' Independent Union of Washing-
ton Court House, by improper exclusive recognition of
such Union and by remitting of checkoff dues to said
Union, the Respondent has violated Section 8(a)(2) and (1)
of the Act.
6. The appropriate collective-bargaining unit of
Respondent's Washington Court House employees is:
All production and maintenance employees including
tool and die makers and working group leaders, but
excluding plant protection employees, office and engi-
neering employees, foremen and others having the
right to hire and fire.
7. By refusing to recognize and bargain collectively with
District Lodge 82 of the [AM, the Respondent has engaged
in conduct violative of Section 8(aX5) and (1) of the Act.
8. By the foregoing and by interfering with, restraining,
and coercing its employees in the exercise of rights guaran-
teed in Section 7 of the Act, Respondent engaged in unfair
labor practices proscribed by Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 25
Respondent, Dyna Corporation, its officers, agents, suc-
cessors , and assigns , shall:
1. Cease and desist from:
(a) Laying off or otherwise discriminating against em-
ployees in regard to hire or tenure of employment, or any
term or condition of employment because of their union or
protected concerted activities, or because they give testi-
mony under the Act.
(b) Coercively interrogating employees concerning their
union activities or desires.
(c) Promising employees assistance in opposition to a
union.
(d) Recognizing the Employees' Independent Union of
Washington Court House (formed on April 10, 1975) as
exclusive collective-bargaining representative of its em-
ployees in the appropriate collective-bargaining unit de-
scribed below in paragraph 1(g).
(e) Remitting dues checked off from employees' pay to
said Employees' Independent Union of Washington Court
House (formed on April 10, 1975).
(f) Maintaining and enforcing unlawful no-solicitation
rules which prohibit the distribution of union literature on
company property.
(g) Refusing to recognize and/or refusing to bargain
collectively with District Lodge 82 of the International As-
sociation of Machinists and Aerospace Workers, AFL-
CIO. as the exclusive collective-bargaining representative
25 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations . be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
of the employees in the following appropriate collective-
bargaining unit of Respondent's Washington Court House
Employees:
All production and maintenance employees including
tool and die makers and working group leaders, but
excluding plant protection employees , office and engi-
neering employees , foremen and others having the
right to hire and fire.
(h) In any other manner interfering with , restraining, or
coercing employees in the exercise of their Section 7 rights,
excepting to the extent that such rights might be affected
by a lawful agreement in accord with 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) Offer to Charlotte Shoemaker and John Bunch im-
mediate and full reinstatement to their former positions or,
if such positions no longer exist, to substantially equivalent
positions , without prejudice to each 's seniority or other
rights or superseniority status previously enjoyed , if Dis-
trict Lodge 82 of the International Association of Machin-
ists and Aerospace Workers , AFL-CIO, be willing to con-
tinue said employees as officials or shop committeemen,
and if said Union be not willing to continue such members
and employees as officials or shop committeemen entitled
to "superseniority " status, pursuant to the existing collec-
tive-bargaining agreement , to such status and position as
such employees would otherwise be entitled to absent dis-
criminatory considerations, and make each whole for any
loss of pay or other benefits by reason of the discrimina-
tion against each in the manner described in the section
entitled "The Remedy."
(b) Simultaneously with the above offer of reinstate-
ment of jobs to Charlotte Shoemaker and John Bunch, no-
tify District Lodge 82 of the International Association of
Machinists and Aerospace Workers , AFL-CIO, of such of-
fers of reinstatement.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records neces-
sary to analyze the amount of backpay due or the amount
of money to be transmitted to District Lodge 82 of the
International Association of Machinists and Aerospace
Workers for dues checked off from employees ' pay under
the terms of this recommended Order.
(d) Pay to District Lodge 82 of the International Associ-
ation of Machinists and Aerospace Workers , AFL-CIO, a
sum of money equal to the amount of dues deductions
withheld from employees ' pay for transmittal to the exclu-
sive collective-bargaining agent , from April 1, 1975, to
date , and which has not been paid to said Union or its
predecessor, Employees ' Independent Union of Washing-
ton Court House , existing as of January 28, 1975.
(e) Withdraw all recognition of Employees' Indepen-
dent Union of Washington Court House as the exclusive
collective-bargaining representative of the employees in the
appropriate collective-bargaining unit referred to in para-
graph 1(g) above.
(f) Recognize and bargain collectively , upon request,
with District Lodge 82 of the International Association of
DYNA CORPORATION 1211
Machinists and Aerospace Workers , AFL-CIO, as the ex-
clusive collective-bargaining agent of the employees in the
appropriate collective-bargaining unit and , if agreement is
reached , reduce such agreement to writing , if requested,
and sign in execution thereof.
(g) Post at Respondent 's plant at Washington Court
House , Ohio, copies of the attached notice marked "Ap-
pendix ." 26 Copies of said notice , on forms provided by the
Regional Director for Region 9, after being duly signed by
Respondent 's representatives , shall be posted by it immedi-
ately upon receipt thereof , and be maintained by Respon-
dent for 60 consecutive days thereafter , in conspicuous
places , including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced , or covered by any other material.
(h) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
26 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to Charlotte Shoemaker and John
Bunch immediate and full reinstatement to their for-
mer positions or, if such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights or superseniority status
previously enjoyed , if District Lodge 82 of the Interna-
tional Association of Machinists and Aerospace
Workers , AFL-CIO, be willing to continue said em-
ployees as officials or shop committeemen , and if said
Union is not willing to continue such members and
employees as officials or shop committeemen entitled
to superseniority status , pursuant to the existing col-
lective-bargaining agreement , to such status and posi-
tion as such employees would otherwise be entitled to
absent discriminatory considerations , and WE WILL
make John Bunch and Charlotte Shoemaker whole for
any loss of pay or other benefits by reason of the dis-
crimination against each in the manner described in
the section of this Decision entitled "The Remedy."
WE WILL, simultaneously with the above offer of re-
instatement of jobs to Charlotte Shoemaker and John
Bunch , notify District Lodge 82 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO, of such offers of reinstatement.
WE WILL pay to District Lodge 82 of the Internation-
al Association of Machinists and Aerospace Workers,
AFL-CIO, a sum of money equal to the amount of
dues deduction withheld from employees ' pay for
transmittal to the exclusive collective-bargaining agent
of our employess , from April 1, 1975, to date, and
which has not been paid to such Union or its prede-
cessor . Employees ' independent Union of Washington
Courthouse , existing as of January 28, 1975.
WE WILL withdraw all recognition of Employees' In-
dependent Union of Washington Court House
(formed on April 10, 1975) as the exclusive collective-
bargaining representative of our employees in the ap-
propriate collective-bargaining unit referred to below.
WE WILL recognize and bargain collectively, upon
request , with District Lodge 82 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive collective -bargaining rep-
resentative of our employees in the appropriate collec-
tive-bargaining unit referred to below , and if agree-
ment is reached , reduce such agreement to writing, if
requested , and sign in execution thereof.
The appropriate collective -bargaining unit of
Respondent 's Washington Court House employees is:
All production and maintenance employees includ-
ing tool and die makers and working group leaders,
but excluding plant protection employees , office
and engineering employees , foremen and others
having the right to hire and fire.
WE WILL NOT layoff or otherwise discriminate
against employees in regard to hire or tenure of em-
ployment , or any term or condition of employment
because of their union or protected concerted activi-
ties or because they give testimony under the Act.
WE WILL NOT coercively interrogate our employees
concerning their union activities or desires.
WE WILL NOT promise employees our assistance in
opposition to a union.
WE WILL NOT recognize the Employees ' Independent
Union of Washington Court House (formed on April
10, 1975 ) as exclusive collective-bargaining agent of
the employees in the appropriate collective -bargaining
unit referred to above.
WE WILL NOT remit dues checked off from employ-
ees' pay to said Employees ' Independent Union of
Washington Court House (formed on April 10, 1975).
WE WILL NOT maintain and enforce an unlawful no-
solicitation rule which prohibits the distribution of
union literature on company property.
WE WILL NOT refuse to recognize or refuse to bargain
collectively with District Lodge 82 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive collective -bargaining rep-
resentative of the employees in the appropriate collec-
tive-bargaining unit referred to above.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
Section 7 rights, except to the extent that such rights
may be affected by a lawful agreement in accord with
Section 8(a)(3) of the Act.
All our employees are free to become or remain, or re-
frain from becoming or remaining members of any labor
organization , except to the extent that such rights might be
affected by a lawful agreement in accord with Section
8(a)(3) of the Act.
DYNA CORPORATION