General Tube Co.

National Labor Relations Board - Board Decisions

Mar 13, 1963

141 N.L.R.B. 441 (N.L.R.B. 1963)

GENERAL TUBE COMPANY 441
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 the operations of the companies other than Heritage and Woodbury
described in section I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and, to the extent found to have been
unfair labor practices, tend to lead to labor disputes burdening and obstructing
commerce and its free flow.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Moreover, as I am persuaded by the
Respondent's widespread efforts revealed in the record to force customers and other
companies to boycott White concrete or to refrain from doing business with White, I
find that it is appropriate in order to avoid a continuation and recurrence of such
unlawful conduct to recommend that the Respondent be enjoined from engaging
in similar activities with respect to other persons having business dealings with
White.
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. White, Railroad, Hicksville Transportation, Ogilvie and Campbell, Henriques,
Asprea, Drapo, Sokolov, Ruttura, and Columbian are employers engaged in com-
merce or in an industry affecting commerce within the meaning of Sections 2(6)
and (7) and 8(b) (4) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
3. By inducing and encouraging the employees of the companies named in
paragraph 1, above, other than White, Railroad, Sokolov, and Henriques, to engage
in a strike or a refusal in the course of their employment to use or handle concrete
purchased from White or to perform any services, and by threatening, coercing, or
restraining all the companies named in paragraph 1, above, other than White, with
an object in each case of forcing or requiring these employers to cease using or
handling White concrete or doing business with White, the Respondent has engaged
in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of
the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices at the Heritage and
Uniondale or South Hempstead construction projects or at the plant of East Setauket
Sand & Gravel Company.
[Recommended Order omitted from publication].
General Tube Company and International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO. Case No. 7-CA-3998. March 13,
1963
DECISION AND ORDER
Upon charges duly filed by International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of America
(UAW), AFL-CIO, herein called the Union , the General Counsel
of the National Labor Relations Board, by the Regional Director
for the Seventh Region, issued a complaint dated December 11, 1962,
against General Tube Company , herein called the Respondent, al-
leging that Respondent had engaged in and was engaging in unfair
141 NLRB No. 42.
442 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
labor practices within the meaning of Section 8(a) (5) and (1) and
Section 2 (6) and (7) of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of hearing before a Trial
Examiner were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance that the Union was and is the exclusive representative
of certain employees of Respondent in the appropriate unit certified
on October 19, 1962, by the Regional Director, and that Respondent
thereafter unlawfully refused to bargain with the Union.
The Respondent's answer, filed on December 20, 1962, admits cer-
tain jurisdictional and factual allegations of the complaint but denies
the commission of unfair labor practices.
All parties to this proceeding thereafter entered into a stipulation
of facts and requested that the proceeding be transferred directly to
the Board for findings of fact, conclusions of law, and Decision and
Order. The requests state that the parties have waived their rights
to a hearing before a Trial Examiner and to the issuance of an Inter-
mediate Report. The parties also agreed that their stipulation and
certain specified documents constitute the entire record in this case.
On January 22, 1963, the Board granted the parties' request to
transfer the case to the Board. Briefs were thereafter filed by the
General Counsel, the Union, and the Respondent. Upon the basis
of the parties' stipulation, the briefs, and the entire record in the
case, the Board' makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation duly organized under, and existing
by virtue of, the laws of the State of Michigan, at all times material
herein, is and has been engaged in the manufacture, sale, and dis-
tribution of tubing, seat belts, and related products at its plant lo-
cated in Sturgis, Michigan. During the calendar year 1961, which
period is representative of its operations during all times material
hereto, the Respondent, in the course and conduct of its business, pur-
chased and caused to be transported and delivered to its Sturgis,
Michigan plant, goods and materials valued in excess of $500,000,
of which goods and materials valued in excess of $100,000 were trans-
ported and delivered to its plant directly from points located outside
the State of Michigan and in the course and conduct of its business,
Respondent manufactured, sold, and distributed products valued in
excess of $500,000, of which products valued in excess of $50,000
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman McCulloch and Members Leedom and Brown].
GENERAL TUBE COMPANY 443
were shipped from said plant to points located outside the State of
Michigan.
The Respondent admits, and we find, that it is engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union , United Automobile , Aerospace and Agri-
cultural Implement Workers of America (UAIV), AFL-CIO, and
Employees Group Association are labor organizations as defined in
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On March 30, 1962, the Respondent, the Union, and the Employees
Group Association, entered into, and the Regional Director approved,
an agreement for consent election in the following unit:'
All production and maintenance employees of the Company's
Sturgis, Michigan, plant, but excluding office clerical employees,
executives, engineers, professional employees, guards, foremen,
and all other supervisors as defined in the Act.
The parties specifically agreed :
[T]he determination of the Regional Director shall be final and
binding upon any question, including questions as to the eligibility
of voters, raised by any party hereto relating in any manner to
the election, and provided further that rulings or determinations
by the Regional Director in respect of any amendment of any
certification resulting therefrom shall also be final. [Emphasis
supplied.]
In addition, the agreement provided that either party could file ob-
jections to the conduct of the election or conduct affecting the results
of the election, and, if objections were filed, the Regional Director
would conduct an investigation and report thereon. The agreement
then stated :
The method of investigation of objections and challenges, in-
cluding the question of whether a hearing should be held in con-
nection therewith, shall be determined by the Regional Director,
whose decision shall be final and binding. [Emphasis supplied.]
Pursuant to the above agreement, an election by secret ballot was
conducted April 3, 1962, under the direction and supervision of the
Regional Director. Thereafter, objections having been duly filed and
considered, pursuant to a report on objections and direction of new
election issued by the Regional Director, dated June 8, 1962, a rerun
2 General Tube Company, Case No. 7-RC-5250 ( not published in NLRB volumes).
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election by secret ballot was conducted under the supervision of the
Regional Director on August 21, 1962, between 3 and 4 p.m. Follow-
ing the election, the Regional Director served upon the parties a tally
of ballots which showed that 65 valid votes were cast, of which 33 were
for the Union, 32 were for the employees Group Association, and 2
were challenged. As the challenged ballots were sufficient in number
to affect the results of the election, the Regional Director conducted
an appropriate investigation. On September 28, 1962, the Regional
Director issued a report on objections and order on challenged ballots,
overruling the challenges to the ballots of Lois Ware and Howard
Todd, Jr., and ordering that these ballots be opened and counted 3
Thereafter, said ballots were opened and counted and the revised tally
of ballots showed that 34 ballots were cast for the Union and 33 ballots
were cast for the Employees Group Association. Having found that
a majority of valid votes had been cast for the Union, the Regional
Director on October 19, 1962, certified it as the exclusive bargaining
representative of the employees in the agreed unit.
On October 23, 1962, the Union requested in writing that the Re-
spondent meet with it for the purpose of negotiating an agreement
covering the employees in the aforementioned unit. The Respondent,
by letter to the Union dated October 30, 1962, stated that it would not
bargain with the Union and admittedly has refused to do so at all
subsequent times.
On the basis of the above facts, the General Counsel contends that
the Respondent has unlawfully refused to bargain with the duly
certified representative of its employees, in violation of Section 8 (a) (5)
and (1) of the Act. The Respondent contends that its admitted refusal
to bargain was not unlawful on the ground that the election and result-
ing certification of the Union by the Regional Director were invalid
because the Regional Director failed to sustain its challenge to Ware's
ballot.
The parties stipulated that Lois Ware was employed on the agreed
eligibility date and on the date of the election ; that she punched "in"
at 7 a.m. and "out" at 4:01 p.m. on the date of the election, and was
paid for an 8-hour shift; that she notified her supervisor at 8 :30 a.m.
on the morning of the election that this would be her last day of work;
that she worked on the same floor where the balloting took place and
cast a challenged ballot at 3 :45 p.m.; that after casting her ballot Ware
punched "out" as aforementioned; and that Ware has not worked for
the Respondent since that time.
In overruling the challenge to Ware's ballot, the Regional Director
stated that "the test for determining eligibility is the individual's
actual status on the eligibility and election date. It is immaterial that
3 Certain objections to the conduct of the election were also filed by the Respondent.
The Regional Director found these objections to be without merit.
GENERAL TUBE COMPANY 445
an employee gives notice of quitting prior to an election." The Re-
gional Director concluded that since Ware was employed by the Re-
spondent on the eligibility date and since she was still an employee on
the date of the election, she was eligible to vote.4 The Respondent
takes the position that the Regional Director erred in overruling the
challenge to Ware's ballot on the ground that Ware's intention to quit
was unequivocal and final before the polls opened on the day of the
election; that Ware did not work after casting her ballot in the elec-
tion nor has she worked for the Respondent since that time; and
therefore that when Ware voted, she possessed no interest in the out-
come of the election nor any reasonable expectation of continued
employment.
It has long been the Board's policy, uniformly upheld by the courts,
that the Regional Director's determination in consent election of this
character is final, in the absence of fraud, misconduct, or gross mis-
take, even though the Board might have reached a different conclusion
in the first instance. To hold otherwise would permit the parties to
deliberately ignore binding commitments embodied in a consent agree-
ment; would open the door to subterfuges for hampering and delaying
a final determination of a bargaining representative; and would tend
to defeat, rather than to effectuate, the policies of the Act.'
In the instant case, the Respondent's allegations are in fact an at-
tack on the judgment of the Regional Director and on the merits of
his decision as to Ware's challenged vote. The record contains noth-
ing that would remotely point to fraud, misconduct, or gross mistake
on the part of the Regional Director. Accordingly, and without re-
considering the substantive merits of the Regional Director's deter-
minations we find that the certification issued herein was valid and
final and that the Respondent is seeking to relitigate in a com-
plaint proceeding matters foreclosed by the Regional Director's final
determination.7
As the Respondent admittedly has declined to honor the certifica-
tion of the Union, and has refused to bargain with the certified bar-
gaining representative of its employees, we find that Respondent has
violated Section 8 (a) (5) and (1) of the Act.
4In reaching this conclusion, the Regional Director relied on Otarion Listener Corp.,
and its Subsidiary Audio Electronics Co, 124 NLRB 880, and Personal Products Corpo-
ratroon, 114 NLRB 959.
5 Howai d Rip pee , at at ., d/b/a Pacific Multiforms Company , 138 NLRB 796 ; cf Sumner
Sand d Gravel Company, 128 NLRB 1368, 1371 , enfd 293 F . 2d 754 ( C A. 9).
0 Member Brown would affirm the Regional Director's statement that the essential ele-
ment in determining an employee 's eligibility to vote is his status on the eligibility pay-
period date and on the date of the election; he refeis in this connection to Board
holdings that (1) the Board will not inquire into prospects of future employment of an
employee who is actually working on election day , Whiting Corporation, Spencer and
Morris Division, 99 NLRB 117, 123; and ( 2) an employee 's eligibility to vote is not
afected by the fact that he intends to and does in fact quit after the election . Personal
Products Corporation, supra, at 961.
7 Howard Rip pee , at al, d/b/a Pacific Multsforms Company, supra ; Sumner Sand &
Gravel Company, supra.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IN". TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, oc-
curring in connection with its operations as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (5) and (1) of the Act, we
shall order that it cease and desist therefrom and, upon request, bar-
gain collectively with the Union as the exclusive representative of all
employees in the appropriate unit, and, if an understanding is reached,
embody such understanding in a, signed agreement.
CONCLUSIONS OF LAW
1. International Union , United Automobile , Aerospace and Agri-
cultural Implement Workers of America (UAW), AFL-CIO, is a
labor organization as defined in Section 2(5) of the Act.
2. All production and maintenance employees at Respondent's
Sturgis, Michigan , plant, excluding office clerical employees , execu-
tives, engineers , professional employees, guards, foremen , and all other
supervisors as defined in the Act constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
3. The above-named labor organization was on October 19, 1962,
and at all tinges thereafter , the exclusive representative of all em-
ployees in the aforesaid appropriate unit for purposes of collective
bargaining within the meaning of Section 9 ( a) of the Act.
4. By refusing , on and since October 30 , 1962, to bargain collectively
with the above -named labor organization as the exclusive representa-
tive of its employees in the aforesaid appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (5) and ( 1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended the National Labor
Relations Board hereby orders that the Respondent, General Tube
Company, Sturgis, Michigan, its officers, agents, successors, and as-
signs, shall:
GENERAL TUBE COMPANY 447
1. Cease and desist from :
(a) Refusing to bargain collectively concerning wages, hours and
terms and conditions of employment with International Union, United
Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO, as the exclusive representative of all
its employees in the following appropriate unit : All production and
maintenance employees at the Respondent's Sturgis, Michigan, plant,
excluding office clerical employees, executives, engineers, professional
employees, guards, foremen, and all other supervisors as defined in
the Act.
(b) In any like or related manner, interfering with the efforts of
International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFI.-CIO, to bargain
collectively.
2. Take the following affirmative action which the Board finds Will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named labor
organization as the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its plant in Sturgis, Michigan, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished
by the Regional Director for the Seventh Region, shall, after being
duly signed by the Respondent's authorized representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive clays thereafter, in conspicuous places,
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 Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
"In the event that this Oider is enfoieed by a decree of it United States Court of
Appeals, these shall be substituted for the words "Pursuant to a Decision and Order" the
as of ds "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Oider."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relat ions
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain with International Union,
United Automobile, Aerospace and Agricultural Implement
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers of America (UAW), AFL-CIO, as the exclusive repre-
sentative of all the employees in the bargaining unit described
below with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and, if an understanding is
reached, embody such an understanding in a signed agreement.
WE WILL NOT in any like or related manner interfere with the
efforts of International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
AFL-CIO, to bargain collectively.
The bargaining unit is:
All production and maintenance employees at our plant in
Sturgis, Michigan, excluding office clerical employees, ex-
ecutives, engineers, professional employees, guards, foremen,
and all other supervisors as defined in the Act.
GENERAL TUBE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit 26,
Michigan, Telephone No. 963-9330, if they have any question con-
cerning this notice or compliance with its provisions.
Brewers and Maltsters Local Union No. 6, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and Robert Lewis, its Secretary-
Treasurer (Falstaff Brewing Corporation) and Gottfried Link
Brewers and Maltsters Local Union No. 6, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Anheuser-Busch, Inc.) and
Hugh W. Pond. Cases Nos. 14-CB-991 and 14-CB-995. March
13, 1963
DECISION AND ORDER
On October 30, 1962, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had not engaged in the unfair labor practices as alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
141 NLRB No. 34.