B. F. Goodrich Co.

B. F. GOODRICH COMPANY 757 2. All production and maintenance employees at the Respondent Company's Washington Court House plant, including shop clerks, janitors, and watchmen, but excluding all office employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 3. On January 30, 1952, the Union was, and at all times since has been, the exclusive representative of all employees in the appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act. 4. By refusing, on and after January 30, 1952, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, the Respondent Com- pany has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with the formation of and assisting and contributing support to the independent, the Respondent Company has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (2) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The Respondent Company has not since on or about September 21, 1952, as alleged in the complaint, dominated, interfered with the formation and administration of, and contributed financial and other support to the Shop Committee. [Recommendations omitted from publication.] B. F. GOODRICH COMPANY and INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AUTOMOTIVE, PETROLEUM AND ALLIED INDUSTRIES OF KANSAS CITY AND VICINITY, LOCAL UNION 552, A.F.L. Case No. 17-CA-521. August 13, 1953 DECISION AND ORDER On June 15, 1953, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor prac- tices alleged in the complaint and recommending that the com- plaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel filed exceptions to the Intermediate Report and a sup- porting brief. The Respondent filed a brief in support of the Intermediate Report. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer. [The Board dismissed the complaint.] IPursuant 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 Houston, Styles, and Peterson]. 106 NLRB No. 123. 758 DECISIONS OF NATIONAL LABOR RELATIONS BORAD Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed by International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of j\merica, Automotive, Petroleum and Allied Industries of Kansas City and Vicinity, Local Ur,ion 552, A.F.L., herein called the Union, the General Counsel of the National Labor Relations Hoard, respectively calledherein the General Counsel and the Board, by the Acting Regional Director for the Seventeenth Region (Kansas City, Missouri), issued a complaint dated December 3, 1952, against B. F. Goodrich Company, herein called the Respondent, alleging that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Na- tional Labor Relations Act, as amended (61 Stat 136), herein called the Act. On about December 19, 1952, the Respondent filed an answer in which it admitted the jurisdictional allegations of the complaint, but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held onjanuary 13 and 14, 1953, at Kansas City, Missouri, before the undersigned Trial Examiner. The General Counsel and the Respondent were rep- resented by counsel. At the conclusion of the General Counsel's case, the Respondent moved to dismiss the complaint. The motion was denied. The Respondent renewed its motion at the close of the whole case The motion to dismiss is disposed of as hereinafter indicated. Sub- sequent to the hearing, the parties filed briefs with the Trial Examiner. The General Counsel and the Respondent jointly moved to correct the transcript. The motion is hereby granted, and the motion, dated February 27, 1953, is received in evidence, and marked as Trial Examiner 's Exhibit No. 1. Upon the entire record and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT The Respondent is a New York corporation , licensed to do business in the State of Missouri Its main place of business and headquarters are in Akron , Ohio It is engaged primarily in the business of manufacturing tires, but it also manufactures or merchandises other auto- motive supplies and hardware items The Respondent conducts its business through a large number of stores throughout the United States One such store is located at 3744 Broadway, Kansas City, Missouri. It is an integral part of the Respondent's organization and operations, and is the only store involved in this proceeding In the course and conduct of its business , the Respondent causes to be shipped annually in interstate commerce merchandise exceeding $ 1,000 ,000 in value. IL THE ORGANIZATION INVOLVED International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Automotive, Petroleum and Allied Industries of Kansas City and Vicinity, Local Union 552, A. F.L., is a labor organization which admits to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Statement of facts About the latter part of December 1951, the Respondent's employees became interested in union organization Shortly after one of their number contacted a representative of the Union, 8 of the 12 employees in the unit herein involved signed cards designating the Union as their collective-bargaining representative. During the early part of January 1952, O. B. Enloe, president and business representative of the Union, spoke to George W. Kooyman , Respondent's store manager . He told Kooyman that the Union represented a majority of the employees and requested a meeting with the Respondent in order "to discuss the possibilities of recognition for the Union or an election or for negotiation of union contract " Kooyman replied that he (Kooyman) would have to speak to "someone higher up in the company . to find out how it would be handled." B. F. GOODRICH COMPANY 759 Meetings between representatives of the Respondent and theUnion were held on January 26 and February 4, 6, and 8, 1952. These meetings were attended by Enloe, Frank McGuyre, secretary-treasurer of the Union, Kooyman, Morris Gile, Respondent's district store super- visor, and James Moore, Respondent's "employee relations representative." McGuyre did not attend the last meeting; and Moore did not attend the first two. At the first meeting Enloe stated, in substance, that theUmon represented a majority of the employees; that he wanted to discuss the possibilities of recognition and negotiation of a contract; that he understood that it was the Respondent's policy to demand an election; and that the Union would not object to a consent election. Gile replied that it was his "very first experience pertaining to the Union or union activities," and that he would like to ask some questions in order to educate himself on the subject. When he questioned Enloe concerning the Union's proof of majority, the union representatives produced the signed authorization cards. As Gile was copying the names of employees from the cards, Enloe objected, stating, "If you're copying those down for the purpose of discrimination, why, we don't want you to copy them." Gile assured Enloe that that was not his purpose, and finished copying the names. He also checked with Kooyman to determine if the names listed on the cards were employees at the store. Thereafter, the parties discussed the provisions of a contract between the Union and another tire company in Kansas City, a copy of which was produced at the meeting by the Union's representatives. Gile and kooyman stated that they did not have the authority to bind the Respondent, and that they would inform the Akron office of the matters discussed at the meeting. The question of the appropriate unit also was raised at the meeting. Gile stated that in his opinion the recap employee and the store employees should be placed in separate units "the reason being they were operated independently of each other, even though in the same building, and that each of them had a separate profit and loss statement and were con- trolled independently from each other." The meeting ended with the understanding that the parties would meet again after instructions were received from Akron. At the second meeting Gile told the union representatives, in substance, that he had been instructed to tell them that the Respondent would not recognize the Union until it had been certified by the Board Enloe asked Gileifhe had been instructed concerning the Respondent's position on the unit and on the effective date of any contract that might be agreed upon Gile stated that he had not received instructions in that connection, but that in his opinion there should be separate units The Union's representatives asked him if the Respondent would consent to an election if the Union petitioned the Board. Gile replied that he was not authorized to answer that question, and that it could not be discussed until the Union petitioned the Board. Gile suggested that the Union agree to separate units, and he contact the Akron office to see if the Respondent then would consent to an election. The union representatives refused to agree to separate units; and stated that if the Respondent did not recognize the Union or consent to an election, the Union would strike the store. The meeting ended with the under- standing that Gile would pass the information on to the Akron office and that the parties would meet at a later date As related above, Moore was present at the third meeting which was held on February 6. Moore told the union representatives that the Union should petition the Board for an elec- tion, "following the determination of which the matter of recognition would be in order." The Union took the position that it did not want to petition the Board because of the delay involved. However, it proposed that it would petition the Board if the Respondent would agree in advance to consent to an election and that any contract which might be negotiated would be retroactive to January 26, 1952. Moore stated, in substance, that the Respondent would not agree in advance to consent to an election, explaining that "until a petition had been filed the Company had no way of determining all of the possible legal questions involved." that it had been the "general policy" not to consent to elections because the Respondent dealt with unions "of all types and affiliations" throughout the United States, and that the Respondent "felt that to consent in one case and not in another would create situations the Company couldn't live with . . the possible charge of favoritism . . appearance of favoring one union to another " The Union then claimed that the Respondent previously had consented to an election in another case. The meeting was adjourned with the understanding that the claim would be investigated and that another meeting would be held. The final meeting was held on February 8. The positions of the parties remained unchanged. The Respondent insisted that the Union first file its petition with the Board, after which the question of consenting to an election would be considered. The strike started on February 11, 1952, and a picket line was established at the Broadway store. Picket lines later were established at the Respondent's "Troost" store and its North Kansas City warehouse. The strike ended on or about June 13, 1952. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About a week before the start of the strike, J. Carl Walker , manager or supervisor over the service department , summoned the employees to the office one at a time, and questioned them as to whether or not they would join in a strike if it was called by the Union . i Concerning his conversation with Walker at the time , employee Newton testified without contradiction as follows: Well, he wanted to know whether I was to go out on strike , he wanted to know if they went on strike whether I would go on out I told him if the rest of them go, I was going. He said , well, he says , he mentioned something about that you better know what you are doing , he said that you fellows better know what you are doing when you are going out or something like that. Of course, now, he said he wasn 't against the union, but the company has assured them the union wasn't coming in there , see, and he didn't say very much, I guess he just found out our different opinions on it , so I just told him that if the rest of them went out, I would go, too. The Respondent operated its store during the strike. On March 26, 1952, it put into effect "merit" and general wage increases without advising or consulting with the Union. At various dates from March 7 to 30, 1952, the Respondent placed the following advertise- ment in Kansas City newspapers- B. F. Goodrich Wants experienced service station men for tire sales and service . Offers good future, steady, paid vacation 48 hr week , approximately $ 260 per month to start. See Mr. Walker , 3744 Broadway Davisson testified that a few days after the start of the strike Kooyman came to him while he was on the picket line and asked him to return to work, telling him, "the Company was putting through a new wage scale , it would mean a little more money "; that Walker made a similar offer to himaboutaweeklater , that during the early part of March while he and Newton were on picket duty at the North Kansas City warehouse , Gile and Walker approached him; that Gile told him that there was an opening for one more man , that he could go back to work at "a higher wage scale"; that if he did not accept the job, it would be offered to Newton; and that the strikers were wasting their time because "the Company would never accept the union in our store." Davisson also testified that before the strike he was paid approximately $230 per month; and that on about March 13, 1952, while he was on picket duty at Respondent's Troost store, Wilson, manager of the store, told him that he could go back to work imme- diately at $270 per month Newton testified that before the strike he was paid at the rate of $200 per month , that while he was on picket duty at the North Kansas City warehouse during the early part of March, Gile and Walker told him that there was "one job open," and that they wanted to offer it to the employee with the most seniority ; that they offered him $ 254.50 per month if he would accept the job; and that Gile told him that the Respondent would not "accept the union." Mitchell testified that during about the middle of April , Walker asked him to return to work; that before the strike he was paid about $ 210 per month; that about 2 or 3 weeks before the strike ended, Kooyman offered him a job at $ 259.50 per month; that Kooyman told him that " the company assured him that there wouldn't be no union there" ; and that employee Newton was present during the conversation. 2 Gile, Kooyman, and Walker ,3 admitted that Newton, Davisson, and Mitchell were offered an opportunity to fill an existing job vacancy . They testified that the employee with the most i Walker appeared as a witness but was not questioned concerning the above conversations. It is apparent from the testimony of 2 of the 3 witnesses called by the General Counsel in this connection that Walker's questions were confined to the expected strike, and I so find. Employee Davisson testified to the effect that Walker questioned him concerning the progress of the Union's campaign and the union membership of employees . However. Davisson ad- mitted that his memory was "a little vague" as to the conversation. Accordingly, his testi- mony is not credited in this respect. Employees Newton and Mitchell testified that Walker asked them if they would join the strike. 2 Newton's testimony supports Mitchell's version of the conversation. S Wilson did not appear at the hearing as a witness. B F GOODRICH COMPANY 761 seniority on the job was given preference to accept the position . They denied that wage scales or compensation were mentioned . Gile also testified as follows: I did try to explain to these fellows our current status insofar as the situation between the union and the company was concerned . I did explain to them that our company had requested the union to petition the N. L. R. B. to become certified , and that the union refused to do so, and that that was the reason that we were not negotiating with the union or attempting to work out a contract for them Gile further testified that the Respondent's employees were paid on an hourly basis; that the Respondent had no rates in effect at the time in question which would equal the monthly fig- ures of $254.50 and $259 50; and that using the established hourly rates the nearest monthly figures to the amounts testified to by the General Counsel's witnesses would be $ 254.80 and $25914. The Trial Examiner does not credit the testimony of Newton and Mitchell to the effect that they were offered $254.50 and $259.50 per month. It is undisputed that the Respondent did not have hourly rates which would equal these figures. Since Davisson heretofore has been found not to be a reliable witness, in connection with his prestrike conversation with Walker, his testimony to the effect that he was offered a wage increase also is not credited. Accord- ingly, I credit the testimony of Gile, Kooyman, and Walker concerning the job offers. B. Conclusions The Respondent's answer concedes the appropriateness of the unit alleged in the complaint. The undisputed evidence shows and I find that the Union represented a majority of the em- ployees in the appropriate unit at all times material herein. The evidence shows that the Respondent refused to recognize the Union unless it was certified as the bargaining agent by the Board, and refused to discuss the matter of consenting to an election until the Union filed its petition for certification. The Respondent had a right to insist upon certification by the Board, provided that its motive was not to gain time in order to undermine the Union's majority, or to accomplish any other unlawful purpose.4 I am not convinced from the foregoing facts, or from the record as a whole, that the Respondent had such a motive. It is apparent not only from the testimony of the Respondent's witnesses but also from that of the General Counsel's witnesses that the Respondent had a general policy of demanding certification of unions by the Board and of not agreeing to consent elections Inview of the Respondent's nationwide operations and its dealings with various unions, this policy is understandable. Tfiis evidence indicates the Respondent's good faith in its dealings with the Union herein. In his brief, the General Counsel contends, in substance, that the Chamberlain case does not apply because Gile and Kooyman examined the designation cards at their first meeting with the Union's representatives. Under the circumstances herein involved, I do not agree with this contention At the opening of the meeting, Gile and Kooyman stated that they were inexperienced insofar as matters pertaining to labor relations were concerned and that they did not have the authority to bind or to negotiate for the Respondent. With this knowledge and knowing of the Respondent's general policy concerning certification by the Board, the union representatives produced the designation cards for examination To hold under such circum- stances that the Respondent had abandoned its policy or lost its right to demand certification would be to place a premium on a technicality, especially since there is no evidence of bad faith on the Respondent's part. Further, majority was not the only question involved The Respondent raised the question of the appropriateness of the unit during the meetings, contending that the employees in the recap department should be inaseparateunit. The General Counsel contends that this question was not raised in good faith. In this connection, he points out that in a Cincinnati case (B. F. Goodrich Co., 87 NLRB 1355) the Board found a unit to be appropriate which was almost iden- tical with the unit in the instant proceeding, and that Moore was aware of the Board's decision in that case. In my opinion, there is some merit to the Respondent's original position on the unit. However, the issue is not the appropriateness of the unit, but whether or not the Re- spondent raised the question in good faith at the meetings with the Union. I am convinced that 4Chamberlain Corporation, 75 NLRB 1188; N. L. R. B. v. Jackson Press, Inc., (C. A. 7), 201 F. 2d 541; New Jersey Carpet Mills, Inc., 92 NLRB 604. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it did. Standing alone , I do not believe that the facts are sufficient to sustain the General Counsel ' s contention . Accordingly , I find that by its insistence on the Union ' s certification by the Board the Respondent did not unlawfully refuse to bargain within the meaning of Section 8 (a) (5) of the Act. It is found that by offering jobs to the striking employees and by granting merit and general wage increases on March 26 , 1952, without advising or consulting with the Union , the Re- spondent did not engage in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. If the Respondent had the right to demand certification by the Board before rec- ognizing the Union , it follows that it was not obligated to bargain or consult with the Union until that condition had been met . Further , with respect to its good faith insofar as the granting of the wage increases is concerned , Hershel Thornburg , Respondent's manager of wage and salary administration , testified credibly and without contradiction to the effect that the Respondent , in September 1951, filed a petition with the Wage Stabilization Board for increased wage-rate ranges covering its sales operations throughout the United States; and that the proposed rate increases were approved on March 19. 1952. [Recommendations omitted from publication.] AMERICAN GILSONITE COMPANY and H. K. FRONTZ, JR., Petitioner and UNITED STEELWORKERS OF AMERICA, LOCAL NO. 4261, CIO. Case No. 30 -RD-41. August 14, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Eugene Hoff- man, hearing officer . The hearing officer' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston, Styles, and Peterson]. Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 1 3. A question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 'The Petitioner, an employee of the Employer , asserts that the Intervenor is no longer the bargaining representative of the employees in the proposed unit , as defined in Section 9 (a) of the Act. It was stipulated at the hearing that the Intervenor is currently recognized by the Employer as the exclusive representative of such employees . The Intervenor 's most recent contract with the Employer, which terminated on June 30, 1953, covers, in addition to the employees in the proposed unit, all employees at the Employer 's Bonanza, Utah, mine. 106 NLRB No. 128.