Lincoln Bearing Co.

National Labor Relations Board - Board Decisions

Nov 23, 1965

155 N.L.R.B. 1141 (N.L.R.B. 1965)

LINCOLN BEARING COMPANY 1141
IT IS FURTHERED RECOMMENDED that so much of the complaint in this proceeding
as alleges that Respondent, by negotiating and executing a contract with the Employ-
ees' Committee in May-June 1964, thereby independently interfered with, restrained,
and coerced its employees in violation of Section 8(a)( I) of the Act, be dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT dominate or interfere with the administration of the Employees'
Committee, or any other labor organization, or contribute financial or other aid
or support thereto.
We hereby withdraw all recognition from and completely disestablish the
Employees' Committee as representative of any of our employees for the purpose
of dealing concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, and will not recognize it.
WE WILL NOT vary or abandon any wage, hour, seniority, or other substantive
feature established in behalf of our employees while bargaining with the Employ-
ees' Committee, nor will we deny our employees any right derived as a result
of the existence of the Committee.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of rights guaranteed them in Section 7 of the Act.
All our employees are free to form, join, or assist any labor organization, including
an employee representation committee or plan of their choosing, or to refrain from
doing so, except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment as authorized
by Section 8(a)(3) of the National Relations Act, as amended.
MODERN PLASTICS CORP.,
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No.
936-9330.
Lincoln Bearing Company and International Union, Allied Indus-
trial Workers of America , Amalgamated Local 312, AFL-CIO.
Case No. 8-CA-3870. November 23, 1965
DECISION AND ORDER
On August 19, 1965, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices,,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent .filed exceptions to the Trial Exam-
iner 's Decision and a supporting brief.
155 NLRB No. 110.
1-42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Lra:bor Relations Board has
delegated its powers in connection with this case to a three-r_r_ember
panel [Members Fanning, Brow-^n. and Zagoria].
The Board has reviewed the rulings of the T rial Examiner
Theat the hearing and lilnds that no pre^ud'icai error was committed.
rulings are herelay- a rmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and brief, and the enure record
in this case , and hereby adopts the findings , co1nchusions , and reconl-
mendations of the Trial Examiner.
[The Board adopted the Trial Exam,_iner's Recommended Order.]
TRIAL EXAMINER'S DECISION
The complaint herein (issued May 28, 1965; charge filed April 21, 1965), as
amended, alleges that the Company has violated Section 8(a)(3) of the National
Labor Relations Act, as amended, 73 Stat. 519, by discharging Evelyn Brown on or
about April 20, 1965, and failing to reinstate her, because of, or the Company's
impression of, her protected concerted activities; and Section 8(a)(11) of the Act
by said alleged acts and by promising wage and osier benefits if its employees would
not loin or support the Union, establishing a grievance committee to deal directly
with the Company with respect to employee grievances, and interrogating employees
concerning their union activities to ascertain their sympathies and the identity of
union supporters. The answer, as amended, denies the allegations of violation and
alleges that the Company has customarily granted wage increases, that the grievance
committee was created before January 1, 1965, at the employees' request, and that
Brown was discharged for disregarding and disobeying orders after warnings -issued.
We need not concern ourselves- with the-defense that the Charging Union does not
represent the Company's employees and has no standing herein; the Act imposes
no such limitation. A further defense that the Regional Director failed to make a
fair and impartial investigation of the charge was considered and ruled upon -on the
recordat the hearing.
A hearing was held before Trial Examiner Lloyd Buchanan at Cleveland. Ohio,
on June 24 and 25, 1965. Pursuant to leave granted to all parties, briefs have been
filed by the General Counsel and the Company. Without opposition, the General
Counsel's motion to correct the transcript is-hereby granted, the motion papers being
marked Trial Examiner's Exhibit No. 1.
Upon the -entire record in the case and from my observation of the witnesses, I
snake the following- - -
FINDINGS OF FACT (WITH REASONS THEREFOR ) AND CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
The facts concerning the Company's status as an Ohio corporation, the nature and
extent of its business, and its engagement in commerce within the meaning of the
Act are admitted; I find and conclude accordingly. I also find and conclude that,
as admitted, the Union is a labor organization within the meaning of the Act. ,
- II. THE UNFAIR LABOR-PRACTICES
A. The alleged independent violation of Section 8(a) (I) -
On the afternoon of February 17, 1965, union representatives appeared in front
of the plan!, and distributed handbills and union cards. It stands =.'ithoat contradic-
tion that the next day Louis Levine, president of the Company, calling- a meeting of
all of the employees and, mentioning the distribution of cards the day before,
remarked that they knew how he felt about a union; that the only way to -keep a
union out is not to vote for it; that without a union they could get everything a
union could accomplish for them except a pension plan, and that he was working on
one; and that the employees should have a grievance committee since some have
LINCOLN BEARING COMPANY 1 i43
problems and are afraid to talk to _hi*n about them. He also told them that the
increase which had been promised them for the firs: of the year but which they 'had
not received would be forthcoming on April 1.
I have not overlooked Levine's remark in the form of a threat but ocularly made
(one witness attributed it to his son Gerald," secretary -treasure of toe Corsi ani),
and not alleged as -violative . Aside from thisref lark , Levine's opposition to eemp'oy-
ees' union activities is clear . From his testimony , ._- as from his demeanor-, it apa e__rs
that he is no violent man. His remarks to the employees , as alleged, constituter
soft-sell paradigm for unlawfully expressed interference with protected concerted
activities.
The wage increase again promised on February 18 was given to tl̀ ie employees on
April 1. Tester Gross, who with Brown constituted the complex ent of testers, e
closest to explaining the circumstances in connection witi the promise and grant of
the wage increase when , after her recollection had been refreshed , she test_ined that
Levine had earlier promised an increase "as soon as things were settled, he was
trying to put a new lie e in to make more work. " This suggests that ti ere might have
been a reason for postponement of the increase theretofore promised . But' Levine
himself told us nothing about this. If the in=crease , despite his earlier promise,
depended on increased business, there is nothing to indicate or even suggest that
business had in' fact picked up, that there was evidence of such a pick "ap at the time
of the February meeting, or that a new line was `being put in when he promised the
increase for April
Certainly the Company - had previously granted wage increases ; and an increase:
planned and arranged for prior to the Company's k owledge of the emplo yees' anion
activities would be in the pattern of the prior and lawful increases. But t idence
before us does not indicate that the increase of April 1, earlier ' announced but not
granted, was in fact arranged for prior to the time when the Company acc uired
knowledge of the union act_`vities . °r hat had vreviousiy been talked aout but ith.-
held was announced the day after distribution of union handbills and cards, and was
thereafter granted. I and and conclude that such act=on iinlawfuliv tends to under
mine and interfere with employees ' protected= concerted activities, in violation of
Section n8(a) (1 of the Act.
As for i^- a legation of establishment of - grievance ccnhmit '•"cc to d°3' direct !
with respect to employee grievances , we are not concerned with actual functioning
of the - committee, as to which we have neither allegation , testimony, nor rearrest for
relief . The violation charged is limited to interference by the Company i connection
with its es'ab_isliment of the committee ,- and -t is is clear from Lewire's an cc and
the fact that the employees , under the supervision of Kalina, a supervisor , thereupon
voted for and designated a committee . This was no mere attempt.-' by anempioyer
to establish a nonexclusive means for voluntary communication with Tits employees
but an attempt to forestall, circumvent, and under line employees ' Organizational
activities in ease . The . Union's representatives having appeared and Trade distribu-
tion outside the plant the day before , Levine now sought to prevent such-organization
and to bypass the Union . He referred tothe Union's appearance on the scene and
its attempt to organize, indicated his opposition, and urged and arranged for form a-
tion of a grievance committee.
Levine's verbal and tactical assagais may have been crude; but such expression S
of preference , combined with assurance that little is to be gained by unionization,
and encouragement and assistance in fort ing a committee as a substitute tend effec=
lively to interfere with employees ' organ-ii ation_l activities , in violation of Section
8 (a) f _) of the Act, and I so Znd and conclude.
With respect to an offer of testimony, otherwise barred. to the: effect that two
employees had spoken to Gerald Levine December concerning formation of a
grievance committee , this would not overcome the elder Levine's uncenuadicted
connection of the commencement of union activities his suggestion that a co r.-
mittee be formed. It may be noted that there is no reference to any role played by
the two employees in formation of the con mittee in February . Nor o€s some
earlier reference by Levine to a grievance committee lessen the interference here
found.
Although not a very reliable witness, employee Pauline Brown testified that, in
the course of other remarks , Levine in or about March asked her whether she would
withdraw her union card if she could and who had given her the card. Sometime in
or about March , Levine called Gross into the office and asked her how she and
another employee felt about the Union . Levine also sent for Evelyn Brown and
asked her how she felt about the Union and, a fe w days thereafter , whether she was
for or against him. I do not credit Levine's denial that he interrogated any employ-
ees. Without exceeding the allegations of violation , I find and conclude that the
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogation noted in the context of declared opposition to the Union and t he other
violations found, constitutes interference , res°;ra .int, and coercion and is violative of
Section 8 (a)( I) of the Act.
B. The alleged violation of Section 8(a) (3)
There is no question but that Evelyn Brown was a good worker . She had been
promoted to inspector in the testing or inspection room, had done that work for
about 2 years , and had been complimented on her performance . The issue here
-revolves around the alleged requirement to cover bearings and her failure to cover
them when she quit work on April 19.
Brown testified that she passed out about nine union cards in various places in
the plant and that Kalina, the warehouse manager, saw this, specifically as she
handed a card to a named employee. Kalina did not deny this although he did not
read the card; nor does it appear that he knew what kind of card it was. On April 15
Brown posted in various places in the plant several notices of a union meeting to be
held that evening. Kalina came into the inspection room about an hour -later with
one of the notices, which he now stuck on the door. Brown asked, "W hat's that?"
and Kalina replied, "You know what the hell it is." Aside from the small plant
rule, Kalina did not deny this and it is clear that the Company believed that Brown
actively supported the Union.
Levine testified that shortly after Brown left on April 19 Plant Manager - Kenny
reported to him that he wanted to discharge Brown because she had "again" failed to
follow instructions , "this time" because she had failed to "take particular caution to
cover all of the bearings to prevent seconds the moment- she was ready to leave at
the end of the day." Levine testified further that over a period of 6 or 7 months he
had warned Brown about this three or four times since; if dust accumulated on the
bearings , they became seconds. Kenny, who joined the Company about a month
before Brown 's discharge , was informed of the need to cover the bearings and
allegedly watched for this. He stays late and "goes all over watching everything."
While Brown did not thereby acquire any vested right to ignore requirements, it
may be noted that failure to cover had never before been deemed to warrant dis-
charge or even lesser discipline.
To the extent that reliance is placed on Kenny's "new broom" activity , the fact
remains that , aside from the question of his awareness of earlier reminders to Brown,
he took no action against other employees and does not appear to have warned them
despite the longstanding failure to cover the bearings, as we shall see.
When Brown arrived for work on the morning of April 20, Kenny charged her
with failure to cover the bearings the night before, and told her to take her things
and get out. She told him that she had left a supervisor , Weiss, working at her
machine at quitting time. Not only did Kenny refuse to listen to any explanation,
but it does not appear that he questioned or disciplined Weiss, who was not called
to testify.
Gross, who was absent on April 19, generally stayed later than Brown and did
cover the bearings in the inspection room. No - more than I credit Levine 's testimony
that this is a rule of long standing do I credit Brown's denial that she had ever been
told to cover the bearings; in fact, she recogniz€d the need for it and did it at times.
But it is clear that she did not cover them on April 19.
Whatever the reflection on Brown's credibility from her denial that she had been
told to cover the bearings and her testimony that she had worked on only one type
on April 19, her failure to cover on April 19 is not at all determinative of the issue
before us. Levine testified that there is no need to cover bearings while they are in
process of manufacture in the factory. There they are finally washed and greased,
placed into baskets, and taken into the inspection room; only after they are washed
and greased must they be kept covered lest dust fall on them and they become
seconds. Further according to Levine, bearings sometimes remain in the inspection
wrapped and rolled . It does not appear that they are ,covered throughout such
periods. Despite Levine's testimony that no finished bearings are left in the factory
at the end of the day, all being taken into the inspection room after they are washed
and greased so that there would be none to be covered in the factory, I credit the
testimony by Marbury, a general helper whose duty it is to carry baskets of bearings
from the factory to the testing room, that he places full baskets on a table in the
factorv; he does not take them into the inspection room immediately but waits until
the inspectors ask for them; and baskets remain on the table overnight without being
covered. Apparently the alleged importance of covering the bearings had not been
communicated to Marbury or even to Weiss by either Levine or Kenny, who so care-
fully watches everything: hardly to be overlooked what is seemingly imperative is
ignored without discipline , warning, or remonstrance-except in Brown's case.
LINCOLN BEARIN-G COMPANY 1140'
The careful watch which Kenny allegedly maintains and which disclosed what he
concluded was Broi&Ws transgression precludes the possibility that he was unaware
of the common practice, whatever the general rule. It may further be noted that
Kalina, who also testified to a rule that all bearings be covered at night, was present
when Brown left on April 19 and saw baskets uncovered and a tray and bearings
uncovered on the table. But Kalina did not cover the bearings. Kenny came in
about 5 minutes later, remarked to Kalina on the uncovered bearings, and himself
covered them.
I find that, whatever the desirability of covering the bearings and whatever the
Company's preference in that respect, there was no rule to that effect and certainly
no such requirement that a failure to comply would itself lead to discharge. i do
not question the advisability of such a requirement; that is for the Company to
determine. (Both Gross and Brown testified that the baskets are themselves dirty.)
But the evidence discloses that regardless of preference or preferability the Company
had established no such requirement. What it permitted, as clearly testified to with-
out contradiction and as indicated by failure to discipline others, it could not seize
upon as the reason for discharging Brown.
It would suffice to point to disparate treatment accorded to others for leaving bear-
ings uncovered. The question of disparity would follow proof of a rule as claimed
by the Company. Here, we have no evidence that others knew of or obeyed any
such rule. If, having been told, Gross adopted the practice and even if Brown her-
self recognized it despite her denial, the failure to cover bearings has been shown not
to be, in the Company's eyes, cause for discharge. We have been spared incredible
denials that the Company knew that bearings washed and greased and ready for
inspection remained uncovered overnight in the factory (as they were during the
day until asked for and brought into the inspection room).
While not argued before me, I have noted that the other tester, Gross, who also
engaged in union activity, was not discharged. It is not necessary that an employer
denude itself of its entire inspection team; discharge of one of the two may adequately
discourage union activities.
I find and conclude that-the Company's reason was pretextual; that its opposition to
organizational activities; that the Company has thereby discouraged, interfered with,
restrained, and coerced employees within the meaning of Section 8(a) (3) and (1)
of the Act; and that by these and the violations found supra the Company has engaged
in and is engaging in unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
The picture here is of generally harmonious relations disturbed by the violations
found. One can hope that, on compliance with the remedy indicated, all concerned
will return to a mutual regard for their respective rights and obligations.
III. THE REMEDY
I shall recommend that, to effectuate the policies of the Act, the Company cease
and desist from the unfair labor practices found and from infringing in any other
manner upon the rights guaranteed in Section 7 of the Act. I shall further recom-
mend that the Company offer to Evelyn Brown immediate reinstatement to her
former or substantially equivalent position, without prejudice to her- seniority and
reason of the discrimination against her, including interest at the rate of 6 percent
per annum, computation to be made in the customary manner.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, upon the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that the Company, Lincoln Bearing Company,
Cleveland, Ohio, its officers, agents, successors, and assigns, shall: -
1. Cease and desist from:
(a) Discouraging membership in International Union, Allied Industrial Workers
of America. Amalgamated Local 312, AFL-CIO, or in any other labor organization,
by discriminatorily discharging any of its employees or discriminating in any other
manner in respect to their hire or tenure of employment, or any term or condition
of employment.
(b) Promising benefits on condition that employees will not support a union,
establishing an employee grievance committee, or unlawfully interrogating employees
concerning union sympathies and support. -
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which is necessary to effectuate the
policies of the Act:
(a) Offer to Evelyn Brown immediate and full reinstatement to her former or
substantially equivalent position, without prejudice to her seniority or other rights
and privileges, and -take her whole , in the manner set forth in the section of this
Decision entitled "The Remedy". and notify her, if she is presently serving in the
Armed Forces of the United States, of her right to full reinstatement upon proper
application after discharge from the Armed Forces.
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Post at its place of business M. Cleveland, Ohio, copies of the attached notice
marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director
for Region 8, shall ,. after being duly signed by the Company's representative, be
posted by the Company immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to its employees are customarily posted. Reasonable steps shall be taken
by the Company to insure that said notices are not altered, defaced, or covered by
any other _naterial.
(d) Notify the Regional Director for Region 8, in writing, within 20 days from
the receipt of this Decision, what steps have been taken to Comply herewith.2
1If this RecommendedOrder be adopted by the Board, the-words "a Decision and
Order" shall be substituted for 'he words "the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board 's Order be enforced by a decree of the
United States Court of appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the Words "a Decision and Order"
- e If this Recommended Order be adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 8, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith"
APPENDIX
NO cE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate We policies of the Rational- Labor Rel2-
tions Act, as an er led, we hereby notify our employees that:
WE W TLL NOT discourage membership in international Union, Allied Indus-
trial Workers of America, Am. algamated Local 312, AFL-CIO, or any other
labor organization, by discriminatorily discharging any of our employees or
discriminating in any other manner in respect to their hire or tenure of em-ploy-
ment, or any term or condition of employment
WE WILL NOT promise benefits on condition that employees will no s=upport a
union, nor w ill we establish an employee grievance con m ttee, or unlawfully
interrogate employees concerning union sympathies and support.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to se- organization, to form labor orga-
nizations, to ioin or assist L.ternational Union, Allied industrial Workers of
America, Amalgamated Local 312, Kr-T -C= s, or any other labor organization,
to bargain collectively through representatives of their own choosing, and-to
engage in bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act.
WE WILL offer to Evelyn Brown immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to her seniority
or other rights and privileges , and make her whole for any loss of pay suffered
as a result of the discrimination against her.
All of our employees are free to become or remain , or refrain. from becoming
or remaining, membersof International Union, Allied Industrial. Workers of America,
Amalgamated Local 312, AFL-CIO, or any other labor organization , except to the
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS. 1147
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized in Section 8(a)(3)
of the Act. -
LINCOLN BEARING CONIPAINY,
Employer.
Dated------------------- -By-------------------------------------------
(Representative ) ( Title)
NoTE.-Ale will notify theabove-named employee if presently serving in the Armed
Forces of the United States of her right to full reinstatement upon application in-
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, 720
Bulk-ley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465.
Local 38, International Brotherhood of Electrical Work ers, AFL-
CIO and Robert R. Cutler, d/b/a Bob Cutler Signs . Case No.
8-CC-f36. November 83,1965
DECISION AND ORDER
On September 16, 1965, Trial Examiner Sidney J. Barban issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and tivas engaging in certain unfair labor practices
and recommending that. it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof, and the Charging Party filed
a brief in support of the Decision.
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 McCtlllocli and Members Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner
at the. hearing and funds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in this case, and hereby adopts the. findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on February 19, 1965, by Robert R. Cutler, d/b/a Bob Cutler
Signs, hereinreferred to as Cutler,. the General Counsel of the National Labor Rela-
tions Board , herein referred to as the General Counsel , by the Regional Director for
155 NLRB Na. 108.