General Tube Co.

National Labor Relations Board - Board Decisions

Mar 19, 1965

151 N.L.R.B. 850 (N.L.R.B. 1965)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, 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 Pressmen, the Stereotypers, the Guild, and the Paper Handlers are labor
organizations within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
General Tube Company and International Union , United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO. Case No. 7-CA-4531. Marclz 19,
1965
DECISION AND ORDER
On October 1, 1964, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exami-
ner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief. The General
Counsel filed a brief in answer to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and finds merit in the Respondent's exceptions.
1. We find, in agreement with the Trial Examiner, that the
General Counsel failed to prove by a preponderance of the evidence
that the Respondent on or about December 6, 1963, unilaterally and
without prior notice to the Union "abandoned its practice" of recall-
ing employees on the basis of their seniority so as to delay until
January 8, 1964, the recall of the nine employees named in the com-
plaint. Specifically, the Trial Examiner found that, contrary to the
allegation in the complaint, the Respondent followed a practice of
recalling employees on the basis of their shift seniority, and that in
recalling employees to work after the layoff of December 5, 1963, the
151 NLRB No. 89.
GENERAL TUBE COMPANY 851
Respondent did not deviate from that practice. Accordingly, the
Trial Examiner recommended that this allegation of the complaint
be dismissed. The General Counsel did not except to this recom-
mendation, which we adopt pro forma.
2. The Trial Examiner found, however, that the Respondent was
under an obligation to notify the Union of its plans as to the layoff
and recall of its employees and to accord the bargaining agent an
opportunity to discuss them, and that by ignoring this obligation it
violated Section 8(a) (5) and (1) of the Act. But this relates to a
matter not properly before us. The complaint contains no unfair
labor practice allegation to that effect. It alleges only that on or
about December 6, 1963, the Respondent unilaterally "abandoned its
practice of recalling employees according to seniority," and, as indi-
cated above, we agree with the Trial Examiner that this allegation
was not proved.'
3. We also disagree with the Trial Examiner's conclusion that by
subcontracting part of the sewing operations on seat belts to Freeland
without prior notice to the Union, the Respondent on September 26
violated Section 8 (a) (5) and (1) of the Act.
The Respondent contends that in subcontracting part of the unit
work to Freeland it merely followed its practice of subcontracting
on a unilateral basis and hence did not change the existing terms and
conditions of employment. In support of this contention the Re-
spondent adduced evidence that in November 1962 it subcontracted
similar work, completed in January 1963, to Freeland without prior
notice to the Union. The parties also entered into a stipulation to
the effect that in September 1963 the Respondent merely "resumed
a subcontract relationship" with Freeland. This evidence shows at
most that the Respondent on one occasion subcontracted similar work
to Freeland and fails to prove that there was a well-established prac-
tice of subcontracting prior to the September 1963 subcontract to
Freeland.
But, although the Respondent's reliance on practice as a defense is
not supported, we nevertheless find for other reasons that the Re-
spondent's unilateral action in subcontracting to Freeland was not
violative of the Act.
I In the present posture of the case, we find it unnecessary to decide whether the issue
of the Respondent's failure to give notice of its plans as to layoff and recall, although
not alleged, was nevertheless sufficiently litigated to warrant an unfair labor practice
determination with respect thereto. For an order based on such an unfair labor practice
finding, if made, would serve no necessary puipose. On March 12, 1963 , in a case
involving this Respondent the Board issued its decision and order, enforced by the Court
of Appeals for the Sixth Circuit (General Tube Company, 141 NLRB 441, enfd 331
F. 2d 751),. directing the Respondent to bargain with the Union as the exclusive rep-
resentative of its employees concerning the wages, hours, and other terms and condi-
tions of employment Thus a specific order at this time, requiring the Respondent to
bargain with respect to its layoff and recall procedure, even if allowable, would not en-
large upon the broad statutory bargaining obligation which the Respondent has already
been mandated by court decree to honor
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is in the first place no probative evidence that the loss of the
Saturday overtime by unit employees during this period resulted
from the Freeland subcontract. The Respondent's executive officer
Davis testified without contradiction that the Respondent's opera-
tions during this period were seriously affected by the "buckle prob-
lem."' The seat belt buckles used by the Respondent were found by
the Respondent's customer, General Motors, to be defective. The
buckles used by the Respondent were a purchased item supplied by
another manufacturer. Because of General Motors' rejection of
deliveries of seat belts with such defective buckles, the Respondent
had to shut down the plant in November for 2 weeks and 3 days, and
canceled overtime work on Saturday, November 23, 1963. The
buckle problem was also responsible for the layoff of two shifts of
employees on December 5, 1963. Davis also testified that the plant
during this period had been scheduled for full production including
Saturday overtime, but that the schedule had to be revised because
of the buckle problem. The problem was eventually solved when
with the help of the General Motors' engineers the retooling for the
new buckle was completed. This testimony of Davis also stands
uncontradicted on the record. Indeed the General Counsel accepted
it by implication, for he made no contention that the loss of regular
wages by unit employees during the shutdown of the plant for 2
weeks and 3 days was due to the Freeland subcontract.
However, even if it be assumed that some loss of Saturday over-
time may have resulted from the Freeland subcontract, it does not
appear that such loss had a substantial impact upon the unit employ-
ees' terms and conditions of employment. No unit employee was laid
off or lost his regular wages. The Trial Examiner found that dur-
ing this period of 7 weeks, no overtime was performed on one Satur-
day. On three other Saturdays the employees worked 5 hours of
overtime, and on each of another three Saturdays they worked a full
8 hours of overtime. The total of Saturday overtime lost for each of
the employees could, at most, have amounted to only 9 hours. It is
thus apparent that the unilateral subcontract did not result in any
sign lificant detriment to the employees or change in their conditions
of employment?
[The Board dismissed the complaint.]
2 Cf Kennecott Copper Corp (Chino Mine Division ), 148 NLRB 1653, where the
Board dismissed the complaint in part on the fact that the unilateral subcontracting
resulted in no significant detriment to the employees in the appropriate unit; Shell Oil
Company, 149 NLRB 305 , where the subcontracting did not result in the discharge
of employees and the effect was minimal ; General Motors Corporation, 149 NLRB 396
where the reassignment of unit employees to other jobs in the same unit did not result
in substantial impairment.
GENERAL TUBE COMPANY S53
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on January 17, 1964 , by International Union , United Auto-
mobile, Aerospace and Agricu l tural Implement Workers of America (UAW), AFL-
CIO, herein called Union , the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 7 (Detroit , Michigan ), issued a com-
plaint, dated March 30 , 1964, against General Tube Company, herein called Respond-
ent or Employer . The complaint sets forth the specific respects in which it is
alleged that the Respondent violated Section 8 (a)(1) and ( 5) of the National
Labor Relations Act, as amended , herein called the Act. The Respondent duly
filed an answer in which it conceded certain facts with respect to its business
operations , but denied all alleged unfair labor practices with which it is charged.
Pursuant to due notice, a hearing was held before Trial Examiner Robert E.
Mullin at Coldwater , Michigan , on April 28 , 1964. All parties appeared at the
hearing and were given full opportunity to examine and cross -examine witnesses,
to introduce relevant evidence , to argue orally at the close of the hearing, and to
file briefs. Oral argument was presented by the Company . It was waived by the
General Counsel . On June 12 , 1964, briefs by the General Counsel and by the
Employer were submitted to me. These have been fully considered by me.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDING OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Michigan corporation , maintains its principal office, plant,
and place of business in Sturgis , Michigan , where it is engaged in the manufacture,
sale, and distribution of tubing , seat belts , and related products . During the course
and conduct of its operations during the calendar year 1963, a representative period,
the Respondent purchased materials valued in excess of $500,000 , of which amount
goods valued in excess of $100 ,000 came directly from out of State. During the
same period of time, the Respondent manufactured products valued in excess of
$500,000, of which amount , products valued in excess of $50,000 were shipped
from the plant in Sturgis directly to points located outside the State of Michigan.
Upon the foregoing facts the Respondent concedes , and the Trial Examiner finds,
that General Tube Company is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes and I find that the Union is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The General Counsel contends that the Respondent violated the Act in having
failed , during the fall of 1963 , to bargain with the Union about a subcontract for
production work which it negotiated with another manufacturer , and having taken,
later that year , various unilateral action without consultation or bargaining with
the Union . At the hearing and in its brief the Respondnt has contended , on various
grounds, that it was not obligated to bargain with the Union during the period in
question . Essential to an understanding of this case is the chronology set forth
below.
On August 21, 1962, pursuant to a consent -election agreement , the Regional
Director conducted a representation election at the Respondent 's plant. At this time
the employees designated the Union as the bargaining representative of a unit
composed of all production and maintenance employees, exclusive of office clericals,
guards, executives , engineers, professional employees , foremen, and all other super-
visors, as defined in the Act. On October 19, 1962, the Regional Director certified
the Union as the exclusive bargaining agent of the employees in the aforesaid unit.
On October 23, 1962, the Union requested that the Respondent meet with it for
the purposes of negotiating a collective -bargaining agreement . By letter dated
October 30 , 1962, the Respondent refused to enter any such negotiations with the
Union. Thereafter , on March 13, 1963, the Board issued a Decision and Order
in General Tube Company , 141 NLRB 441 , wherein it found that the Respondent had
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declined to honor the certification of the Union and had thereby refused to bargain
with the certified bargaining representative of its employees in violation of Section
8(a)(5) and (1) of the Act. The Board's Order directed the Respondent to bargain
with the Union upon request On May 13, 1964, the Court of Appeals for the
Sixth Circuit sustained the decision of the Board and enforced the aforesaid order.
N.L.R.B v. General Tube Company, 331 F. 2d 751.
B. The facts
At the outset it should be noted that, in accordance with the Board and court
decision in General Tube Company, supra, it must be found, and I so find, that
at all times since October 19, 1962, the Union has been the exclusive bargaining
agent of the employees in the unit described above.
The Company has a plant in Sturgis, Michigan, where it is engaged primarily in
the manufacture of automotive seat belts, with the General Motors Corporation as
its principal customer. According to H. Jerry Davis, secretary of the corporation
and one of its chief executive officers,' it also manufactures refrigeration tubing,
although this is a comparatively unimportant phase of its operations Further,
according to Davis, most of the employees in the seat belt department are women
who are engaged in sewing and assembling seat belts.
On or about September 26, 1963. the Respondent subcontracted part of the sewing
and trimming of the fabric portion of the seat belt work to Freeland Sons Company,
a concern which is also located in Sturgis, Michigan. It is undenied that this action
was taken without notification or consultation with the Union. On at least one
prior occasion, the Respondent had had Freeland perform similar work for it
This earlier contract relationship, however, had been terminated in January 1963.
Freeland's performance of the contract began on September 27, 1963, and con-
tinued until about December 5, 1963. During this period Freeland operated one
shift approximately 15 employees on a 40-hour week basis from September 30 to
October 17, Only a few worked on the subcontract job from the latter date until
November 18. From this last-mentioned date until December 5, 1963, Freeland had
18 employees engaged in sewing work for the Respondent.
During the same period that Freeland was performing work on the subcontract,
the Respondent maintained two shifts and had about 27 individuals engaged in
sewing seat belts out of a total work force of slightly less than 100. Two full weeks
during that period, namely, the payroll periods ending on November 9 and 16, the
employees at the Respondent's plant were laid off. For the week ending Novem-
ber 2, the employees worked only 3 full days. The rest of the time during the period
from September 26 to December 5, the employees worked a regular 40-hour week
with no overtime except for some of the Saturdays. Thus, on one Saturday in that
period no overtime was performed, on three other Saturdays the employees worked
5 hours of overtime, and on each of another three Saturdays, they worked a full
8 hours of overtime.
On or about December 5, the Respondent shut down its plant and laid off all its
employees on both the day and night shifts because of certain defects in the buckles
then being used. On December 7 the Respondent began the recall of those employ-
ees who had been laid off. By December 9, the Respondent had recalled the entire
night shift and day shift with the exception of approximately 21 employees on the
day shift Nine of this latter group, all of whom are named in the complaint as
discriminatees, were not recalled until January 8, 1964. The Respondent conceded
that at no time did it notify or consult with the Union as to either the layoffs or
recalls described above.
The nine empolyees named in the amended complaint, Ethel Newman, Sally
Dodson, Mildred Murray, Cleo Holtz, Helen Holtz, Lusella Dauber, Fern Wright,
Thelma Zellers, and Bonnie Bellaire,'- had greater plantwide seniority than some
,of the employees who were recalled prior to January 8, 1964. The General Counsel
endeavored to establish that, in addition to having ignored the Union with respect to
all questions as to this cycle of layoffs and recalls, the Respondent had also changed
an earlier practice whereby, in recalls, it had reemployed laid-off employees in
accordance with their plantwide seniority rather than their shift seniority. There
was some evidence to support this contention. Thus, in 1963, when layoffs occurred
with some frequency, the Respondent conceded that on no occasion did any employee
who was laid off have greater seniority than any employee who was retained on
'Davis testified that he shared some of these latter responsibilities with E. W. Smiley
2 At the hearing the complaint was amended on a motion by the General Counsel to
substitute the name "Bonnie Bellaire" for that of "Kathryn Holtz." The latter name had
appeared in the original complaint.
GENERAL TUBE COMPANY 855
either the day or night shifts. On the other hand, in 1961 and 1962 there were
several instances when employees were not laid off in accordance with their plant-
wide seniority. In addition, Davis, the executive officer referred to earlier, testified
that the Respondent generally followed shiftwide seniority with respect to layoffs
and recalls. He further testified that employees were hired for either night work or
day work, and that there was no company practice which allowed an employee on
either the day shift or night shift to exercise any plant seniority rights to "bump"
or displace an employee on the other shift. Davis' testimony in this regard was not
denied or contradicted by any witness for the General Counsel.
Concluding Findings
From the evidence offered as to what the Respondent's recall procedure had been
prior to December 1963, it is my conclusion that the General Counsel did not establish
by a preponderance of the evidence that the Company had consistenly followed a well-
established pattern of using plantwide seniority in its recalls. Rather, it appears
that the Respondent followed a practice of recalling employees on the basis of their
shift seniority, and that, in some instances, the management made exceptions to
this policy as well. For this reason, it is my conclusion that the General Counsel
failed to prove that the Respondent discriminatorily deviated from a plant seniority
practice so as to delay the recall of the nine employees in question.3 Accordingly,
I will recommend dismissal of the allegation in the complaint that these employees
were discriminatorily denied reemployment until January 8, 1964.
On the other hand, since both the layoffs and recalls had a very direct impact on
the conditions of employment for the workers at the Company's plant, the Respond-
ent was under an obligation to notify the Union of its plans and accord the bargaining
agent an opportunity to discuss them. Southein Coach & Body Company, Inc., 141
NLRB 80, 81-82; Aztec Ceramics Company, etc, 138 NLRB 1178, 1180. Since the
Respondent ignored that obligation it must be held to have violated Section 8(a)(5)
and (1) by this course of conduct. I so find. United States Gypsum Company,
94 NLRB 112, 114-115, enfd. 206 F. 2d 410 (C.A. 5), cert. denied 347 U.S. 912.4
Both at the hearing and in its brief the Respondent has contended that the com-
plaint herein should be dismissed because it was issued at a time when the Respond-
ent was engaged in litigation designed to test the validity of the certification issued
on October 19, 1962. In essence, the Respondent's position has been that until the
court of appeals disposed of its attack on the validity of the election results, the
Respondent was under no obligation to meet with the collective-bargaining agent
certified at the conclusion of that election in 1962. There is no merit to this con-
tention. The Board and the courts have held, consistently, that the duty to bargain
cannot be postponed by the pendency of unfair labor practice charges, injunctive
suits, or collateral litigation. Washington Aluminum Company, Inc., 128 NLRB
643, 645, affd. and enfd. 370 U.S. 9, Old King Cole, Inc. v. N.L.R B, 260 F. 2d 530,
532 (C.A. 6); Lucas County Farm Bureau Cooperative Association, etc., 128 NLRB
458, 471, enfd. 289 F. 2d 844 (C.A. 6), cert. denied 368 U.S. 823. Borden Com-
pany, 108 NLRB 807, 812, enfd. 227 F. 2d 166 (C.A. 5); Ken-Lee, Inc., 137 NLRB
1642, 1646-1647, enfd. 325 F. 2d 435 (C.A. 5); Pasco Packing Company, 115 NLRB
437, 447; Sam'l Bingham's Son Mfg. Company, 111 NLRB 508, 510; N.L.R.B. v.
E. A. Taormina et al., d/b/a Taormina Company, 207 F. 2d 251, 254 (C A. 5).
Finally, it is clear that under the rule laid down in the Board's decisions in Town
& Country Manufacturing Company, Inc., et al., 136 NLRB 1122, enfd. 316 F. 2d
846 (C.A. 5), and Fibreboard Paper Products Corporation, 138 NLRB 550, 558,
enfd. 322 F. 2d 411 (C.A.D.C ), cert. granted 375 U.S. 963 [affd. 375 U.S. 203],
the Respondent was under an obligation to notify the Union of its plans to sub-
contract some of its sewing operations to Freeland and, further, to accord the Union
i During the cross-examination of Myrtle Keefer, one of the alleged discriminatees, by
the attorney for the Respondent, that witness testified that she had served on the plant
organizing committee . Apart from this testimony , there is nothing in the record as
to the extent, if any, to which these nine employees participated in union activities In
any event, it should be noted that the General Counsel made no effort to prove that these
alleged discriminatees were active in the Union or that the failure of the Respondent
to reemploy them was in some way attributable to a conscious effort to penalize them
for any union activity or affiliation.
& "Although the privilege of deciding that an economic layoff is required belongs to
the employer , absent an emergency or other reasonable explanation , it is the employer's
duty at least to notify and discuss with the employees ' lawful representative the meth-
ods of selecting employees to be laid off before the event takes place. " Southern Coach
& Body Company, Inc ., supra, at 81-82.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a meaningful opportunity to bargain about the Respondent 's proposed course of
action. Since it did not do so, the Respondent thereby violated Section 8(a)(5)
and (1) of the Act.
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 Respondent Company 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 practices, I will
recommend that it be ordered to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Since it has been found that the Respondent violated Section 8(a)(5) by sub-
contracting some of its production work to Freeland Sons Company and by failing
to notify and bargain with the Union about its layoff and recall of employees in
December 1963 and January 1964 , I will recommend that the Respondent be ordered
to cease and desist from making unilateral changes in the terms and conditions of em-
ployment without consulting the employees ' designated bargaining agent. Further, to
provide the Union with a meaningful opportunity to bargain about the subcontracting
of any unit work, I will also recommend that the Respondent restore the status quo
ante by abrogating any and all subcontracts for the performance of its production
work. Town & Country Manufacturing Co., Inc., 136 NLRB 1022, 1030, enfd. 316
F. 2d 846 (C.A. 5). In addition, it will be recommended that the Respondent be
ordered to make whole its employees during the period from September 26 to Decem-
ber 5, 1963 , for any monetary losses incurred because of overtime lost as a result
of the Respondent 's subcontracting seat belt sewing work to Freeland . In view of
the fact that it is impossible to determine from the present record the amount or
the extent of the overtime lost, or the identities of the employees to whom it is
owed, the question of how much these payments should be and to whom they should
go is a matter that can, appropriately , be deferred to the compliance stage of this
proceeding . Finally, any backpay provided for herein shall be computed in accord-
ance with the formula set forth in P. W. Woolworth Company, 90 NLRB 289, with
interest thereon Isis Plumbing & Heating Co ., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organiza-
tion, all within the meaning of the Act
2. All production and maintenance employees at the Respondent 's plant in Sturgis,
Michigan, excluding office clericals, executives, engineers , professional employees,
guards, foremen , and all other supervisory employees , as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
3. At all times since October 19, 1962, the Union has been the exclusive representa-
tive, for the purpose of collective bargaining within the meaning of Section 9(a) of
the Act, of all the employees in the aforesaid appropriate unit.
4. By unilaterally subcontracting out part of its sewing operations in September
1963, and by unilaterally laying off and then recalling its employees in December
1963 and January 1964 without, in any instance , having consulted with the Union or
having engaged in collective bargaining about these matters, the Respondent has
engaged in , and is engaging in, unfair labor practices within the meaning of Section
8(a)(5) of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging 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.
7. The General Counsel failed to prove by a preponderance of the evidence that
the Respondent ignored its own seniority practices in connection with the reem-
ployment of Ethel Newman , Sally Dodson Mildred Murray, Cleo Holtz, Helen Holtz,
Bonnie Bellaire, Lusella Dauber , Fern Wright, and Thelma Zellers.
[Recommended Order omitted from publication.]