Schott Metal Products Co.

National Labor Relations Board - Board Decisions

Feb 10, 1965

150 N.L.R.B. 1652 (N.L.R.B. 1965)

1652 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
Schott ' Metal Products' Company and United Steelworkers- of
'America, AFL-CIO:` Case No. 8-CA-3561: , February 10, 1965'
DECISION AND "ORDER
On. November 30,.1964, Trial Examiner C. W, Whittemore issued
his Decision in the above-entitled proceeding, finding that the Re; ,,
spondent had,,engaged in and was engaging in certain unfair labor
practices within the, meaning, of the National Labor Relations Act,
as • amended, and recommending that it cease and, desist, therefrom
and, -take' certain affirmative action, as, set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent" filed
exceptions to the Decision and, a supporting -brief.
Pursuant to the provisions of Section 3(b) of the Act, the
National Labor Relations Board has delegated its powers in con-
nection 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,
Trial Examiner's Decision, the exceptions and the, brief,. and the.
entire' record in the case, and hereby, adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,,
as amended, the Board hereby adopts as its Order , the Recom-
mended Order of the Trial Examiner, and orders that Respondent
Schott Metal Products Company, Akron, Ohio , its officers , agents,
successors , and assigns , shall take the action set forth in the Trial
Examiner's Recommended -Order.
1 The Trial Examiner rejected several offers of proof tendered by Respondent in an
effort to support its contention that the "local segment" of the Union herein was' not a
labor organization within the meaning of the Act. The Trial Examiner found that what-
ever defense Respondent may, have asserted based on Jacobs' alleged participation in
the organizing effort was waived by Respondent by its failure to raise any objection to
the election . We agree with the Trial Examiner that this matter properly should have
been litigated in the representation proceeding . Accordingly, for the reasons set forth
in the Trial Examiner 's Decision , we agree with the Trial Examiner that the facts alleged
in -such offers of proof are not relevant to any matter at issue in this case, and were
properly rejected . See Douglas County Electrio Membership Corporation , 148 NLRB 559.
TRIAL EXAMINER'S DECISION,
STATEMENT OF TAE CASE.1 1
Upon a charge and an amended charge , filed respectively on July 6 and August 20,
19'64, by United Steelworkers of America, AFL-CIO, the General Counsel of the
National Labor Relations Board on August 21, 1964, issued his complaint and notice
of hearing . Thereafter the Respondent , Schott Metal Products Company, filed its
150 NLRB No. 166.
SCHOTT METAL PRODUCTS COMPANY 1653
answer. 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), (2), and
(5) of the National Labor Relations Act, as amended. Pursuant to notice a hearing
was held in Akron, Ohio, on October 27, 1964, before Trial'Examiner C. W.
Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. The
Respondent's representative waived the filing of a brief, but argued orally upon the
record. A brief has been received from General Counsel.
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 witness, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Schott Metal Products Company is an Ohio corporation with principal office and
place of business in Akron, Ohio, where it is engaged in the manufacture of auto-
mobile accessories It annually ships products valued at more than $50,000 directly'
from its place of business to points outside the State of Ohio:
The Respondent is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
United Steelworkers of America, AFL-CIO, is a labor organization representing
certain employees of the Respondent for purposes of collective bargaining.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues'
There is no dispute here as to the major factual issue raised by the complaint. At
the hearing the Respondent's representative admitted that it has refused and-con-
tinues to refuse to bargain collectively with the Charging Union, despite certification
of that organization by the Board following an election to which the Respondent
consented and as to the conduct of which it filed no objections.
There is controversy as to the legal issue of the obligation to bargain. General
Counsel contends that by refusing to bargain the Respondent has failed to meet its
obligations under the Act and so has violated Section 8(a) (5) and (1). The Respond-
ent maintains that the Act does not require it to deal with the Charging Union because
a former superintendent participated in some fashion in the organizing of the
Respondent's employees.
Subsidiary issues include questions as to the legality under the Act of the Respond-
ent's formation of a committee of employees to deal with it concerning certain work-
ing conditions, and other conduct alleged as violative of employees' Section 7 rights
to be free of interference, restraint, and coercion.
B. Facts relevant to the refusal-to-bargain issue
The following findings test mainly upon stipulations, documents received in evi-
dence by agreement of the parties, and oral concessions at the hearing.
(1) On February 27, 1964, the United Steelworkers filed its petition in Case No.
8-RC-5487
(2) On March 23, 1964, officials of the Union and the Employer,' executed a
"Stipulation for Certification Upon Consent Election," setting April 16, 1964, as the
date of the election in an agreed-upon unit. The Regional Director for Region 8
approved this stipulation the next day.
(3) On April 9, a week before the election, the Respondent's president, Elmer C.
Schott, sent each employee a letter, the first three paragraphs of which read as follows:
Thursday, April 16th, between 3 and 4 P.M. you will vote again on whether
you want the Steelworkers union to represent you or no union. This is a very
important day in your and our lives, and we want to be sure that you understand
how serious it is. You are the most interested party because you pay the bills
at home and you want to get that pay check every week without interruption.
1 Secretary S. C. Schott for the Employer , and William L. Taggart for the Union.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steady work is the only answer. So, we ask you to consider this matter care-
fully and talk it over with your family before making a decision.
Schott Metal Products Company has been expanding for some time , setting
in equipment which means more jobs and steady work. Plants organized by
the union have thousands of people out of work or on strike . Many plants have
moved south or to Canada to escape this harassment which has made the entire
state of Ohio so competitive
Since our product is highly competitive we have watched this situation care-
fully and have been wise enough to anticipate a move in case of emergency. Our
buildings are in most the portable type and are not considered permanent. They
can be disassembled and moved without much effort. These buildings cost much
less than permanent installations and much money is saved which goes into
your profit sharing fund . Don't let any union fool you with promises of high
wages and fringe benefits . Whatever you get will be taken away from your
profit sharing fund and you will be the loser in the long run because you would
have to pay the dues and accessments [sic] required by the union.
(4) The election was held on April 16. A majority of the employees in the appro-
priate unit voted for the Union.
(5) Thereafter the Respondent filed no objections as to conduct affecting the
election or to the conduct of the election
(6) On April 23 the Regional Director issued his certification of the Union as the
exclusive bargaining representative of all employees in the appropriate unit.
(7) On April 28 the Union filed a charge in Case No. 8-CA-3490, alleging the
unlawful discharge of four employees. The charge was withdrawn May 27.
(8) On June 1 two union representatives met with Harvey B. Rector , a "labor
consultant" who, President Schott informed the Regional Director a few days later,
"is representing us." Rector was given the Union 's contract proposals . No negotia-
tions regarding them took place: It is undisputed that at this meeting Rector declared
that it "was a good thing charges were dropped or he would not talk," and added that
"if Krieger, the union lawyer, was brought into the picture, that he would stop all
negotiations ." Indeed, at the hearing Rector readily admitted that he had "refused
to bargain while the charge (in Case No. 8-CA-3490) was pending." At this session
it was agreed that another meeting would be held later.
(9) On June 9 President Schott sent a letter to the Regional Director, with a copy
indicated as having gone to the Union , in which he stated, in part:
We have been advised by our labor consultant Mr. Harvey B. Rector that
under the circumstances , the bargaining representative here is not a labor organi-
zation within the meaning of the act and that we are not required to bargain
with it. We are, therefore , cancelling our scheduled meeting with the union on
June 18, 1964 and will refuse to bargain with this unit of the Steelworkers under
the present certification.
C. The Respondent's contentions and the Trial Examiner 's conclusions
Insofar as I can understand Rector's position , as stated in his oral argument and
in varied offers of proof during the hearing, it is that: ( 1) a former superintendent,
one Jacobs , in 1957 "threatened " to "bring the Union in," after he was refused an
increase in salary; (2) in early 1964, after being threatened with discharge by Presi-
dent Schott , Jacobs again declared he would "bring the union in"; and ( 3) "immedi-
ately following that the organization of the Union took place "-for such reasons the
"local segment" of the United Steelworkers is not a labor organization within the
meaning of the Act, and the Respondent is under no obligation to deal with it.
So circuitous is the route taken by the several parts of this argument that it is diffi-
cult to meet it as a whole . In the first place Rector is plainly mistaken if he main-
tains the proposition that a labor organization ceases to be one, by definition of the
Act, if it is company dominated or assisted . In the second place, the only labor
organization involved in this case 2 is the one certified by the Board-the United
Steelworkers of America, AFL-CIO-which he, himself, at the hearing conceded
was a labor organization within the meaning of the Act. What he means by the
"local segment" is unrevealed by the record.
Assuming that Rector means that some action on the part of the Respondent's
superintendent somehow coerced employees into joining the Union which he con-
ceded at the hearing is a labor organization , and thereby tainted the election and the
certification , then the pertinent questions arise as to why: (1) the Respondent con-
2 Except a certain committee referred to below.
SCHOTT METAL PRODUCTS COMPANY 1655
sented to the election and (2) it failed within the prescribed period to object to the
election. Rector effectively conceded, by way of an offer-of proof which was
accepted, that the Respondent's officials had knowledge of Jacobs' activities, whatever
they were, "a month prior to the election." 3 Since Schott signed the consent agree-
ment on March 23, and the election took place on April 16, it is plain that the
Respondent had such knowledge even before it agreed to the election.
I conclude that the Respondent has waived any right it may have had to raise the
question of Jacobs' participation, if any, in the early organization of the employees.
In any event, the employees had an opportunity, and presumably exercised it, to
express their uncoerced desire at the Board's secret election-and certainly the
Respondent has not claimed that they did not do so. (See Douglas County Electric
Membership Corporation, 148 NLRB 559.)
In summary, I conclude and find that the preponderance of evidence sustains the
8(a)(5) allegations of the complaint and that (1) at all times since April 16, 1964,
the Charging Union has been, and continues to be, the sole collective-bargaining
representative of all employees in an appropriate unit consisting of all the Respond-
ent's production and maintenance employees, excluding all office clerical employees,
professional employees, guards, and supervisors as defined by the Act; and (2) at all
times since April 28, 1964,4 the Respondent has failed and refused to bargain with
this labor organization. Such refusal constitutes interference, restraint, and coercion
of employees in the exercise of rights guaranteed by Section 7 of the Act.
D. The safety and welfare committee
Credible evidence establishes, and it is found, that:
(1) On July 1, after Schott had notified both the Regional Director and the Union
that it refused and would continue to refuse to bargain with the Union, Superintend-
ent Fagin informed and set up a committee of three employees which was called a
"Safety and Welfare Committee."
(2) Coincident with this action, a company notice was posted, announcing that
"This committee is to serve as a go-between for employees and management on any
problems that might arise."
(3) The same notice invited: "If you have a problem, see the above people and
we will all work to try to come up with an answer."
(4) Although the same notice also stated that "this committee is Not a Union
committee or a Negotiating committee," it is undisputed that during one of its three
meetings held on company time up to early August it actually did negotiate a change
in working conditions-a resumption of certain coffee and eating privileges which
had been summarily withdrawn immediately after the election. The committee also,
according to uncontradicted testimony, discussed paid holidays with management,
officials at such meetings, as well as other matters affecting working conditions.
It is clear, and is found, that this committee dealt with matters which appropriately
come within the scope of collective bargaining. It was both formed and adminis-
tered as "a go-between" for management and the employees "on any problems that
might arise," and functioned thereaftei in accordance with the announced purpose.
Under the circumstances existing here, where management openly refused to deal
with the certified bargaining agent of all employees in the unit, the Respondent's
action in selecting and dealing with a committee of its own choice on "any problems
that might arise" was unlawful and in violation of Section 8(a) (5).
It is further concluded and found that the Respondent initiated, formed, and spon-
sored this committee, has dominated and assisted its administration, has dealt with
it on matters concerning grievances and other conditions of employment, and thereby
has interfered with, restrained, and coerced employees in the exercise of rights guar-
anteed by the Act.
E. Other interference, restraint, and coercion
Shortly before the election Foreman Bennett told employee Nicholas that "if the
Union came in they would close the shop."
3 Jacobs was fired the day after the election, on April 17, and in a subsequent letter
to the Regional Director President Schott said that at least one reason for the discharge
was his union participation
This date is fixed by Rector's admission, noted above, that the Respondent had
refused to bargain during the pendency of the charge in Case No. 8-CA-3490, filed
on April 28.
5 Although Bennett was called as a witness by the Respondent, he was not asked
regarding this incident. Nicholas' testimony is undisputed.
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel contends and I agree that the three paragraphs of Schott's
April 9 letter , quoted above, effectively threaten economic reprisals which all em-
ployees might expect to suffer in the event they voted for the Union . Warning
employees that their decision at a Board election is "serious ," while reminding them
that they need a weekly paycheck , and then informing them how easy it would be
to pack up the buildings and machinery to move away south or to Canada is, in my
opinion, a warning that far exceeds the privilege accorded by the Act.
Both Bennett 's and Schott 's threats constituted interference , restraint , and coercion
of employees in the exercise of rights guaranteed by the Act.°
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE.
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent 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.
V. 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 affirmative action to
effectuate the policies of the Act.
It will be recommended that the Respondent disestablish and cease to recognize
the Safety and Welfare Committee as the representative of any of its employees in
dealing with its concerning any grievances or matters of employment or terms or
conditions of employment.
It will be recommended that, upon request, the Respondent bargain collectively,
in good faith, with the United Steelworkers of America, AFL-CIO, and, if an under-
standing is reached, embody such understanding in a signed agreement.
Since the unfair labor practices committed by the Respondent are of a nature vio-
lating the policies of the Act, it will be recommended that it cease and desist from
infringing in any manner upon the rights guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, and the Safety and Welfare Com-
mittee are labor organizations within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees of the Respondent, excluding all
office clerical employees, professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act
3. By virtue of Section 9(a) of the Act the United Steelworkers of America, AFL-
CIO, has been since April 16, 1964, and now is, the exclusive representative of all
employees in said appropriate unit for the purpose of collective bargaining with
respect to wages, hours of employment, and other terms and conditions of employment.
4. By refusing, since April 28, 1964, to bargain collectively with the said labor
organization as the exclusive representative of all employees in the said appropriate
unit, 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 forming, dominating, and assisting the above-named committee the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (2) of the Act.
6. 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
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
O General Counsel also alleges that "a general wage increase was granted in early
April, shortly before the election " I find no evidence to support the allegation of a
"general Increase" One employee testified that he saw a notice announcing such an
Increase about this time, but his testimony is flatly denied by management witnesses
By way of subpena company records were available to General Counsel to show whether
or not any general increase had in fact been put into effect at that time. It was not
incumbent upon the Respondent to disprove an unsupported allegation.
SCHOTT METAL PRODUCTS COMPANY
RECOMMENDED ORDER
1657
Upon 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 Act, it is recommended that
the Respondent, Schott Metal Products Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Forming, dominating, or assisting any labor organization of its employees.
(b) Refusing to bargain collectively with the, United Steelworkers of America,
AFL-CIO, as the exclusive representative of all employees in the appropriate unit
described herein.
(c) Threatening employees with'economic reprisals to discourage membership in
any labor organization.
(d) In any other 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) Disestablish the Safety and Welfare Committee as the representative of any
of its employees in dealing with it regarding wages, hours of employment, or any
terms or conditions of employment.
(b) Upon request, bargain collectively and in good faith with United Steelworkers
of America, AFL-CIO, as the exclusive representative of all employees in the appro-
priate unit and, if an understanding is reached, embody such understanding in a
signed agreement., -
(c) Post at its plant in Akron, Ohio, copies of the attached notice marked "Appen-
dix." 7 Copies of said notice, to be furnished by the Regional Director for Region 8,
shall, after, being signed by the Respondent's authorized representative, be posted by
it immediately upon receipt thereof and be maintained by it fora period of 60 con-
secutive days, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of the Trial Examiner's Decision, what steps it has taken to comply
herewith .8
7In the event that this Recommended Order be 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 In the further event that the Board's Order be en-
forced by a decree of a 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".
8 In the event that this Recommended Order be adopted by the Board, this provision
shall read: "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."
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 reprisals to discourage membership in United
Steelworkers of America, AFL-CIO.
WE WILL NOT deal with the Safety and Welfare Committee as the representa-
tive of any of our employees in dealing with us concerning any matter relating
to working conditions.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to.-engage in union
activities. -
WE WILL, upon request, bargain collectively with United" Steelworkers of
America, AFL-CIO,, and, if an understanding is•reached, embody ; it in a signed
agreement.
WE WILL completely disestablish the Safety and Welfare Committee as the
representative of any of our employees. 1 . ' .
SCHOTT METAL PRODUCTS COMPANY,
Employer.
Dated------------------- By----------------------------!----- --------(Representative) (Title)
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they
have any questions concerning this notice or compliance with its provisions.
Ador Corporation and Shopmen 's Local 509, International Asso-
ciation of Bridge , Structural and Ornamental Ironworkers.
Case No. 21-CA-5545. February 10, 1965
DECISION AND ORDER
On October 14, 1964, Trial Examiner Howard Myers issued his
Decision in the above-entitled proceeding, finding that 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 the attached Trial Exam-
iner's Decision. Thereafter, Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision and supporting
briefs, and Respondent also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations 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, the exceptions and briefs, and the
entire record in this case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations only to the extent that
they are consistent with this Decision and Order.
The Trial Examiner found that Respondent failed and refused
to fulfill its bargaining obligation in violation of Section 8(a) (5)
and (1) of the Act by not giving prior notice to or consulting with
the Union when it decided to and did cease manufacturing its
"Challenger" line of doors and windows at its Fullerton, California,
plant. on June 7, 1963, limiting production of such doors and win-
dows to the filling of orders already accepted. We disagree for
the reasons given below.
As is more fully described in the Trial Examiner's Decision,
Karl Reinhard was appointed general manager of Respondent Ador
Corporation by a referee in bankruptcy on June 7, 1963. Rein-
hard, a former owner of Respondent, arrived at the Ador plant to
take control at approximately 3:45 p.m. on June 7. At that time,
150 NLRB No. 161.