Flodin, Inc.

National Labor Relations Board - Board DecisionsOct 19, 1973

206 N.L.R.B. 478 (N.L.R.B. 1973)

478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Flodin, Inc., and Sheet Metal Workers International Association, Local 242, AFL-CIO. Case 19- CA-6191 October 19, 1973 2. Substitute the attached notice for that of the Administrative Law Judge. I , DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On July 13, 1973, Administrative Law Judge Stan- ley Gilbert issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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-membe} 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, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 as modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, Flo- din, Inc., Sunnyside, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Delete Paragraph 1(e) of the Administrative Law Judge's recommended Order and reletter the re- maining paragraphs accordingly. s The Administrative Law Judge , in the last two lines of sec. III, par. 8, of his Decision , credited the testimony of Justin Walls. However , it is obvious from the context and the burden of his Decision that the names of Walls and Norman Nesary were inadvertently transposed and that, in fact , the Admin- istrative Law Judge credited the testimony of Nesary. 2 The Respondent has excepted , inter alia, to the Administrative Law Judge's finding that it violated Sec. 8 (a)(5) of the Act independently by offering its employees a wage increase at a time when the Union possessed valid authorization cards from the majority of its employees. We find that such conduct in conjunction with unlawful interrogation , threats to close the plant and reopen with new employees , and statements suggesting that the Respondent would not bargain in good faith-emanating from the produc- tion manager and the shop foreman with supervisory authority over all production and maintenance employees-at the very least tends to under- mine majority strength and impede the election process and requires that Respondent be ordered to bargain with the Union . In these circumstances, we need not consider, and do not pass upon , whether or not the offer of a raise in the absence of an established bargaining relationship constitutes an attempt to bargain directly with employees within the meaning of N.L.R.B. v. Medo Photo Supply Corporation, 321 U.S. 678 (1944), and, therefore, inde- pendently violates Sec. 8 (a)(5) as well as Sec. 8(a)(l). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate employees with respect to their union activities. WE WILL NOT imply that we will not bargain in good faith with Sheet Metal Workers Interna- tional Association, Local 242, AFL-CIO, or any other labor organization, even though the em- ployees have designated it as their bargaining representative, WE WILL NOT threaten employees with econom- ic reprisal for their adherence to said Union, or any other labor organization, WE WILL NOT ,promise benefits to induce em, ployees to forgo adherence to the aforesaid Union, or any other labor organization. WE WILL NOT refuse to bargain with the afore- said Union, upon its request, as the exclusive representative of the following appropriate bar- gaining unit: All production and maintenance employees at our Sunnyside, Washington, location, exclud- ing all office clericals, salesmen, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights under Section 7 of the Act. WE WILL, upon request, bargain collectively with the aforesaid Union as the exclusive repre- sentative of the employees in the above-de- scribed appropriate unit and embody in a signed agreement any understanding reached. FLODIN, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced 206 NLRB No. 49 FLODIN, INC. by anyone. .This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice'or compli- ance with its provisions may be directed to the Board's Office, 10th Floor, Republic Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-7472. DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed January 8, 1973, by Sheet Metal Workers International Association, Local 242, AFL-CIO, hereinaf- ter referred to as the Union, the complaint herein was issued on February 13, 1973. Said complaint alleges that Flodm, Inc., hereinafter referred to as the Respondent, violated Section 8(a)(1) and (5) of the Act. Respondent, by its answer denies that it violated the Act in any of the respects set forth. Pursuant to notice, a hearing was held in Sunnyside, Washington, on May 1, 1973, before me, duly designated as the Administrative Law Judge. Appearances were entered on behalf of all of the parties, and briefs were received from the General Counsel and Respondent on June 7 and June 8,.1973, respectively. Upon the entire record I in this proceeding and my obser- vation of the witnesses as they testified, I make the follow- ing: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent is a Washington corporation engaged at Sun- nyside, Washington, in the manufacture of food processing equipment. During the year preceding the issuance of the complaint, which period is representative of its annual oper- ations generally, Respondent, in the course and conduct of its business operations, did a gross volume of business ex- ceeding $500,000, and purchased and caused to be trans- ported and delivered to its Sunnyside, Washington, place of business, directly from points outside the State of Washing- ton, goods and services valued in excess of $50,000. As is admitted by Respondent it is, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by the Respondent the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 'General Counsel's unopposed motion is hereby granted to correct the transcript. III THE UNFAIR LABOR PRACTICES 479 The bargaining unit involved in this proceeding is as fol- lows: All production and maintenance employees em- ployed by Respondent at its Sunnyside, Washington, location, excluding all office clericals, salesmen, pro- fessional employees, guards, and supervisors as defined in the Act. It appears that the above-described bargaining unit is an appropriate unit within the meaning of Section 9(b) of the Act. It further appears that during the time material herein there were approximately 22 employees in the above-de- scribed bargaining unit, and that the Union obtained valid authorization cards on November 16, 1972, from 17 of the employees in said unit. On November 17, 1972, the Union sent Respondent a letter demanding recognition as the exclusive bargaining representative of Respondent's employees, which letter was received by Respondent on November 20, 1972. By letter dated November 21, 1972, Respondent replied that it did not have authority to make a decision with respect to said demand, since it is "operating under Chapter 11" of the Federal Bankruptcy Laws. It appears that the Respondent has been so operating since November 1968, under the su- pervision of a_ creditors' committee. A number of General Counsel's witnesses testified to var- ious incidents which General Counsel contends support findings of violations of Section 8(a)(l) of the Act and fur- ther findings of violations of Section 8(a)(5) and (1) of the Act. Following is an analysis of the testimony with respect to said incidents. Donald Robertson, an employee of 9 years, testified that on November 17, 1972, apparently the day after the employ- ees met with representatives of the Union and signed the above-mentioned authorization cards, he had a conversa- tion with Howard Barrett, Respondent's shop foreman. His testimony as to their conversation is as follows: A. He asked me if -I was a union man. Q. What did you say? A. "Yes." Q. Did he say anything else? A. He said that John will meet with the union but that he wouldn't listen, John FlodiW. Q. Did he say anything else? A. He just asked me if I attended the union meeting. Q. What did you say? A. I told him yes. Barrett denied the above testimony. However, Robertson was the more convincing of the two witnesses and his above- quoted testimony is credited. In the context of the entire record it is concluded that by Barrett's conduct on Novem- ber 17 Respondent violated Section 8(a)(1) of the Act in unlawfully interrogating Robertson and in implying that Respondent would refuse to bargain in good faith with the Union even if the employees selected it as their bargaining representative. On November 20, shortly after John Flodin received the Union's letter demanding recognition, he met with other 2 Respondent did not raise as a defense herein that it is so operating. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD officers of the Respondent as well as Justin Walli, produc- tion manager, and Howard Barrett, and discussed the letter. After the meeting, Walli called Norman Nesary, an employ- ee of approximately 12 years, from his work station and held a conversation with him. Nesary testified to his conversa- tion with Walli as follows: A. He said, he asked me a question, "You're going union?" and I answered, "Yes, we have to do some- thing," and then- Q. (Interrupting) Did he say anything further? A. Yes, he said, "Why the Sheetmetal Union?" Q. Did he say anything else? - A. He asked me, "Why the Sheetmetal Union?" and I told him, "Because it fits our line of work." Q. Do you recall if anything was said about the union meeting? A. Yes, he asked me how many attended the meet- ing and I told him 17. Q. Was anything else said? A. Then he told me that they had been thinking, not thinking, that they had decided to give us a raise, 33 cents an hour since the first of December,' but that they haven't gotten around to telling the employees about it. Q. Did he say anything further about the raise? A. At that'time the buzzer rang, the coffee break, and he asked me to go over and ask the employees if they will accept the 33 cents. Q. Did you respond? A. I told him that I didn't think that they would, but that he should go over and ask them himself. Q. What did he say after' that? A. He told me that the company could not afford the union wages and that they would have to ask for an extension in the contract for 30 days and then close the shop and re-open again in 30 days under his name with a new crew. Another employee, Ki Taylor, testified that he overheard part of the conversation between Nesary and Walli and his testimony as to what. he overheard substantially corrobo- rates that of Nesary. alli and Flodin also testified about the conversation. In substance, their testimony corroborates much of the testimony of Nesary and Taylor with the excep- tion of certain denials: that Walli mentioned the amount of the raise (but merely said they were anticipating giving a raise effective December), that Walli asked Nesary to in- quire whether the employees would accept a raise, and that he asked Nesary how many had attended the union meet- ing. It is noted that in Flodin's pretrial affidavit he stated that Nesary mentioned a "33 cents raise." Walli and Taylor were the more impressive witnesses . Consequently, Walli's above-quoted testimony is credited. It is found that by Walli's conduct Respondent unlawful- ly interrogated Nesary,, unlawfully promised a pay raise, and threatened to close the shop and hire a new crew, all in violation of Section 8(a)(1) of the Act. Further, it is found that through the conduct of Walli, Respondent unlawfully attempted to bargain directly with the employees in viola- tion of Section 8(a)(5) and (1) of the Act. 3 It appears from his subsequent testimony that this was intended to mean "effective the first of December." Employee Bob Schei testified to two conversations he had ,with Barrett on November 20. He testified that in the first conversation Barrett asked him "what he knew about the guys in the shop following the Union," and that, when Schei indicated that he knew nothing, Barrett stated that the Union was "the worst Union that there possibly was be- cause all they wanted was high wages." He further testified that in the second conversation, later in the day, Barrett asked him if Nesary "started the Union talk," and that he responded "We all had gotten together and decided that we had to do something because we couldn't get anywhere with John [Flodin]." Although Barrett denied this testimony, since Schei was the more convincing of the two witnesses, his testimony is credited. It appears therefrom that Respon- dent, by Barrett's conduct, engaged in unlawful interroga- tion in violation of Section 8(a)(1) of the Act. Schei also testified to conversations he had with Barrett shortly over the course of several following days. According to Schei's testimony, Barrett made the following statement to him in said conversations: "He said that the union would close the shop down because the shop could not afford the higher wages, that they would close down the shop for 30 days and reopen it under Justin Walli, the manager." Barrett denied making such a statement to Schei. Howev- er, for the reason above stated, Schei's testimony is credited. Based upon said credited testimony, it is found that Re- spondent, through the conduct of Barrett, engaged in a threat of economic reprisal for union activity in violation of Section 8(a)(1) of the Act. Employees Kenneth Coleman and Darrell Friend testi- fied that on or about November 22 Barrett asked Coleman if he were a union man, that Coleman responded that he was, and that Barrett replied, "It will never be." Coleman and Friend were more impressive witnesses than Barrett, who denied their testimony, and therefore the above sum- marized testimony is credited. Based upon said credited testimony, it is found that Respondent, through Barrett, engaged in unlawful interrogation in violation of Section 8(a)(1) of the Act 4 Thomas Honeycutt, an employee of Respondent since 1964, testified to a conversation he had with Barrett on or about November 20. His testimony is as follows: He walked up to me and said, "What the hell is this about the union? Do you want the union to come in?" And I said, "That is right." And he said, "If the union comes in we have to pay eight something an hour, and we will all be out of a job." I said, "I don't think that - wages will be eight something an hour, that I thought that our wage will be based on what the company could afford." And that ended the conversation. Although Barrett denied the above quoted testimony, Honeycutt was a more convincing witness and therefore it is credited. Based upon such credited testimony, it is found that Respondent, through Barrett's conduct, engaged in un- lawful interrogation in violation of Section 8(a)(I) of the Act. Douglas Snyder, who at the time of the hearing had not been an employee of Respondent for almost a year, testified 4 No finding is made with respect to Barrett's statement, "It will never be," since it is considered too ambiguous to permit drawing a reasonable inference therefrom. FLODIN, INC. to • a conversation he had with Flodin toward the end of November 1972. Snyder testified that in the course of his conversation with Flodin, Flodin stated "That if the Union went in that he would close the shop and rehire new men." Snyder further testified to a conversation he had with Bar- rett in the first part of April 1973, in which he asked Barrett if the Respondent "were going to go Union," and that Bar- rett responded "No, we are going to shut the doors and lay off all the men and rehire new men." Although Snyder's testimony was denied by Flodin and Barrett, -he was the more impressive witness and his testimony is credited. Said credited testimony will not support a finding of an unfair labor practice, since the statements were not made to a then employee, but it does tend to support the above findings that Respondent engaged in threats of economic reprisal. Concluding Findings The above mentioned findings of unlawful interrogation of employees by Walli and Barrett, considered in context of the entire record, particularly the threats of economic repri- sal, constitute interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. Implying that Respondent will not bargain in good faith with the Union even though the employees designated it as their bargaining representative is a violation of Section 8(a)(1) of the Act. The threats by Walli and Barrett that the plant would be closed and be reopened with new employees was clearly designed to' intimidate the employees and constituted threats of economic reprisal for their adherence to the Union in violation of Section 8(a)(1) of the Act. The prom- ise of the 33-cent wage increase clearly constituted a prom- ise of benefit calculated to induce employees to forego the Union and therefore is violative of Section 8(a)(1) of the Act.' Walli's attempt to negotiate directly with the employ- ees through Nesary with the offer of said raise, despite the Respondent's receipt of a demand letter from the Union at a time when the Union represented a majority of the em- ployees, constituted a refusal to bargain in good faith within the meaning of Section 8(a)(5) and (I) of the Act. Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678 (1944). Considering the above-outlined unfair labor practices of Respondent, the fact that at the time material herein the Union represented a majority -of the employees in the ap- propriate bargaining unit, and the admitted refusal of Re- spondent to bargain with the Union despite its demand, it is deemed appropriate to conclude that the Respondent violated Section 8(a)(5) and (1) of the Act by so refusing and that a bargaining order is warranted herein. United Packing Company of Iowa Inc., 187 NLRB 878; N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 614-615 (1969). 5 According to Respondent's witnesses, although the raise had been con- templated, it had never been communicated to any of the employees. Conse- quently, there was no need to mention it to them. It would appear that the only purpose in doing so was to dissuade the employees from their adherence to the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 481 The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with its opera- tions set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow thereof. V THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor prac- tices found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act. As stated hereinabove, an order is warranted herein re- quiring Respondent to bargain with the Union as the exclu- sive representative of the appropriate bargaining unit described hereinabove. Therefore, it will be recommended that Respondent bargain with said Union with respect to the above-described bargaining unit upon the Union's re- quest and embody in a signed agreement any understanding reached. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by un- lawfully interrogating employees about their union activi- ties, by promising pay raises, by threatening to close the plant and reopen it with new personnel, and by implying that it would refuse to bargain in good faith with the Union even if the employees selected it as their bargaining repre- sentative. 4. Respondent violated Section 8(a)(5) and (1) of the Act by attempting to bargain directly with the employees after the Union had made a demand for recognition and at a time when it represented a majority of the employees in the bar- gaining unit. 5. Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union upon its request as the exclusive representative of the following appropriate bargaining unit: All production and maintenance employees em- ployed by Respondent at its Sunnyside, Washington, location, excluding all office clericals, salesmen, pro- fessional employees, guards, and supervisors as defined in the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:' 6 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, Continued 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Respondent , Flodin , Inc., its officers , agents , successors, and assigns , shall: 1. Cease and desist from: (a) Unlawfully interrogating employees with respect to their union activities. (b) Implying that it will not bargain in good faith with Sheet Metal Workers International Association , Local 242, AFL-CIO, or any other labor organization, even though the employees have designated it as their bargaining representa- tive. (c) Threatening employees with economic reprisal for their adherence to the Union. (d) Promising benefits to induce employees to forego adherence to the aforesaid Union, or any other labor orga- nization. (e) Attempting to bargain directly with employees in- stead of their designated bargaining representative. (f) Refusing to bargain with the aforesaid Union, upon its request , as the exclusive representative of the following appropriate bargaining unit: All production and maintenance employees at its conclusions, and recommended Order herein shall, as provided in Section 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. Sunnyside, Washington, location, excluding all office clericals, salesmen , professional employees, guards, and supervisors as defined in the Act. (g) In any other manner interfering with, restraining or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the aforesaid Union as the exclusive representative of the employees in the above-described appropriate unit and embody in a signed agreement any understanding reached. (b) Post at its place of business in Sunnyside, Washing- ton, copies of the notice attached hereto and marked "Ap- pendix."' Copies of said notice on forms to be furnished by the Regional Director for Region 19 shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof and maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. (c) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."