Ekstrom, Carlson & Co.

National Labor Relations Board - Board DecisionsNov 29, 1955

114 N.L.R.B. 1208 (N.L.R.B. 1955)

1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In connection with his claims work Davis had the title of claims agent. He was concerned principally with customer claims of "over, short, and damage." In this work he, like Allen, had discretion in his dealings with the Employer's customers but any nonroutine questions or claims involving substantial amounts were settled by Taylor, who is in charge-of this work. The only other employee engaged in claims work is a secretary, who performs such work on a part-time basis. She is also secretary to another employer and does office work under the supervision of the office manager. The record establishes that Davis had no supervisory powers over this secretary. As noted above, Davis also did accounting work under the super- vision of the office manager. This consisted principally of reconciling bank statements and auditing freight bills. In this connection he did not assign work to others or direct them. Although Davis had the title of "assistant office manager;" the record establishes that he at no time exercised any of the powers of Rigby, the office manager. Rather, it appears that his title was indica- tive of his seniority status and availability for advice to less expe- rienced clerks. Davis, like Allen, was paid a monthly salary, did not punch a time clock, and rotated with Rigby, Blaine, and York, admitted super- visors, in working Saturdays. However, we find that, like Allen, he was not a supervisor within the meaning of the Act, and we shall order that his ballot be opened and counted.' [The Board directed that the Regional Director for the Twentieth Region shall within 10 days from the date of this Direction open and count the ballots of Collier Allen and Robert Davis and serve upon the parties a supplemental tally of ballots.] MEMBER MuRDOOK took no part in the consideration of the above Supplemental Decision and Direction. The principal evidence to support the Petitioner's contention that Davis was a super- visor derives from an affidavit he gave a Board agent in which he said he understood he would be in charge of the office when the office manager was away. However, on the basis of the testimony in the entire record, the hearing officer concluded that Davis' affidavit was an honest error. We see no reason to upset that finding. Ekstrom, Carlson & Co . and .Lodge No. 1553, International As- sociation of Machinists, AFL. Case No. 13-CA1877. ,Novem- ber 29, 1955 DECISION AND ORDER On July 29, 1955, Trial Examiner John H. Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in certain unfair labor practices and recom- 114 NLRI3 No. 191. EKSTROM , CARLSON & CO. 1209 mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermedi- ate Report and a supporting brief. 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 Inter- mediate Report, the exceptions and the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Ekstrom, Carlson & Co., Rockford, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with the Union as the ex- clusive representative of all employees in the appropriate unit by re- fusing to furnish to the Union information linking the wage rates with the name of each employee in the appropriate bargaining unit. ^. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, furnish to the Union the navies of each employee in the bargaining unit together with the wage rate of each named employee. (b) Post at its plant in Rockford, Illinois, copies of the notice at- tached hereto, marked "Appendix." 2 Copies of said notice, to be fur- nished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in conspicuous places; 3 The Trial Examiner found that at the request of the Union, the 1952 contract was reopened with respect to wages in the spring and fall of 1958 , and that on each of these occasions the Respondent granted a general wage increase to all employees and an equal increase in the minimum wage rates specified in the contract The Trial Examiner con- cluded that "These supplemental agreements . modified the so-called minimum wage type contract." The Respondent excepts to this conclusion , contending that it is erroneous . Assuming , without deciding , that the facts as found do not establish that the supplemental agreements modified the 1952 minimum wage type contract, we nevertheless find that they do establish , for the reasons stated by the Trial Examiner , that the Respondent violated Section 8 ( a) (5) and 8 ( a) (1) of the Act. In finding that the Respondent engaged in unfair labor practices , the Trial Examiner relied on Boston herald -Traveler Corporation v. N. L R B , 223 F . 2d 58 ( C A. 1), enforcing 110 NLRB'2097 In addition to that case, the Roaid also relies on N L. R B. v Item Company, 220 F. 2d 956 ( C. A. 5), enforcing 108 NLRB 1634 , certiorari denied October 10, 1955, 350 U S. 836 2In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Deciee of the United States Court of Appeals , Enforcing an Order." 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL, upon request, furnish to Lodge No. 1553, Interna- tional Association of Machinists, AFL, the name of each employee in the bargaining unit described herein together with the wage rates of each named employee. The bargaining unit is : All employees, including toolmakers, diemakers, journeymen machinists and other mechanics, welders, specialists, helpers, learners, apprentices, and semiskilled and unskilled workers, but excluding personnel employed in supervisory, engineer- ing, clerical, and watchmen capacities. EKSTROM, CARLSON & CO., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed by Lodge No. 1553, International Association of Ma- chinists , AFL, herein called the Union , the General Counsel of the National Labor Relations Board , by the Regional Director for the Thirteenth Region , issued a com- plaint dated April 27 , 1955 , against Ekstrom , Carlson & Co., herein called the Re- spondent, alleging that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and ( 5) and Section 2 (6) and ( 7) of the National Labor Relations Act, as amended , herein called the Act. With respect to the unfair labor practices , the complaint alleges that on or about October 8, 1954, and thereafter , the Union requested the Respondent to furnish it with the wage rates of individual employees ; and that on or about November 23, 1954, and at all times thereafter , the Respondent failed and refused to supply the said information to the Union. EKSTROM, CARLSON & CO. 1211 The Respondent filed an answer on or about May 12, 1955, in which it admitted the jurisdictional allegations of the complaint, but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held on June 20, 1955, at Rockford, Illinois, before the duly designated Trial Examiner. At the close of the case, the General Counsel moved to conform the pleadings to the proof, as to names, dates, and other minor variances. The motion was granted without objection. The parties argued orally on the record at the close of the whole case. The Respondent filed a brief with the Trial Examiner after the close of the hearing. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is an Illinois corporation, maintaining its principal office and place of business in Rockford, Illinois, where it is engaged in the manufacture of ma- chinery and tools. During the calendar year 1954, raw materials, having a value in excess of $100,000 and used in the manufacture of Respondent's finished products, were shipped in interstate commerce to its Rockford plant. During the same period of time, the Respondent sold and transported finished products in interstate commerce, which had a value in excess of $100,000. It is found that the Respondent is engaged in interstate commerce within the mean- ing of the Act: II. THE ORGANIZATION INVOLVED Lodge No. 1553, International Association of Machinists , AFL, is a labor organiza- tion which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The appropriate unit and representation of a majority therein The complaint alleges, the answer admits, and it is found that "all employees of the Respondent, including toolmakers, diemakers, journeymen machinists and other mechanics, welders, specialists, helpers, learners, apprentices and semiskilled and un- skilled workers, but excluding personnel employed in supervisory, engineering, clerical and watchmen capacities," constitute, a unit appropriate for collective bargaining within the meaning of the Act. The complaint alleges, the answer admits, and it is found that since sometime prior to October 1, 1952, and continuously to the date of the complaint, a majority of the employees in said unit selected and designated the Union as their representative for the purposes of collective bargaining; and that by virtue of Section 9 (a) of the Act, the Union has at all times material herein been the exclusive bargaining representative of all employees in said unit. B. The refusal to furnish wage rates Since about 1941, the contracts between the Respondent and the Union contained "minimum wage rate" agreements. The last contract entered into between the parties became effective on October 1, 1952, with a term of 3 years and year to year thereafter. It provided that the "subject of the minimum rates ... and the hourly wage rates" could be reopened at any time by either party upon proper notice to the other party. During the years of contract relationship, the Respondent paid many of its em- ployees wage rates in excess of the minimum rates specified in the contracts for the various classifications. The Union knew of this practice and made no objections. In fact, the evidence indicates that the parties had an understanding or interpreted the contracts to the effect that the Respondent was free to pay wages in excess of the minimum rates. In the spring of 1953, the subject of wages was reopened at the request of the Union. As a result of negotiations the Respondent granted a general wage increase to all employees of 10 cents per hour, with the minimum wage rates specified in the contract increased by an equal amount. Again at the request of the Union in the fall of 1953, wages were reopened; and the Respondent granted a general wage increase of 5 cents per hour, with a corresponding increase in the minimum wage rates. By letter dated October 1, 1954, the Union advised the Respondent that it wished to reopen the contract as to wages; and by letter dated October 8, 1954, the Union requested the Respondent to furnish certain information, including the individual wage rates being paid to each employee. Beginning on about November 19, 1954, 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives of the Respondent and the Union met for the purpose of negotiating a wage agreement . By letter dated December 1, 1954, the Union submitted the following contract proposals: 1. A substantial wage increase, said increase to apply on all minimum wage rates. 2. An adjustment on all wage inequities within any classification or job. 3. The installation of an adequate pension program. As a result of the negotiations, the parties reached an agreement on about De- cember 20, providing for a general wage increase of 2 cents per hour. However, the increase did not apply to the established minimum wage rates. At the first bargaining conference, Henry A. Noreen, business representative of the Union, asked Harold E. Nelson, Respondent's president, to furnish the individual wage rates of all employees.' Nelson refused to comply with Noreen's request, and 'told him that "it has been a matter of policy never to give out that information as we felt that this information is definitely confidential and that they should be able to get the information from their membership,2 if they desired, that we would certify that we were paying the minimum rates as established by the contract, or more." Nelson asked Noreen why the Union wanted the information. Noreen replied that the Union needed it "to intelligently bargain in regards to rates of pay, hours, and working conditions in the shop" and because of "inequities." With Nelson's permis- sion , Noreen telephoned Albert J. Smith, Respondent's attorney, and they discussed the Union's request. Concerning his conversation with Noreen, Smith testified credibly and without contradiction as follows: He told me that he had made a request for certain information. I was at that time aware of the nature of his request. He said that Mr. Nelson had denied him the information as to the individual rates being paid the employees in the various classifications. I asked him why he wanted the individual wage rates. He said so they could bargain on the question of new minimums. I told Mr. Noreen, to my knowledge, that a number of previous years, in some of which negotiations I had actually participated, we had Ekstrom, Carlson Company increased the minimum rates, but that never knew of any prior request for individual wage rates of employees. That I, therefore, be- lieve, that the company was right in refusing his request, because in connection with the negotiation of minimums, it was my opinion, that the individual wage rates were in nowise pertinent to that question. He then said that they were all, of course, ready to get a wage increase and I told him that I knew that. I also pointed out to him that in prior years wage increases had been granted. That again I could see no pertinency whatever to how much an individual employee was receiving in excess of the wage rates in connection with any negotiation for wage increase. That the union was cer- tainly privileged to ask for any increase per hour that it might want to ask for, that the company could itself grant it or deny it. That in previous years the question had not come up as to how much in excess of the minimum rates the employees were receiving and again I could see no pertinency whatever to the minimum rates to the question of wage increases generally. He then raised the question of inequities and I asked him what kind of inequities he was talking about, and this is the actual conversation: Whether he was talking about inequities as between two men, both of whom were receiv- ing in excess of the minimum, .. . in the same classification , or whether he was talking about inequities as between what the employees of the Ekstrom, Carlson & Company might be receiving as opposed to what the employees of the John Jones ' Company might be receiving. He said it was a general question of inequities so far as he was concerned and that he thought the information was pertinent to both of the issues. I pointed out to him that if Ekstrom, Carlson & Company minimums were less than the minimums paid by the John Jones' Company, that was certainly 1 The Respondent furnished the Union with all other information requested in its letter of October 8. 9 The evidence discloses that during past years the Union obtained information con- cerning individual wage rates directly from the employees. EKSTROM, CARLSON & CO. 1213 a point 'he could raise which had nothing whatever to do with the individual rates being paid in excess of the minimum rates in the various classifications. That I felt the same thing applied in connection with inequities which he might claim to exist between two employees, both of whom were receiving either the minimum of a particular classification or in excess of that minimum. I did tell Mr. Noreen that I understood from Mr. Nelson that Mr. Nelson was willing to certify that every employee in every single classification was receiving at least the minimum provided for in the contract. * * * * * * * Mr. Noreen could not agree, or did not agree , with me that that offer had been flatly made, and I told him if it had not been flatly made that I would see to it that it was made because I would call Mr. Nelson back immediately. That certainly the Union was entitled to know in every single case as to whether a man was getting at least his minimum. At a bargaining conference held on about December 16, the Union again re- quested the Respondent to furnish the individual wage rates . Gilbert Brunner, grand lodge representative of the Union, was present at this meeting. He told Nelson that the Union was entitled to the information "because when you are refer- ring to inequities with a contract, the Union has a right to know what employees are in what classification to make a comparison of their rates of pay as I do not think we could properly bargain with the Company unless we had that wage data." Nelson again refused the request, saying that he was not going to furnish any more information and that the Union could get the wage rates from the employees. The Respondent contends , in substance , that the requested information was not relevant , either for the purpose of policing the contract or for negotiating a wage increase , especially in view of the minimum wage type of agreement . This contention is rejected . Aside from the question of "presumptive relevance ," I believe that the evidence shows that the requested information was relevant . Before the time in question two general wage increases had been negotiated . These supplemental agree- ments, in my opinion , modified the so-called minimum wage type contract. It is difficult to understand how the Union could negotiate intelligently for the increases or later police the agreements without knowing the individual wage rates . Before 1954 the Union obtained this information directly from the employees. The fact that the Union never before had requested such information from the Respondent does not detract from its relevance. Accordingly, I find that by failing and refusing on and after November 19, 1954, to make available to the Union the individual wage rates of all employees in the ap- propriate unit the Respondent engaged in an unfair labor practice within the mean- ing of Section 8 (a) (5) and (1) of the Acts IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent , set forth in section III, above , occurring in con- nection with its business operations 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 thereof. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Lodge No 1553, International Association of Machinists , AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2 All employees of Respondent, including toolmakers , diemakers, journeymen machinists, and other mechanics , welders, specialists , helpers, learners, apprentices, and semiskilled and unskilled workers, but excluding personnel employed in super- visory, engineering , clerical , and watchmen capacities , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. a Boston Herald-Traveler Corporation , 223 F . 2d 58 ( C. A. 1), enforcing 110 NLRB 2097. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Union has been since sometime prior to October 1, 1952, and now is, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining , within the meaning of Section 9 (a) of the Act. 4. By failing and refusing on or about November 19, 1954 , and at all times thereafter , to supply the Union with the wage rates of individual employees in said unit, the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By such refusal to bargain , thereby interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Colonial Shirt Corporation and United Garment Workers of America, AFL, Petitioner. Case No. 10-RC-3245. November 09, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before David L. Trezise, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The parties are in basic agreement as to the composition of the unit. However, the Employer would include and the Petitioner would exclude certain individuals classified as assistant supervisors, and office clerical employees. The Employer's production operations are divided into three main departments each under the control of a department supervisor. The cutting department employs approximately 75 employees, the sewing department employs approximately 650 employees, and the pressing department employs approximately 150 employees. The sewing de- partment has 2 assistant supervisors and the other 2 departments each have 1 assistant supervisor. The assistant supervisors receive instructions from their department supervisors on the basis of which they see that work assignments are performed in a satisfactory manner and that the production employ- ees are amply supplied with materials and supplies so that the work 114 NLRB No. 189.