Efco Manufacturing, Inc.

EFCO MANUFACTURING, INC. 423 department is to buy stock from outside suppliers (as distinguished from stock received from the Employer's own manufacturing facili- ties) for resale to customers. These supplies are ordered under general contracts, which are negotiated by the Employer's New York office, and local contracts, which are negotiated by the buyer and usually cover small cost items. Local contracts are awarded on competitive bids. The buyer has authority to purchase up to $1,000 on any one item. The duties of the buying assistant are to do some of the pre- liminary work leading up to the award of a local contract and sub- stitute for the buyer who is away from the office approximately 30 percent of the time. Inasmuch as the buying assistant has authority to commit the Employer for the purchase of materials for a substan- tial part of his work time, we find that he is a managerial employee and shall accordingly exclude him from the unit. Personnel investigator: The duties of the personnel investigator are to recruit employees, to interview and screen applicants for jobs, to make recommendations with regard to hiring, and to do the paper work with respect to rehiring former employees. He also arranges for medical examinations of new employees and explains to them the Employer's practices with regard to employee benefit plans, mode of payment, and other policies of the Employer. As the personnel in- vestigator recommends the hiring of prospective employees whom he has interviewed, we shall exclude him from the unit.8 We find that all salaried employees of the Employer's telephone division employed at the Employer's distributing house in Minne- apolis, Minnesota, including stock maintainers and assistant stock maintainers, but excluding methods analysts, buying assistant, per- sonnel investigator, professional employees, managerial employees, confidential secretaries, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 8 Bonwit Teller, Inc., 84 NLRB 414. EFco MANUFACTURING, INC. and UNITED STEELWORKERS OF AMERICA, CIO. Case No. 1-CA-1149. July 31, 1952 Decision and Order On April 29, 1952, Trial Examiner Louis Plost issued his inter- mediate Report in the above-entitled proceeding, finding that Re- spondent had engaged in and was engaging in certain unfair labor 100 NLRB No. 75. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices and recommending that it cease- and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, Respondent filed ex- ceptions to the Intermediate Report 1 The Board 2 has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modification. ' The Respondent defends its admitted refusal to bargain with the Union on the ground that the Board delayed unduly in processing the representation proceeding which culminated in the designation of the Union by a majority of its employees. Following a lengthy hearing in the "R" case, the Respondent requested, and was granted, until September 4, 1951, to file briefs with the Board. The Direction of Election issued on December 4, 19513 We consider the Respond- ent's defense clearly without merit, and we find that its refusal to bargain was motivated by an unlawful intent to defeat the employees' right to self-organization and collective bargaining. Apart from the fact that the elapsed time in this instance was in no sense unreasonable, it is well settled that time necessarily required for Board processes neither invalidates its certifications nor suspends the proscriptions of the Act 4 Nor do we find merit in the Respondent's further argument that -because it was party to a contract with another labor organization when the Union filed its petition for investigation of representatives, the election, which was held near the expiration date of that agree- ment, was invalid. For the purpose of establishing the Union's majority status, and consequently the Employer's obligation to bar- gain with it upon request, it suffices that the election was held at the close of the contract year. The Respondent was not, nor could it have been, prejudiced by the polling of the employees at that -time. In any event, the purpose of a representation proceeding is to aster-' tain the employees' desire respecting bargaining agents, and the record here in no way suggests that these employees did not make a completely untrammeled choice in selecting the Union as their representative. _ n Respondent's request for oral argument is hereby denied , as the record and exceptions adequately present the issues and the positions of the parties. 2 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 [ Chairman Herzog and Members Houston and Murdock], 8 97 NLRB 263. 4N. L. R. B. V. Calumet Steel Division of Borg-Warner Corp ., 121 F. 2d 366, 370 (C. A. 7), enfg. 23 NLRB 114 ; N. L. B. B. Y. Electric Vacuum Cleaner Co., 315 U. S. 685, enfg. 18 NLRB 591. EFCO MANUFACTURING, INC. 425 We therefore find, like the Trial Examiner, that by refusing to bargain with the Union, Respondent violated Section 8 (a) (5) and (1) of the Act.' Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Efco Manu- facturing, Inc., East Greenwich, Rhode Island, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Steelworkers of America, CIO, as the exclusive bargaining representative of all its employees in the following unit : All production and maintenance employees of Respondent at its East Greenwich, Rhode Island, plant, including the shipping clerk but excluding the assistant to the superintendent, the lead men, office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) In any like manner interfering with the efforts of that Union to bargain collectively with Respondent on behalf of the employees in the above unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Steelworkers of America, CIO, as the exclusive representative of all the employees in the above unit with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its East Greenwich, Rhode Island, plant, copies of the notice attached hereto and marked "Appendix A." a Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. In reaching this conclusion we have considered the entire record in Case No. 1-RC-2307. Because in proceedings of this type, involving refusals to bargain, the record in the preceding representation case automatically becomes a part of the record on appeal, the hearing officer properly denied Respondent's motion to Incorporate the representation case record as an exhibit here. See Pittsburgh Plate Glass Co. v. N. L R. B. 313 U S. 146. 8 In the event that this Order Is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of this Order, what steps Respond- ent has taken to comply herewith. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL bargain collectively upon request with UNrrED STEEL- WORKERS OF AMERICA, CIO, as the exclusive representative of all our employees in the bargaining unit described below, with-re- spect to rates of pay, wages, hours of employment, and other con- ditions of employment; and, if an understanding is reached, we will embody such an understanding in a signed agreement. The bargaining unit is : All production and maintenance employees at our East Greenwich, Rhode Island, plant, including the shipping clerk but excluding the assistant to the superintendent, the lead men, office clerical employees, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the above Union to bargain with us, and we will not refuse to bargain collectively with that Union as the exclusive representative of the employees in the bargaining unit set forth above. EFCO MANUFACTURING, INC., Employer. Dated-------------------- By---------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. w Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed March 11, 1952, by United Steelworkers of America, CIO, herein called the Union, the General Counsel of the National Labor Rela- tions Board, herein called the Board , by the Regional Director of its First Region ( Boston, Massachusetts ), issued a complaint dated March 24, 1952, against Efco Manufacturing Inc., of East Greenwich , Rhode Island, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat. EFCO MANUFACTURING, INC. 427 136, 29 U. S. C. Supp. I, sec. 141, et seq., herein called the Act. The Respondent and the Union were each duly served with a copy of the complaint, the charge, and a notice of hearing. With respect to the unfair labor practices the complaint alleged in substance that since February 28, the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees within a unit appro- priate for collective bargaining duly designated as such by a majority within such unit, and further that by said conduct the Respondent has interfered with, restrained, and coerced its employees, and is interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, more particularly Section 8 (a) (1) and (5) thereof. On April 4, 1952, the Respondent filed an answer wherein it admitted that it had refused to bargain with the Union but denied that it had engaged in any of the unfair labor practices as alleged in the complaint. Pursuant to notice a hearing was had before Louis Plost, the undersigned Trial Examiner on April 10, 1952, at Providence, Rhode Island. All the parties were represented by counsel, herein referred to in the names of their principals. All the parties participated in the hearing, were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue orally on the record, and to file briefs, proposed findings of fact and conclu- sions of law with the undersigned. At the opening of the hearing the Respondent moved to continue the hearing. The undersigned denied the motion. The parties waived oral argument. A date was set for the filing of briefs, findings, and conclusions. No briefs have been received. Upon the entire record in the case and from his observation of the witnesses the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent Company is a Rhode Island corporation engaged in its plant in East Greenwich, Rhode Island, in the manufacture of nuts and bolts and general machine work ; and during the past 12 months, a representative period, the Company purchased in excess of $50,000 of raw materials, of which approximately 25 percent was shipped to the Company's East Greenwich, Rhode Island, plant from ,points outside the State of Rhode Island ; that during the same period the Company's sales exceded $100,000, of which approximately 75 percent was made and shipped to points outside the State of Rhode Island. IL THE ORGANIZATION INVOLVED United Steelworkers of America, CIO, is a labor organization within the mean- ing of Section 2 (5) of the Act, and admits employees of the Respondent to membership. 1 At the opening of the bearing Mr. A. Herbert Barenboim asked permission to appear for Amalgamated Jewelry Workers Union, AFL, as an Intervenor in the proceedings. Barenboim stated, "I don't know whether I'm going to take any part in this thing. I don't know what it's all about. . . Permission to intervene "in so far as their interests may appear" was granted the Jewelry Workers by the undersigned. Following his statement, Barenboim left the hearing room and at the close of the hearing the undersigned so stated on the record . No Interest of the Jewelry Workers being shown , the undersigned finds that Amalgamated Jewelry Workers Union, AFL, is not a party to these proceedings. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain - 1. The appropriate unit The record is clear that pursuant to a petition duly filed by the Union in the Board's First Regional Office and docketed as 1-RC-2307, an election, ordered by the Board, was conducted among certain of the Respondent's employees within a unit determined by the Board to be appropriate for the purposes of collective bargaining and described as follows : All production and maintenance employees of Respondent, including the shipping clerk, employed at its East Greenwich plant, exclusive of the assistant to the superintendent, the lead men, office clerical employees, professional employees, guards, and all supervisors as defined in Section 2 (11) of the Act. The election was conducted on December 27, 1951, and resulted in a majority of votes being cast for the Union. No objections were filed to the conduct of the election within the time provided by the Board's Rules. On January 5, 1952, the Regional Director for the First Region, as agent for the Board and by virtue of the authority vested in him by the Board, issued a "Certification of Representatives" wherein he certified that the United Steel- workers of America, C1O, had been designated and selected by a majority of the employees within the above-described appropriate unit as their representa- tive for the purposes of collective bargaining. Upon the above findings and upon the entire record in the case the under- signed finds that on January 5, 1952, and- at all times material thereafter, the unit for the purposes of collective bargaining as hereinabove described was, and is, the appropriate unit for collective bargaining material to the issues in the instant proceeding. The undersigned further finds that since January 5, 1942, the Union has bet-n, and now is, the exclusive representative of the employees of the Respondent within the above-described unit for the purposes of collective bargaining within the meaning of the Act. 2. The refusal to bargain most" because Johnson would not permit the union representatives to call into certification of the Union he became the "authorized Company spokesman" to deal with the Union "in the sense that somebody had to talk to them" ; that thereafter only he met with the Union's representative as the Respondent's representative and all meetings were in his office ; that by letter dated January 9, 1952, the Union requested a conference, which he agreed by letter to hold; that thereafter a meeting took place which lasted but "five or ten minutes, at the most" because Johnson wou'd not permit the Union representatives to call into the meeting "some one else," not otherwise identified ; that on February 4, by letter, the Union again requested a meeting, to which Johnson replied inter alia: On the other hand, if I may treat your letter as indicating a sincere wish to dispense with all further preliminaries and that you are desirous of meet- ing with me as representative of the Company to get down to the business of negotiating a collective bargaining agreement, please let me know what day would be suitable for our next meeting. EFCO MANUFACTURING, INC. 429 ;While it should be unnecessary, I will undertake to assure you that the Company has been, is now and hereafter will be willing to meet at all reasonable times with you and other employee representatives with a view to.concluding an agreement as quickly as possible. that thereafter a meeting was held at which it was agreed the Union should submit a written proposal; that he received the Union's proposal in a letter dated February 21; that a further conference was arranged for March 3; that this conference was not held, being cancelled by Johnson, who, on February 28, informed the Union : I'll be glad to sit down and talk with him and go over the whole position any time they thought it advisable-or words to that effect-but we were not going to recognize them as the collective bargaining agent for certain Efco Company employees. that no further meetings were had, however Johnson wrote the Union on March 3 inter alia: In our view, the National Labor Relations Board failed to apprehend the great harm accruing to the Company and to national labor relations generally when it granted your untimely Petition for Investigation and Certification of Representatives. The stabilizing influence of the Board's well-established policy of requiring encroaching unions to respect existing contracts would be sacrificed if the theory of this decision were permitted to stand. I am confident that the National Labor Relations Board will welcome an opportunity to reconsider it. Recent decisions on similar facts support that conclusion. The Respondent's Contention The Respondent admits that it refused to bargain with the Union because the "election was improperly ordered by the National Labor Relations Board," it points out that the hearing on the petition in 1-RC-2307 was held in July 1951, and that there was more than a 6 months' time lag until the Board's final de- cision and order therein, however the Respondent admitted that this question of delay had been raised and fully treated by the Board in its Decision and Order in 1-RC-2307. The Respondent offered the entire transcript of Case No. 1-RC-2307 in evi- dence ; the undersigned refused to admit it as nothing new was presented thereby and stated that the Board could take judicial notice of its own proceedings. Conclusion It is quite apparent from Johnson's testimony that his offer to meet the Union at all times "with a view to concluding an agreement as quickly as possible" was meaningless. This conclusion is inescapable in view of Johnson's letter of March 3, wherein he speaks of the alleged erroneous action of the Board in certifying the Union after the election in 1-RC-2307 and his testimony that at no time after the certification of the Union should any action of the Respondent "be understood to mean that at any point following certification did the Com- pany adopt or acquiesce in the Board's ruling in that regard." Clearly the negotiations for a contract between the Union and the Respondent were foredoomed to failure for as a man believes about ultimates so he deals with immediates. The undersigned therefore concludes and finds that on February 28, 1952, and at all times since, the Respondent has refused to bargain collectively with 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union as the exclusive representative of its employees in the herein above- described appropriate unit, and that by such refusal the Respondent has inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in unfair labor practices by refusing to bargain collectively with the designated representative of its em- ployees. It will therefore be recommended that it cease and, desist therefrom and from like and related conduct. It will further be recommended that the Respond- ent bargain collectively, upon request, with the Union as the exclusive representa- tive of its employees in the appropriate unit hereinabove found. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: 1. Efco Manufacturing, Inc., Providence, Rhode Island, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Steelworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All production and maintenance employees of Respondent, including the shipping clerk, employed at its East Greenwich plant, exclusive of the assistant to the superintendent, the lead men, office clerical employees, professional em- ployees, guards, and all supervisors as defined in Section 2 (11) of the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. United Steelworkers of America, CIO, was on January 5, 1952, and at all times since, has been, the exclusive representative of all employees in the afore- said unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on and after February 28; 1952, to bargain collectively with the aforesaid Union as the exclusive representative. of the employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. 6. By the aforesaid unfair labor practice the Respondent has been and is now Interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.]