Three Dimensional Products, Inc.

National Labor Relations Board - Board DecisionsFeb 29, 1968

169 N.L.R.B. 1156 (N.L.R.B. 1968)

1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Three Dimensional Products , Inc. and United Brotherhood of Carpenters and Joiners of Amer- ica, Carpenters District Council of Western Pennsylvania , AFL-CIO. Case 6-CA-3909 February 29, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On November 27, 1967, Trial Examiner George L. Powell issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed ex- ceptions to the Decision and a supporting brief. The General Counsel filed an answering brief and a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions,2 and recommen- dations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Three Dimensional Products, Inc., Pittsburgh, Pennsylvania, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. ' In adopting the Trial Examiner's finding that the Union represented a majority of Respondent 's employees, we are satisfied that Supervisor Winkler did not solicit or in any way influence the employees who signed authorization cards. United Mineral & Chemical Corporation, 155 NLRB 1390; Aero Corporation, 149 NLRB 1283. It is also well established that "dual-purpose " authorization cards such as those herein constitute valid designations of the union as bargaining representative of the employees . The Shelby Manufacturing Company, 155 NLRB 464: Lenz Company, 153 NLRB 1399. I In adopting the Trial Examiner 's 8(a)(5) finding, we find it unneces- sary to pass upon the dictum set out in the second , third , and fourth sen- tences of the Trial Examiner's "Analysis and Conclusions " section. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Trial Examiner: With Respond- ent represented, this unfair labor practice case was tried before me in Pittsburgh, Pennsylvania, on August 9, 1967, on the complaint, dated June 30, 1967, of the General Counsel of the National Labor Relations Board, herein called the Board, and the answer of Three Dimen- sional Products, Inc., herein called the Respondent. The complaint alleged that Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act, by refusing to recognize and bargain with United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO, herein called Charg- ing Party or Union, since October 24, 1966.1 Briefs were filed by the General Counsel and the Respondent on September 15, 1967. Upon the entire record of the case, the briefs filed by the parties, and from my observation of the witnesses, in- cluding their demeanor while on the witness stand, I make the findings of fact and conclusions of law hereinafter set forth and recommend that Respondent be adjudged in violation of Section 8(a)(5) and (1) of the Act in the particulars hereinafter specified and be ordered to bargain in good faith with the Union.2 FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS It is admitted that Respondent is a Pennsylvania cor- poration engaged in the manufacture of scale building and machinery models at its plant in Pittsburgh, Pennsyl- vania. During the 12-month period immediately preced- ing the issuance of the complaint, Respondent sold within Pennsylvania goods and products valued in excess of $50,000 to United States Steel Corporation, Westinghouse Electric Corporation, and other companies in Pennsylvania, each of which annually ships goods and products valued in excess of $50,000 directly to points outside Pennsylvania. I find that Respondent is now, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania , AFL-CIO, is now, and has been at all times material herein , a labor organiza- tion within the meaning of Section 2(5) of the Act. ' An additional allegation in the complaint had to do with employer recognition of the Union between February 1967 and April 1967, with withdrawal of recognition on April 14, 1967. But it is unnecessary to reach this problem because of the disposition of the case. 2 Respondent's motion to dismiss made at the conclusion of the General Counsel's case is denied. 169 NLRB No. 163 THREE DIMENSIONAL PRODUCTS, INC. 1 157 IH. THE UNFAIR LABOR PRACTICES It is admitted, and I find, that an appropriate unit in this case for the purposes of collective bargaining within the meaning of Section 9(b) of the Act is: All production and maintenance employees at the Respondent's Pittsburgh, Pennsylvania, plant, excluding office clerical employees and guards, professional em- ployees, and supervisors as defined in the Act. The complaint alleged that on or about October 18, 1966, a majority of Respondent's employees in the above-described unit designated the Union as their representative for the purposes of collective bargaining, and that since that date the Union has been the exclusive representative of all the employees in the unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. Respondent denied these allega- tions. However, the Respondent has admitted, and I find, that since October 24, 1966, the Union has requested, and is requesting, Respondent to recognize and bargain collectively with it as the exclusive representative of all employees in the above-described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The real issue in the case is whether Respondent refused to bargain with the Union on or after October 25 and at all times thereafter because of a good-faith doubt of the Union's majority status. A second issue, unneces- sary to reach, is whether from on or about February 1967 and until April 13, 1967, Respondent purported to recog- nize and enter into negotiations for a collective-bargain- ing agreement with the Union and thereafter on April 14, 19,67, withdrew recognition from the Union as the exclu- sive representative of all employees. THE FIRST MEETING In the last week of September 1966, Vincent Cuda, business representative for the Union, spoke with Alan Davis, Respondent's president, at Respondent's plant. Cuda told Davis that the Union represented a majority of Respondent's employees, as they were already members of the Union, and he requested recognition. Davis agreed that its employees were union members, but he told Cuda that he was very busy and asked him to return at a later date. Cuda agreed. OCTOBER 18, 1966, AND THEREAFTER Cuda went to Respondent's plant on October 18, 1966. Davis was not there, but Cuda spoke to William Winkler, whose employee status will be discussed later, who, along with employees Joseph Arnold, Zanthoss Contaridis, and William DeRose, signed an authorization card for the Union. As there were five employees, not counting Wink- ler, the Union had a majority in cards.3 The Union then sent a letter to Respondent on October 25, 1966, stating that it represented a majority of Re- spondent's production and maintenance employees and requested a meeting to commence negotiations of a col- lective-bargaining agreement. The Union also indicated a willingness to submit the authorization cards to an im- partial third party to prove their majority status. No answer was made to this letter. The following day, Oc- tober 26, Cuda and William Maher, Jr., special represen- tative for the Union, met with Davis at Respondent's plant. Davis was told again that the Union represented a majority of the employees and had authorization cards to prove it. At this time Davis asked to see the cards. The request was denied on the grounds that the cards were confidential, but the Union stated it would show them to an impartial third party. The cards, introduced into evidence, bore the inscription, "These applications are confidential!" Davis never questioned the fact that the Union represented a majority at this time or at any other time in the case, nor ever said he doubted the Union's majority. The next meeting with Davis was at Respondent's plant on November 23, 1966, when Cuda and Maher again reminded Davis that they represented a majority and wanted to "sit down and discuss" a contract. Davis "begged off" stating that he would like more time due to the fact that he had just recently taken over the organiza- tion which shortly before had been a partnership. Cuda said he would give Davis more time to think it over and- the meeting ended. Cuda stated that he was "pretty sure" that he was at the plant in December and due to the fact that Christmas was coming Davis did not wish to be disturbed. Davis said he would get in touch with Cuda after the first of the year. And this he did. Shortly after the first of the year in 1967, Davis called Cuda at his home and told him that he was in no position at that time to sit down and bargain on the contract. He said that he had some work going at the plant and would like more time. Cuda asked him how much more time, and when Davis said until the end of the month Cuda agreed to this. On February 28, 1967, Cuda and Maher again met with Davis. The union representatives again reminded Davis that they represented a majority of the employees. Davis said that he figured the Union would represent a majority and asked if they had a model contract. Such a contract was not then available, but Cuda agreed to mail one to Davis which he did on March 13, 1967. Later on in March, Cuda went back to see Davis again reminding him they represented a majority and requesting recogni- tion. Cuda credibly testified that at no time in the conver- sation with Davis did Davis deny the Union represented a majority. Rather the only question discussed was the type of contract. Cuda submitted a contract and asked for Davis' approval; again Davis asked for more time. The union representatives attempted to contact Davis by telephone before April 13, 1967, but were unable to do so. On April 13 Cuda and Anthony DeSio, a special representative of the Union, picketed the plant for about an hour with no employees crossing the picket line. When Winkler arrived he was told there would be no work due to the picketing and he turned around and left the premises. Around 9 a.m. Davis asked Cuda and DeSio into his office. In the office DeSio specifically asked Davis, "Do you deny we represent the majority of men?" Davis replied, "No." Davis said he was willing to sit down and negotiate a contract with Cuda, and the parties The cards stated tion the N.L R B. to hold an election to determine whether or not a I hereby authorize the Carpenters District Council of Pittsburgh and majority of the employees of the below mentioned company, wish to Vicinity, U. B. of C. & J. of A to act as my exclusive bargaining be represented by the above mentioned union. agent in regards to wages, hours and working conditions and to peti- 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to meet again in 1 or 2 days to negotiate a contract. With this assurance the pickets were removed and the men went back to work . The next day , April 14, 1967, Respondent filed a petition for an election (Case 6-RM-319 ) with Region 6 of the Board . The Union filed the charge in the instant case on April 17, 1967, alleging the refusal to bargain in good faith . The Regional Director for Region 6 dismissed the Respondent's RM petition on July 3, 1967. THE PATTERN MAKERS The above factual recital is not contested. But the chronology of events must be opened to include the ac- tions of the Pattern Makers. In March 1967, Henry Las- seige , business manager and financial secretary of Pattern Makers Association of Pittsburgh and Vicinity, contacted Winkler explaining he was interested in signing a collec- tive-bargaining agreement for the employees with Respondent . But at the time his union did not represent any of the employees and he did not tell Winkler that they did. At the time of the strike on April 13, 1967, referred to above, Lasseige went to the plant where he talked with Davis explaining his union 's qualifications for furnishing qualified employees . He did not tell Davis he represented any of Respondent's employees. Davis told him there was nothing he could do and referred Lasseige to his at- torney , Donald B. Heard . Lasseige then telephoned Heard who told him Respondent was ". . . tied up with [the Union] at that time...... Lasseige heard nothing more from Respondent. The following day, April 14, 1967, Respondent's peti- tion for representation (Case 6-RM-319) listed the Pat- tern Makers Association of Pittsburgh and Vicinity, AFL-CIO, as making a claim for recognition or as an or- ganization indicating a representative interest in the em- ployees, with the date of the claim being put at April 5, 1967. THE UNIT The parties agreed that at all pertinent times the follow- ing employees were in the above unit : Joseph Arnold, Zanthoss Contaridis , Theodore Mort , William DeRose, and Robert Schell . The parties were in disagreement re- garding the employee status of William Winkler. Originally the General Counsel and Respondent took the position that Winkler was properly included in the unit. However , after hearing the testimony of Davis, the General Counsel reversed his position and maintained that Winkler was a supervisor within the meaning of the Act. The testimony of Davis and Winkler as to Winkler's duties was to the effect that Winkler spends approximate- ly 50 percent of his time working on models with the remainder of the time used in assigning work to, and directing the work of , other employees , and being in charge when Davis is out of the shop. Davis and he both decided what jobs were to be done , how a job was to be estimated , and how far they should be involved in detail. Davis characterized Winkler as his "supervisor" and testified that Winkler schedules the work in the shop, does the estimating of hours on jobs, and does the buying and the supervisory work for about 50 percent of his time. He further testified that in assigning work to employees, ' Davis testified that employee DeRose told him he had been tricked and employee Arnold told him he had been misled . This alone does not Davis uses independent judgment. From this evidence I find and conclude that Winkler is a supervisor within the meaning of the Act. There is no question but that the authorization cards received into evidence authorize the Union to be the col- lective-bargaining representative for the signers. The cards were authenticated and I find they did authorize the Union to represent and bargain for the employees in each instance . As the Union had cards from Arnold, Con- taridis, and DeRose, it had a majority of the five em- ployees listed above. Even if Winkler were found to be an employee, the Union, on October 18, 1966, would have had four cards in a unit of six employees. Again this would be a majority. There is no evidence that these cards were obtained through misrepresentation. I find the Union did represent a majority on October 18, 1966.4 RESPONDENT'S DEFENSE Respondent defends on the ground that General Coun- sel did not meet his burden of proof that the Union represented a valid majority of the employees and that the employer in bad faith refused to bargain. Respondent contends there is no right for the Union to insist on a third party check of the authorization cards and that an em- ployer's refusal to use a third party to check the cards does not establish that he does not honestly believe that the Union does not represent a majority. Respondent's president contends that the employees had informed his supervisor prior to the time of the purported card check, and himself following the strike, that they did not care for the Union to represent them in September, October, or April. And as it engaged in no antiunion campaign or ac- tivities, it follows that it had a good-faith doubt of majori- ty when it filed its petition for representation. As to Pre- sident Davis' request for a copy of a model shop contract, Respondent maintains this does not prove that he was en- gaged in dealing with the Union to gain time to undermine the Union, nor that he had agreed to bargain with the Union or that he recognized the Union, nor would it mean that he commenced negotiations with the Union. Re- spondent contents that the fact that Davis continued to meet with the union representatives on more than one occasion does not dispell the good-faith doubt of majority representation. ANALYSIS AND CONCLUSIONS On October 18, 1966, the Union represented a majori- ty of the employees by virtue of signed authorization cards. Accordingly when it requested recognition for bar- gaining on October 26, 1966, it was the statutory duty of Respondent at that very time either to raise a question of majority or to bargain with it over wages, hours, and con- ditions of employment in accordance with the national policy of the country. If there were doubt of majority, that was the time to say so in order to bring in the Board's election machinery. Elections are unnecessary if the Union holds a majority in cards and no good-faith doubt of the majority is raised. The right of collective bargain- ing, held by the employees, was made by the Congress to be important. Enlightened employers believe it is every bit as important in the management of a business as a con- tract for the purchase of equipment, as contracts of purchase and sale, and as business lease-hold arrange- amount to probative evidence establishing these facts . The employees were available as witnesses and were not called. THREE DIMENSIONAL PRODUCTS, INC. ments, to refer to only a few of the problems of a busi- ness. Accordingly , no employer when confronted with the demand to bargain can adroitly or otherwise put it off from time to time, as was done in this case , and then ask for an election by filing a petition for representation with the Board . The natural result of these dilatory tactics is to cause a defection in the union by raising doubts in the mind of employees , who have authorized the union to represent them , that the union is aggressive enough to properly represent them . Obviously then a delay of many months might cause such a defection that the union then would be defeated at a secret election. Inasmuch as any collective-bargaining arrangement between an employer and a labor organization is an arrangement looking to the future mutual good of the contracting parties, a union's willingness to grant additional time to an employer beset with new problems is to be lauded and not used to gain time for a defection in the membership . Under the facts in this case the Respondent has refused to bargain with the employees ' exclusive representative , beginning on October 26 , 1966, and I so find . Good faith is really not involved ; no doubt as to majority status was ever raised until April 14, 1967, and then it was too late to raise a good-faith doubt because of the representations which the Respondent had been making during the interim period. Even on April 13, 1967, Davis specifically refused to deny the existence of the Union ' s majority status. AMENDED COMPLAINT At the close of the hearing the General Counsel orally moved to amend the complaint to include interrogations of employees made by Supervisor Winkler. This motion was based upon testimony given by Winkler at the trial. The motion was granted and the complaint was amended to allege violations of Section 8(a)(1) of the Act. How- ever, the sum of the testimony is that individual em- ployees had volunteered to Winkler that they weren't paying their union dues in October 1966, although they were union members, and that some had dropped their cards and did not seem very enthusiastic about organizing the shop. I am unable to find from this testimony that Respondent engaged in any interrogation of its employees which would interfere with , restrain , or coerce them in their right to join or not to join a labor organization, and, accordingly , I find the General Counsel has not sustained his burden of proof as to this amended allegation. I will recommend the complaint be dismissed as to this inde- pendent allegation. CONCLUSIONS OF LAW 1. The Respondent is, and during all times material has been , an employer engaged in commerce and a busi- ness affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The appropriate unit for collective bargaining is: All production and maintenance employees at the Respondent 's Pittsburgh, Pennsylvania , plant , excluding In the event that this Recommended Order is 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 is enforced by a decree of a United States 1159 office clerical employees and guards , professional em- ployees, and supervisors as defined in the Act. 4. The General Counsel has established by a prepon- derance of the evidence that Respondent has refused to bargain in good faith within the meaning of Section 8(a)(5) and (1 ) and Section 2(6) and (7 ) of the Act. 5. The General Counsel has failed to sustain his bur- den of proof that Respondent independently violated Sec- tion 8(a)(1) of the Act by alleged interrogations. THE REMEDY As Respondent has been found guilty of violations of Section 8(a)(5) and derivatively of Section 8(a)(1) of the Act, it will be recommended that it cease and desist from refusing to bargain in good faith with the Union , and from interfering with its employees , and affirmatively, that upon request by the Union , it bargain in good faith in the above unit with respect to wages, hours, and other condi- tions of employment and, if agreement is reached, to em- body it in a signed agreement. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclu- sions of law and upon the entire record in the case, it is recommended that Three Dimensional Products, Inc., its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with United Brotherhood of Carpenters and Joiners of America, Car- penters District Council of Western Pennsylvania, AFL-CIO. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization , to form , join , or assist United Brotherhood of Carpenters and Joiners of Amer- ica, Carpenters District Council of Western Pennsyl- vania, AFL-CIO, or any other labor organization , to bar- gain collectively through representatives of their own choosing , and to engage in other concerted activities for the purposes of collective bargaining or mutual aid or pro- tection , or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the above unit with respect to rates of pay, wages , hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post copies of the attached notice marked "Appen- dix." 5 Copies of said notice , on forms provided by the Regional Director for Region 6, after being duly signed by a representative of Respondent , shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced , or covered by any other material. Court of Appeals , the words "a Decree of the United States Court of Ap- peals Enforcing an Order " shall be substituted for the words "a Decision and Order " 1160 DECISIONS OF NATIONAL (c) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.6 " In the event that this Recommended Order is 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 Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT refuse to bargain collectively with the United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania , AFL-CIO, as the exclusive represen- tative of all our employees in the appropriate unit described below. WE WILL, upon request, bargain collectively with the United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO, as the exclusive represen- tative of. all our employees in the bargaining unit described below with respect to rates of pay, wages, LABOR RELATIONS BOARD hours of employment , and other terms and condi- tions of employment and, if an understanding is reached , embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at the Respondent ' s Pittsburgh , Pennsylvania, plant , excluding office clerical employees and guards, professional employees , and supervisors as defined in the Act. All our employees are free to become or remain, or refrain from becoming or remaining , members of United Brotherhood of Carpenters and Joiners of America, Car- penters District Council of Western Pennsylvania, AFL-CIO. THREE DIMENSIONAL PRODUCTS, 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 1536 Federal Building , 1000 Liberty Avenue, Pittsburgh , Pennsylvania 15222, Telephone 644-2977.