Modine Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 18, 1970

186 N.L.R.B. 629 (N.L.R.B. 1970)

MODINE MANUFACTURING COMPANY 629
Modine Manufacturing Company and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW) and
Sheet Metal Workers International Association,
Local No. 2, Party to Contract . Case 17-CA-4206
November 18, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon a charge duly filed by International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), hereafter
referred to as UAW, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 17, issued a complaint dated
March 30, 1970, against the Respondent, Modine
Manufacturing Company, alleging that the Respon-
dent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8(a)(5), (2),
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 on the Respondent.
The complaint alleges, in substance, (1) that,
although the UAW was duly certified after a Board
election as the exclusive bargaining representative of
the Respondent's employees in the appropriate unit,
the Respondent has, since requested to do so on or
about February 2, 1970, refused, and is refusing, to
recognize or bargain with the UAW; (2) that on or
about January 7, 1970, Respondent posted a written
notification designed to encourage, and which did
encourage, employees to vote for Sheet Metal
Workers International Association, Local No. 2,
herein called Sheet Metal Workers, and against the
UAW in the January 12, 1970, election; and (3) that
since the election of January 12, 1970, the Respondent
has continued to recognize and bargain with the Sheet
Metal Workers, and maintained in full force, a
contract between them including provisions pertain-
ing to union security and dues checkoff, and thereby
has rendered unlawful assistance and support to the
Sheet Metal Workers. The Respondent filed its
answer denying certain allegations of the complaint.
On June 1, 1970, the Respondent, the UAW, and
Counsel for the General Counsel filed a motion to
transfer proceeding to the Board and stipulation of
, In par . 4 of the stipulation the parties designated as a part thereof, "in
view of Section 9(d) of the Act," the record of the hearing in the underlying
representation proceeding . The Board in that proceeding considered the
record, reached a decision on the merits, and directed an election.
(Decision and Direction of Election in Case 17-RC-5945, published at 180
NLRB No. 70, of which the Board is requested to take official notice.) It is
settled that , in the absence of newly discovered or previously unavailable
parties . The parties stipulated that the entire record in
this proceeding shall consist of the charges, com-
plaint , notice of hearing , answer , and the stipulation
of facts , including the exhibits attached thereto. The
parties waived their rights to a hearing and to the
issuance of a Trial Examiner 's Decision.
By an Order issued on June 5 , 1970, the Board
approved the aforesaid stipulation and transferred the
matter to the Board.
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.
Upon the aforesaid stipulation and the entire record
in this case ,' including the briefs of the Respondent,
the UAW, and the General Counsel , the Board makes
the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
The Respondent, a Wisconsin corporation, operates
several plants throughout the United States, including
one at Trenton, Missouri, the only operation involved
herein, where it is engaged in the manufacture of
radiators for automotive and agricultural equipment.
In the course and conduct of its business at the
Trenton plant, the Respondent annually ships prod-
ucts valued at in excess of $50,000 directly to points
outside the State of Missouri, and receives goods
valued at in excess of $50,000 for its Trenton plant
from points outside the State of Missouri. The
Respondent admits, and we find, that it is, and has
been at all material times herein, engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The UAW and the Sheet Metal Workers are now,
and have been at all material times herein, labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Refusal to Bargain
This case arises out of the organizational activity at
Respondent's Trenton, Missouri, plant by the Sheet
evidence, the Board does not litigate in an unfair labor practice case issues
which were, or could have been, litigated in a prior representation
proceeding.'(lPittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 161-162.)
Thus, no reason therefor having been given , we will not reconsider the
record made in the representation hearing . Accordingly, the representation
case record is part of the stipulated record in this unfair labor practice case
only for the purpose indicated by Sec. 9(d) of the Act.
186 NLRB No. 84
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metal Workers and the UAW. In the course of that
activity, Respondent, on January 21, 1969, recognized
the Sheet Metal Workers. Shortly thereafter the UAW
filed a petition for an election.2 A hearing was held,
and the case was transferred to the Board for decision.
A panel of this Board decided that, contrary to the
Respondent's and the Sheet Metal Workers conten-
tion, the recognition and subsequent execution of a
contract3 was not a bar to the petition filed by the
UAW, and directed an election. Pursuant to this
decision, the Regional Director for Region 17
conducted an election on January 12, 1970. The tally
of ballots shows that of 124 ballots cast, the UAW
received 71 votes and the Sheet Metal Workers 47,
with 2 votes for neither and 4 challenges. Thereafter,
on January 20, 1970, the Regional Director for
Region 17 certified the UAW as collective-bargaining
representative in the appropriate unit.4
On February 2, 1970, the UAW requested the
Respondent to bargain with it over wages, hours, and
working conditions. The Respondent replied that it
would refuse to do so, claiming that its recognition of
the Sheet Metal Workers had been proper.
In the instant case, the Respondent takes the
position that the UAW did not have a substantial
showing of interest at the time the Respondent
recognized the Sheet Metal Workers and, therefore,
that the initial recognition was lawful and a bar to the
election.5 In support of its position, the Respondent
requests the Board to open the record and produce all
of the UAW membership and authorization cards in
order to determine the extent of the UAW's showing
of interest at the time recognition was extended to the
Sheet Metal Workers. In this connection the Respon-
dent has subpenaed the UAW cards.6 The Respon-
dent claims that the Hearing Officer, in the represent-
ation proceeding, under the guise of complying with
the Board policy that showing of interest is not
litigable, erroneously revoked a subpena for the UAW
cards.
The Board has ruled in the representation proceed-
ing that the Hearing Officer's rulings were without
error, that the Respondent's contention that the
UAW did not have a substantial interest is without
merit, and that the recognition of the Sheet Metal
Workers was not a bar to the UAW's petition for an
2 Whether the petition was filed 7 days after the recognition agreement
(as the Respondent claims herein ) or 5 days thereafter (as found in the
underlying representation proceeding) is immaterial to the issues involved
herein . Nevertheless , we inadvertently left out the word "working."
Pursuant to Section 10(d) of the Act, we shall order , and it hereby is
ordered, that in the underlying representation proceeding the term "5
days" be corrected to read "5 working days."
3 On March 30, 1969, the Respondent and the Sheet Metal Workers
entered into a collective -bargaining agreement , which provided , inter alia,
for union security and dues checkoff.
4 All production and maintenance employees, including the shipping
and receiving clerk and the inspectors , employed by the Employer at its
Trenton, Missouri , plant, excluding all office clerical employees , guards,
election. Thus, the Board has already decided the very
questions which the Respondent now raises. As noted
earlier , Board policy does not permit litigation, in an
unfair labor practice case , of issues which were, or
could have been, litigated in a prior representation
proceeding. Under these circumstances , we find that
the Respondent has failed to raise any issue which is
properly litigable in this proceeding.? Accordingly, as
the Respondent is obligated to meet and bargain with
the UAW upon request, we find that the Respon-
dent's refusal, on and after February 2, 1970, to
bargain collectively with the UAW as the exclusive
bargaining representative of the employees in the
appropriate unit was and is violative of Section 8(a)(5)
and (1) of the Act.
Having found that the Respondent has unlawfully
refused to bargain with the UAW, we shall order it to
bargain collectively with the UAW as exclusive
representative of all employees in the appropriate
unit, and, if an understanding is reached, embody
such understanding in a signed agreement . In addi-
tion, to ensure that the employees in the appropriate
unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial year of certification as
beginning on the date the Respondent commences to
bargain in good faith with the UAW as the certified
bargaining representative of the employees in the
appropriate unit.8
B. Interference and Assistance
The complaint alleges a violation of Section 8(a)(2).
The facts show that the Respondent has continued to
recognize the Sheet Metal Workers and to give effect
to the contract, even though the UAW won the
election and has been certified at the exclusive
collective-bargaining representative. The contract,
which was executed on March 30, 1969, contains
provisions for union security and dues checkoff.
We have found that the Respondent has a duty to
bargain collectively with the UAW, the statutory
representative of the Respondent's employees, and
that Respondent violated that duty. This obligation is
exclusive and exacts "the negative duty to treat with
no other."9 Thus, we conclude that on and after
professional employees , and supervisors as defined in the Act.
5 In its brief Respondent confuses the number of showing of interest
cards necessary to support a petition and the number which would be
sufficient to demonstrate that there is an intervening rival interest
substantial enough to require resolution of the question concerning
representation by secret ballot and warrant participation therein. See
American Bread Company, 170 NLRB No . 20, fn. 1.
6 Subpoenas duces tecum B-84248 and B-84249.
I Counsel for the General Counsel 's motion to revoke subpoenas duces
tecum B-84248 and B-84249 is granted and said subpenas are hereby
revoked.
a See Mar-Jac Poultry Company, Inc., 136 NLRB 785.
9 N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 44.
MODINE MANUFACTURING COMPANY 631
January 12, 1970, the Respondent's continued recog-
nition of the Sheet Metal Workers, and its maintain-
ing in full force and effect the bargaining agreement
with the Sheet Metal Workers including the provi-
sions pertaining to union security and dues checkoff,
violated Section 8(a)(2) and (1) of the Act.1°
As we have found that the Respondent, by giving
continued recognition to the Sheet Metal Workers
and continued effect to the aforesaid contract, has
violated Section 8(a)(2) and (1) of the Act, we shall
order it to cease and desist therefrom. We shall also
order the Respondent to withdraw and withhold
recognition of the Sheet Metal Workers as collective-
bargaining representative of its employees and to
cease giving affect to said collective-bargaining
agreement. In order to effectuate the policies of the
Act and since employees, by the unlawful continua-
tion of the union-security provision, would thereby be
coerced into joining and/or continuing their member-
ship in the Sheet Metal Workers and paying dues to it,
we shall order the Respondent to reimburse all its
employees for monies paid by or withheld from them
on and after January 12, 1970, for initiation fees, dues,
or other obligations of membership in Sheet Metal
Workers.ii In accordance with the Board's decision in
Isis Plumbing & Heating Co., 138 NLRB 716, and
Quality Coal Corporation, et a!., 139 NLRB 492,
interest should be included on such dues reimburse-
ment, such interest to be computed in the manner set
forth in Seafarers International Union, 138 NLRB
1142.
purposes of collective bargaining of the Respondent's
employees in the appropriate unit.
5. By refusing to bargain collectively with the
UAW as the exclusive representative of all the
employees in the appropriate unit on and after
February 2, 1970, the Respondent has engaged in, and
is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By continuing, since January 12, 1970, to
recognize the Sheet Metal Workers, and by continu-
ing to give effect to a collective-bargaining agreement
with the Sheet Metal Workers which contained, inter
alia, provisions for union security and dues checkoff,
the Respondent has assisted and supported a labor
organization and thereby has engaged in, and is
engaging in, unfair labor practices within the meaning
of Section 8(a)(2) of the Act.
7. By the aforesaid refusal to bargain and the
assistance and support of a labor organization, the
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
CONCLUSIONS OF LAW
1. Modine Manufacturing Company, Trenton,
Missouri, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Ae-
rospace and Agricultural Implement Workers of
America (UAW), and Sheet Metal Workers Interna-
tional Association, Local No. 2, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including the shipping and receiving clerk and the
inspectors, employed by the Employer at its Trenton,
Missouri, plant, excluding all office clerical employ-
ees, guards, professional employees, and 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.
4. At all material times since January 12, 1970, the
UAW has been the duly selected and, since January
20, 1970, the certified exclusive representative for the
10 See American Beef Packers, Inc, 176 NLRB No 42 Having found
that Respondent has hereby violated Section 8(a)(2) of the Act, we find it
unnecessary to pass upon, and do not decide, whether Respondent also
violated Section 8(a)(2) by posting and reading a notification to employees
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Modine Manufacturing Company, Trenton, Missour-
i, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions
of employment with International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), as the exclusive bar-
gaining representative of the employees in the
appropriate unit.
(b) Giving effect to its contract dated March 30,
1969, or any modifications, extensions, or renewals
thereof, or any other contract, agreement, arrange-
ment, or understanding entered into, with Sheet Metal
Workers International Association, Local No. 2, or
any successor, relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said labor
on January 7, 1970, 5 days before the election
N L R B v. Revere Metal Art Co, 280 F 2d 96 (C A 2), enfg 123
NLRB 114. cert denied, 364 U S 894
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization shall have been certified by the National
Labor Relations Board as the exclusive representative
of the Respondent's employees; provided, however,
that nothing in this Decision and Order shall be
construed to require the Respondent to vary or
abandon any wages, hours, seniority, or other
substantive features of its relations with its employees
which Respondent has established in the performance
of said contract, or to prejudice the assertion by
employees of any rights they may have thereunder.
(c) Recognizing Sheet Metal Workers International
Association, Local No. 2, or any successor thereto, as
representative of any of its employees for the purposes
of collective bargaining, unless and until said labor
organization shall have been certified by the National
Labor Relations Board as the exclusive bargaining
representative of such employees.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Bargaining collectively with the International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW), as the
exclusive representative of all employees in the
appropriate unit in respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
The unit for bargaining is:
All production and maintenance employees, in-
cluding the shipping and receiving clerk and the
inspectors, employed by the Employer at its
Trenton, Missouri, plant, excluding all office
clerical employees, guards, professional employ-
ees, and supervisors as defined in the Act.
(b) Reimburse all of its employees, former and
present, for moneys paid by or withheld from them on
and after January 12, 1970, for initiation fees, dues, or
other obligations of membership in Sheet Metal
Workers International Association, together with
interest thereon at the rate of 6 percent per annum, in
the manner set forth in this Decision.
(c) Withdraw and withhold all recognition from
Sheet Metal Workers International Association,
Local No. 2, or any successor labor organization, as
the representative of the Respondent's employees for
the purposes of collective bargaining, unless and until
said labor organization shall have been certified by
the National Labor Relations Board as the exclusive
representative of such employees.
(d) Post at its plant in Trenton, Missouri, copies of
the attached notice marked "Appendix." 12 Copies of
said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by an
authorized representative of the Respondent, shall be
posted immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 10 days from the date of this Decision
and Order, what steps Respondent has taken to
comply herewith.
12 In the event this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a case in which all sides had the chance to
present their positions, the National Labor Relations
Board found that we, Modine Manufacturing Com-
pany, violated the National Labor Relations Act. The
Board therefore ordered us to post this notice.
The Act gives all employees these rights:
To engage in self organization
To form, help, or join unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with
these rights.
The National Labor Relations Board found
that:
1. The International Union, United Auto-
mobile, Aerospace and Agricultural Imple-
ment Workers of -..merica (UAW), is the
Union you have chosen, through a secret-
ballot election, as your representative for
collective bargaining.
2. We unlawfully refused to bargain with
the UAW about wages, hours, and other
conditions of employment.
3. We unlawfully continued to recognize
and bargain with the Sheet Metal Workers
when they did not represent a validly desig-
nated majority of our employees.
4. We unlawfully continued to give effect to
a contract with the Sheet Metal Workers
MODINE MANUFACTURING COMPANY 633
when they did not represent a validly desig-
nated majority of our employees.
Accordingly, we give you these assurances:
1. We recognize International Union, Unit-
ed Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), as
your exclusive bargaining representative with
respect to wages, hours, and other conditions
of employment.
2. We will bargain with the UAW over the
subjects named above.
3. We will cease giving effect to our
contract with Sheet Metal Workers Interna-
tional Association, Local No. 2.
4. We will cease recognizing the Sheet
Metal Workers and withdraw and withhold
all recognition from them as your representa-
tive for collective bargaining.
5. We will reimburse each of you for money
paid by you, or withheld from your wages,
after January 12, 1970, for initiation fees,
dues, or other obligations of membership in
Sheet Metal Workers, with 6-percent interest.
MODINE
MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone
816-374-5181.