Gilmore Industries Inc.

GILMORE INDUSTRIES, INC. 781 Gilmore Industries, Inc. and International Brotherhood of Elec- trical Workers, Local Union No. 1377, AFL-CIO. Case No. 8-CA-3037. May 214 1963 DECISION AND ORDER Upon a charge duly filed on January 22, 1963, by International Brotherhood of Electrical Workers, Local Union No. 1377, AFL- CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region, issued a complaint dated February 21, 1963, against Gilmore Industries, Inc., herein called the Respondent, alleging that the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a) (5) and (1) and Section 2(6) and (7) of the Act. Copies of the charge, complaint, and notice of hearing were duly served upon the Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about December 12, 1962, the Board certified the Union as the exclusive collective-bargaining representative of the em- ployees in a unit of production and maintenance employees at Re- spondent's Beachwood, Ohio, plant, and that since on or about Janu- ary 16,1963, the Respondent refused and continues to refuse to bargain collectively with the Union as the exclusive collective-bargaining rep- resentative of the employees in the certified unit. Thereafter Respond- ent filed an answer denying that it unlawfully refused to bargain and alleging that the Union is not the duly designated collective-bargaining representative of the employees because the election upon which the Board's certification is based was invalid and improper. On March 19, 1963, all parties to this proceeding entered into a stipulation of facts and jointly moved to transfer this proceeding di- rectly to the Board for findings of fact, conclusions of law, and decision and order. In their stipulation the parties agreed to waive a hearing before a Trial Examiner, the making of findings of fact and conclu- sions of law by a Trial Examiner, and the issuance of an Intermediate Report and Recommended Order. The parties stipulated that the entire record of this proceeding shall consist of the charge; complaint and notice of hearing; answer of Respondent; the Regional Director's Supplemental Decision, Order, and Direction of Second Election; the Board's Decision on Review and Certification of Representatives; mo- tion to transfer proceeding to the Board and stipulation of facts; and order postponing hearing indefinitely. On March 26, 1963, the Board approved the stipulation and granted the parties' motion to transfer the case to the Board. Thereafter a brief was filed by the Respondent . Upon the parties' stipulation of 142 NLRB No. 95. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facts, the brief, and the entire record in the case, the Board makes the following : FINDINGS OF FACT I. TFIE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corpora- tion duly organized under and existing by virtue of the laws of the State of Ohio, with its principal office and place of business located in Beachwood, Ohio, and is engaged in the production of electronic instrumentation systems. Respondent annually, in the course and con- duct of its business, ships products valued in excess of $50,000 to points directly outside the State of Ohio. Respondent admits, and we find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. TIIE ALLEGED UNFAIR LABOR PRACTICES The facts as stipulated show that the Union was certified on Decem- ber 12, 1962, as the collective-bargaining representative of a unit of the production and maintenance employees of the Respondent and that the Respondent on January 16, 1963, refused and continues to refuse to bargain with the Union. On July 13, 1962, a Board-conducted election was held,' in which a majority of the employees in the unit 2 designated and selected the Union as their representative for the purposes of collective bargaining with Respondent. Thereafter the Respondent filed objections to conduct affecting the results of the election, alleging that (1) em- ployees had received phone calls threatening them if they did not vote for the Union; (2) at least one employee had received a letter threatening him if he did not vote for the Union; and (3) employees who opposed the Union were threatened with physical violence by union adherents. The Regional Director found Respondent's objec- tions to be without merit and overruled them. However, during the course of the investigation the Regional Director found that in order to counteract a rumor that its initiation fee would be $300, the Union had obtained permission from its International president to waive initiation fees for all those currently employed at the time of the election in the event the Union won the election. Such information I Case No 8-RC-4757 (not published in NLRB volumes). 2 The unit consisted of "All production and maintenance employees at the Employer's Beachwood, Ohio, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act." GILMORE INDUSTRIES, INC. 783 was announced by a business representative of the Union to several of its supporters among employees at a meeting, and thereafter dis- seminated to a number of other employees. Relying on the Board's decision in Lobue Bros.,' the Regional Director on August 14, 1962, issued a Supplemental Decision, Order and Direction of Second Election, in which he set aside the election of July 13, 1962, on the ground that the Union's offer to waive initiation fees if it won the election constituted a promise of benefit which interfered with the employees' freedom of choice. The Union filed a timely request for review of the Regional Director's decision, which the Board granted. On December 12, 1962, the Board issued its Decision on Review and Certification of Representatives in which it certified the Union as the exclusive collective-bargaining representative of Respondent's pro- duction and maintenance employees.' A majority of the Board dis- agreed with the Regional Director and found that the alleged objec- tionable statement did not impair the employees' freedom of choice in the election. Accordingly, as the Union had received a majority of the votes cast in the election, it was certified. The majority found that the situation was clearly distingiushable from the Lobue case, and that in any event the Union's statement, issued to rebut the rumor that it would charge a $300 initiation fee, could not reasonably be construed by the employees as a promise of benefit if, or threat of a penalty unless, they voted for the Union. On December 19, 1962, and continuing thereafter, the Union re- quested and is requesting Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of Respondent's production and main- tenance employees in the unit found by the Board to be appropriate. On January 16, 1963, and continuing thereafter, Respondent re- fused and continues to refuse to recognize or bargain collectively with the Union for the above employees, in that Respondent has refused and continues to refuse to meet, negotiate, and discuss with the Union matters with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Respondent's stated reason for refusing and continuing to refuse to recognize or bargain collectively with the Union is that the elec- tion of July 13, 1962, was invalid, and the action of the Board on December 12, 1962, in sustaining the election and certifying the Un- ion is erroneous in fact and law. The issue which the Respondent raises in the present case has al- ready been considered and decided in the prior representation case. The Respondent has given no reason why the Board should reach a 3 109 NLRB 1182. 1 140 NLRB 100, Members Rodgers and Leedom dissenting. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD different conclusion in this proceeding.5 We reaffirm our previous conclusion." As the Respondent admittedly refused to bargain with the Union for the employees in the appropriate unit on and after January 16, 1963, we find that the Respondent has violated Section 8(a) (5) and (1) 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 close connection with its operations as 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Board makes the following : CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce and in operations affect- ing commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. All production and maintenance employees at the Respondent's Beachwood, Ohio, plant, excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since December 12, 1962, the Union has been and continues to be the exclusive bargaining representative of all the employees in the aforementioned unit for the purposes of collective bargaining within the meaning of Section 9 (c) of the Act. 5In its brief, Respondent states, "because the decision of the Board in the instant case has been predetermined by the Board's earlier decision in Case No . 8-RC-4757 , no useful purpose would be served here by lengthy argument or extensive citation as to the under- lying issues of fact or law. Suffice it to say that in the opinion of the Respondent Com- pany the instant case is not distinguishable on the facts or the law from the Lobue Bros., supra, upon which the Regional Director relied in setting aside the election conducted in Case No. S--RC-4757." 6 Sam Belz Upholstered Products Company, Inc , 138 NLRB 689. GILMORE INDUSTRIES, INC. 785 5. By refusing, on and after January 16, 1963, to bargain collec- tively with the Union as the exclusive representative of all the em- ployees in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By refusing to bargain with the Union, the Respondent has in- terfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in an un- fair labor practice within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) 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 the Respondent, Gilmore Indus- tries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain with International Brotherhood of Elec- trical Workers, Local Union No. 1377, AFL-CIO, as the exclusive representative of all employees in the above-described appropriate unit. (b) In any like or related manner interfering with the efforts of the above-named labor organization to bargain collectively. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Broth- erhood of Electrical Workers, Local Union No. 1377, AFL-CIO, as the exclusive bargaining representative of all the employees in the aforesaid appropriate unit, with respect to wages, rates of pay, hours of employment, or other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in Beachwood, Ohio, copies of the attached noticed marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its 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. v 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." 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBERS RODGERS and LEEDOM, dissenting : In our dissenting opinion in the representation proceeding which underlies this complaint case, 140 NLRB 100, we said that we agreed with the Regional Director that, under the Board's decision in the Lobue case, the Union's offer of a waiver of initiation fees was in effect a promise of benefit and, therefore, interfered with the employees' freedom of choice in the election. We adhere to our views there ex- pressed, and would accordingly dismiss the instant complaint. 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 National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain with International Brother- hood of Electric Workers, Local Union No. 1377, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such an understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at our Beach- wood, Ohio, plant, excluding office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or related manner, interfere with the efforts of International Brotherhood of Electrical Workers, Local Union No. 1377, AFL-CIO, to bargain collectively for the em- ployees in the bargaining unit as the exclusive bargaining agent. GILMORE INDUSTRIES, 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. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, 44115, Telephone No. Main 1-4465, if they have any questions concern- ing this notice or compliance with its provisions.