Sundstrand Heat Transfer, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1975

221 N.L.R.B. 544 (N.L.R.B. 1975)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sundstrand Heat Transfer , Inc. (Triangle , Division)
and, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW. Cases 16-CA-5356, 16-CA-5556,
and 16-CA-5751
November 20, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On May 12, 1975, Administrative Law Judge Ivar
H. Peterson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions to the Administrative Law Judge's Deci-
sion and a ,brief in support of the Decision and in
support of exceptions. The Charging Party also filed
exceptions and a supporting brief, and the Respon-
dent filed "cross-exceptions" and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
We agree with the Administrative Law Judge that
the Respondent violated Section 8(a)(1) of the Act by
threatening employees with closure of the plant,
discharge, or other reprisals because they engaged in
protected union activity, and by interrogating em-
ployees concerning their union membership, sympa-
thies, or activities. We also agree with his finding that
the Respondent violated Section 8(a)(3) of the Act by
refusing to allow two laid-off employees to exercise
their bumping rights.' Also in agreement with the
Administrative Law Judge, we find that the Respon-
dent violated Section 8(a)(5) of the Act by refusing to
furnish the Union with certain information about
laid-off employees, and by failing to bargain with the
Union over the effects of the April layoffs. In
disagreement with the Administrative Law Judge,
however, we fmd that the Respondent did not violate
Section 8(a)(5) of the Act by unilaterally contracting
out certain janitorial work. Since the plant involved
herein was closed on November 27, 1974, a fact
which was not noted by the Administrative Law
Judge, and since the Administrative Law Judge's
i Hall, one of the two employees involved in this incident, was
inadvertently laid off on April 19, 1974. After learning of the error, Hall
asked the personnel manager if she could be allowed to have her collective-
bargaining representative present when she spoke to officials of the
Respondent . This request was refused She was reemployed on April 24, but
was laid off again on April 30.
221 NLRB No. 111
Decision is deficient in certain respects, we have
prepared an Order and notice to be substituted for
the ones prepared by him.
The Union's initial request, for bargaining and
recognition, was made upon the Respondent on
August 31, 1973. Upon receipt of this request, the
Respondent directed the Union to the Board.
Subsequently, a petition was filed and an election
was conducted on November 8, 1973. As a result of
certain objections to the conduct of that election and
certain unfair labor practice charges, the parties
agreed to set aside that election and to conduct a
second election. The second election, which was
conducted on April 18, 1974,2 resulted in a union
victory. Thereafter, the Respondent filed timely
objections to conduct affecting the results of the
election.
On April 19, the day following the election,
Respondent, without notifying the Union, instituted
the first of three layoffs. The second and third layoffs
were effectuated on April 26 and April 30, respective-
ly, and were directed primarily at employees in the
feeder parts department.
On April 30, the Union requested that the
Respondent furnish it with certain information in
order to consider what position it should take
concerning bargaining with the Respondent over the
effects of the layoff on bargaining unit employees.3
No response was made by the Respondent to the
Union's request for information. According to the
Respondent, it did not respond to the request
because the Union had not yet been certified and it
did not wish to risk waiving its pending objection to
that certification.
Following the Union's certification by the Board
on September 16, the Union, on September 18,
renewed its earlier request for information and
coupled it with a demand for bargaining. In response
to the Union's demands, the Respondent furnished
the requested information and agreed to meet with
the Union for the purpose of conducting certain
collective-bargaining sessions. Prior to the first
bargaining session, however, which was scheduled
for October 23, the Respondent, by letter dated
October 17, informed the Union that it had decided
to close the Jacksonville facility. Subsequently, three
bargaining sessions were held on October 23 and 30
and November 18. The discussions at those sessions
focused primarily on the effects of the total closure of
the plant rather than on the effects of the April
layoffs.
2 Except as otherwise noted, all dates herein are in 1974.
3 In its letter dated April 30, 1974, the Union simply stated that the
information was necessary "so we may properly advise those individuals
with respect to the lay-off notice you issued to them beginning on April 19,
1974 "
SUNDSTRAND HEAT TRANSFER, INC. 545
As a result of the bargaining sessions referred to
above, a number of agreements were reached
between the parties. Specifically, Respondent agreed
to add the employees laid off in April to the seniority
list of employees eligible for recall and, to pay them
severance pay on the same basis as all other
employees.
It is undisputed that following the union victory on
April 18, the Respondent, without notifying the
Union, contracted out some unit work of a janitorial
nature .4 The work consisted primarily of cleaning the
washrooms and the offices. Respondent contends
that the work in question had been performed by an
employee who had recently quit, and, that prior to
contracting the work out, it recalled at least two laid-
off employees to do the work but that each refused
the janitorial assignment and chose instead to be
terminated. Faced with the problem of unsanitary
conditions in the washrooms, Respondent reached
an agreement with the janitorial service already
employed by it for janitorial services .5 No evidence
was presented to show that the contracting out of the
janitorial work in question adversely affected the
employment of any unit employee or that any unit
employee was interested in performing the work.
As recently stated in Mike O'Connor Chevrolet:6
The Board has long held that, absent compel-
ling economic considerations for doing so, an
employer acts at its peril in making changes in
terms and conditions of employment during the
period that objections to an election are pending
and the final determination has not yet been
made. And where the final determination on, the
objections results in the certification of a repre-
sentative, the Board has held the employer to
have violated Section 8(a)(5) and (1) for having
made such unilateral changes. Such changes have
the effect of bypassing, undercutting, and under-
mining the union's status as the statutory repre-
sentative of the employees in the event a
certification is issued. To hold otherwise would
allow an employer to box the union in on future
bargaining positions by implementing changes of
policy and practice during the period when
objections or determinative challenges'' to the
election are pending. Accordingly, since' we have
already determined in this case that the Union
should be certified, we find, contrary to the
Administrative' Law Judge, that Respondent was
not free to make changes in terms and conditions
4 ,Prior to the April 18 election , the Respondent had historically been
contracting out certain janitorial work , including the scrubbing and waxing
of certain floors, which cost the Respondent approximately $60 per month.
5 This additional work , which was contracted out in June, increased the
cost , to the Respondent from about $60 per month to approximately $150
per month.
of employment during, the pendency of postelec-
tion objections and challenges without first
consulting with the Union. ,
Based on the principles set forth in the above-
quoted language, we find, in agreement with the
Administrative Law Judge, an 8(a)(5) refusal to
bargain herein in the failure to notify the Union
concerning layoffs and the refusal to, furnish it with
information requested on April 30 about laid; off
employees, as well as the failure to bargain over the
effects of the April layoffs. The fact that the
Respondent did bargain following its October 17
decision to close down the Jacksonville facility-the
Union in the meantime having been certified on
September 16-and then agreed to put those affected
by the layoffs, which was in effect a partial plant
closure, on a recall list and give them severance pay,
in no way absolves Respondent of its clear disregard
of its duty to consult with the Union during the
pendency of its objections.
The remedy for such disregard, as the General
Counsel and the Union contend, is to order backpay
for'the affected employees from the respective dates
of the April layoffs until the date on' which
Respondent placed them on a recall list and granted
them severance pay.7 This remedy is particularly
appropriate in the context here. Respondent threat-
ened that if the Union came in it would close the
department where, in, fact, the layoffs later occurred;
two laid-off employees were prevented by the
Respondent from exercising their bumping rights;
and one of 'the latter was denied the right to be
represented by her union representative when she
met with the Respondent on April 23 to discuss the
effects of her layoff It is quite clear that for a matter
of months the employees were improperly' denied
union representation by the Respondent.
With regard to the General Counsel's contention
that Respondent Violated Section 8(a)(5) of Ithe' Act
by unilaterally contracting out certain janitorial
work, we take note of the fact that the work
subcontracted was de minimis and was work that unit
employees did not wish to perform; that the
subcontracting was undertaken to maintain healthful
and sanitary conditions; that the subcontracting in
question was merely an extension of a historical
pattern of subcontracting this type of work; and 'that
no unit employee suffered reduction of hours or was
in any way adversely affected as a result of the action
taken.
6 Mike O'Connor Chevrolet-Buick-GMC Co., Inc., and Pat O'Connor
Chevrolet-Buick-GMC Co., Inc, 209 NLRB 701, 703 (1974).
7 See, for example , Drapery Manufacturing Co, Inc., and American White
Goods Company, 170 NLRB 1706'( 1968), enfd . in pertinent part 425 F.2d
1026 (C.A. 8, 1970).
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Schien Body and Equipment Co., Inc.,8 the Board
dismissed an 8(a)(5) allegation concerning the unilat-
eral subcontracting of unit work following an
election but prior to certification based on "all the
facts and circumstances " in that case, including the
fact that subcontracting did not result in a significant
detriment to unit employees . In the instant case, we
similarly conclude , based on all the facts and
circumstances as presented above, that the Respon-
dent did not violate Section 8(a)(5) of the Act by
unilaterally subcontracting out certain janitorial
work. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations -Board hereby orders that the Respondent,
Sundstrand Heat Transfer, Inc. (Triangle Division),
Rockford, Illinois,9 its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with closure of the
plant, discharge, or other reprisals because they
engaged in protected union activity.
(b) Interrogating employees concerning their union
membership, sympathies, or activities.
(c) Discouraging membership in International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers, of America, UAW, or any
other labor organization, by discharging employees,
or in any other manner discriminating against any
employee in regard to hire, tenure, or any other term
or condition of employment.
(d) Failing to notify the Union concerning the
April layoffs and refusing to furnish the Union with
information requested about the laid-off Employees.
(e) Refusing to bargain in good faith with Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW,
concerning wages, hours, and other conditions of
employment of its employees, including the effect on
its employees of the April layoffs.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Make Dorothy Fuller and Bennie Ruth Hall
whole for any loss of earnings that they may have
suffered by reason of the discrimination against them
and place their names on a preferential hiring list,
offering'them reinstatement in the event that opera-
tions in the Jacksonville area are resumed.
(b) Make whole employees laid off in April for any
loss of pay they may have suffered. Backpay shall
run from the respective dates of the April layoff until
the date on which Respondent placed them on a
recall list and granted them severance pay. Backpay
shall be based upon the earnings which the terminat-
ed employees would normally have received in the
applicable period, less any net interim earnings, and
shall be computed on a quarterly basis in the manner
set forth in F. W. Woolworth Company,90 NLRB 289
(1950); N.L.R.B. v. Seven-Up Bottling Company of
Miami, Inc., 344 U.S. 344 (1953); with interest
thereon, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
(c) Upon request, bargain in good faith with
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
UAW, concerning wages, hours, and other condi-
tions of employment of its employees.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Mail a copy of the notice attached hereto and
marked "Appendix" 10 to International Union, Unit-
ed Automobile, Aerospace and Agricultural-Imple-
ment , Workers of America, UAW, and, to all
individuals who were employees within the meaning
of the Act at the Jacksonville plant during the time
period in which the unfair labor practices were
committed. Copies of said notice, on forms provided
by the Regional Director for Region 16, after being
duly -signed by Phillip Polygreen, if available, or, if
not, by another authorized representative of the
Respondent, shall be mailed immediately upon
receipt thereof as herein directed.
(f) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER PENELLO, dissenting in part:
For the reasons discussed below, I dissent from the
majority's finding that Respondent violated Section
8(a)(5) of the Act by refusing to furnish the Union
with certain information about laid-off employees,
and by failing to bargain with the Union over the
effects of the April layoffs.
s 216 NLRB No. 15 (1975). 10 In the event that this Order is enforced by a Judgment of a United
s The Jacksonville facility was closed on November 27 and all employees States Court of Appeals, the words in the notice reading "Posted by Order
were laid off Since the plant remains closed at this time, we shall not order of the National Labor Relations Board" shall read "Posted Pursuant to a
reinstatement nor shall we require the posting of a notice at the Jacksonville Judgment of the United States Court of Appeals Enforcing an'Order of the
facility. However, we shall order the mailing of notices National Labor Relations Board "
SUNDSTRAND HEAT TRANSFER, INC. 547
Following the Union's victory in the election
conducted on April 18, 1974, the Respondent filed
timely objections to conduct affecting the results of
the election." On April 19, the day after the election,
Respondent, without notification to the Union,
instituted the first of three layoffs, the subsequent
ones taking place- on April 26 and April 30,
respectively. These layoffs, which affected some 87
employees, were precipitated by a sudden and drastic
reduction in the Respondent's business volume. The
principal reason for the Respondent's economic
downturn was that its major customer, Volkswagen,
canceled virtually all of its business, even including
goods already in production and scheduled for final
shipment within 2 to 3 weeks. The bulk of these
cancellations were received from April 9 through
April 18.12 By letter, dated April 30 (before the
Union was certified and while the aforesaid objec-
tions to the election were pending), the Union
requested certain information in order to properly
advise laid-off employees with respect to the layoff
notices issued to them beginning on April 19. No
response was made to the Union's request for
information by the Respondent, presumably because
the Union had not 'yet been ' certified and the
Respondent did not wish to waive its pending
objection to that certification.
Following the Union's certification by the Board
on September 16; the Union again requested infor-
mation and sought tobargainwith the Respondent. As
noted by the majority, the Respondent agreed at that
time to the Union's demands by supplying the
information sought and by scheduling three bargain-
ing, sessions with the Union. On October 17, and
prior to the first bargaining session which was
scheduled for October 23, Respondent informed the
Union of its decision to close the Jacksonville
facility. Subsequently, the October 23 bargaining
session and two -others took place. As noted by the
majority, the discussions at those meetings were
primarily concerned with the total closure of the
plant-rather than with the effects of the April layoffs.
It does not appear, however, that the Respondent
limited, in any way, the scope of the negotiations.13
On the contrary, it appears that the Union consid-
11 The General Counsel does not contend that the Respondent's
objections were frivolous or that they failed to present a substantial issue.
12 The Regional Director refused to issue a complaint based upon that
portion of the 8(a)(1), (3), and (5) charge filed by the Union on May 3, 1974,
which alleged that the Respondent on or about April 19, 1974, laid off
approximately 87 employees because they engaged in union and/or
protected activity In denying the Union 's appeal from the above action
taken by the Regional Director , the Office of Appeals pointed out that the
Respondent, in support of its economic defense , ".submitted a list of
canceled purchase orders which, after corroboration as to their accuracy by
the Volkswagen purchasing agent in Fort Worth , Texas , confirmed the
Employer's position that the layoffs were economically motivated and
justified."
13 Phillip Polygreen , Respondent's negotiator , advised the Union during
ered the April layoffs to be a moot issue and decided,
in view of the Respondent's recent decision to close
the plant, to concentrate on the effects of that
decision.
During the course of the three bargaining sessions,
a number of agreements were reached by the parties.
Specifically, Respondent agreed to add to the list of
eligible employees the names of those employees laid
off in April and to pay them severance pay on the
same basis as all other employees.14
At the outset, there seems to be some doubt as to
whether the Union's letter to the Respondent, dated
April 30, constituted a request to bargain over the
effects of the April layoffs or whether it was simply a
request for information. Even assuming that the
Union's letter constituted such a request for bargain-
ing, I am still unable to conclude that Respondent
violated Section 8(a)(5) of the Act as alleged by the
General Counsel.
In finding that Respondent violated Section 8(a)(5)
of the Act, my colleagues rely on the Decision in
Mike O'Connor Chevrolet.15 There, the Board held
that "absent compelling economic considerations for
doing so, an employer acts at its peril in making
changes in terms and conditions of employment
during the period that objections to an election are
pending and the final determination has not yet been
made." In the instant case, the General Counsel does
not contend that the Respondent had a duty to
bargain over its decision to institute the April layoffs.
Nor does the General Counsel contend that the
layoffs were discriminatory or that there was a
discriminatory selection of employees for layoff. On
the contrary, both the Regional Director and the
Office of Appeals concluded that the Respondent
had very substantial economic justification for
making the layoffs. Under these circumstances,
where it is clear that "compelling economic consider-
ations" required Respondent to lay off employees, I
find it difficult to understand how my colleagues can
rely on Mike O'Connor Chevrolet in support of their
conclusion that the Respondent violated Section
8(a)(5) and (1) of the Act.16
The above finding by my colleagues is additionally
hard for me to comprehend in view of the events
the bargaining sessions that he was willing to discuss any subject that the
Union wished to discuss
14 Under the Respondent's company policy in effect prior to bargaining,
most of the employees laid off in April would have lost all seniority and
would not have been eligible for recall In addition, none would have been
eligible for severance pay.
15 209 NLRB 701, 703 (1974).
16 My view herein with respect to an employer's obligation to bargain
with a noncertified union at a time when objections to that union's
certification are pending does not apply when there is a certified bargaining
representative on the scene. See Santee River Woo[ Combing Company, Inc,
221 NLRB 129 (1975), and Santee River Wool Combing Company, Inc,
221 NLRB 108 (1975).
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which took place following the Union's certification.
The record shows that the Respondent not only
furnished the requested information but also agreed
to discuss anything that the Union wished to pursue.
During the course of the three bargaining sessions
which, took place following certification, it was,the
Union and not the Respondent that avoided bargain-
ing over the effects of the April layoffs, presumably
because the Union believed the layoffs to be a moot
issue. Respondent's good faith during the bargaining
sessions is evidenced by the agreements reached
which benefited the employees laid off during the
preceding April.
Accordingly, I would dismiss the alleged 8(a)(5)
violation discussed herein but would approve the
majority decision in all other respects.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act, and
has ordered us to post this notice.
WE WILL NOT threaten employees with closure
of the plant, discharge, or other reprisals because
they engaged in protected union activity.
WE WILL NOT interrogate employees concern-
ing their union membership, sympathies, or
activities.
WE WILL NOT discourage membership in
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, UAW, or any other labor organization,
by discharging employees, or in any other manner
discriminating against any employee in regard to
hire, tenure, or' any other term or condition of
employment.
WE WILL NOT fail to notify the Umon concern-
ing layoffs and will not refuse to furnish the
Union with information requested about laid-off
employees.
WE WILL NOT refuse to bargain in good faith
with International Union, United Automobile,
Aerospace and Agricultural Implement Workers
of America, UAW, concerning wages, hours, and
other conditions of employment, including the
effect on its employees of the April layoffs.
1 The original and first amended charge in Case 16-CA-5356 were filed
on November 20, 1973, and January 21, 1974, respectively, the charge in
Case 16-CA-5556 was filed on May 3, 1974, and the original and first
WE WILL NOT in other manner interfere with,
restrain, or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL make Dorothy Fuller and Bennie
Ruth Hall whole for any loss of earnings that they
may have suffered by reason of the discrimination
against them and place their names on a preferen-
tial hiring list, offering them reinstatement in the
event that operations in the Jacksonville area are
resumed.
WE WILL make whole employees laid off in
April for any loss of pay they may have suffered
as a result of our failure and refusal to bargain
with the aforenamed Union concerning wages,
hours, and other conditions of employment.
SUNDSTRAND HEAT
TRANSFER, INC.
(TRIANGLE DIVISION)
DECISION
STATEMENT OF THE CASE
IvAR H. PETERSON, Administrative Law Judge: I heard
this consolidated proceeding in'Tyler, Texas, on February
25 and 26, on a charge, subsequently amended, filed by
International Umon, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW,
herein called - the, Union, and the complaint issued,,on
December 11, by the Regional Director for Region, 16.1
Briefly stated, the consolidated complaint alleged that the
Respondent, by various acts of named supervisors,
engaged in conduct violative of Section 8(a)(1) of the Act;
that the Respondent failed and refused to consider two
employees for another job, following layoff, because they
had joined or assisted the Union , or engaged, in other
protected activities; and that the Respondent refused to
bargain with the Union =on behalf of the employees in an
appropriate bargaining unit , or to furnish the Union with
information concerning the employees in the unit. In
addition, the complaint alleged that on January 29, 1974,
the Respondent and the Union executed a settlement
agreement in Case 16-CA-5356, which was approved by
the Regional Director on February 15, in which the
Respondent undertook not, to threaten to deny or withhold
benefits from employees or discourage membership in the
Umon, not to threaten to close the plant if the Union won
an election, or in any, other manner interfere with the
Section 7 rights of employees. The complaint further
alleged that because of the foregoing conduct, which was
violative of 'the settlement agreement, the Regional
Director, by letter dated July 23, set aside the agreement.
Finally, the complaint alleged that the foregoing' conduct
was violative of Section 8(a)(1), (3), and (5) of the Act. In
its answer dated December 19, the Respondent admitted
amended charge in Case 16-CA-5571 were filed on September 16 and 27,
respectively.
SUNDSTRAND HEAT TRANSFER, INC. 549
certain jurisdictional allegations but denied the commis-
sion of any unfair labor practices.
Upon the entire record in the case, and from my
observation of the witnesses as they testified and careful
consideration of the briefs filed with me by counsel for the
Union, the General Counsel and the Respondent pursuant
to an extension of time, on or about April 14,2 1 make the
following:
Mr. Cook November 6 and 7, 1973
Mr. Gibbard November 7, 1973
The complaint further alleged that the following supervi-
sory individuals, on the dates indicated, made similar
threats to employees:
Randy McCleod November 6, 1973
Mr. Cook November 7, 1973
Mr. Gibbard November 7, 1973FINDINGS OF FACT
1. JURISDICTION
The Respondent, a Delaware corporation, maintains an
office and place of business at Jacksonville, Texas, where it
is engaged in.the manufacture of heat transfer equipment
and related products. The Respondent admits and I find
that during the 12 months preceding the issuance of the
complaint the Respondent, in the course of its business
operations , purchased, transferred, and delivered to its
Jacksonville plant from States other than the State of Texas
goods and materials valued in excess of $50,000. Further,
the Respondent admits that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act. I so find.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The complaint alleged that the following persons held
the positions indicated opposite their names:
Duke Chandler Plant Superintendent
James DeChant General Manager
Mike Hawkes Personnel Manager
Irma Hardy Warehouse Supervisor
Mr. Gibbard Supervisor
Doug Barnes Supervisor
Red Bell Foreman
Randy McCleod Foreman
Mr. Cook Foreman
In its answer, the Respondent admitted these allegations
except it stated that Hardy held the position of purchasing
agent, that Gibbard was an agent but not a supervisor, and
that none of.the individuals named, except DeChant, at the
time of the answer, were agents or supervisors of the
Respondent at the Jacksonville facility. The complaint
alleged that the following agents and supervisors, on or
about the date set, opposite their names, orally threatened
its employees with plant closure if they became or
remained members of the Union or gave it any assistance
or support:
Red Bell November 6, 1973
Randy McCleod November 6 and 7, 1973
2 On April 18 , 1 received a letter from Respondent's counsel , copies of
which were indicated as having been sent other counsel , stating that
General Counsel's brief contained certain' factual errors On April 24, I
received from counsel for the General Counsel a motion to strike what he
termed the Respondent 's "reply brief' as not having been granted leave to
Doug Barnes April 17, 1974
Irma Hardy April 17 and 18, 1974
James DeChant April 17, 1974
In addition, the complaint stated that, on or about April
19, Chandler attributed a layoff to the Union and its
victory in a representation election, and that, on or about
November 6, 1973, Supervisor McCleod orally interrogated
employees concerning their union membership, activities,
and desires. The complaint continued by alleging that
about May 7, 1974, the Respondent failed and refused to
consider Dorothy Fuller and Bennie Ruth Hall for another
job, pursuant to the notice following their layoff on April
30, for the reason that these employees joined or assisted
the Union and engaged in other protected activities. The
complaint also alleged that in an election held under the
supervision of the Regional Director, on April 18, a
majority of the employees selected the Union to represent
an appropriate unit consisting of all production and
maintenance employees at the Jacksonville plant, exclud-
ing office clerical and professional employees, watchmen,
guards and supervisors as defined in the Act, and that at all
times since September 16, the Union has been the exclusive
representative of such employees and that, from about
April 19, the Union has sought to bargain with the
Respondent but the latter has refused to bargain collective-
ly in that it refused to furnish the Union with requested
information relating to the employees, which request was
made about April 30, and since that date, has refused to
bargain over the effects of the layoff, and, on or about June
20, without prior notification to or consultation with the
Union, unilaterally contracted out the janitorial service
work formerly performed by the employees in the unit.
On January 29, the Respondent and the Union executed
a settlement agreement in Case 16-CA-5356, which was
approved by the Regional Director on February 15, in
which the Respondent agreed not to threaten to deny or
withhold any benefits in order to discourage, membership
in or assistance to the Union, not to threaten to close the
plant if the Union won an election, and not to interfere
with, restrain, or coerce the employees in the exercise of
their Section 7 rights in any other manner.
Finally, the complaint' alleged that because of the
foregoing violations of the Act, the Regional Director set
aside the settlement agreement by letter dated July 23.
In addition, counsel for the General Counsel contends
that the Respondent "acted at its peril,, during the period
file it and as not being authorized by the Board's rules, and requested that
the document be excluded from the record and consideration, l have read
the letter, of course However, it is hereby directed that it be placed in the
informal file and not be included in, the formal record.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the Union's demonstration of its majority- status
on April 18, 1974, and its ultimate certification on
September 16, 1974, and that Respondent's defense to its
refusal to bargain, i.e., the filing of and pendency of
objections to the April 18, 1974, election, and the filing of
and pendency of unfair labor practice charges against the
Respondent before the Region, present no defense at law."
One factor, which appeared to present some difficulty,
both to myself and, from my observation, to the court
reporter, was the fact that a number of witnesses testified
through an interpreter. However, upon reviewing the
transcript I am pleased to note that it presents no problems
grounded in any alleged language difficulties.
The theory of the General Counsel, as explicated in his
brief, is that this case has its roots in the organizational
activity of the Union, which began during the summer of
1973 and culminated in the first election held on Novem-
ber 8. This election, which by agreement of the parties was
set aside, was followed by a second election on April 18, in
which the Union obtained a majority of the ballots cast
and, as a result, was certified as the exclusive bargaining
representative . The General Counsel contends that during
this organizational period the Respondent committed what
he terms were "serious violations" of Section 8(a)(1) of the
Act, in that the Respondent sought to thwart that
organizational activity. He further asserts that his proof
will show that the Respondent violated Section 8(a)(3) of
the Act, after the Union had demonstrated its majority
status, by refusing to consider for "challenge," pursuant to
notices instituted and issued by the Company, the two
leading union adherents , both of whom were union
observers during the April 18 election; this refusal, so
counsel contends , "was in retaliation for their outspoken
and known union activities and in an attempt to curtail
continuing union support and activity." Finally, counsel
for the General Counsel states that he will show that on
April 18, when the Union achieved majority status, the
Respondent, despite its obligation to bargain with the
Union, committed what he terms as "serious violations of
Section 8(a)(5) of the Act (1) by refusing to furnish the
Union information about its layoffs/closure of April 19,
26, and 30, 1974, so that the Union could perform its duty
of representing the unit employees affected by these
layoffs/closure; (2) by refusing to notify the Union of these
layoffs/closure; (3) by refusing to bargain with them
concerning the effects of these layoffs /closure on unit
employees, and (4) finally, by unilaterally subcontracting
out janitorial work formerly performed by unit employ-
ees."
B. Interference, Restraint, and Coercion
The first activity of an organizational nature began
among the Respondent's employees in August 1973. On
November 7, the day before the first election, Supervisor
Randy McCleod talked with employee Norma Vessels in
the lunchroom. He told her, in the presence of two other
employees in the appropriate unit, that "if the Union won
the election the next day that they would close Feeder
Parts down," adding that the Respondent would have no
choice but "would have to close it." He further stated if
Vessels thought the employees "were being pushed hard
then," they should "wait until the Union came in and we
would really be pushed." Employee Fuller testified that
shortly before the election McCleod spoke to her at her
work station. According to Fuller, he asked her if she
wanted the Union to come in and related that he said if it
did come in the Respondent "would close the plant or
something to that respect." He added that if the Union
came in he would lose his job should organizational
activity extend to his department, and remarked that he
had four girls to feed . McCleod was not called as a witness,
nor was any indication made that he was unavailable. I
credit the testimony of the foregoing employees.
Employee Evelyn Holt, who worked in the Feeder Parts
Department, testified that on November 6, Supervisor J. C.
Cook asked how long she had been working and "if she
liked working there and what she was going to do when it
closed down if the Union" came in, and remarked that if
the employees voted the Union in the Feeder Parts
Department "would be moved out " On the following day,
Cook talked with employee Faye Thirkill in the presence of
other employees in the unit. He told Thirkill that if the
Union came in she "would be the first one out of the door"
and added that in the event of unionization the Feeder
Department "would be shipped out." Cook was not called
as a witness and the foregoing statements attributed to
him, which I credit, are uncontradicted.
James Gibbard, the former plant manager at the
Jacksonville plant and an admitted agent of the Respon-
dent, spoke to a group of employees from 11 to 11:30 a.m.
on November 7, in the lunchroom. He told them, so several
employees testified, that if the Union were voted in the
employees would lose their existing benefits and "would
have to start out from scratch's and, if the Respondent
moved out the Feeder Parts Department, it could do so in
3 days. Gibbard was not called as a witness. Plant Manager
DeChant testified that he was present when Gibbard made
the speech, which he had participated in preparing. He
denied that Gibbard said anything about employee loss of
existing benefits if they voted for the Union but did say
that there was no law requiring the Respondent, "to
continue the existing benefits if the Union won," and that
bargaining "could start from scratch and that benefits
could go up or down." DeChant further denied that
Gibbard said the employees would, not have jobs if the
Union came in but did say that "in the event that it was
unprofitable to produce something in this plant that we
would have to stop producing that and that could mean
people's jobs." DeChant further related that Gibbard
spoke about strikes having occurred at other plants of the
Respondent and, with regard to the testimony attributing
to Gibbard remarks that the Respondent could move the
Feeder Parts Department out in 3 days, DeChant stated
that "what he did say was that if it was unprofitable to
produce Feeder Parts at Triangle, that we could move
Feeder Parts out in 3 days just the way we moved it down
here in 3 days from Dowagiac."
DeChant testified that, starting about April 10, he gave
talks to employees and that "it became apparent at one of
these talks . . . that one or more employees . . . could not
understand English well enough to understand what I was
saying." He thereupon had Irma Hardy, a supervisor, who
SUNDSTRAND HEAT TRANSFER, INC. 551
spoke Spanish, to "take that speech and as best she could,
relay that speech to them in Spanish." Accordingly, for
several days Hardy spoke to employees on the basis of
Gibbard's speech.
There is testimony that, before the second election on
April 18. Supervisors Doug Barnes and Hardy, upon
instructions of Plant Manager DeChant, talked with the
Respondent's Spanish-speaking employees concerning the
election . There is evidence that on April 15, acting on
DeChant's instructions, Hardy called three Spanish-speak-
ing employees, Maria Meza, ,Francisca Villanueva, and
Paula Maldanodo, to the front office, where she explained
to them that DeChant had sent her to talk with them in
Spanish . Hardy asked why the employees wanted the
Union and stated that if the employees voted for the Union
they could lose their jobs. Neither Barnes nor Hardy were
called as witnesses and, therefore, the statements attributed
to them stand uncontroverted. On the day of the election,
Hardy again spoke to employee Meza, in the presence of
Barnes. According to Meza, she spoke,about strikes and
shutdowns in the event the employees voted for the Union
and said that employees, in that eventuality, would lose
their jobs.
On, April 19, the day following the election, the
Respondent made the first of three layoffs of production
employees. The notices of layoff, signed by General
Manager DeChant, which were given to employees Meza,
Wiggins, and Vessels, stated that effective April 19, they
were being laid off "due to a lack of business," and because
each was "one of our least senior employees." They were
further advised that if they felt they could qualify for
positions in classifications in several other departments
and had more seniority than some of the employees .in
those classifications, they should contact the personnel
office. Some employees, including Bertha Reyes and Helen
Armstrong, were somewhat confused by the notice,
particularly with, respect to when they should leave, in
consequence, they asked their immediate supervisor, Cook,
who, after apparently consulting with someone else, told
the employees that they could speak with admitted
Supervisor Duke Chandler in his office. The employees did
so, and inquired of Chandler if they left immediately
instead of working until the end of the shift, whether their
leaving would affect their unemployment. Chandler stated
that they could leave when they wished to and added that
he was giving them an opportunity to work another 8
hours. To this employee Reyes said that she told him that 8
hours "wasn't going to do us any good a week after that or
two weeks later...." As Chandler motioned the employ-
ees out of the office, he stated that they could "blame the
UAW for that." Here again , Chandler was not presented' as
a witness and, in consequence, I credit the testimony of the
employees as set forth above.
C. The Termination of Fuller and Hall
Both of these employees, to the knowledge of the
Respondent , had been active on behalf of the Union. Hall
obtained signed ' cards from other employees, passed out
union literature and attended union meetings , wore union
insignia , and acted as one of the union observers at the
April 18 election. Late in March 1974, Hall as well as other
employees attended a meeting conducted by DeChant.
Following DeChant's speech, Hall, who had not agreed
with some of DeChant's statements, passed out union
literature in the cafeteria. Mayo, Hall's foreman, so she
testified, "came up to me and told me that he had been
called to the office by Mr. DeChant" and stated that she
had gotten him "in trouble," and that she had passed out
literature in the cafeteria and that DeChant asked him if
"he could do better with his employees."
Through error Hall was laid off on April 19, receiving
her layoff notice shortly before the end of the shift from
Foreman Cook who, so she testified, "said that he hoped
this is what I wanted because it was what I deserved... .
At the same time, she also received a termination notice
which indicated she was a satisfactory employee and would
be reemployed. On April 23, Hall was 'contacted by
Personnel Manager Hawkes. When Hall learned that she
had been inadvertently laid off she asked Hawkes that she
be allowed to have her bargaining representative present
when she spoke to officials of the Respondent. However,
Hawkes refused to allow Hall to be accompanied by her
union representative. She was reemployed on April 24.
Hall was again laid off on April 30. ,Neither on that
occasion or her previous layoff was she advised concerning
the "challenge" procedure provided in the layoff notice,
namely, that if she felt that she could qualify for one of
several, positions in other classifications and had more
seniority than some of the employees in those classifica-
tions, she should contact the personnel office. However, on
May 7, Hall endeavored to obtain reemployment pursuant
to the challenge procedure provided in the layoff notice.
She, spoke to Hawkes inquiring if she could challenge for a
job because it was her view that she had more seniority and
better qualifications than some of the remaining employ-
ees. Hawkes stated that the Respondent was not accepting
any more challenges for the reason that such procedure
was taking too much time and costing too much to "move
individuals around from one place to another." There is no
dispute that there were employees with less seniority than
Hall at the time she endeavored to challenge for a job and
that these individuals were employed in positions for which
Hall was qualified. On June 7, Hall was recalled to her
former position.
Fuller was also, to the knowledge of the Respondent, an
active proponent of the Union, having passed out union
leaflets, solicited signatures on union authorization cards,
and acted as an observer at the April 18 election. In a letter
sent to Respondent's employees under date of April 17,
DeChant stated that the Union "continues trying to
mislead employees" and that on that, date Fuller told
Hawkes and another supervisor that employees at LaSalle,
Illinois, "got an incentive program when the UAW
negotiated the cost-of-living clause out of the contract,"
which he labelled a "bald-faced lie." This communication
was supported by, an April 17 letter from the plant manager
at LaSalle, certifying under oath that the plant ."has never
had an incentive plan." When Fuller received the layoff
notice on April 30 from Supervisors Barnes and Cook,
Barnes stated, "I hope you don't come back."
Fuller ,also attempted to "challenge" for a job on May 7,
and was then told by Personnel Manager Hawkes that the
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had "decided that we will not have any more
bumping- any more, that it cost to much to train someone
for three days and someone else come along and bump
them off." 3
D. The Refusal To Bargain
The Union made its initial request, for recognition and
bargaining on August 31, 1973. In response, the Respon-
dent directed the Union to the Board. Thereafter, the
Union filed a petition with the Board and an initial
election was conducted on November 8, 1973. Because of
the filing of unfair labor practice charges and objections to
the election, the parties agreed to set the election aside and
conduct a second one; A second election was held on April
18, 1974, and at that time the Union received 75 votes to 60
against, with I challenged ballot. On the day after the
election, the Respondent, without notification to the
Union, instituted its first layoff. Thereafter, on April 26
and 30, further layoffs were announced and these were
primarily confined to the Feeder Parts Department. In no
case was any notice given to the Union or any offer made
to consult with the Union with respect to them. As related
above, Hall, on April 23, sought permission to be
accompanied by her union representative to a meeting with
the Respondent, which was refused. The Union, on April
30, requested certain employee information in order to
consider what position it should take concerning bargain-
ing with the Respondent over the effects of the layoff on
bargaining unit employees. The Respondent did not
respond to this request.
Following certification as the exclusive bargaining
representative on September 16, the Union, on September
18, again requested information and sought to bargain with
the Respondent. The Respondent responded to the
Union's request and supplied information. The first
bargaining session was scheduled for October 23; however,
by letter dated October 17, the Respondent informed the
Union that it had decided to close the Jacksonville facility.
Thereafter, three bargaining sessions were held, on October
23 and 30 and November 18. The discussions at these
meetings were primarily devoted to the total closure of the
plant rather than to the partial plant closure which had
been effected by the layoffs. Phillip Polgreen, who
represented the Respondent, told Lynn Bonner, the union
representative, at the initial meeting, that the Respondent
was going to close and that it did not "really see any need
for proposals." Following the union victory at the April 18
election, the Respondent contracted out some unit work.
Thus, janitorial services were contracted to three independ-
ent janitorial services; this work consisted primarily of
cleaning the lunchroom facilities at the Jacksonville plant.
The Respondent does not dispute that it gave no
notification to the Union and engaged in no discussions
with it concerning the contracting out of janitorial work.
However, the Respondent stated that before the Union had
demonstrated its majority status it had contracted out
certain janitorial work, including the scrubbing and waxing
of certain floors, which amounted to approximately $60 per
3 There is evidence that no explanation had been given employees of the
existence of a time limitation upon the exercise of the challenge procedure.
Thus, one employee, Renetta Wiggins, who was laid off on April 26, was
month. By contrast, the Respondent stated on the record
that the June contracting out of additional janitorial
services increased the amount of the contract to approxi-
mately $150 per month.
E. Discussion and Conclusions
Counsel for the General Counsel contends that the
Respondent violated Section 8(a)(1) of the Act in that it
threatened its employees with closure of the- plant,
discharge or other reprisals if they engaged in protected
union activity; that it also questioned employees and,
finally, that it attributed the layoff of April 19 to the Union
and the fact that it had won the election.
In support of these contentions, it is pointed out that
Supervisors McCleod, Cook, and Gibbard told employees
in the bargaining unit on several occasions that the Feeder
Parts Department would be moved if the Union won the
election. These statements allegedly took place on Novem-
ber 6 and 7, immediately before the election on November
8. Attention is called to the fact found above that 3 days
before the election Gibbard spoke to a group of employees
and told them that if they voted for the Union they would
lose their existing benefits and "would have to start out
from scratch ... Also that McCleod told employee
Vessels, on November 7, that if she thought the employees
were then being "pushed hard" they should wait until the
Union came in and then they "would really be pushed,"
and that on November 7, Supervisor Cook told employee
Thirkill that if the Union came in'she "would be the first
one out' the door...." In addition, counsel urges that
Supervisors DeChant, Hardy, and Barnes talked with
several Spanish speaking employees before the second
election on April 18, 1974, and that Hardy called these
employees together' and asked them why they desired to
have the Union and that, if they voted for the Union, they
would be laid off. In addition, on the day of the election,
Hardy and Barnes spoke to employee Meza, saying that if
she favored the Union the employees would lose their jobs.
Also, Supervisor Chandler, on April 19, told the unit
employees that they could blame the Union for the layoff.
Counsel for the Respondent, in his brief,' argues that the
alleged violations of 'Section 8(a)(l)relied on by counsel
for the General Counsel "are not sufficiently widespread or
serious to warrant 'setting aside a settlement agreement
with which the Company has, otherwise fully complied."
With respect to the alleged' unlawful statements attributed
to Plant Manager lieChant on April 17, he argues that his
review of the record "fails to reveal any evidence 'remotely
supporting this al 'egation...:'' And, concerning the
alleged threat made Iby Hardy and Barnes to three Spanish-
speaking employes, he notes that, inasmuch as they
testified through an interpreter and had ' translated
DeChant's speeches into Spanish, for the employees'
benefit, "their testimony is a translation of what the
employees understood to be the translation of Mr.
DeChant's speeches." Thus, he contends that it is
"impossible to make any firm judgment as to exactly what
allowed to challenge for a job on May 1. So far as appears, no employees
other than Hall and Fuller were denied the right to challenge.
SUNDSTRAND HEAT TRANSFER, INC. 553
Hardy may have said, especially in what context her
remarks may have been made." 4 Concerning the remarks
Chandler made on the day of the layoffs to a group of
employees, to the effect-that they could "blame the UAW
for this," counsel refers to DeChant's testimony to the
effect that the Union had struck a concern with a result
that there was a substantial reduction in Respondent's
business . Counsel acknowledges that the failure of Chan-
dler to "amplify on his off-hand remark was unfortunate,"
but argues that the remark does not warrant a remedial
order, particularly in view of the fact that the Respondent
gave each employee at the time of layoff a written notice
stating that the layoff was occasioned by "a lack of
business."
Turning next to the allegation concerning Hall and
Fuller, counsel for the Respondent asserts that the refusal
to allow them to "challenge" was proper because, to have
allowed them to "bump," would have "disrupted plant
operations and efficiency and would have resulted in an
unstable work force," for it may well be, as he argues, that
there would have been some disruption by reason of
successive "bumping" by employees that Hall and/or
Fuller "bumped." The fact still remains that the Respon-
dent's procedure allowed bumping within a stated time
limit and that right had in fact been exercised by other
employees.
Turning next to the alleged unlawful refusal to bargain,
counsel for the Respondent points out- that according to
the complaint only three matters were alleged to come
within the purview of this allegation: (a) The refusal to
furnish the Union with certain information about laid-off
employees, (b) the failure to bargain with the Union over
the effects of the April layoffs,' and (c) unilaterally
contracting out certain janitorial work. It is his contention
that the effort of the Union to interject other issues "such
as the unilateral nature of the decision to layoff employees
and the bargaining over the plant closure" are not part of
this case , for the reason that "it is settled Board law that
when a complaint alleges a specific way or ways in which
an employer has unlawfully refused to bargain the specific
allegations listed are the only one properly a part of the
proceeding."
In my view, the Respondent's refusal to consider Hall
and Fuller for challenge pursuant to their layoff notices of
April 30, was discriminatorily motivated. Admittedly, the
Respondent was aware of the fact that Hall and Fuller
were adherents of the Union and that less senior employees
were employed on jobs both of them were qualified to
perform. I do not credit the Respondent's explanation that
they applied too late to exercise their' right to make
challenges . Nor does the Respondent's explanation that the
time and training expense required to place Hall and Fuller
in existing positions carry weight. No expense would have
been involved since both employees were trained and
4 In this connection, he notes that Hardy is no longer employed by the
Respondent and that her whereabouts at the time of the hearing were
capable of performing jobs available at that time. Further-
more, no supervisor had explained to any employee laid off
that there was a time limit in which the right to challenge
could be exercised. As we have seen, the Respondent was
well aware of the protected activity engaged in by Hall and
Fuller, which did not meet with its approval. Thus,
Foreman Cook told Hall when she was first laid off that he
hoped the layoff notice was what she wanted because it
was what she deserved. Earlier, Foreman Mayo told her
that he had been called into DeChant's office and
informed that Hall had passed out literature in the
cafeteria and inquired of Mayo "if he could do better with
his employees:..." Previously, reference has been made
to the letter circulated by the Respondent in response to
the outspoken union support Hall gave the day preceding
the April 18 election. When Fuller was given her layoff
notice, Supervisor Barnes said he hoped she did not come
back.
Upon all the evidence, I conclude and find that the
Respondent, by the foregoing statements and conduct,
violated Section 8(a)(1), (3), and (5) of the Act. Such
conduct, occurring in connection with the operations of the
Respondent as described above, has a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tends to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
III. THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. It will be recommended that the Respondent offer
Dorothy Fuller and Bennie Ruth Hall immediate and full
reinstatement to their former positions or, if not available,
to substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make
them whole for any loss of earnings they may have suffered
by reason of the discrimination against them, by payment
to them of a sum of money equal to that which they would
have earned from the date of their discharge to the date of
the offer of reinstatement, consistent with Board policy set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest on backpay to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
In addition, it will be recommended that the Respondent
upon request, bargain with the Union as the exclusive
representative of its employees in the appropriate unit
found above.
[Recommended Order omitted from publication.]
apparently unknown. In this regard, no evidence was adduced to indicate
what efforts, if any, had been made to ascertain her whereabouts.