Herman Nelson DIV., American Air Filter Co, Inc.

HERMAN NELSON DIV., AMERICAN AIR FILTER CO., INC . 939 Herman Nelson Division, American Air Filter Company, Inc. and United Plant Guard Workers of America and its Local No. 236. Case No. 13-CA-3001. May 31, 1960 DECISION AND ORDER On February 16, 1960, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Coun- sel and Respondent filed exceptions to the Intermediate Report and supporting briefs. 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 Leedom and Members Bean and Fanning]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, to the extent consistent with our Decision herein. - 1. We agree with the Trial Examiner, for the reasons set forth hereinafter, that the Respondent violated Section 8(a) (1), (3), and (5) of the Act. As set forth in the Intermediate Report, the Respondent, following receipt of the Union's petition, interrogated the employees in the unit concerning their reasons for desiring union representation, and at- tempted to dissuade them from their union adherence. The tenor of Dykhuizen's and Parker's replies to the Respondent's questions, as more fully set forth in the Intermediate Report, served notice on the Respondent that its efforts to persuade the guards to reject the Union would probably fail. Shortly after the initial interrogation of Dykhuizen as to his reasons for desiring union representation, the Respondent took steps to initiate negotiations with Pinkerton's for plant protection services, and actually initiated such negotiations about a week later, at about the time of the execution of the consent- election agreement with the Union. Folowing the Union's election victory, the Respondent simultaneously continued negotiations with Pinkerton's and met with the Union, but secured a delay of a second meeting with the Union while continuing negotiations with Pinker- ton's. Only after an agreement had been reached with Pinkerton's did the Respondent meet again with the Union, and then only to 127 NLRB No. 116. I 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advise the Union of the accomplished facts-that it had decided to abolish the guard department, to have its guard services performed by Pinkerton's, and to transfer the guards to other employment. These decisions were effectuated the following week. On these facts, and particularly the timing of the Respondent's actions in relation to the advent of the Union's organization efforts, the failure of its counter efforts, and the Union's election victory, and its purposeful delay of the subsequent meeting with the Union so that it could negotiate further with Pinkerton's, we are convinced and find that the Respondent abolished its guard department, entered into the contract with Pinkerton's, and transferred its guard employees to other employment, solely because such employees had selected union representation and in order to avoid bargaining with the Union.' By such conduct, therefore, the Respondent has discriminated against its guard employees in violation of Section 8(a) (3) of the Act.' We further find that by its unilateral action in abolishing the guard department and transferring the guard employees, in derogation of the Union's status as the duly certified representative of such em- ployees, the Respondent has violated Section 8 (a) (5).3 As the Re- spondent's interrogation of its guard employees concerning their union adherence constituted the initial step in its design to avoid bargaining with the Union, such interrogation clearly violated Section 8 (a) (1) of the Act, and we so find.4 2. The Trial Examiner recommended that the Respondent offer its guard employees reinstatement, but did not specifically recommend that it reopen its guard department. As the Respondent continues to utilize guard service, we agree with the General Counsel that a specific reopening order is appropriate here.' 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 the Respondent, Herman Nelson i As set forth above, the evidence establishes that the Respondent did not initiate nego- tiations with Pinkerton's concerning its Morrison plant until after it had received the Union's petition In addition , there is no evidence other than Respondent 's own con- clusionary testimony regarding economic motivation, that Respondent was so motivated. Indeed, the economic considerations which Respondent asserts as reasons for its closing of the plant guard department were , by testimony of Respondent's own lvitnesses, in existence for a long period of time and yet Respondent did nothing' about them until the advent of the Union. In these circumstances , the record does not support the Trial Examiner's statement that Respondent 's explanation of its decision to contract with Pinkerton's and abolish its guard department undoubtedly had some validity and may have played a part in that decision , and we therefore do not adopt it. 2 Electro-Mechanical Products Company, 126 NLRB 637. 8 Consumers Gasoline Stations , 126 NLRB 1041 4 Economy Furniture, 126 NLRB 90. 6 Electro-Mechanical Products Company, supra. HERMAN NELSON DIV., AMERICAN AIR FILTER CO., INC . 941 Division, American Air Filter Company, Inc., Morrison, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating it employees concerning their union interest or affiliation in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (b) Refusing to bargain collectively with United Plant Guard Workers of America and its Local No. 236, as the exclusive repre- sentative of all watchmen at its Morrison, Illinois, plant, excluding office clerical employees, production and maintenance employees, plant clerical employees, professional employees, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment. (c) Discouraging membership in United Plant Guard Workers of America and its Local No. 236, or any other labor organization of its employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, including the above-named or- ganizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named labor organizations, as the exclusive representative of the employees in the aforesaid unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Reopen its plant guard department and offer to William Rose, James Parker, and Russell Dump reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole in the manner set forth in the section of the Intermediate Re- port entitled "The Remedy." (c) Make whole the personal representatives of William Dyk- huizen or any other person or persons as their interests may appear for any deprivation or loss they may have suffered by reason of the Respondent's discrimination against Dykhuizen in the manner set 942 DECISIONS OF NAT)ONAL LABOR RELATIONS BOARD forth in the section of the Intermediate Report entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and other benefits due and the rights of employment under the terms of this Ordel (e) Post at its plant at Morrison, Illinois, copies of the notice attached hereto marked "Appendix." 6 Copies of such notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by an authorized representative of the Re- spondent, be posted immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 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." APPENDIX 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 Labor Manage- ment Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in United Plant Guard Workers of America and its Local No. 236, or any other labor organization, by discriminating in regard to the hire or tenure of employment or any term or condition of employment of our employees. WE WILL NOT interrogate our employees concerning their union interest or affiliation in a manner constituting interference, re- straint, or coercion. WE WILL, upon request, bargain. collectively with United Plant Guard Workers of America and its Local No. 236 as the exclusive representative of all our employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other HERMAN NELSON DIV., AMERICAN AIR FILTER CO., INC. 943 conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is : All watchmen, but excluding office clerical employees, pro- duction and maintenance employees, plant clerical employees, professional employees, and supervisors as defined in the Act at our Morrison, Illinois, plant. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist United Plant Guard Workers of America and its Local No. 236, or any other labor organization, to bargain collectively through representa- tives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL reopen our plant guard department and offer William Rose, James Parker, and Russell Dump immediate and full rein- statement to their former or substantially equivalent positions as guards without prejudice to their seniority and other rights and privileges previously enjoyed and make them whole for any loss of pay suffered as a result of our discrimination against them. WE WILL make whole the estate of William Dykhuizen or any other person or persons as their interests may appear for any loss of pay or benefits suffered as a result of our discrimination against Dykhuizen. All our employees are free to become, remain, or refrain from be- coming or remaining members of any labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. HERMAN NELSON DIVISION, AMERICAN AIR FILTER COMPANY, 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. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding against Herman Nelson Division, American Air Filter Company, Inc., herein called the Respondent or the Company, involves Section 8 (a) (1), (3), and (5 ) allegations, and was initiated by United Plant Guard Workers of America and its Local No. 236, herein called the Charging Party or the Union. The General Counsel and the Respondent filed briefs with the duly designated Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Herman Nelson Division , American Air Filter Company, Inc., a Delaware corporation , is engaged in the manufacture of air filtering equipment in several States, and maintains a plant at Morrison , Illinois, the facility involved in this proceeding . During 1958, the Morrison plant purchased materials valued in excess of $100,000 outside the State of Illinois , and shipped finished products valued in excess of $100,000 to customers located outside the State of Illinois. It is found that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, United Plant Guard Workers of America and its Local No. 236, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The issues presented are whether the Respondent engaged in certain acts of inter- ference, restraint, and coercion in violation of Section 8(a)(1), refused to bargain beginning October 7 , 1958, in violation of Section 8(a)(5), and discriminatorily terminated its four guards in the plant protection department on October 13, 1958, in violation of Section 8 (a) (3) of the Act. - B. The events Early in August 1958 , the president of the Union sought to organize the Com- pany's guards and obtained membership cards from three of the four guards. The Union thereafter filed a representation petition and on August 18 the Morrison plant manager, William H . Treffinger, received a copy of the petition from the Chicago Regional Office. On the day Treffinger received the petition , which was when Treffinger first learned that an effort had been made to organize the guards, he took the matter up with the personnel manager and they decided to talk to William Dykhuizen , the guard on duty at that time. When Dykhuizen appeared at the office Treffinger informed him that they had received a petition from the Board regarding the guard unit . Treffinger also pointed out to Dykhuizen that the four men in the guard unit were benefiting as free riders under a recently negotiated contract covering the production and maintenance employees and inquired why Dykhuizen wanted to pay dues and fees to another union. Dykhuizen replied that he was interested in job security. Treffinger stated that they had never discharged anyone at the plant and that he wondered why Dykhuizen wanted a labor organization. Dykhuizen again stated that he wanted more security . Treffinger inquired whether Dykhuizen had diffi- culties with his foreman or had any grievances . Dykhuizen replied in the negative Treffinger thereafter telephone his superior , General Manager Howard Fitch at Moline and informed him of the receipt of the petition and that he had talked to a guard to find out what the trouble was. He reported to Fitch that it appeared that the men wanted more job security. The parties entered into a consent -election agreement on August 26, and an elec- tion was conducted on September 16. Two ballots were cast for and none against the Union. During the period shortly after he received a copy of the petition on August 18 and about 2 days before the election on September 16, Treffinger also talked with the other three persons then employed as guards, James Parker , William Rose, and HERMAN NELSON DIV., AMERICAN AIR FILTER CO., INC. 945 Verlyn Cox. In his conversation with Parker, Treffinger asked why he wanted a union and whether he had any grievances; also why Parker wanted to pay dues as he had a large family and he could bung that money home to his children -and as things stood he was benefiting under another union's contract. Parker stated that they wanted the Union to get more job security. Treffinger pointed out to Parker that he had been caught "dozing" several times in the past year, that he had not been discharged, and that no written record was made for the file. He also asked Parker what greater security he could desire. In his conversation with Rose, Treffinger asked him what the trouble was and why he wanted a union to represent him, and declared that they had always taken care of Rose. In his talk with Cox, Treffinger pointed out to Cox that he had received a petition from another union and asked Cox what the trouble was. Shortly after Treffinger first reported to Fitch on August 18, regarding the receipt of the representation petition and the interview with Dykhuizen, in other conversa- tions with Fitch, Fitch informed Treffinger that the Louisville plant manager was negotiating with Pinkerton's Detective Agency for plant protection service and suggested that Treffinger discuss the matter with the plant manager there. By about August 23, Treffinger had telephoned the Louisville plant manager and by about August 26, or 27, around the time of the execution of the consent-election agreement, Treffinger contacted Pinkerton's Chicago office. On September 22, Russell Moyer, of Pinkerton's Chicago office, who had talked with Treffinger at Morrison while he was on a selling trip about a year earlier, again visited Morrison and discussed contracting for security service with Treffinger. The result of this meeting was that Treffinger was to take the matter up with Fitch and then contact Moyer. + The next day, September 23, Treffinger and other representatives of the Company met with the Union to discuss the Union's proposed contract. An official of the Union went over the Union's proposals article by article and certain discussions regarding these proposals were had. A representative of the Company stated that they did not intend to sign anything that day as they needed more time to look over the proposals. Before the meeting adjourned the parties set October 2, for their next meeting. At the Company's request the meeting of October 2 was thereafter rescheduled for October 7. On September 30, Treffinger, Fitch, and William Rogers, manager of the Moline plant, met at Moline with Moyer in order to arrive at a decision as to whether or not they should enter into a service contract with Pinkerton. After the close of this meeting, Moyer telephoned Fitch and quoted prices for services at the Morrison and/or the Moline plants. Moyer thereafter confirmed the price quotation and certain other terms and conditions in a letter to Fitch dated October 2. After receiving Moyer's price quotation, Treffinger explained that he compared the Pinkerton contract price and the cost under the Union's proposed contract and decided that he would be saving money by using Pinkerton's services. A final decision to contract with Pinkerton was not reached until early in October. When the Company and the Union met on Tuesday, October 7, the Company's officials announced to the Union for the first time that Pinkerton would take over the guard function the following Monday, October 13. Treffinger announced that the four men who had been employed as guards would be transferred to other employment at the plant, and the meeting came to an end. Pinkerton guard service was instituted at the Moline plant on November 1. C. The conclusions 1. The appropriate unit; and the majority It is found that all watchmen, but excluding office clerical employees, production and maintenance employees, plant clerical employees, professional employees, and supervisors as defined in the Act at the Company's Morrison, Illinois, plant consti- tute, and at all times material herein have constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. It is further found that on or about September 16, 1958, a majority of the em- ployees in the above-described unit by secret election conducted under the sup'rvi- sion of the Regional Director for the Thirteenth Region, designated or selected the Union as their representative for the purposes of collective bargaining, and on or about September 24, 1958, the Board certified that the Union had been designated and selected by a majority of the employees in this unit and that pursuant to Section 9(a) of the Act is the exclusive representative of said employees for the purposes 560940-61-vol. 12T---61 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 2. The discrimination; interference, restraint, and coercion; and the refusal to bargain Fitch explained that the Pinkerton guard service was instituted to save money and that the change was made in line with the request of the president of the Company that they were more or less to standardize on Pinkerton's service in their plants throughout the country. Fitch explained further that in a discussion with the president during the summer when the Louisville plant was retaining Pinkeiton, the president suggested that Fitch investigate the possibility of using Pinkerton's service at the Morrison and Moline plants. Treffinger explained that the primary reason for obtaining outside plant protection services was that during a production and maintenance unit strike in April 1958 and shortly thereafter certain events, the damaging of a truck and items missing from inventory, caused him to lose con- fidence in the plant protection that he had at the plant Treffinger also explained that he had problems in obtaining personnel and in supervision, and was of the opinion that Pinkerton service would provide better protection, that he would have less trouble, and that he would save money. Although some of the explanations given undoubtedly have some validity and may have played a part in the decision to contract with Pinkerton and to abolish the plant protection department, the record also shows that on the very day Treffinger first learned that an effort had been made to organize the guards, he attempted to dissuade the guard on duty from the Union Treffinger then pointed out to Dyk- huizen that the guards were benefiting as free riders under a recently negotiated contract relating to the production and maintenance employees. Treffinger asked Dykhuizen if he had any grievances or difficulties with the foremen. When Dykhuizen indicated that he was seeking job security, Treffinger assured him that he had job security under the existing circumstances as they had never discharged anyone Between that time and the election about a month later, Treffinger spoke to each man in the guard unit in the same vein, inquiring about what the trouble was, pointing out the cost of union dues, and assuring them of job security, in an attempt to get them to give up the Union. This is hardly the conduct of a man who for reasons other than opposition to the organization of the guards given above had decided to abolish their employment. On the subject of saving money, it appears that Treffinger merely presented the Union on October 7, with an accomplished fact, namely, that Pinkerton would take over the following week and did not invite the Union to make an offer with the abolition of the guard unit as the alternative. Accordingly, and in view of the findings of interference, restraint, and coercion below, it is found that the abolishing of the guard unit on October 13, 1958, was brought about because of the unionization of the guards and that thereby the Company violated Section 8(a)(3) and (5) of the Act. It is further found as alleged that by the interrogation of Dykhuizen and Parker concerning their union interest, the Respondent violated Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 111, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has 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. Thus, having found that the Respondent refused to bargain in violation of the Act, it will be recommended that, upon request, the Respondent bargain collectively with the Union and, if an understanding is reached, that such understanding be embodied in a signed agreement. On October 13, 1958, when the guard positions were abolished, William Rose, William Dykhuizen, James Parker, and Russell Kump who had replaced Cox, were employed as guards and were then transferred to other employment at the plant. Dykhuizen died sometime before the hearing. Having found the guard positions to have been discriminatorily abolished on October 13, 1958, it will be recommended that with the exception of Dykhuizen, the Respondent offer each of the above- SHARON HATS, INCORPORATED 947 named employees immediate and full reinstatement to his former position as a guard without prejudice to his seniority or other rights and privileges and make each of them whole for any loss of pay suffered as a result of the discrimination against him, by payment to each of them of a sum of money equal to the amount he would have earned from the date of the discrimination to the date of the offer of reinstatement less net earnings to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in any one particular quarter shall have no effect upon the backpay liability for any other such period. It will also be recommended that the Respondent preserve and, upon request, make available to the Board payroll and other records to facilitate the computation of the backpay due. In view of Dykhuizen's decease, it is recommended that the Respondent be ordered to make whole Dykhuizen's estate or any other person or persons as their interests may appear for any loss of earnings or benefits to which Dykhuizen would have been entitled had he not been discriminated against from October 13, 1958, until the date of his death. It will also be recommended that the backpay liability be computed upon a quarterly basis as described above, and that the Respondent make available to the Board, upon request, payroll and other records to facilitate the checking of the amounts due. As the Respondent's infractions of Section 8(a)(1), (3), and (5) of the Act, herein found, discloses a fixed purpose to defeat self-organization and its objectives and are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon employee rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Plant Guard Workers of America and its Local No. 236 are labor organizations within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of the employees named above in the section entitled "The Remedy," thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By engaging in the conduct set forth in the section entitled "C. The conclu- sions," the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By refusing to bargain collectively with the Union as the exclusive representa- tive of its employees in the appropriate unit set forth in the section entitled "C. The conclusions," beginning October 7, 1958, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Sharon Hats, Incorporated and United Hatters, Cap and Milli- nery Workers International Union, AFL-CIO. Case No. 16- CA-1103. May 31, 1960 DECISION AND ORDER On March 16,1960, Trial Examiner Alba B. Martin issued a Supple- mental Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Supplemental Intermediate Report attached hereto. There- 127 NLRB No. 119.