Metal Craft Co.

National Labor Relations Board - Board Decisions

Apr 9, 1965

151 N.L.R.B. 1497 (N.L.R.B. 1965)

METAL CRAFT COMPANY 1497
object thereof is to force or require the aforesaid employers to cease doing
business with the General Telephone Company of California or any other
employer or person.
Dated-------------------
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL UNION No. 11, AFL-CIO,
Labor Organization.
By-------------------------------------------
(Repn'ient.ttive) (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 at 849
South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any
question concerning this notice or compliance with its provisions.
Metal Craft Company and International Union , United Auto-
mobile , Aerospace and Agricultural Implement Workers of
America, (UAW) AFL-CIO. Case No. 7-CA-4766. Ap»il 9,
1.9(15
DECISION AND ORDER
On January 12, 196,1, Trial Examiner C. W. Whittemore issued
Ills Decision in the above-entitled proceeding, finding that the Re-
^-pondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
tale certain affirmative action, as set forth in his attached Decision.
']'hereafter, the Respondent filed exceptions to the Decision with a
supporting brief, the Charging Party filed an answering brief, and
the General Counsel filed cross-exceptions and a brief in support
thereof and in answer to 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 Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was conuultted.
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions, cross-exceptions, briefs, and the entire rec-
ord in this case, and hereby adopts the findings, conclusions, and
reconimendations of the Trial Examiner except as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts, as
'The record indicates and the Board finds that on or about June 24, 1964, by reading
to the employee audience a letter purportedly asking why Clinansinith, an employee of
many years, had given his allegiance to the Union, singling him out in the audience, and
inviting him to reply, the Respondent coercively interrogated employee George F.
Clinansinith concerning his union activities in violation of Section 8(a)(1)
151 NLRB No. 148.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its Order the Order recommended by the Trial Examiner and orders
that Respondent, Metal Craft Company, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order, with the following modifications:I
1. Substitute the following paragraph 1(c) in the Recommended
Order:
"In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed by Section 7
of the Act."
2. Substitute the following paragraph for the second indented
paragraph of the Appendix :
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under the
National Labor Relations Act.
2 The telephone number for Region 7, given below the signature line in the Appendix at-
tached to the Trial Examiner's Decision, is amended to read, Telephone No 963-9da0
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by the above-named labor organization on June 25, 1964, the
General Counsel of the National Labor Relations Board issued on October 13, 1964,
his complaint and notice of hearing. Thereafter the Respondent, Metal Craft Com-
pany, filed its answer dated October 23, 1964. The complaint alleges and the answer
denies that the Respondent has engaged in and is engaging in unfair labor practices in
violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as
amended. Pursuant to notice, a hearing was held before Trial Examiner C. W.
Whittemore in Lapeer, Michigan, on December 1 and 2, 1964.
At the hearing all parties were afforded full opportunity to present evidence perti-
nent to the issues, to argue orally , and to file briefs . Briefs have been received from
all parties.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at the hearing, is made by the following findings, conclusions, and
recommendations.
Upon the record thus made, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACTS
I. THE BUSINESS OF THE RESPONDENT
Metal Craft Company is a Michigan corporation, with principal office and place of
business in Marlette , Michigan, where it is engaged in the manufacture , sale, and
distribution of automotive stampings and related products.
During the calendar year 1963 the Respondent purchased and had delivered to its
Marlette plant, directly from points outside Michigan, materials valued at more than
$100,000 . During the same period it sold and shipped directly to points outside
Michigan products valued at more than $50,000.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
International Union , United Automobile , Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO, is a labor organization admitting to mem-
bership employees of the Respondent
III. THE UNFAIR LABOR PRACTICES
A. Setting and chief issues
There is no dispute as to the fact that since May 6, 1964, when the Charging Union
claimed majority representative status among the Respondent's employees and
METAL CRAFT COMPANY 1499
requested negotiations for a contract, the Respondent has refused, and continues to
refuse, to recognize and bargain with the Union as the exclusive representative of its
employees in an appropriate unit.
It is General Counsel's contention that such refusal was and is unlawful. As will be
noted more fully below, at the rate of the demand the Union, in fact, had been desig-
nated by a majority of the employees in the unit as their bargaining agent. The
Respondent's sole defense to its refusal is its claim that at the time of the demand it
had a "good faith doubt" as to the majority claim.
When no reply to the letter of demand was received from the Employer, the Union
filed a petition with the Board. A consent-election agreement was thereafter entered
into. Three days before the election was due to be held, officials of the Respondent
engaged in conduct which General Counsel urges was not only violative of employees'
Section 7 rights but also negates the Employer's claim of "good faith doubt."
B. Relevant facts
Except as indicated in footnotes, the following findings are based mainly upon docu-
ments in evidence, stipulations, or undisputed testimony.
(1) On May 6, 1964, the Union sent to the Respondent a letter, admittedly received
on May 8, in which it claimed majority representation, sought a negotiating meeting,
and requested a reply within 3 business days. The Respondent has never replied to
this letter of demand.
(2) Through obvious error by someone at the union office, a list of 31 employees
who had signed union cards was enclosed in the letter of demand. (A union official
said that the listing was supposed to go to the Regional Office of the Board, not to the
Employer.)
(3) Having by that date received no reply from the Respondent the Union on
May 12, 1964, filed at the Regional Office a petition for certification in Case No.
7-RC-6286. A copy of this petition was thereafter received by the Respondent.
(4) On May 28 a meeting of the Union and Respondent representatives with a
Board agent was held at the Regional Office, and a consent-election agreement was
entered into. It was agreed that an election would be held on June 26. An appro-
priate unit was also agreed upon.
(5) At this meeting with the Board agent, Union Representative Roelly suggested
that an immediate card check be made by some other Federal agency to establish the
majority status of the Union. Attorney Rockwell, for the Respondent, replied that
he was not "interested," and did not want to put the National Labor Relations Board
out of business.'
(6) Turning back briefly to early May, before the Union's letter was sent to the
Company, it appears that certain "women" organizers for the Union came to the plant
one night and, during the lunch break and in the luncheon quarters, obtained signa-
tures of employees on the second shift. Kenneth Delmage was in full charge of the
some 20 employees on this shift. He not only observed the presence of the orga-
nizers but also signed a union card. The next afternoon, when he reported for work,
he was, called into the office by Plant Manager Lusko who said he understood he "had
company last night." Delmage admitted the fact. Lusko then asked if "they" signed
"everybody up," and Delmage replied that he believed the "biggest majority" had
signed. The manager then demanded to know why Delmage had permitted "them"
to remain, and the latter answered that he was not aware he had authority to "put
them out." Lusko instructed him to call the police or himself if it happened again
and asked if he could "trust" him on the second shift from then on.
(7) Upon receipt of the Union's written demand, accompanied by the list of card
signers, Lusko called Delmage again to his office and said that he now understood why
he had not "put these people" out, since his own name was included on the list
received. Delmage admitted that he had signed a card .2
1 The finding that the card-check request was made and declined rests upon the credible
testimony of Roelly, corroborated by employee Clinansnvth, who was present Rockwell
was not a witness The Respondent's president, Dunnabeck, said that all he recalled about
verification of the cards was his own request of the Board agent, which was turned don n,
that he personally be permitted to see the cards in the Board's possession
2 The findings as to the incidents involving Delmage rest upon his credible testimony
Lusko admitted having called Delmage into the office on the first occasion, but said that the
latter had insisted that lie did not know what the "Union people" were doing except
"passing out cards " Lusko did not deny having asked Delinage if "everybody" had
signed cards and having been told that the "biggest" majority had signed
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(8) Despite President Dunnabeck's claim that he did not believe the Union repre-
sented a majority of his employees at any time, he began a course of action shortly
before the date of the scheduled election plainly designed to make certain that a
majority did not vote for the Union. On 3 successive days, the last being the day
before the election, he summoned all employees of each of the two shifts together and
in lengthy speeches attempted to discourage their union adherence.
(9) In substance his remarks at each occasion, during working hours, were the
same. He warned them that if the Union won the election- job classifications not
then in existence would be set up; production standards would be imposed which, if
employees could not meet, would bring about their termination; he could and would
stall any negotiations for a contract; and employees could or would lose all their
present benefits, including vacations and hospitalization and that bargaining would
have to begin "from scratch." 3
(10) Early in the afternoon of the day before the election was scheduled, Delmage
was called into the office by Lusko, and according to the former's credible testimony
was instructed:
. to go out and discourage these people and get them on our side. It don't
make any difference what you've got to say to them. Try and win them over
and get them on our side. You got us into this mess, and you're going to have to
help to get us out of it.
(11) Pursuant to such instructions, at the lunchbreak that night Delmage talked
to the employees under him and warned them, according to his own testimony, that
"if the union comes in here there will be a standard of production set on these jobs,
because the company will have the jobs time studied, and you will have to get the
production that they set up after a certain period of time or you probably won't have
a job here."
(12) As a witness, Delmage explained that he gave the employees this warning
about production standards because he had been previously informed of them by
Production Manager Fodall.4
(13) Because of the filing of an Section 8(a)(5) charge that day, on June 25,
the Acting Regional Director informed the Respondent by wire that the election
would be postponed indefinitely.
C. Conclusions
The complaint alleges, in substance the parties so agreed in their consent-election
stipulation, the Respondent at the hearing offered no evidence to the contrary, and
it is here concluded and found that all production and maintenance employees of
the Respondent at its Marlette plant, excluding office clerical employees and all
supervisors and guards, as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining.
Documentary evidence received at the hearing without objection from the Respond-
ent establishes that as of May 6, 1964, the date of the Union's claim of majority rep-
resentation, 30 of the 48 employees within the unit and on the Respondent's payroll
had signed cards authorizing the Charging Union to represent them in collective bar-
gaining. It is therefore concluded and found that as of May 6 and at all times there-
after the Union was and has been the exclusive bargaining representative of all
employees in the appropriate unit.
3 The summation of Dunnabeck's warnings and implied threats is based upon the coin-
posite testimony of several employee witnesses, including at least two (Soflin and Seiffer-
lein) called by the Respondent itself I cannot rely upon Dunnabeck's own account of
what he said on these occasions At first denying that he had threatened imposition of
production standards, he then admitted that he did bring up the subject and had pointed
out the differences at the Marlette plant and others where a union represented the em-
ployees He at first denied that he said, as to benefits, that the Union would have to
start from "scratch" in its negotiations, and then said that he "honestly" did not recall
He flatly denied threatening to "delay" bargaining, but admitted that he told employees
of another plant where a delay of a year had occurred He has flatly denied threatening
to withdraw present benefits, but later admitted that in reply to a question from his
"audience" he had said that it was "possible" they would lose such benefits
4 Fodall was not called as a witness, and Delmage's testimony on this point is uncon-
tradicted. Nor was Delmage's account of receiving instructions from Lusko the day
before the election specifically denied by the manager, who merely replied "Not to my
knowledge" when asked if he had had any conversation with Delmage "during the -'seek.
the week of the election or anything like that "
METAL CRAFT COMPANY 1501
As noted earlier in this Decision, the Respondent admits that at all times material
it has refused to bargain collectively with the Union, but claims that it has had "good
faith" doubt as to the Union's majority.
Dunnabeck is the individual who claimed possession of the "doubt" which caused
him to ignore the Union's letter of May 6. Doubt, of course, is purely subjective;
its existence in, or absence from, the human mind, now or ever, is not a matter easily
susceptible of proof
In this case the testimony of both Dunnabeck and Lusko leads to the reasonable
inference, I believe, that there is no merit in the claim of "good faith doubt." In
the first place, Dunnabeck sought to support his claim by asserting that it was
grounded upon three factors: (1) The Union's loss of an election at the plant in
1962; (2) a union representative's telephoned request for a contract in early 1963
which was not followed up; and (3) his belief that "some" employees whose names
appeared on the May 6 list had worked against the Union 2 years earlier. Upon
these ground Dunnabeck said he came "more or less" to the conclusion that the
Union lacked a majority. A "more or less" conclusion hardly meets, even in seman-
tic terms, a definition of "good faith." All factors cited by the president plainly were
considered insubstantial, even by himself. On May 8, 1964, he had before him a
list of employees-constituting a substantial majority-which he admittedly assumed
to be names of union adherents. Had there been any appreciable doubt in his mind
as to the validity of this assumption, he would have made inqutry among the employ-
ees as to whether or not they had actually designated the Union as their bargaining
agent.
As a witness Dunnabeck well demonstrated the fact that he is articulate. Had he
possessed genuine doubt as to the majority question on May 8 it would have been a
simple matter to dictate a letter to the Union to this effect. Yet at no time, so far as
the record shows, did he take the small trouble of ever expressing his doubt to any
union representative.
So much for his inaction. As to his overt action, his expenditure of some hours
of his own and his employees' working time 3 days before the scheduled election was
clearly not demonstrative of his "doubt" of a union majority. His threats and warn-
ings were obviously uttered to destroy the majority status which he believed, or at
last feared, existed.
In short, I conclude and find that the Respondent has failed to meet its burden of
proving "good faith doubt." It follows, and is further concluded and found, that in
the absence of such good faith doubt and by refusing to bargain collectively with
the Union as the exclusive representative of all employees in an appropriate unit, the
Respondent has violated Section 8(a)(1) and (5) of the Act.
As to the above-described threats uttered by Delmage to the second shift employ-
ees, the Respondent stoutly maintains that this individual was not a supervisor within
the meaning of the Act. General Counsel urges that he was. The credible evidence
sustains the latter's position. He was in full charge of some 20 employees during
this shift and apparently of the entire plant at such times. The fact that Lusko
admonished him for permitting union organizers to talk to employees during their
lunch period supports the conclusion as to his supervisory authority. And in any
event, as previously described, Delmage went to the employees just before the sched-
uled elections under Lusko's specific instructions to discourage their union adherence,
and therefore was then serving as the Respondent's agent.
It is concluded and found that the threats and warnings uttered by Dunnabeck
and Delmage, described herein, interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES AFFECTING COMMERCE
The conduct of the Respondent set forth in section III, above, occurring in con-
nection with the Respondent's operations 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.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I will
recommend that it cease and desist therefrom and take certain action to effectuate
the policies of the Act.
It will be recommended that the Respondent, upon request, bargain collectively
with the Union as the exclusive representative of all employees in the aforesaid
appropriate unit and, if an understanding is reached, embody such understanding in
a signed agreement.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because of the nature of the Respondent's unfair labor practices found herein
which go to the fundamentals of the Act, it will be recommended that the Respond-
ent cease and desist from infringing in any manner upon the rights accorded employees
by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
2. All production and maintenance employees of the Respondent at its Marlette,
Michigan , plant, excluding office clerical employees and all supervisors and guards,
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. By virtue of Section 9(a) of the Act the above -named labor organization has
been, since May 6 , 1964, and now is, the exclusive representative of all employees
in the said appropriate unit for the purposes of collective bargaining.
4. By refusing to bargain collectively with the said labor organization since May 8,
1964, 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 employees in the exercise of
rights guaranteed by 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 within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that Respondent, Metal Craft Com-
pany, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively 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 its Marlette, Michigan, plant, exclud-
ing office clerical employees , and all supervisors and guards , as defined in the Act.
(b) Threatening employees with economic reprisals to discourage membership
in and activity on behalf of the above-named labor organization.
(c) In any manner interfering with, restraining, or coercing employees in the
exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the aforesaid Union as the exclusive
representative of all employees in the aforesaid unit and, if an understanding is
reached, embody such understanding in a signed agreement.
(b) Post at its plant in Marlette, Michigan , copies of the attached notice marked
"Appendix." 5 Copies of said notice, to be furnished by the Regional Director for
Region 7, shall after being duly signed by an authorized representative of the
Respondent, be posted by the Company immediately upon recipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in conspicuous places,
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that these notices are not altered, defaced, or covered by
any material.
(c) Notify the said Regional Director, in writing, within 20 days of the receipt of
this Trial Examiner's Decision, what steps it has taken to comply herewith.6
I If this Recommended Order is adopted by the Board, the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
'notice If the Board's Order is enforced by a decree of a United States Court of Appeals,
the notice will be further amended by the substitution of the words "a Decree of the
-United States Court of Appeals, Enforcing an Order" for the words "a Decision and
Order."
G If this Recommended Order is adopted by the Board, this provision shall be modified
rto read. "Notify the Regional Director for Region 7, in writing, within 10 days from the
,date of this Order, what steps the Respondent has taken to comply herewith "
REILLY TAR & CHEMICAL CORPORATION 1503
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to conduct our labor relations in compliance with the
National Labor Relations Act, as amended, we notify you that:
WE WILL NOT threaten you with economic reprisals to discourage your mem-
bership in or activities on behalf of International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW), AFL-
CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in
the exercise of your rights under the National Labor Relations Act.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive representative of all employees in the unit described
below and embody any understanding reached in a signed agreement.
All production and maintenance employees at our Marlette, Michigan,
plant, excluding office clerical employees, and all supervisors and guards
as defined in the Act.
METAL CRAFT 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 Board's Regional Office, 501 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3210,
if they have any questions concerning this notice or compliance with its provisions.
Reilly Tar & Chemical Corporation and Oil , Chemical and
Atomic Workers International Union , AFL-CIO . Case No.
25-CA-1905. April 9, 1965
DECISION AND ORDER
On December 23, 1964, Trial Examiner A. Bruce Hunt issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the
complaint and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof. The General
Counsel filed a brief in support of the Trial Examiner's 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 [Members Fanning, Brown, 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
151 NLRB No. 150.