Storack Corp.Download PDFNational Labor Relations Board - Board DecisionsJun 17, 1964147 N.L.R.B. 493 (N.L.R.B. 1964) Copy Citation STORACK CORPORATION 493 the company does not have to pay that if you're union shop ." 4 While there can be no doubt that such threat clearly constitutes interference , restraint , and coercion within the meaning of Section 8(a) (1) of the Act, it must be pointed out that: (1) Chief Operator Miller is now deceased ,5 and (2) in a plant with a complement of 169 em- ployees at the time of the election , this is the sole incident during the ent ire organiza- tional campaign , insofar as the record discloses , that Respondent may be said to have engaged in any conduct proscribed by the Act. Accordingly, in view of the isolated nature of the remark made by a supervisor now deceased , I find that it would not serve any useful purpose to issue a remedial order in this case,6 and I shall there- fore recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Leonard Refineries, Inc., is an employer engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act. 2. Local 7-540, OR, Chemical and Atomic Workers International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Except for the isolated incident found in subparagraph numbered 3 of paragraph III, above, the Respondent has not engaged in any other unfair labor practices as alleged in the complaint. 4. A cease and desist order will not serve any useful purpose in the circumstances of this case. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in this case , it is hereby recommended that the complaint herein be dismissed in its entirety. 4 The credited testimony of Ropp , as corroborated by Batchelder and Davenport. Al- though the Respondent has pointed to some minor variance in the testimony of these em- ployees , I have no doubt , and I find , that the essence of Miller ' s statement on this occasion was essentially that as set out above. s Miller was deceased on November 10, 1963, which was prior to the hearing herein. 9 See Becker & Sons, Inc., 145 NLRB 1788. Storack Corporation and International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths , Forgers and Helpers, AFL-CIO. Case No. 13-CA-5780. June 17, 1964 DECISION AND ORDER On January 23,1964, Trial Examiner Stanley Gilbert issued his De- cision 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 af- firmative actions, as set forth in his attached Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the De- cision with supporting briefs. 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 [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. 147 NLRB No. 164. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the De- cision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.' ORDER Pursuant to Section 10(c) of the National Labor. Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, Storack Corporation, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 The Respondent's request for oral argument is hereby denied as, in our opinion, the record, Including the exceptions and briefs, adequately presents the issues and the posi- tions of the parties. TRIAL EXAMINER'S * DECISION . STATEMENT OF THE CASE Upon a charge filed July 31, 1963, as amended, September 18, 1963, by the In- ternational Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO (hereinafter referred to as the Boilermakers), the complaint herein was issued September 26, 1963. The complaint alleges, in essence, that Storack Corporation (hereinafter referred to as Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, by interrogating its em- ployees concerning the Boilermakers, by refusing to bargain collectively with the Boilermakers as the exclusive bargaining representative of its employees, and by permitting and assisting two officials of Machinery, Scrap Iron, Metal and Steel Chauffeurs, Warehousemen, Handlers, Helpers and Alloy Fabricators Union Local No. 714, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as the Teamsters) to solicit Respond- ent's employees to join the Teamsters in order to undermine and destroy the majority status of the Boilermakers. In its answer Respondent denied said allegations. Pursuant to due notice, a hearing was held in this matter in Chicago, Illinois, on November 4 and 5, 1963, before Trial Examiner Stanley Gilbert. At the close of the hearing, oral argument was waived. Within the time designated therefor, briefs were submitted by General Counsel and Respondent. Upon the entire record herein, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation with its office, plant, and place of business in Evanston, Illinois, is engaged in the manufacture, sale, and distribution of steel stor- age racks and related products. During the year preceding the issuance of the com- plaint, Respondent, in the course and conduct of its, business operations, received at its plant goods and materials valued in excess of $70,000, transported directly from States other than the State of Illinois. During said year, Respondent, in the course and conduct of its business operations, manufactured at said plant and sold products valued in excess of $475,000, of which products valued in excess of $225,000 were shipped from said plant directly to States other than the State of Illinois. As is conceded by Respondent, it is now, and has been at all material times herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. - H. THE LABOR ORGANIZATIONS INVOLVED As is conceded by Respondent, the Boilermakers and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act. W. THE UNFAIR PRACTICES The record discloses few contradictions in the testimony and there is little dispute as to the facts material herein. The findings of fact set forth herein are not in dispute except in those instances which are indicated. STORACK CORPORATION 495 A. Background information and sequence of events Bernard Gordon 1 is president of Respondent, as well as president of another cor- poration, International Gordon Steel Company, which occupies a portion of the same plant as does Respondent. The production and maintenance employees of Interna- tional Gordon Steel are, and have been since 1956, represented by the Teamsters. James Gordon, son of Bernard Gordon, is the secretary and general manager of Respondent. John McNurney 2 is Respondent's plant superintendent. During the period from July 18 to 23, 1963, 16 of the 24 production and main- tenance employees of Respondent signed authorization cards for the Boilermakers. By letter dated July 25, Michael Wood, International representative of the Boiler- makers, wrote a letter to Respondent in which he stated, inter alia, that the Boiler- makers represented a majority of Respondent's production and maintenance em- ployees,3 and requested recognition as their exclusive bargaining representative. The letter further stated that, in the event Respondent had any doubt as to its claim of majority representation, the Boilermakers would be willing to submit signed authorization and membership cards to a neutral third party to substantiate its claim. The letter was received by Respondent on July 26, 1963. The parties entered into the following stipulation: On or about [July] 26, 1963, the Respondent received a request from the union to bargain collectively with respect to rate 'of pay, wages, hours of employment and other terms and conditions of employment, that . on or about that date the Respondent refused to bargain collectively with the union. Early on the morning of July 29, 1963, McNurney learned of the Boilermakers' request for recognition. He testified that he had been on vacation for 2 weeks, and that, when he arrived that morning, James Gordon said to him, "Well, look [what] you come back to, the Boilermakers are trying to organize and the place is in a mess." He also testified that Gordon told him about the letter which had been received from the Boilermakers. Later that morning, McNurney called William Huey, an employee,4 into his office and, in the presence of two foremen, asked him if he had any knowledge of, or had anything to do with, the Boilermakers, to which questions Huey replied in the negative. In the latter part of the morning of July 29, 1963, Bernard Gordon summoned McNurney to his office and introduced him to two, representatives of the Teamsters who were in his office. Gordon admitted that the Boilermakers' letter requesting recognition was "one of the things that prompted", him to invite the Teamster representatives to his office. Out of the presence of the Teamster representatives, Gordon and McNurney held a conversation. They discussed the advisability of having the Teamsters represent Respondent's employees instead of the Boilermakers. According to Gordon's testimony he suggested that, since the Teamsters represented International Gorden Steel Company employees in the same building, "It might be more feasible to have better harmony throughout the plant that the shop discuss with the Teamsters Union whether they wanted to consider them instead of the Boil- ermakers Union." According to McNurney, Gordon asked him, "As long as the Boilermakers are trying to get in . . . should we see . . . if they [the Teamsters] would want to solicit the plant?" To continue with McNurney's testimony, "It was decided that we would take these gentlemen [the Teamster representatives] around the plant and introduce them to the employees." McNurney escorted them around the plant and introduced them to "almost all" of the employees individually. The representatives talked to the employees individually and solicited their signatures on authorization cards. Considerable testimony was introduced as to how the introductions were effected and where McNurney was during the course of the conversations between the Team- ster representatives and each of the employees. It appears that in most instances employees were interrupted at their work . It also appears that McNurney introduced 1 Referred to in the transcript as Bernhardt Gordon. 3 Referred to in a portion of the transcript as John Mclnerny. 8 Respondent admitted in its answer that its production and maintenance employees con- stituted an appropriate unit for the purposes of collective bargaining, and stipulated the names of the 24 employees who were in the unit for the period from July 16 through and including July 26, 1963. A All persons referred to herein as employees were employees of Respondent during the period material to the factual issues litigated herein and were within the aforesaid unit. 496 DECISIONS OF NATIONAL LABOR RELATION S BOARD the representatives as officials of the Teamsters and stated that the representatives wanted to talk to them. It further appears that, in some instances, McNurney walked away and, in other instances, he remained sufficiently close to hear the conversations. Some of the employees testified to statements made by McNurney in addition to an introduction of the Teamster representatives. Employee Jerry Underwood testified that, after the introduction, McNurney said to the representatives, "There he is boys, give him the works," and that McNurney also stated, "We have been trying to get the Teamsters Union in here for the last couple of years or so." Employees Charles Jones, Archie Watson, and Okey McClanahan testified to similar statements by McNurney with respect to trying to get the Teamsters in for 2 years. Although Mc- Nurney denied that he made any statement to the effect that the Respondent wanted to get the Union in for 2 years, I do not credit his denial, in view of the fact that four employees testified to such statements, and in view of the obvious desire on the part of Bernard Gordon and McNurney to have the Teamsters, instead of the Boiler- makers, as the bargaining representative of Respondent's employees. Employee William Malone testified, without contradiction, that McNurney told him to stop work and talk to the Teamsters; that, when he replied that he did not have time because he was behind in his work, McNurney said, "Well, take time off and talk to them anyway"; and that, when he replied that he was not interested, McNurney said, "Listen to the arguments . . they give a good argument." In the early part of the afternoon of the same day, July 29, 1963, Wood called James Gordon and sought an answer to the Boilermarkers' request for recognition. Since it was stipulated that Respondent refused to recognize the Boilermakers, it does not appear necessary to evaluate the details of the testimony with respect to their telephone conversation. It appears that in the course of their conversation Gordon indicated that he doubted the Boilermakers represented a majority of the employees and that Respondent would require an election as proof thereof. According to Supervisor Howard Graves' testimony which was not contradicted by McNurney, Graves stated to McNurney "on or about July 29" that "the Union [the Boilermakers] is in and I don't think there is any way I can stop it," and MeNurney replied that "they will not get in here . the Labor Board is not going to get them in here and the Union is not going to get them in here." B. Concluding findings The record clearly demonstrates that, as of July 26, 1963, the date when Respond- ent received the Boilermakers' letter requesting recognition, the Boilermakers did, in fact, represent a majority of Respondent's production and maintenance employees. Respondent took no action with respect to said letter on that date. The next workday was a Monday, July 29. On the morning of July 29, Respondent asked the Team- sters to organize its employees, and assisted the organizational efforts of the Teamster representatives through its plant manager McNurney, who admittedly introduced the Teamster officials to "almost all" of the employees. McNumey's conduct and statements in introducing the Teamster officials clearly indicated to the employees Respondent's preference for the Teamsters. Patently, Respondent was attempting to undermine the majority status which the Boilermakers claimed. Later that day when Wood called James Gordon to ascertain Respondent's position with respect to the Boilermakers' request for recognition, he was informed by James Gordon that the Respondent doubted its majority status and would require an election, rather than a card check, as proof of majority status. There is nothing in the record to indicate upon what factor or factors Respondent based a doubt of the Boilermakers ' claim, or reasonably could have based such doubt. Respondent contends, in essence , that it is not an unfair labor practice for an employer to require an election as proof of majority status. However, it is well established that while an employer may in good faith insist on a Board election as proof of a union's claim of majority status, it unlawfully. refuses to bargain if its insistence on such an election is motivated, not by a bona fide doubt as to the union's majority, but rather by the desire to gain time in which to undermine the union.5 Not only is there nothing in the record from which it may be inferred that Respondent had a good-faith doubt of the Boilermakers' majority status, but, on the contrary, the existence of a good-faith doubt is negated by the invitation extended to the Team- ster representatives to organize its employees and by McNurney's assistance of the Teamster representatives in soliciting the employees, which invitation and assistance constituted interference and coercion within the meaning of Section 8(a)( I) of the 5 See, e.g., Joy Silk Mills, Inc., 85 NLRB 1263, and Peterson Brothers, Inc., 144 NLRB 679. STORACK CORPORATION 497 Act. Salmirs Oil Company, 139 NLRB 25, 26. The Teamster representatives were introduced to the various employees and were permitted .to solicit them in the plant, apparently , in all instances but one , on company time..' Respondent 's preference for the Teamsters was made evident to the employees at the-time by McNurney . Further- more, in a number of instances , McNurney remained in ,a position to listen to the conversation between the Teamster representatives and the employee which must have reasonably added to the coercive effect on such employees . McNurney's con- duct did not constitute merely an expression of opinion within the meaning of Section 8(c) of the Act and a permissive act of courtesy to the Teamsters, as contended by Respondent.. This course of conduct , which was obviously designed to induce employees to transfer their adherence from the Boilermakers to the Teamsters , demonstrates that Respondent 's refusal to bargain with the Boilermakers and insistence upon an elec- tion were not motivated by a good -faith doubt of the Boilermakers ' majority status, but rather by the desire to gain time to undermine its majority status. Therefore, I conclude that Respondent unlawfully refused to bargain with the Boilermakers within the 'meaning of Section 8(a) (5) and ( 1) of the Act. It is alleged in the complaint that . Respondent engaged in unlawful interrogation of its employees . The record discloses interrogation of only one employee , William Huey, and that , in the- course of McNurney 's interrogation of him , there were no threats or promises of benefits uttered . It is my opinion that the interrogation of Huey should be evaluated in the context of the subsequent conduct of McNurney in assisting the Teamster representatives to solicit Huey and the other employees. Questioning him in an executive office in the presence of two other supervisors and McNurney's assistance of the Teamster representatives in soliciting , him and the other employees shortly after the interrogation tended to make such interrogation coercive within the meaning of Section 8 ( a) (1) of the Act. Although it was not alleged in the complaint , nor referred to in General Counsel's brief as constituting a violation of the Act, an incident was litigated involving a' threatening statement made by 'McNumey to three employees . Jones testified that McNurney stated to him and two other employees on July 29, "The fellows that signed these union cards, were stupid . There will - be no . more long weekends 6 And that's out." In his direct examination , counsel for Respondent questioned McNurney . with- respect to this statement . While he testified that he did not recall making the statement , he admitted ,, when questioned by the Trial Examiner, that it is possible that-he did: Therefore , I credit Jones ' testimony. McNurney 's state- ment, to my mind, constituted a threat to take away from the employees'the privilege of "long weekends" because of their adherence to the •Boilermakers , in violation of Section 8 (a) (1') of the Act. IV. THE ' EFFECT OF THE UNFAIR LABOR PRACTICES - UPON COMMERCE • The activities of the Respondent as set forth in section III, above ; occurring in connection with the operations of 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 thereof. V. THE REMEDY Iii view of the findings detailed above that Respondent engaged in unfair labor' practices, I shall recommend that Respondent be, required to cease and desist from such unfair labor practices , and take certain affirmative action designed to effectuate the policies of the Act. In its , brief Respondent urges that its "conduct was not so reprehensible as to- warrant 'imposition of the extreme xemedy [apparently that of ordering recognition of, and directing • Respondent to bargain with, the Boilermakers ]," but that, instead; a representation election should be ordered . It is pointed out that a number of the' employees who signed authorization cards for the Boilermakers are no longer in the ' employ of ' Resporident , and it is argued , "Even if the , Company's conduct did at some point cross ' the threshold from the privileged to the illegal, its technical breach-of conduct was not so condemnable as to warrant imposition of an unwanted 'union on the present employees merely for the sake of penalizing the Company." e Jones defined "long weekends" as follows: "'That's when a holiday comes on like Fri- day. We work that Saturday before so we can get off Friday , Saturday , and' Sunday, something like that." ' 756-236-65-vol. 147--33 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inasmuch as it was clearly demonstrated that the Boilermakers did represent. a majority of the employees at the time of its request for recognition and prior to the commission of the unfair labor practices found herein, it appears appropriate to recommend that Respondent recognize and bargain with the Boilermakers, in order to effectuate the purpose of the Act by achieving "a restoration of the situation, as nearly as possible to that which would have obtained but for the commission of the unfair labor practices." Greystone Knitwear Corp. and Donwood, Ltd., 136 NLRB 573, 575.'- Not-to order Respondent to recognize and bargain with the-Boiler- makers would enable Respondent. to profit by its unfair labor practices, a result which, to my mind,. outweighs the effect of the possibility that the Boilermakers might not be the choice of the employees, if an election were now conducted. In addition, Respondent's unfair labor practices might very well have adversely affected the freedom of choice of the present employees. Respondent's unfair labor prac- tices were more than merely "technical" violations, as Respondent contends in its brief. In view of the nature of the unfair labor practices which I have found to have, been committed, I shall recommend that Respondent be required to-cease and desist from interfering in any way with employees' rights, protected under Section 7 of the Act. On the basis of the foregoing findings of facts, and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of the Act. 2. The Boilermakers and the Teamsters are labor organizations within the meaning of .the Act. 3. All production and maintenance employees of Respondent, excluding office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of the Act. 4. At all times since July 26, 1963, the Boilermakers Union has been, and now is, the exclusive' representative of all the employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of the Act. 5. By refusing to recognize and bargain with the Boilermakers on and after July 26, 1963, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 6. By interrogating an employee with respect to his sentiments toward, and activities with respect to, the Boilermakers , by threatening its employees with loss of privileges because of their adherence to the Boilermakers, and by inviting the Teamsters to organize its employees and assisting Teamster representatives in their organizational efforts in an attempt to undermine the majority status of the Boiler- makers, Respondent has' engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. RECOMMENDED ORDER Upon the entire record herein , and pursuant to Section 10(c) of the Act, as amended , it is hereby ordered that Storack Corporation, the Respondent , and its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively concerning wages , hours, and other terms and conditions of employment with International Brotherhood of Boiler- makers , Iron Shipbuilders, Blacksmiths , Forgers and Helpers, AFL-CIO, as ..the exclusive representative of all its employees in the following appropriate unit: A11I production and maintenance employees , exclusive of all office clerical employees, guards; and supervisors as defined by the Act. (b) Interfering with , restraining , and coercing its employees in the exercise of. their rights guaranteed in Section 7 of the Act by unlawful interrogation , by threats of economic reprisal for union activity , and by unlawful assistance of a labor organi- zation in the solicitation of its employees for membership. (c) In any other manner interfering with, restraining, and coercing its employees in the exercise of the right to self-organization , to form labor organizations , to join or assist the above-named Union , or any other labor organization , to bargain col- lectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid -or protection , or to refrain from any and all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor orga- nization as a condition of employment , as authorized in Section 8(a) (3) of the Act, as amended. STORACK CORPORATION 499 2. Take the following affirmative action.to effectuate the policies of the Act. (a) Upon request, bargain collectively with the above-named Union as the ex- clusive representative of employees in the above-described unit. (b) Post at its plant, in Evanston, Illinois, copies of the attached notice marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after having been duly signed by Respondent's rep- resentative, be posted by Respondent immediately upon receipt thereof, and be main- tained by it for a period of at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable 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 Thirteenth Region, in writing, within 20 days from the receipt of this Recommended Order, what steps the Respondent 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 enforced 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." I 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 Relations Act, we hereby notify our employees that: WE WILL, upon request, bargain collectively with International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL- CIO, as the exclusive representative of all production and maintenance em- ployees with respect to wages, hours, and other terms and conditions of employ- ment, and, if agreement is reached, we will embody it in a signed agreement. Excluded from the bargaining unit are office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT unlawfully interrogate our employees concerning, or threaten our employees with reprisal because of, their adherence to the' above-named Union, or any-other labor organization. WE WILL NOT unlawfully assist any ' labor organization to solicit our em- ployees for membership. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organi- zations, to join or assist the abovenamed Union, or any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. STORACK CORPORATION, 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, Midland Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Copy with citationCopy as parenthetical citation