U.S. Tool & Cutter Co.

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten to. close down or not to deal with a union if our fac- tory-becomes unionized. WE WILL NOT question applicants for employment on whether they belong to a union, or on whether they intend to join or are in sympathy with a union. WE WILL NOT in any other manner interfere with, restrain, or coerce any em- ployees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist Local 107 or Local •10, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and 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. All employees are free to become, remain, or to refrain from becoming or remain- ing, members of any labor organization. D'ARMIGENE, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any question concerning this notice or compliance with its provisions. U.S. Tool & Cutter Co. and Mechanics Educational Society of America, AFL-CIO. Case No. 7-CA-4550. July 27, 1964 DECISION AND ORDER On April 6, 1964, Trial Examiner William F. Scharnikow issued his Decision in the above-entitled proceeding, granting the motion of the General Counsel to cancel the hearing scheduled herein and for judgment on the pleadings,' finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the mean- ing of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. Pursuant 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 Leedom, Fanning, and Brown]. 'At one point in his Decision, the Trial Examiner inadvertently referred to this motion as the Respondent's motion. 148 NLRB No. 4. U.S. TOOL` & CUTTER' CO. 21 The Board has considered the-Trial Examiner's Decision, the ex- ceptions, and the entire record in the case, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that the Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER STATEMENT OF THE CASE In the present case , the charge (filed by the Union on January 29, 1964, and served -upon the Respondent on January 31, 1964 ) and the complaint (issued by the Acting Regional Director on February 4, 1964, and served upon the Respondent on the same day) allege that, on and since January 23, 1964, the Respondent has committed un- fair labor practices affecting commerce within the meaning of Sections 8 (a)( I) and (5) and 2(6 ) and (7) of the National Labor Relations Act (29 U.S.C., Sec. 151, et seq. ), by refusing to bargain collectively with the Union which had been certified by the Board's Acting Regional Dirctor as exclusive collective-bargaining representa- tive of the Respondent's employees in an appropriate unit, in accordance with the vote of a majority of these employees in an election by secret ballot conducted by the said Acting Regional Director on January 7, 1964, under an agreement for con- sent election previously executed by the Respondent and the Union. Acting through counsel, the Respondent filed an answer to charge against employer on February 6, 1964, and , in amplification of its defense, also an answer to complaint on February 14, 1964. In and by the consistent- and complementary allegations of said answers, the Respondent has purported to set forth its position and defense in the present case, and the two submissions must therefore be treated as its answer to the complaint . Although the Respondent has thereby relied upon certain affirma- tively pleaded matters for its defense and has on these bases denied its commission of the unfair labor practices alleged in the complaint, it has either admitted or failed to deny the substance of the allegations of the complaint that : ( 1) the production and maintenance unit described in the complaint has at all material times constituted a unit of the Respondent's employees appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act; (2) a majority of the em- ployees in the unit voted for the Union as their collective-bargaining representative in an election conducted by secret ballot by the Acting Regional Director on Janu- ary 7, 1964; ( 3) on January 15, 1964, the Acting Regional Director certified the Union as the exclusive bargaining representative of the employees in the appropriate unit; (4) on January 16, 1964, the Union requested the Respondent to bargain col- lectively with the Union as the exclusive bargaining representative of all the em- ployees in the appropriate unit ; and (5 ) on and since January 23, 1964, the Respond- ent has refused "to honor the certification of and to meet and bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the [appropriate] unit " As the principal defense affirmatively asserted by it in its answer, the Respondent alleged in substance that a majority of the employees voted against the Union in a 2 0n May 6, 1964 , after the issuance of the Trial Examiner's Decision , the General Counsel moved that the Board reopen the record herein and that the Respondent be ordered to show cause why the contract between the Respondent and the Union , entered into on April 20, 1964, and effective for 2 years , should not be made part of the record In the alternative, the General Counsel requested that the Board remand the case to the Trial Examiner for the purpose of reopening the hearing to accept evidence relating to the above contract. The General Counsel's motion is hereby denied as it does not present anything relevant to the issues involved in this proceeding. 22 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD first election conducted by the Acting Regional Director on September 11, 1963, and that "the arbitrary and capricious action of the Acting Regional Director, in [setting aside this election and] ordering this second election on January 7, 1964, renders the certification null and void ...." In addition, the Respondent's answer asserted the following as defenses to the complaint: (a) the employees "requested the Union not to file any objections to the first" election; (b) "certain facts relied upon by the Act- ing Regional Director in his order for the second election were not valid"; (c) the "long delay" between the first and second elections "had an adverse effect upon [the Respondent's] relationship with his employees, and prevented the [Respondent] from granting a mutually desired general wage increase . . . and was a direct cause of the change in the results of the [second] election"; and (d) the Acting Regional Director acted improperly in issuing the present complaint only 4 days after receiving the Union's charge, without previous investigation of the charge, and without discussing the possibility of settlement with the Respondent. On March 4, 1964, the General Counsel filed and served upon the Respondent a motion to strike portions of Respondent's answer to complaint and motion for judgment on the pleadings. In said motion, the General Counsel prayed that: (1) the material allegations of the complaint which "have, in effect, been admitted in the Re- spondent's Answer . be deemed to be admitted to be true"; (2) for reasons and authority set forth in the motion, the defenses affirmatively pleaded in the Respond- ent's answer be struck as insufficient and lacking in merit; (3) "Respondent be found by the Trial Examiner to have violated Section 8(a) (1) and (5) of the Act without the taking of evidence in support of the allegations of the Complaint"; and (4) "this motion be ruled upon immediately so that, in the event the motion is granted, the necessity for hearing will be eliminated and the hearing cancelled." On March 4, 1964, the Acting Regional Director referred the General Counsel's motion to the Trial Examiner pursuant to Section 102.25 of the Board's Rules and Regulations, and on March 9, 1964, the Respondent having on that day requested leave to file its opposition to said motion on or about March 11, 1964, the Chief Trial Examiner designated me, Trial Examiner William F. Scharnikow, to rule thereon. On March 10, 1964, I issued and caused to be served upon the Respondent and the other parties, a telegraphic order granting leave to the Respondent to file its opposition to the General Counsel's motion on or before March 17, 1964, post poning the scheduled hearing from March 12 to April 2, 1964, pending my disposi- tion of the motion, and directing that the Respondent in its opposition to the motion should "(1) state with particularity the facts upon which it relies and asserts in its answer that the Acting Regional Director acted arbitrarily and capriciously in order- ing a second election in the representation proceeding on January 7, 1964, (2) sup- port with reason or citation of authority the legal sufficiency of the defenses it asserts in its answer and (3) state its reasons, if any it has, for believing that the pleadings present any issue of fact or law requiring a trial or hearing herein." On March 17, 1964, the Respondent filed with me its opposition to the General Counsel's motion. The full text of the Respondent's opposition was the following: 1. The Employer signed the Stipulation for a Consent Election believing that the Acting Regional Director would be fair and impartial in making his de- terminations. The Acting Regional Director acted arbitrarily and capriciously in ordering the second election on January 7, 1964, for the reason that he set aside the first election based upon statement of facts, in his report on objections, that are false and not substantiated in the record. The conclusions to justify ordering the second election were based upon con- clusions of facts that are not substantiated in the report, and were based upon false conclusions of facts. To cite one example: the report stated that a con- tract between the employees and the company expired in 1963. As a matter of fact, this agreement did not expire in 1963. There are numerous other untrue and unsubstantiated facts used as a basis for the conclusions reached by the Acting Regional Director. To restrict the Employer to submission of these matters on briefs, is unfair and it does not permit us to correct these errors of fact in the matter, and it places an onerous burden on the employer, and deprives the employer of due process, or any right to cross-examination. The employer, therefore, respectfully requests that this matter be set for hear- ing before the Trial Examiner, on April 2, the date set for the hearing or on an earlier date, if possible, so that we may properly present our Opposition to the Motion of the Acting Regional Director. U.S. TOOL & CUTTER CO. 23 It would appear that the Acting Regional Director would welcome the hear- ing to clarify the record, if he were certain of the correctness of the facts he relies upon, then he should welcome an opportunity to clear the record. The apparent reluctance to do so in a hearing before the Trial Examiner is an indi- cation that the facts relied upon cannot be substantiated. On March 18, 1964, after consideration of the pleadings, the General Counsel's motion and the Respondent's opposition thereto, I issued and caused to be served upon the Respondent and the other parties, the following telegraphic order: Re: U.S. Tool & Cutter Co.-Case No. 7-CA-4550. The General Counsel having filed and served upon the Respondent a motion to strike portions of the Respondent's answer and for judgment on the pleadings , and the Respondent having filed and served its opposition pursuant to leave granted in my telegraphic order of March 10, 1964, and it appearing that the General Counsel 's motion has merit and that the pleadings present no issue of fact or law requiring a trial or hearing herein, the motion of the General Counsel is hereby granted, the hearing set for April 2, 1964, is cancelled, and the notice of hearing is vacated and set aside . The Trial Examiner's Decision and Recommended Order, in- cluding his reasons for granting the General Counsel 's motion and his findings of fact and conclusions of law , are being prepared and will be filed and served upon the parties in due course. Rulings on the General Counsel's Motion The present situation is one in which the Respondent in its answer has admitted or failed to deny all the essential allegations of the complaint , but, by way of affirmative defense, has attacked the conduct of the Acting Regional Director both in the repre- sentation proceeding and in the issuance of the complaint in the present unfair labor practice proceeding . So far as the representation case is concerned, it appears (as the Respondent admits in its answer and its opposition to the General Counsel's motion) that the Acting Regional Director conducted the representation proceeding under an agreement for consent election, investigated and found merit in the Union's objections to the first election, directed a second election 4 months after the first, and then, in accordance with the results of the second election , certified the Union as the exclusive bargaining representative of an appropriate unit of the Respondent's em- ployees. With respect to the present proceeding, it appears merely that the Acting Regional Director, having received the Union's charge of Respondent's refusal to bargain on January 29, 1964, issued the present complaint on February 4, 1964, or only 4 or 5 days later. Pursuant to Section 102.20 of the Board's Rules and Regulations , I have granted the portion of the General Counsel's motion that I take the allegations of the com- plaint as having been admitted by the Respondent and as therefore being true and the proper basis for findings without the necessity of holding a hearing and taking evidence with respect thereto . For the following reasons, I have also struck the re- maining affirmative defenses pleaded by the Respondent as being insufficient to raise a defense and, since no triable issues have been presented by the pleadings, I have canceled the hearing and have granted the General Counsel's motion for a judgment on the pleadings. As I have noted, the Respondent affirmatively asserted in its answer as its primary and general defense merely its unexplained conclusion "that the arbitrary and capri- cious action of the Acting Regional Director in ordering [the] second election of January 7, 1964, renders the certification [of the Union as exclusive bargaining repre- sentative] null and void." Furthermore, despite the specific direction in my tele- graphic order of March 10, 1964, the Respondent in its opposition to the General Counsel's motion has failed to "state with particularity the facts upon which it relies on" in asserting this defense. Accordingly, I have struck this affirmative defense from the Respondent's answer as pleading a mere conclusion without indication of its basis and therefore as being insufficient to raise or frame an intelligible issue for trial in the present case. The remaining affirmatively pleaded defenses alleged in substance , as I have noted: (a) a request made by employees to the Union that no objections to the first election be filed ; (b) error by the Acting Regional Director in ordering the second election; (c) a 4-month delay in holding the second election, thereby prejudicing the Respond- ent and influencing a change in the election result ; and (d ) the Acting Regional Director's issuance of the complaint in the present case without investigation or 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affording the Respondent an opportunity of settlement. These defenses have also been struck from the Respondent's answer as legally insufficient, both in accordance with the argument and authorities cited by the General Counsel in his motion and in view of the Respondent's failure to indicate and support their legal sufficiency (with reason or citation of authority) as directed by me in my telegraphic order of March 10, 1964. In striking these defenses, I hold that, the factual allegations in the Respond- ent's answer and in its opposition to the General Counsel's motion would neither justify the Respondent's conclusion that the Acting Regional Director acted arbi- trarily, capriciously, or improperly in the representation proceedings or in the instant complaint proceeding, nor would they otherwise present a defense to the merits of the complaint. With respect to the allegations relating to the representation case, it would appear even from the Respondent's answer, that the Acting Regional Director did no more than act upon the Union's objections to the first election strictly in accordance with the authority conferred by the agreement for consent election and within the time reasonably required by the situation which confronted him.' Any possible change in the attitude of the employees in the period between the two elec- tions resulting in a vote favorable to the Union in the second election was therefore incidental to the election procedures prescribed by the Act and adopted to this par- ticular situation by the parties, including the Respondent, in their agreement for con- sent election, and cannot therefore be attributed to the Acting Regional Director. Finally, with respect to the Acting Regional Director's issuance of the unfair labor practice complaint so shortly after the Union's filing of its charge, his asserted failure to investigate the charge and to afford the Respondent an opportunity for settlement does not present a defense to the merits. For, having just issued his certification of the Union, the Acting Regional Director was certainly familiar with the situation and, when he was informed by the Union in its charge of the Respondent's refusal to bargain, no further investigation was reasonably required of him .2 Nor was the Respondent prejudiced by lack of an opportunity to settle the case before the com- plaint issued, since it could itself have initiated such an attempt, not only when the Union's charge had been served upon it, but also after the issuance of the complaint .3 For the foregoing reasons, I have granted the Respondent's motion (1) to take the allegations of the complaint as having been admitted by the Respondent; (2) to strike the remaining affirmatively pleaded allegations from the Respondent's answer; (3) to cancel the hearing originally scheduled herein; and (4) to make my following find- ings of fact, conclusions of law, and recommendations upon, and in accordance with, the admitted allegations of the complaint. Findings of Fact and Conclusions of Law 1. The original charge in this proceeding was filed on January 29, 1964, and served by registered mail upon Respondent on or about January 30, 1964. 2. Respondent, U.S. Tool & Cutter Co, is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Michigan. 3. At all times material herein, Respondent has maintained its only office and place of business at 28975 Orchard Lake Road in the village of Franklin and the State of Michigan, and is, and has been at all times material herein, engaged in-the manu- facture, sale, and distribution of cutting tools and related products. 4. During the-fiscal year ending June 30, 1963, which period is representative of its operations during all times material herein, Respondent, in the course and conduct of its business operations, manufactured, sold, and distributed at its Franklin, Michi- gan, plant, products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plant directly to points located outside of the State of Michigan. During said fiscal period, Respondent performed approximately $35,000 worth of national defense work. ' 5. Respondent is now, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. , 6. Mechanics Educational Society of America, AFL-CIO (herein called the Union), is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. N L R.B v. Calumet Steel Division of Borg-Warner Corporation, 121 F 2d 300 (C A. 7) ; Efco, Manufacturing, Inc., 100 NLRB 423-424. ? Mildren F. Kellow, d/b/a Kellow-Brown Printing Company, 105 NLRB 28, 32. 3lnternational Typographical Union and the Baltimore Typographical Union No. 12 ( Graphic Arts League, et al.), 87 NLRB 1215, 1223-1225. U.S. TOOL & CUTTER CO. 25 7. All production and maintenance employees of the Respondent at its Franklin, Michigan, plant, including shipping and receiving employees, but excluding all other plant clerical employees, all office clerical employees professional employees, techni- cal employees, guards, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 8. On or about January 7, 1964, pursuant to an agreement for consent election executed by the Union and Respondent and approved by the Regional Director of the Seventh Region of the Board on August 19, 1963, a majority of employees of Respondent in the unit described above in paragraph 7, by a secret-ballot election conducted under the supervision of the Acting Regional Director for the Seventh Region of the Board, designated and selected the Union as their representative for the purposes of collective bargaining with Respondent, and on or about January 15, 1964, said Acting Regional Director certified the Union as the exclusive collective- bargaining representative of the employees in said unit. 9. At all times since January 15, 1964, and continuing to date, the Union has been the representative for the purposes of collective bargaining of the employees in the unit described above in paragraph 7, and, by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment. 10. Commencing on or about January 16, 1964, and continuing to date, and more particularly, by letter dated January 16, 1964, from National Representative Jerry Raymond, the Union requested, and is requesting, that Respondent bargain collec- tively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of all the employees of Respondent in the unit described above in paragraph 7. 11. Commencing on or about January 23, 1964, and at all times thereafter, and more particularly by letter dated January 23, 1964, Respondent, through its attorney and agent, Martin J. Ewald, did refuse, and continues to refuse, to honor the cer- tification of and to meet and bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the unit described above in paragraph 7. 12. By the conduct described above in paragraph 11, Respondent did refuse, and is refusing, to bargain collectively with the representative of its employees, and thereby did engage in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) and Section 2 (6) and (7) of the Act. 13. By the conduct described above in paragraph 11, Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing, its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby did engage in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 14. The conduct of Respondent described in paragraph 11, above, occurring in connection with operations of Respondent described in paragraphs 2, 3, 4, and 5, 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 obstruct- ing commerce and the free flow of commerce. 15. The conduct of Respondent described above constitutes unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent , U.S. Tool & Cutter Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment, with Mechanics Edu- cational Society of America, AFL-CIO, as the exclusive representative of all em- ployees in the following appropriate unit: 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees of the Respondent at its Franklin, Michigan, plant, including shipping and receiving employees, but excluding all other plant clerical employees, all office clerical employees, professional employees, techni- cal employees, guards, and supervisors as defined in the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclu- sive representative of all employees in the foregoing appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant in Franklin, Michigan, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventh Region, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith .5 'If this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a' United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." 5If this Recommended Order is adopted by the Board , this provision shall be modified to read : "Notify the Regional Director for the Seventh Region, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Mechanics Educational So- ciety of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL, upon request, bargain with the above-named Union as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of the Respondent at its Franklin, Michigan, plant, including shipping and receiving employees, but excluding all other plant clerical employees, all office clerical employees, professional employees, technical employees, guards, and supervisors as defined in the Act. U.S. TOOL & CUTTER CO., 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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330, if they have any questions concerning this notice or compliance with its provisions.