Orange County Machine Works

National Labor Relations Board - Board DecisionsJun 29, 1964

147 N.L.R.B. 1004 (N.L.R.B. 1964)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including all places where notices to its employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-third Region, in writing, within 20 days from the receipt hereof, what steps have been taken to comply herewith." "In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 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, upon request, bargain collectively with Hotel, Motel and Club Employees Union, Local 251, AFL-CIO, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and Stationary Engineers, Local No. 707, affiliated with International Union of Operating Engineers, AFL-CIO, as the joint exclusive bargaining representative of all our employees in the appropriate bargaining unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an agreement is reached, embody such understanding in a signed agreement. GULFMONT HOTEL 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 the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. CA. 8-0611, Extension 296, if they have any question concerning this notice or compli- ance with its provisions. Orange County . Machine Works and Lionel Richman . Case No. 21-CA-5645. Jwne 29, 1964 . DECISION AND OR] ER Upon a charge duly, filed by Lionel Richman, the General Counsel of the National Labor Relation's Board, by the Director of the Twenty- first Region, on December 26, 1963, issued a complaint against Re- spondent Orange County Machine Works alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, com- plaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent and the Charging Party. In substance the com- plaint alleged that the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, Local 92, AFL-CIO, was and is the exclusive representative of Respondent's production and maintenance employees in an appropriate unit, and that commencing on or about October 1, 1963, Respondent unilaterally 147 NLRB No. 132. ORANGE COUNTY MACHINE WORKS 1005 without notice to or consultation with the exclusive representative of the employees, changed terms and conditions of employment in the bargaining unit, and at all times thereafter, Respondent refused to bargain with the Union respecting said changes. Respondent's answer admitted the jurisdictional and factual allega- tions of the complaint, but denied the commission of any unfair labor practices. On March 4, 1964, all parties to this proceeding entered into a stipu- lation of facts, and on the same date moved jointly to transfer this proceeding directly to the Board, for findings of fact, conclusions of law, and a Decision and Order. The motion stated that the parties have waived their rights to a hearing before a Trial Examiner and to the issuance of a Trial Examiner's Decision. The Board granted the motion to transfer the case to the Board. The General Counsel filed a brief. Upon the basis of the stipulation of facts and the entire record in this case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a California corporation engaged in the manu- facture and sale of metal tankheads at its plant in Orange, California, and annually ships from said plant products valued in excess of $50,000, directly to points outside the State of California. The parties stipulated, and we find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED The International Brotherhood of Boilermakers, Iron Ship Build- ers, Blacksmiths, Forgers, and Helpers, Local 92, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. TIIE UNFAIR LABOR PRACTICES At all times since August 1, 1962, and continuing to date, the Union has been the exclusive bargaining representative of Respondent's production and maintenance employees. There is currently in effect between Respondent and the Union a collective-bargaining agreement covering the employees in the appropriate unit, which expires July 31, 1964. Respondent pays its employees on a weekly basis, ,and prior to Octo- ber 1, 1963, withheld and deducted Federal income taxes from each employee's weekly check. On October 1, 1963, without prior notice 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to or consultation with the Union, Respondent notified each of its em- ployees that in its view the withholding provisions of the tax code were contrary to constitutional rights expressed in the 13th amendment to the Constitution of the United States, and for that reason Respondent would cease making deductions on a weekly basis, but would deduct a full month's taxes from the last weekly check of the month. Since October 1, 1963, Respondent has deducted Federal income taxes for moneys earned during the month from the last weekly paycheck of the month, and although the Union has protested Respondent's ac- tion, Respondent has refused to resume weekly deductions or discuss the matter and continues to refuse to discuss the matter. - In our opinion, the established procedures for deducting taxes from an employee's weekly pay in an amount representing the employee's tax obligation is a term and condition of employment, and maintaining the regularity of the amount he receives each pay period is a substan- tial element of such term and condition of employment. We conclude, therefore, that Respondent was under an obligation to notify and consult with the Union prior to putting into effect any changes with respect to the manner in which taxes were deducted and withheld.' Thus, we find that Respondent violated Section 8 (a) (5) and (1) of the Act, by unilaterally instituting a system of deducting taxes on a monthly rather than a weekly basis.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent as set forth above, have a close, intimate, and substantial relation to trade, traffic, and commerce among and between the several States and tend to lead to industrial strife burdening and obstructing commerce. V. THE REMEDY . Having found that the Respondent has engaged in an unfair labor practice , we shall order that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Orange County Machine Works is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We note that Sections 3401 ( b) and 3402 ( a) of the Internal Revenue Code provides that an employer must withhold the appropriate amount of Federal income tax every pay period. Thus, Respondent ' s conduct may constitute a violation of the tax code as well as the Na- tional Labor Relations Act. We do not believe , however, that merely because Respond- ent's conduct may violate the provisions of another Federal statute, that we are precluded from taking appropriate action to the extent that Respondent's. conduct also constitutes a violation of the National Labor Relations Act. , Morris Harris, at at., d/b/a. Union Manu facturing Company, 95 NLRB 792, 793; N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736; N.L.R.B. v. Central Illinois Public Service Company, 324 F. 2d 916 ( C.A. 7). ORANGE COUNTY MACHINE WORKS- 1007 2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, Local 92, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees performing work in. manufacturing, fabricating, assembling, contract, and repair shops,, including the operation of all machines, mechanical devices and tools, employed by the Respondent at its Orange, California, plant, but excluding all employees who are presently represented through collective-bargaining agreements with other unions affiliated with the AFL-CIO, and office and clerical employees, technical and profes- sional employees, supervisory employees, guards, and watchmen as defined in Labor-Management Relations Act of 1947, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. 4. The above-named labor organization was on October 1, 1963, and at all times thereafter has been, the exclusive representative of the employees in the above-described unit for.the purposes of collective bargaining within the meaning of Section'9 (a) of the Act. 5. By modifying the terms and conditions of employment for eln- ployees in the above-described unit, without prior consultation with or notice to 'the above-named labor organization, and thereby refusing to bargain collectively with the above-named labor organization as the exclusive representative of all of the employees in the unit de- scribed above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By the aforesaid conduct, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by 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. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of. Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Orange County Machine Works, Orange, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from unilaterally changing the manner of with- holding Federal income taxes from the employees' salaries,' or in any like or related manner refusing to bargain collectively with Interna- tional Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, This Order shall not be construed as authorizing any method of deducting and with- holding taxes which is inconsistent with the provisions of the Internal Revenue Code. 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Forgers, and Helpers, Local 92, AFL-CIO, as the exclusive representa- tive of all production and maintenance employees in the following unit : All production and maintenance employees performing work in manufacturing, fabricating, assembling, contract, and repair shops, including the operation of all machines, mechanical devices and tools employed by the Respondent at its Orange, California, plant; but excluding all employees who are presently represented through collective-bargaining agreements with other unions af- filiated with the AFL-CIO, and office and clerical employees, technical and professional employees, supervisory employees, guards and watchmen as defined in the Labor-Management Rela- tion Act of 1947. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Resume withholding and deducting the appropriate Federal income tax on a weekly basis. (b) Post at its offices in Orange, California, copies of the attached notice marked, "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signedby the authorized representative of the Respondent, be posted by Respondent 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 by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director,.in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER JENKINS dissenting : The Internal Revenue Code places upon employers the duty to with- hold income taxes for employees. Further, it specifies how this must be done.5 These requirements of law are not subject to modification by Board Order or through the processes of collective bargaining, for neither can make lawful a method of withholding which contravenes the explicit terms of the Code. Yet the Board now orders the precise method of withholding Respondent must henceforth follow, and at the same time omits from its order the usual remedial requirement * In the event that this Order is enforced by a decree of a United States Court of Appeals, this notice shall be amended by substituting for the words "Pursuant to a Decision and Order," the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 5 Footnote 1, supra. ORANGE COUNTY MACHINE WORKS 1009 that Respondent bargain over the subject matter of the Order. This omission indicates what is in fact the case that any bargaining on this subject can have only one outcome, and that consequently the mat- ter is not a subject for bargaining within the meaning of Section 8(a) (5). In my opinion the Board would be better advised to leave the resolution of the appropriate withholding procedure to those charged by law with this responsibility. I would, therefore, leave the Charging Party to seek his remedy elsewhere and dismiss this complaint. MEMBER FANNING took no part in the consideration of the above Decision and Order. APPENDIX NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT unilaterally change the manner of withholding Federal income taxes from the employees' salaries, or in any like or related manner refuse to bargain collectively with International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, Local 92, AFL-CIO, in the following bargaining unit: All production and maintenance employees performing work in manufacturing, fabricating, assembling, contract, and repair shops, including the operation of all machines, mechanical devices and tools employed by the Respondent at its Orange, California, plant; but excluding all employees who are presently represented through collective-bargaining agreements with other unions affiliated with the AFL-CIO, and office and clerical employees, technical and professional employees, supervisory employees, guards, and watchmen as defined in the Labor-Management Relations Act of 1947. AVE WILL resume withholding and deducting the appropriate Federal income taxes on a weekly basis. ORANGE COUNTY MACHINE WORKS, 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. 756-236-65-vol. 14 7-- -6 5 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any questions concerning this notice or com- pliance with its provisions. Sabine Vending Co. Inc. , Division of United Servomation Cor- poration and Sales and Delivery Local 258, AFL-CIO , Inter- national Union of United Brewery , Flour, Cereal , Soft Drink and Distillery Workers of America , AFL-CIO. Case No. 23- CA-1616. June 29, 1964 DECISION AND ORDER On March 17, 1964, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that the Respondent 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 his attached Decision. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal thereof. Thereafter, the General Counsel filed exceptions to his Decision and a supporting brief, and the Respondent filed cross exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below. We disagree with the Trial Examiner's finding that the Respondent did not violate Section 8 (a) (5) of the Act. By letter dated April 25, 1963, the Union claimed majority rep- resentation, and requested recognition and bargaining as the exclusive bargaining agent, of the Respondent's "sales and maintenance em- ployees." On the following day, the Union also filed a petition for rep- resentation with the Board describing the unit as all driver-salesmen and maintenance employees. By letter dated April 29, 1963, the Respondent acknowledged receipt of the Union's letter of April 25 and also of a letter from the Board advising of the filing of the peti- 147 NLRB No. 136.