Morse Electro Products Corp.

National Labor Relations Board - Board Decisions

May 30, 1974

210 N.L.R.B. 1075 (N.L.R.B. 1974)

MORSE ELECTRO PRODUCES CORP. 1075
Morse Electro Products Corp. and Warehouse and
Mail Order Employees Union Local 743 affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 13-CA-12414
May 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
not establish by a preponderance of evidence that changes actually were
effected in any of the employees ' insurance coverage or that any of them
were given this option during the 10(b) period which, in this instance,
commenced on April 15, 1973. Chairman Miller does not find it necessary
to decide this issue on 10(b ) grounds , since in his view the General Counsel
simply has failed to adduce sufficient evidence to support this complaint
allegation . Indeed , the uncontroverted testimony of Respondent 's payroll
supervisor, James Taylor, indicates the contrary in that he testified that
Respondent continued to remit contributions to the Union's insurance plan
for all employees who had been covered thereunder.
DECISION
STATEMENT OF THE CASE
On January 4, 1973, Administrative Law Judge
Bernard J . Seff issued the attached Decision in this
proceeding. Thereafter, General Counsel and the
Charging Party filed exceptions and a supporting
brief, and Respondent filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuafit to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
i Although we adopt the Administrative Law Judge's ultimate dismissal
of the portion of the amended complaint alleging a unilateral departure
from the health and welfare benefit plan provision of the bargaining
agreement , we do so for different reasons . The basis of this allegation was
provided by Respondent 's decision , made shortly after the September 22,
1972, union -shop deauthorization election , to offer new employees the
option of coverage either under Respondent's health and welfare plan or
under the Union's health and welfare plan described in the bargaining
agreement The Administrative Law Judge dismissed the allegation
primarily on the grounds that no showing was made that any new
employees were in fact hired after October 1972 to whom the option could
have been offered . The record reveals , however, that there were in fact some
new employees added to the payroll after the above date . Therefore, we do
not rely on this basis in dismissing this allegation . We dismiss , rather, for the
reason that on reviewing the record , we find that the General Counsel did
BERNARD J . SEFF, Administrative Law Judge : Pursuant
to a charge filed on June 5, 19731 and an amended charge
filed on June 7 by the Warehouse and Mail Order
Employees Union Local 743, affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , hereinafter referred to as the
Union , the complaint was issued on August 14 and
amended at the hearing, alleging that Respondent on or
about June 7 caused the filing of a Decertification Petition
accompanied by acts engaged in by Respondent's supervi-
sors designed to cause withdrawals from the Union.
Respondent and its answer denies the commission of any
unfair labor practices . A hearing was held before me in
Chicago, Illinois, on October 15. Briefs have been filed by
the General Counsel and the Respondent.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent , a New York corporation, maintains a plant
and office in Chicago, Illinois , where it is engaged in the
manufacture and distribution of electrical products.
During the past year, a representative period, Respondent
purchased and received goods and materials, valued in
excess of $50,000 from points located outside the State of
Illinois . I find that Respondent is an employer engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
If. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
I All dates referred to in this decision took place in 1973 . unless
otherwise indicated.
210 NLRB No. 161
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interrogation
Employee Phyllis Hill circulated a petition among the
office employees on her own time during lunch hour and
while she was on permitted "breaks." On the day before
supervisor Harrington left for his vacation, May 11, she
stopped in Harrington's office and told him that the
petition had to be filed with the NLRB no later than May
31 and that she was processing the said petition. According
to Hill's testimony, Harrington said "Okay, there was
really nothing he could do to stop me." When Harrington
returned from his vacation Hill told him she had filed the
petition. Harrington asked Hill "How many names she had
gotten ." In Harrington's testimony he said he had asked
Hill whether employees Foley, Ferfecki, and Rios had
signed the petition. She said she had not spoken to these
three employees.
In the second alleged instance of interrogation employee
Ferfecki said her supervisor, Gerald Ogielo asked "how she
voted." Ferfecki said she didn't know what he was talking
about to which Ogielo replied, ". . . on the petition that
was being passed around." Ferfecki told Ogielo she knew
nothing about any petition being passed around. At this
point the matter was dropped by Ogielo.
B. The Decertification Petition
The record is barren of a showing that Respondent
sponsored, encouraged or participated in the circulation of
the Decertification Petition. All that is clear is that at one
point Harrington suggested that it not be filed at a time
while the Company was involved in negotiating a contract
with the Union which represented its production and
maintenance employees. However, employee Hill did not
delay in filing the said petition as requested by the
Respondent . She explained in her testimony that she had
consulted with a representative of the National Labor
Relations Board and he had told her that in order for the
petition to be acted upon it must be filed not later than 60
or 30 days prior to the expiration of the then existing
contract covering the office employees.
C. The Facts Surrounding the Unilateral Wage
Increase
The Company in its brief contends that it had direct
evidence that the Union no longer represented its employ-
ees based on the following information:
1. On September 22, 1973, the office employees
voted by more than 2 to 1 against renewal of a union
shop agreement:
2. Following this election more than 70 percent of
the office employees canceled their dues authorizations
and presumably resigned from the Union;
3. On May 16, 1973, an office employee filed a
decertification petition and we were advised that at
least 50 percent of the office employees supported this
action;
4. A substantial number of employees have volun-
tarily informed us that they want to get out of the
Union and wished that the Union no longer represent-
ed them.
It is the Board's view that an employer, once it learns that
its employees have filed a Decertification Petition with the
required 30 percent showing of interest, may properly
decline to bargain further with the bargaining representa-
tive pending disposition of the decertification request.
Telautograph Corp., 199 NLRB 892. No such right exists,
however, where the employee's decertification activity is
fairly attributable to the employer's own misconduct.
Given such misconduct, the rule remains that "an
employer may not avoid the duty to bargain by demon-
strating a loss of majority status arising from its own unfair
labor practices." N.L.R.B. v. Little Rock Downtowner, Inc.,
414 F.2d 1084 at 1091 (C.A. 8, 1964), fn. 4; Massey-
Ferguson, Inc. v. N. L. R. B., 78 LRRM 2289, 2290 (C.A. 7,
1971). As has been shown supra, the evidence is strong that
the Respondent did not inspire or participate in any way in
the circulation of the decertification petition and as a result
the Company had a right to grant a unilateral wage
increase since by so doing it was not acting in derogation
of the Union's majority status as the representative of the
office employees.
In August, Respondent called all its employees together
to hear a talk given by the plant manager, Burt Snider, who
told the assembled employees that he felt they were all
entitled to a raise. Snider had desisted in granting a wage
increase up to this time because he felt that the matter
concerning decertification was then tied up in litigation
before the Board. However he felt that it was time to grant
the employees a wage increase and at this meeting it was
announced that all employees in the office clerical unit
would receive a $10-a-week increase retroactive to August
1.
The General Counsel claims that the granting of a
unilateral wage increase was a violation of the Company's
obligation to deal with the Union before any change in
wages , hours or working conditions could take place. But
this rule applies only where either the Union does in fact
represent a majority of the Company's employees or there
has been such pervasive unfair labor practices engaged in
by the Company that the Union has lost its majority status
due to the unfair practices of the Respondent.
No such facts appear in the instant record . Therefore I
find that the Union did not in fact represent a majority of
Respondent's employees and that the granting of a
unilateral wage increase under these conditions does not
amount to a violation of Section 8(a)(5) of the Act.
It should also be noted in this connection that there was
no change in the wages of the employees during the life of
the contract . The contract itself expired on July 31, 1973,
having been terminated by the Union for the purpose of
reopening and renegotiating certain of its terms and
provisions.
D. Payment of Insurance Benefits
The General Counsel contends that the Respondent
unilaterally made changes in the payment of insurance
benefits to the Local 743 Health and Welfare Trust Fund.
It is contended that a new policy had been instituted with
MORSE ELECTRO PRODUCTS CORP. 1077
the purpose of separating the union members from the
nonunion members . Those who joined the Union received
a union 's insurance but those who did not join received the
Respondent's insurance , Bankers Life . In view of the fact
that for a long time the contract between the Company and
the Union included a requirement of union membership
because it was a union shop contract , it is difficult to
understand how new employees could work for the
Company and not join the Union . It is true that in 1972 an
election was held , the result of which was to eliminate the
union shop provision from the contract . There is no
showing in the record that there were new employees after
the employees voted out the Union's authority to continue
to operate under the union shop provision of the contract.
E. Respondent's Statements to Employees That It
Did Not Favor a Union Among its Office Employees
On a number of occasions Harrington told the employ-
ees that while he was in favor of unions generally he did
not think that unions served a good purpose when it came
to representing office employees. In fact he characterized
the Union as being full of bull . These characterizations,
while they indicate that the Company was not in favor of
having a union represent its office employees, do not
violate the freedom of speech provisions of the Act. Nor is
there any evidence in the record to support the conclusion
that the Company 's comments with respect to the Union
were accompanied by promises of benefits or threats of
reprisal . If this material was offered as further amplifica-
tion of independent 8(a)(1) activity engaged in by
Respondent I reject it as not being supported by proof in
the record.
Concluding Findings and Analysis
The General Counsel contends that the Company
illegally assisted in the filing of a petition for decertifica-
tion by permitting employees Hill and Buchta to go to the
NLRB during working hours and paying them for the time
required to file the decertification petition. The record
shows, however, that the girls were docked pay for the time
lost from tai, robs.
It is also argued that the questioning by Harrington and
Ogielo constitutes illegal interrogation. If viewed against a
background of pervasive unfair labor practices it might be
argued that the questions asked by the Company's
supervisors add up to violations of Section 8(a)(1) of the
Act. In the instant case it appears that the Company did
not mount an antiunion campaign. The questions which
2 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
were directed to these employees are devoid of threats of
reprisal or promises of benefits. Taken in the context in
which they were uttered they seem to be innocuous. I so
find and deem them insufficient upon which to grant an
8(a)(1) remedy.
With respect to the alleged violation of Section 8(a)(5) by
unilaterally granting wage increases and making certain
changes in the insurance provisions which prevailed at the
time of the negotiation of the contract I find that the
Company has demonstrated that it had a serious doubt of a
continuing majority status of the Union as manifested by
the petition to revoke the union shop authorization, the
petition to withdraw recognition from the Union and
numerous statements made to it by its employees. Absent a
finding that a union lost its majority status as the result of
unfair labor practices by the Company the granting of the
unilateral wage increase in the instant case came at a time
when the contract between the parties had expired by its
terms and without any unfair labor practices having been
committed by Respondent. In fact I find that the
Company's granting of a unilateral wage increase under
the circumstances prevailing does not represent a violation
of Section 8(a)(5) and I so find.
In sum, I find and conclude that the General Counsel
has not demonstrated by a preponderance of the evidence
that the Respondent engaged in either independent 8(axl)
activity by interrogating certain employees nor did it foster
or support the circulation of the Decertification Petition
and it did not refuse to bargain with the Union in a
manner violative of Section 8(a)(5) of the Act.
Upon the foregoing factual findings and conclusions, I
come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 743 of the Teamsters Union is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in any unfair labor
practices as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 2'
I recommend that the complaint be dismissed in its
entirety.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and order , and all objections thereto shall be
deemed waived for all purposes.