Sinko Manufacturing and Tool Co.

National Labor Relations Board - Board Decisions

Sep 23, 1965

154 N.L.R.B. 1474 (N.L.R.B. 1965)

1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request , bargain with the above -named union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay , wages, hours of employment , and other conditions of employment , and if an understanding is reached , embody such an understanding in a signed agreement. The bargaining unit is: All retail drivers and route foremen at our Arlington , Massachusetts, plant, excluding bulk drivers , assistant shippers , processing employees, all other employees , and supervisors as defined in the Act. DAVID BUTTRICK 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board 's Regional Office, Boston Five Cents Savings Bank Building , 24 School Street, Boston, Massachusetts , Telephone No. 523-8100. Sinko Manufacturing and Tool Company and District 50, United Mine Workers of America and Plastic Workers Union Local 18, I.U.D.T.W., AFL-CIO , Party to the Contract Sinko Manufacturing and Tool Company and Eugene Payan. Cases Nos. 13-CA-4433 and 13-CA-4433-2. September 23, 1965 SUPPLEMENTAL DECISION AND AMENDED ORDER On October 28, 1964, the National Labor Relations Board issued its -Decision and Order in this proceeding I finding that Respondent, 'Sinko Manufacturing and Tool Company, had engaged in certain •conduct violative of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended. The Board further found that Respond- ent had violated Section 8 (a) (1) and (2) of the Act by certain acts of unlawful assistance to Plastic Workers Union Local 18, I. U. D. T. W., AFL-CIO, including its recognition of Local 18 and execution on August 30, 1961, of a collective-bargaining agreement with Local 18 -which contained a union-security clause. To remedy these violations, the Board, inter alia, directed that Respondent withdraw recognition from Local 18, and that it reimburse all its employees for the moneys unlawfully exacted from them since August 30, 1961, under that :union-security agreement. On February 1, 1965, Sinko Division of MSL Industries, Inc. (herein called Sinko Division), filed with the Board a petition for _modification of the Board's Order, to which the General Counsel filed an opposition on March 4, 1965. 149 NLRB 201. 154 NLRB No. 117. SINKO MANUFACTURING AND TOOL COMPANY 1475 On February 26,1965, the General Counsel filed a petition for modi- fication of the Order, attaching hereto a stipulation of facts between the General Counsel and Sinko Division. On March 10, 1965, Sinko Division filed a brief in support of its petition and in opposition to the petition of the General Counsel •2 The principal issues presented by the petitions are whether, as requested by Sinko Division, the Board should modify its dues reim- bursement remedy set forth in the original Decision and Order herein, and whether, as requested by the General Counsel, Sinko Division and MSL Industries, Inc. (herein called MSL), should be made addi- tional parties respondent and liable for the affirmative remedial action directed by the Board. Upon the entire record herein, including the stipulation of facts, and upon consideration of the petitions and briefs of the parties, the Board 3 makes the following findings and conclusions : 1. The nature of the petitions. As stated, the General Counsel seeks to have additional parties named as respondents herein, and relies upon the stipulation of facts as support for his petition. This stipulation reveals the following : On May 4, 1964, subsequent to the issuance by the Trial Examiner of his Intermediate Report herein and prior to the issuance by the Board of its Decision and Order, Respond- ent's shares of stock were purchased by MSL in a bona fide transac- tion. On or about May 4, 1964, Respondent executed and filed with the State a statement of intent to dissolve on May 6, 1964. On or about May 5, 1964, Respondent and MSL entered into an "Assignment of Assets and Assumption of Liabilities Agreement," subject to the stock purchase agreement. Under the purchase agreement, MSL agreed to assume liabilities arising from pending litigation, including, but not limited to, the unfair labor practice proceeding against Respondent, to the extent of $25,000. The Respondent agreed to indemnify MSL for any liability in excess of that amount. In May 1964, MSL began to conduct the operations formerly conducted by Respondent but under a new name-Sinko Division MSL. No changes were made at that time in personnel or scope of operations. Sometime subsequent thereto, however, certain changes in supervisors, scope of business, and number of employees occurred. The stipulation also reveals that while two of Respondent's officers-one of whom had signed the con- tract with Local 18-continued as officers of Sinko Division, MSL had its own labor policies which Sinko Division was obligated to follow. 2A motion for reconsideration was filed by Local 18 on February 23, 1965, and an -opposition thereto was filed by the General Counsel . The Board , having duly considered the matter , finds this motion to be without merit, and , accordingly , the motion is denied. 3Pursuant 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 [ Members Brown, Fanning, and Jenkins]. 1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However , the Local 18 union -security agreement , including checkoff of dues on behalf of Local 18 and the forwarding of such dues to Local 18, was continued in effect by Sinko Division until November 6, 1964, some 20 days after the Board 's Decision and Order herein issued. On that date , Sinko Division discontinued the dues checkoff and withdrew recognition of Local 18 . It is essentially on these facts, that the General Counsel urges that the Board find Sinko Division and MSL successors to Respondent and liable for the affirmative pro. visions of the Board 's Order. Sinko Division , in its petition , asserts that the Board erred in direct- ing dues reimbursement of all employees , and urges that reimburse- ment be limited to four named employees who were required to join Local 18 before the grace period in the union -security agreement expired, citing inter alia, Majestic Weaving Company, Inc., of New York, 149 NLRB 1523. 2. Conclusions as to Sinko Division's petition. Contrary to Sinko Division, we find that the Board's direction of reimbursement of all employees was fully warranted by the facts of this case . It is true. that, in Majestic Weaving, the Board did not direct a general dues. reimbursement even though there, as here, the employer had engaged in solicitation of authorization cards for , and then entered into a union-security agreement with, the assisted union. However, it was established there that a number of employees had agreed to authorize dues checkoffs retroactively in order to obtain greater union benefits. The Board was therefore unwilling to find that these employees had been coerced into paying dues. Nor could the Board , in the circum- stances of that case , find that employees hired subsequent to the execu- tion of the union-security agreement were so coerced . In the instant case, there was no evidence that any employee signed in order to receive union benefits. The record establishes that, subsequent to the signing of the contract with the assisted union, Respondent announced to employees over a loudspeaker that Local 18 representatives were in the plant and then made arrangements permitting , and in some instances requiring , employees to leave their work to see these repre- sentatives , at which time dues deduction authorizations were obtained. The record also shows that following the announcement of Local 18's. contract , some 47 employees signed a petition protesting Local 18's. recognition . In all these circumstances , including the fact that Local 18's majority status was obtained through Respondent ' s unlawful support, and that all employees joined after the execution of the. unlawful contract, we think that dues rendered to Local 18 under the• illegal union -security agreement were not voluntarily paid but were. SINKO MANUFACTURING AND TOOL COMPANY 1477 coerced . See Hampton Merchants Association, et al., 151 NLRB 1307; American Standard Cargo Container Company, 151 NLRB 1399. Cf. Meyers Bros. of Missouri, Inc., 151 NLRB 889. Accord- ingly, Sinko Division's petition to modify is denied. 3., Conclusions as to General Counsel's petition. As to the relation- ship of Sinko Division and MSL to Respondent, we think the General ,Counsel is correct in his contention that the former are successor employers. While, subsequent to the purchase, certain changes were made in the operation of the business formerly conducted by Respond- rent, the facts firmly establish that at the time of the takeover there was no change in the employing industry. The manufacturing operations of Respondent were continued after the acquisition without interrup- tion, and Respondent's employees, including supervisory personnel, were not discharged but continued in their employment. Thus, it is clear that Sinko Division and MSL are successor employers. Burling- ton Roadbuilders, Inc., 149 NLRB 791. Indeed, we do not read the brief filed by Sinko Division as seriously contesting a successorship finding; the issue as joined is whether as successors, Sinko Division .and MSL can be required to carry out the affirmative provisions of the Board's Order. We think Liberty Electronics Corp., etc., 143 NLRB '605, is dispositive of this issue. In Liberty Electronics, on the same day as the Board issued its Decision and Order finding that respondents (Liberty and Flight) had violated Section 8(a) (1) and (3) of the Act, and ordering them to cease and desist therefrom, and to reinstate employees with back- pay, the General Counsel moved to reopen the record for the purpose .of joining Wyle, purchaser of the Liberty and Flight business, as a party respondent and making the remedial order applicable to Wyle. At the direction of the Board, a further hearing was held in which Wyle participated. One fact developed at the hearing was that Wyle had by contract agreed to assume the debts, liabilities, and obligations arising from Liberty and Flight's 8(a) (3) conduct. Wyle was found to be a successor and the affirmative provisions of the Board's Order -were made applicable to Wyle.4 Wyle had contended, as does Sinko Division here, that it could not be bound by the Board's Order because the procedural requirements of Rule 65 (d) of the Federal Rules Civil Procedure 5 (held applicable to Board orders in Regal Knitwear Com- * As Wyle itself had not violated the Act, it was not ordered to cease and desist from the conduct Liberty and Flight had engaged in . We note that the General Counsel has not requested that the cease -and-desist provisions be made applicable to the successors here. 5Rule 65 ( d) provides : "Every order granting an injunction and every restraining order . . . is binding only upon the parties to the action, their officers, agents , servants, employees, and attorneys , and upon those persons in active concert or participation with them who receive notice of the order by the personal service or otherwise." 1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parry v. N.L.R.B., 324 U.S. 9) had not been met. The Board rejected this contention saying that it was not predicating its decision on a find- ing that Wyle had violated the Act, but on the finding that Wyle was a successor, and "moreover ... Wyle was given due notice of, and fully participated in all the proceedings relating to the issue of whether it is a successor ..." Here, too, Sinko Division has fully participated in these supplementary proceedings. In the circumstances, Sinko Division and MSL are made parties respondent to this proceeding, and we shall amend the Order as requested by the General Counsel.6 AMENDED ORDER Upon the entire record in this case, including the stipulation of facts, and pursuant to Section 10(c) and (d) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent, Sinko Manufacturing and Tool Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Assisting and contributing support to Plastic Workers Union Local 18, I.U.D.T.W., AFL-CIO, or to any other labor organization.. . (b) Recognizing Plastic Workers Union Local 18, I.U.D.T.W.,, AFL-CIO, or any successor thereto, as the representative of its employees for the purpose of dealing with it concerning wages, rates. of pay, hours of employment, or other conditions of employment, unless and until such labor organization shall have been certified by the Board as the exclusive representative of its employees. (c) Giving effect to the collective-bargaining agreement entered into on or about August 30, 1961, or an extension, renewal, or modifi- cation thereof, unless and until Local 18 shall have been certified by the Board as the exclusive bargaining representative of its employees; providing that nothing in this Decision and Order shall require the Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relationship with its employees which the Respondent has established in the performance of such agreement, or to prejudice the assertion by its employees of any rights they may have thereunder. (d) Unlawfully requiring employees to join, or execute checkoff of dues and other moneys to Plastic Workers Union Local 18, I.U.D.T.W., AFL-CIO. 6 Our Order herein is not to be construed as affecting in any manner any rights MSL may have under the purchase agreement to recover moneys it may be required to pay pursuant to the Order issued herein. SINKO MANUFACTURING AND TOOL COMPANY 1479 (e) Encouraging membership in Plastic Workers Union Local 18, I.U.D.T.W., AFL-CIO, in violation of Section 8(a) (3) of the Act. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized by Section 8(a) (3) of the Act, as amended. B. Respondents, Sinko Manufacturing and Tool Company, Sinko. Division of MSL Industries Inc., and MSL Industries Inc., Chicago, Illinois, jointly and severally and their officers, agents, successors, and assigns, shall: 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Plastic Workers. Union Local 18, I.U.D.T.W., AFL-CIO, as the exclusive representa- tive of their employees, unless and until such labor organization shalt have been certified by the Board as such representative. (b) Reimburse all employees for dues and other moneys unlawfully- exacted under their illegal contract with Local 18, together with inter- est at the rate of 6 percent per annum, all in the manner and to the extent set forth in the section of the Board's original Decision and_ Order entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and' all other records necessary to analyze the amount of reimbursement due under the terms of this Amended Order. (d) Post at their plant at Chicago, Illinois, copies of the applicable attached notices marked "Appendix A" and "Appendix B." 7 Copies of said notices, to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of each Respondent, be posted by the respective Respondents immedi- ately on receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to their employees are customarily posted. Reasonable steps. shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. 7In the event that this order is enforced by a decree of a United States Court of" Appeals, there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals , Enforcing and Order". 1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for Region 13, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED, that the complaint herein be, and it hereby is, dismissed in so far as it alleges violations of the Act not found in this Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Supplemental Decision and Amended Order of the National Labor Relations Board, and in order to effectuate the poli- cies of the National, Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT assist or contribute support to Plastic Workers Union Local 18, I.U.D.T.W., AFL-CIO, or to any other labor organization. WE WILL NOT give effect to the collective-bargaining agreement entered into on or about August 30, 1961, with Plastic Workers Union Local 18, I.U.D.T.W., AFL-CIO, or to any extension, renewal, or modification thereof, unless and until Local 18 shall have been certified by the Board as the exclusive bargaining rep- resentative of our employees. WE WILL NOT unlawfully require or coerce employees into becoming members of the above-named organization, or to execute checkoffs. WE WILL withdraw and withhold recognition from the above- named labor organization unless and until such labor organiza- tion shall have been certified by the Board as the exclusive repre- sentative of our employees. WE WILL jointly and severally with MSL Industries, Inc., and Sinko Division of MSL Industries, Inc., reimburse all employees for dues and moneys unlawfully exacted from them with interest thereon at 6 percent per annum. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form, join, or assist any labor organization, including District 50, United Mine Workers of America, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain, or refrain from becoming or remaining members of District 50, United Mine Workers SINKO MANUFACTURING AND TOOL COMPANY 1481 of America, or any other labor organization, except to the extent that such rights may be affected by a valid agreement under Section 8(a) (3) of the National Labor Relations Act, as amended. SINgo MANUFACTURING AND TOOL 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, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7597, if they have any questions concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Supplemental Decision and Amended 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 withdraw and withhold recognition from Plastic Workers Union Local 18, I.U.D.T.W., AFL-CIO, unless and until such labor organization shall have been certified by the Board as the exclusive representative of our employees. WE WILL, jointly and severally with Sinko Manufacturing and Tool Company, reimburse all employees for dues and moneys unlawfully exacted from them with interest thereon at 6 percent per annum. SINgo DIVISION MSL INDUSTRIES, INC., 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, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7597, if they have any questions concerning this notice or compliance with its provisions.