Enidine, Inc.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1262 (N.L.R.B. 1980)

1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Enidine, Inc. and District Lodge No. 76, Interna- tional Association of Machinists & Aerospace Workers, AFL-CIO. Case 3-CA-9274 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On June 5, 1980, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed cross-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 briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 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, Enidine, Inc., Buffalo, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In adopting the Administrative Law Judge's finding that the ei- dence presented by Respondent did not overcome the presumption of the Union's majority and its exclusive representative status, which nflows from the November 14. 1978, certification, we note. in addition. that the refus- al to sign the agreed-to contract occurred during the certification year and that an employer is not relieved of his bargaining obligation during the certification year absent unusual circumstances not present herein Ray Brooks v. NL.R.B., 348 .S. 96 (1954). See also Mar-Jac Poultr' Company. Inc., 136 NLRB 785 (1962), for the remedy in such circum- stances. Moreover. Respondent's unlawful refusal to sign the contract was a serious unfair labor practice "of such a character as to either affect the Union's status, cause employee disaffection, or improperly affect the bargaining relationship itself within the meaning of Guerdon Industries, Inc.. Armor Mobile lHomes Division, 218 NLRB 658., 661 (1975). Respond- ent was not thereafter privileged to question the Union's majority status as it now attempts to do. 251 NLRB No. 168 DECISION STATEMENI OF1 HE 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 February 27, 1980, at Buffalo, New York. The charge was filed on August 20, 1979. The com- plaint in this matter was issued on October 3, 1979. The issues concern whether the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act by refusing to execute a written contract embodying an agreement already made with the Union. All parties were afforded full opportunity to partici- pate in the proceeding. Briefs have been filed by the General Counsel and the Respondent and have been con- sidered. Upon the entire record in the case and from my obser- vation of witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The facts herein are based on the pleadings and admis- sions therein. Enidine, Inc., the Respondent, is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New York. At all times material herein, Respondent has maintained its principal office and place of business at 2207 Elmwood Avenue, Buffalo, New York, herein called the Elmwood plant, and is, and has been at all times material herein, engaged at said plant and location in the manufacture, sale, and distribution of industrial shock absorbers, and related products. In a -year period Respondent, in the course and con- duct of its business operations, shipped goods valued in excess of $50,000 from said Elmwood plant directly to States of the United States other than the State of New York. As conceded by Respondent and based on the forego- ing, 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. I The General Counsel alleges and the Respondent denies that annual- ly Respondent, in the course ad conduct of its business operations, pur- chases, transfers, and delivers to ts Elmsood plant, goods and materials valued in excess of S50,(X0), which are transported to said plant directly from States of the United States other than the State of New York On October 10, 1978, Respondent. by its attorney Jeremy Cohen, stipulated to facts in an agreement in Case 3-RC-7313 relating to an election to be held which would support a finding of facts as alleged Respondent pre- sented testimony which indicates that such factual stipulation may be in error In view of other factual stipulations in this case, it is not necessary to determine this issue or to rely on the facts as stipulated in Case 3 RC 7313 Were it necessary. however, serious consideration would have to be given to the assertion of jurisdiction because of such representation stipu- lations as a matter of policy ENIDINE, INC. 1 23 II. T1HL .LABOR ORGANIZATION INVOtVEI) 2 District Lodge No. 76, International Association of Machinists & 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 Act. IIll. THFI UNFAIR l.ABOR PRACTIC['S"3 A. Preliminary Issues, Supervisory Status At all times material herein, Patrick P. Lee occupied the position of president and has been and is now an agent of the Respondent, acting on its behalf, and is a su- pervisor within the meaning of Section 2(11) and 2(13) of the Act. B. Appropriate Bargaining Unit, Certified Status and Exclusive Representative Status The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All full-time and regular part-time production and maintenance employees including shipping depart- ment employees and truck drivers. Excluding: all office clerical employees, professional employees, watchmen, guards and supervisors as defined in the Act. On November 14, 1978, the Union was certified as the exclusive collective-bargaining representative of the em- ployees in the unit described above. Although Respondent's answer originally admitted that the Union enjoyed majority status and was the ex- clusive representative of the employees involved, permis- sion was granted to Respondent's counsel to amend the answer to deny majority and exclusive representative status. Considering the certification of the Union on No- vember 14, 1978, as the exclusive collective-bargaining representative of the employees in the above-referred-to appropriate bargaining unit, and the facts otherwise pre- sented in this case, it must be found that the Union en- joyed majority and exclusive representative status at all times material to the issues herein. The evidence present- ed simply does not overcome the presumption of such majority and exclusive representative status which flows from the November 14, 1978, certification. Some evi- dence of turnover in employment was presented. It is presumed, however, that new hires, absent other evi- dence, support the Union in the same ratio as the em- ployees who have left the Respondent's employment. There was some evidence that supervisors had expressed to President Lee their opinion that a majority of the em- ployees did not support the Union. This type of expres- sion does not constitute evidence of objective criteria 2 The facts are based on the pleadings as clarified at the hearing of this matter. I The facts are based on the pleadings and admissions, or upon facts not in dispute except as otherwise indicated that reveals loss of majority or that affords a reasonable doubt of majority status.4 At all times since November 14, 1978, the Union, by virtue of Section 9(a) of the Act. has been, and is, the exclusive representative of the employees in the unit de- scribed above for the purpose of collective bargaining with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment. C. The Refusal To Execute a Contract The Respondent and the Union commenced negotia- tions for a contract around March 1979. The initial nego- tiators for the Respondent were Rudy Nutz, production manager, and Ben Houghton, chief engineer. At some point of time prior to June 1979, the Respondent em- ployed Jeremy Cohen, an attorney who specializes in labor matters, to negotiate for the Respondent. One of the issues in this case concerns the authority that Cohen had, whether he had authority to negotiate a contract or whether he merely had authority to negotiate a proposal which was subject to ratification by the Re- spondent's board of directors. Respondent presented testimony through President Lee that all major contracts have to be approved by the board of directors. Lee also testified that he told Cohen that he (Cohen) was to make a proposal that would be submitted to the board of directors on a new contract. Lee's further testimony was to the effect that from time to time Cohen checked with him as to what the board of directors' attitude would be as to certain proposals. Considering the total record, I find it significant that no mention was made to the Union that there was any limitation upon Cohen's authority to negotiate a final and binding agreement. The facts make it clear on the other hand that the parties knew prior to the Union's agree- ment that the contract would be submitted to the union membership for consideration. I also note that the letters of Cohen, submitting the typed agreement and supple- mental understandings to the Union and/or Respondent, clearly refer to negotiated agreements and indicate in no way that the matter submitted is for approval or rejec- tion by Respondent's board of directors. I am persuaded that, if Cohen's authority had been limited, he would have told such to the Union, and his letters to the Union and the Respondent would have indicated that the "agreement" was tentative and subject to approval by the board of directors. I further note that Lee's testimo- ny reveals that he and the Company were new at the question of labor negotiations, and that the question of limitation of authority of a negotiator was a surprise to him. Considering all of the facts, I am persuaded that Re- spondent clothed Cohen with authority to negotiate a final and binding agreement, that Respondent later changed its mind and rationalized that if the union mem- 4 See lerre/I Maochine Co., 173 NRB 1480 (19691. and Dl-.wxid Reha- hbiliratrion Ilotpiral, Inc d/ba Golden Stae Itahblirtuon Convalescent Cctiter. 224 NRB 161 X. 1620 (1 976) ENIDINE, INC. 63 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership had a right to consider the proposal at a meeting that the board of directors had a similar right.5 As indicated, sometime prior to June 1979, Respondent employed Jeremy Cohen to represent it in negotiations with the Union. Thereafter, around the first of June 1979, the Union and Cohen had reached a tentative un- derstanding as to a labor contract. The terms of such contract were not reduced at such time to a final agree- ment but in effect were oral in nature. The facts in this case reveal that the terms of complete understanding are revealed by the terms set forth in General Counsel's Ex- hibit 3 B, as expanded upon or modified by General Counsel's Exhibit 4, and as modified by Steinke's testi- mony relating to two points of agreement as to article 25 and article 26 which by error were set forth incorrectly in the written agreement reflected in General Counsel's Exhibit 3 B. Steinke had a union meeting in June 1979, and dis- cussed with the union membership his tentative under- standing with Cohen as to a contract. The membership had a tie vote as to approval of the tentative understand- ing and voted not to have a strike. Under the Union's constitution, a tie vote was sufficient for acceptance of a contract. Later, in June 1979, Steinke informed Cohen, for the Respondent, that the union membership had voted to accept the contract. Cohen told Steinke that this was good and that in effect the parties had a con- tract. Later, Cohen apprently prepared a written agreement to conform to his understandings. Either at that time, or later, Cohen prepared a letter relating to certain employ- ees and specific pay rates. Following this, Cohen sent a letter addressed to Mr. Patrick Lee or B. Houghton of the Respondent with copies of a typed agreement. Copies of such letter and agreements were sent to Steinke of the Union. The letter was as follows: August 6, 1979 Mr. Patrick Lee or B. Houghton Enidine Inc. 2077 Elmwood Avenue Buffalo, New York 14216 Dear Sirs: 5 In this regard evidence of a statement by Lee to the NLRB during the investigatory stage was presented into the record. Such pretrial state- ment appears to suggest that Lee was clearly aware that the union mem- bership in June had considered the "agreement," and that since the Union had had a tie vote and had voted not to strike that Lee had not thought it necessary to have the board of directors to "ratify" the agreement. I note that the evidence on this point is in a confused state. Thus, the state- ment was presented in the original handwritten form and in typed form. The handwritten statement was either in the handwriting of Lee or of a Board agent. Regardless, as is true of most handwriting, the writing ap- pears hurried and many words appear shortened or slurred. I note that the total context of the statement suggests that a handwritten word in the statement should be read as "unnecessary." Such writing, however, is not clear. The "typed" statement has the word (as typed) as being "neces- sary." The question by the General Counsel referring to the handwritten statement refers to the word as unnecessary" Lee's answer as a witness refers to the word as "necessary " It is not clear whether or not Lee was looking at the typed exhibit when he so testified. I find no need to rely on such testimony relating to the prior statement in determining the facts herein. I enclose four copies of the Union Contract with all revisions up to date. Mr. Steinke says he'll make arrangements directly with you to obtain all neces- sary signatures. Yours truly, FIAHERTY, COHEN, GRANDE & RANDAZZO, P.C., Either at the same time and with the referred to letter and agreements or shortly thereafter, Cohen submitted to Respondent and the Union a letter relating to certain special pay rate understandings. It is to be noted that the typed agreement and the separate letter of understanding constituted the agreement between the Respondent and the Union excepting for two errors in articles 25 and 26 of the contract. Steinke of the Union brought the matter of the two errors to Cohen's attention. The two agreed in effect that these two errors would be corrected on the document and, that the mistakes would be initialed when the parties signed the agreement. 6 There is some confusion in the record as to how or whether arrangements were made for a meeting on August 13, 1979, between the Union and the Respondent to sign the agreed-upon contract. The facts are clear that Kusmierski, for the Union, on August 13, 1979, tried to set up by telephone a meeting for such purposes and that Kusmierski went to Respondent's, was unable to meet President Lee, and was unable to get anyone who would assume authority to sign the contract. Thereafter, Kusmierski contacted Attorney Cohen as is revealed by the following credited excerpts from Kus- mierski's testimony: THE WITNESS: Then, I questioned the girl to see whether either one of those parties could come up- stairs and meet with me and sign the agreement. She then said, "Well, I don't know. Let me find out," At this time I believe she called downstairs to try to get a hold of one of the two people. She came back and said, I talked to those people and they have no authority to sign the contract. I says "Thank you" and I left. Then I went back to the office. I tried to get a hold of Jeremy Cohen. At that point, I believe, he was the Counsel for the Company. Jeremy was not in, and I left a message that I had called him. The following day, I called Jeremy back-I never received a return phone call. Jeremy told me-I asked him, I says "Jeremy, I am having problems getting this contract signed that Mr. Howard Steinke told me to take them and I am getting the runaround; nobody has authority to sign. What is going on?" He says "Dave, I don't know. I found Steinke to appear to be a frank, forthright, and truthful wit- ness as to most of his testimony and as to the facts found. As to much of the facts, the dispute centers around whether the agreement was tentative or final. I have considered Steinke's pretrial affidavit To some extent it appears inconsistent with his testimony However. the affidavit in large part is generalized and conclusionary. Thus, it appears to support an in- ference that Steinke is pragmatic and not prone to disagree with sugges- tion that appears to be of limited importance. I do not believe or credit Steinke's testimony that he sent a cp)y of a contract to the Respondent. Rather, I am persuaded that he was confused at the time of giving his affidasit and as to this point when he testified ENIDINE, INC 1265 Let me get back to you." The contracts, as far as he was concerned, was ready for signature. I believe two days had gone by. Jeremy finally got back to me and he told me the whole issue was the compa- ny took the position that they wanted to give the employees more money. The employees were under the impression that the Company had given the in- creases in the first year of the contract, and not the union, and Jeremy says "I really don't know why they won't sign it" and I told Jeremy "Well, in view of that, I am going to call my New York office and file charges." That was the end of the conversation. I note that Kusmierski testified that on August 13, 1979, he telephoned Respondent and asked for President Lee, was informed that Lee was in conference, and asked for Lee to return his call. Lee did not testify in denial that he was aware of such telephone call. Rather, Lee testified in denial that he was aware that a union representative was at the plant waiting to see him. Regardless of the above, the facts as a whole clearly reveal that Respondent was aware that the Union was seeking to get the agreement signed. The testimony relat- ing to what Cohen told Kusmierski clearly reveals that Respondent was refusing to sign the agreement with the Union. Considering all of the foregoing, it is clear that the question of whether Respondent has violated Section 8(a)(5) and (1) of the Act by failure to reduce agree- ments to writing and sign in execution of the same, on or about August 13, 1979, has been litigated. The facts clearly reveal that the parties were in agreement as to all the terms of a contract and that the execution of final agreement merely required signatures on the basic agree- ment (G.C. Exh. 3 B), as modified by slight changes and initialed, and on the letter of understanding. The failure to reveal readiness to meet and sign such agreements on or about August 13, 1979, clearly reveals conduct viola- tive of Section 8(a)(5) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II1, above, occurring in connection with the Respond- ent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It has been found that Respondent has engaged in cer- tain unfair labor practices in violation of Section 8(a)(5) and (I) of the Act by failing and refusing to sign the col- lective-bargaining agreement embodying the terms of agreement reached on or before August 13, 1979. 7 In I Although Steinke and the Respondent met In an attempt. after the unfair labor practice charges, to settle the issues and in doing o engaged in what might appear to be negotiations, such action does not reveal con- duct by the Respondent which cures the effect of its unfair labor prac- tices in refusing to bargain with the Union. ommended that Respondent cease and desist from engag- ing in such unlawful activity and that, upon request, it sign said collective-bargaining agreement forthwith. H. J. Heinz Company v. AN.L.R.B., 311 U.S. 514 (1941). In ad- dition, it will be recommended that Respondent gives effect to the terms of said agreement retroactive to April 1, 1979, and make employees whole for any losses they may have suffered by reason of its failure to execute and sign the aforesaid agreement,8 with interest thereon to be computed in the manner prescribed in Florida Steel Cor- poration, 231 NLRB 651 (1977).9 CONCLUSIONS OF LAW 1. Enidine, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge No. 76, International Association of Machinists & Aerospace Workers, AFL-CIO, is a labor organization within the, meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees including shipping department employees and truck drivers, but excluding all office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Since November 14, 1978, the above-named labor organization has been and now is the certified and exclu- sive representative of all employees in the aforesaid ap- propriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 13, 1979, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfer- ing with, restraining, and coercing, employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 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 10 The Respondent, Enidine, Inc., Buffalo, New York, its officers, agents, successors, and assigns, shall: " See. e g., Penasquios Gardens. Inc., Perasquitos Mills. Inc., San Diego Leisure Life Village: and Penasquiros Village, Inc., 236 NLRB 994 (1978) See, generally Isis Plumbing & Heating Co. 138 NLRB 716 (1962) "' In the eent no exceptions are Filed as provided b Sec 10246 of the Rules and Regulations of the National Labor Relation, Board, the Continued ENIDINE, INC. 1266 D)ECISIONS OF NATIONAL LABOR RELA'I IO()NS BO()ARI) 1. Cease and desist from: (a) Refusing to sign agreements already made or oth r- wise refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with District Lodge No. 76, International As- sociation of Machinists & Aerospace Workers, AFL- CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All full-time and regular part-time production and maintenance employees including shipping depart- ment employees and truck drivers. Excluding: all office clerical employees, professional employees. watchmen, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Sectiqn 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, sign the agreements already found to have been made by August 13, 1979, between the Re- spondent and the Union, and upon request bargain with the above-named labor organization as the exclusive rep- resentative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Give effect to the terms of the contract agreed to by August 13, 1979, retroactive to April 1, 1979, and make the employees whole for any losses they may have suffered as a consequence of its failure to execute and sign said contract, with interest, as set forth in the sec- tion herein entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its Buffalo, New York, place of business copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Re- spondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by 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. iI In the event that this Order is enforced b 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Boaid." it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered. defaced, or covered by any other material. (e) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX No I ic To EMPILoYNi.s Pos Il) Y ()ORI)IR 01 ]t NA l'IONAI LABOR Ri:tI. AiIONS BOARI) An Agency of the United States Government WI. Wll.l NOT' refuse to sign agreements already made or otherwise refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with District Lodge No. 76, International Association of Machin- ists & Aerospace Workers. AFL CIO, as the exclu- sive representative of the employees in the bargain- ing unit described below. WE: WiL1 NOI in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WEI wl.i., upon request, sign agreements found to have been made by August 13, 1979, between the Union and the Respondent, and upon request bar- gain with the above-named Union. as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time production and maintenance employees including shipping department employees and truck drivers. Exclud- ing: all office clerical employees, professional em- ployees, watchmen, guards and supervisors as de- fined in the Act. WI£ WILL, upon request, give effect to the terms of the contract agreed to by August 13, 1979, from its effective date of April 1, 1979. WE wit t reimburse our employees covered by the contract for any monetary losses they may have suffered by our past refusal to sign the contract, with interest. ENII)INE, INC.