Square Tube Corp.

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Square Tube Corporation and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Case No. 7-CA-4659. Novem- ber 10, 1964 DECISION AND ORDER On August 18, 1964, Trial Examiner Reeves R. Hilton issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in unfair labor practices, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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. [Chairman McCulloch and Members Leedom and Brown]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.1 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 Respondent, Square Tube Corporation, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 The Respondent's letter, dated October 28 , 1964, requesting permission to amend its exceptions and brief and referring to a letter of the Union , dated October 16, 1964, not contained in the record , is denied as the matters there presented are not material to any of the issues in this proceeding. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, through the Acting Regional Director for Region 7, issued a complaint, dated May 4, 1964, alleging that Square Tube Corporation, herein called the Respondent or the Company, has engaged in and is engaging in certain acts and conduct in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (29 U.S.C. 151 , et seq. ), herein called the Act. The Respondent's answer admits certain allegations of the complaint but denies the commission of any unfair labor practices. 149 NLRB No. 55. SQUARE TUBE CORPORATION 609 Pursuant to notice a hearing was held before Trial Examiner Reeves R. Hilton at Lapeer, Michigan, on July 7, 1964, at which time the parties were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argu- ment, and to file briefs. About August 7, I received briefs from counsel for all parties, which I have considered fully. Upon consideration of the entire record,' I make the following: - FINDINGS OF FACT I. THE RESPONDENT'S BUSINESS The Respondent, a Michigan corporation, maintains its office and place of business in Marlette, Michigan, where it is engaged in the manufacture, sale, and distribution of fabricated steel products and related products. During the fiscal year ending March 31, 1964, the Respondent's out-of-State sales amounted to more than $80,000. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue The principal issue is whether the Union's notice of modification served upon the Company 60 days prior to the expiration of their agreement was in compliance with the terms of the contract and Section 8(d) of the Act. B. The facts The facts, which are undisputed, are as follows: On September 16, 1962, the Union, following a Board-conducted election, was certified as the exclusive bargaining representative for all production-labor em- ployees at the Company's plant, with the usual exclusions. Thereafter the parties entered into negotiations with Tracy Doll, International Representative, and a shop committee, composed of two employees, representing the Union and John Jezierski, secretary and general manager, representing the Company. These negotiations resulted in an agreement which was signed by Jezierski on behalf of the Company, and by Doll, the shop committee, and Ken Morris on behalf of the Union. Morris was, and is, a member of the Union's executive board and coregional director of region 1, which includes the location of the Company's plant. The agreement became effective December 17, 1962, for a period of 1 year, "and for successive yearly periods thereafter unless terminated, modified or amended by the parties hereto." The agreement further provides: Either party desiring to terminate, modify or amend this Agreement on its expiration date shall give the other party notice in writing at least sixty (60) days prior to the termination date or sixty (60) days prior to any subsequent expiration date. Doll, who maintained his office at the Union's headquarters in Detroit, was responsible for servicing the agreement, as well as agreements with other employ- ers in the area. In the early part of October 1963, Doll conferred with Morris regarding the agreement and they decided it should be modified. Upon instruc- tions from Doll, one of the office staff completed the Union's form notice of modification or termination, captioned "60-day Notice to Employer," advising 'On July 22, 1964, a hearing was held upon the Regional Director's petition for In- junctive relief under Section 10(j) of the Act, Jerome H. Brooks, Acting Reg. Dir. v. Square Tube Corp., U.S.D.C. for the Eastern District of Michigan, and an order was issued granting the relief prayed. (56 LRRM 2981.) Counsel for the Charging Party sent me a copy of the transcript of this hearing As the district court hearing was held subsequent to the close of this hearing, and as there is no stipulation that such transcript be made a part of this record, I do not accept the transcript as part of this record and I have not considered or relied upon that transcript in making my findings and conclusions. 770-076--65-vol. 149-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company of the Union's desire to modify the current agreement and request- ing a meeting for the purpose of negotiating modifications , described therein as contract modifications and economic demands. The notice states it is being given pursuant to the terms of the Act and sets forth the name of Amalgamated Local Union No. 213 , UAW (herein called Local 213), as the party to the agreement. 2 After the form had been completed Doll had it signed by Kirk Perley, Sr., president of Local 213 . He then discussed the notice with Morris who approved it and directed his secretary to stamp his signature thereon, which she did. The notice is dated October 11, was mailed that day, and the Company concedes it was received on or about October 14. Notices were also mailed to the Federal Mediation and Conciliation Service and the Michigan State Mediation and Conciliation Service on October 11, al- though the notices are dated November 11. These notices were signed by Doll and contain the names of both the Union and Local 213. Doll heard nothing from the Company, so in the latter part of November or early December he telephoned Jezierski twice but was unable to speak with him on either occasion and Jezierski did not return his calls. On December 4, Doll wrote the Company that he and the shop committee were anxious to meet with it for the purpose of negotiating amendments to the agreement and requested that the current agreement remain in effect until the negotiations had been completed. Doll received no word from the Company, so on December 17 he telephoned Jezierski who told him the matter had been referred to Attorney Killeen. Doll then called Killeen who expressed the opinion that since the 60-day period had expired the contract had renewed itself. On the same date, Killeen sent a letter to Doll reaffirming his position that the contract had been renewed for 1 year. Kil- leen also requested a copy of the Union 's notice to the Company and, upon receipt thereof, he stated he would make arrangements to meet with Doll. On January 2, 1964, Doll sent a copy of the notice to Killeen, together with some 16 proposed changes to the contract , and suggested a meeting be held during the week of January 13. By letter dated January 10, Killeen advised Doll that the Company has never had an agreement with Local 213, that this was one of the issues in the 1962 negotiations and when the Company insisted the International Union was the certified bargaining representative the Union agreed and the subject was dropped. Killeen pointed out that the Company had not received any notice from the "Union" as defined in the contract and in the Act, therefore the contract by its terms automatically renewed itself and is not now open for negotiation. However, as the Company wished to grant general and individual wage in- creases to the employees in the unit , "on a strictly voluntary basis," the Company was willing to discuss these increases with the Union and suggested a meeting be held on January 21. On January 21, Doll and the shop committee met with Killeen and Jezierski. At that time Jezierski handed Doll a memorandum setting forth his proposed wage increases, which he offered to discuss . Actually, there was little, if any, discussion on the memorandum , although Doll promised to submit the proposal to the employees and advise the Company of their decision regarding the increases. Doll also requested the Company to bargain on the contract modifications pre- viously submitted, but the company representatives refused to discuss any subject, other than its own wage increases . Neither party altered its position so the meeting ended inconclusively and without any arrangements for a future meeting. By letter dated February 4 , Doll informed the Company that he had held a meeting of the employees and they voted to reject the Company 's offer of wage increases and instructed the Union to take such action as might be necessary to require the Company to bargain on modifications to the contract . Doll con- cluded by stating the Union was filing unfair labor practice charges against the Company. On March 17 Jezierski wrote Doll to advise him that since the employees had rejected the Company 's proposed wage increases, it was putting them into effect on March 23. The present charge was filed on April 2, 1964. 2 Local 213 is located in Marlette and its membership includes the employees covered by the agreement herein. SQUARE TUBE CORPORATION 611 Concluding Findings The duty "to bargain collectively" enjoined by Section 8(a)(5) is defined by Section 8(d) as the duty to "Meet . and confer in good faith with respect to wages, hours, and other terms and conditions of employment." The proviso to Section 8(d) also provides "that where there is in effect a collective bargaining contract . no party to such contract shall terminate or modify such contract, unless the party desiring" the change observes the following procedures: (1) serves written notice upon the other party of such desire 60 days prior to the expiration date of the contract or prior to the time it is proposed to make such changes; (2) offers to meet and negotiate in respect to the proposal; (3) notifies the Federal Mediation and Conciliation Service and appropriate State agencies "within 30 days after such notice," if no agreement has been reached by that time; and (4) continues the contract in full force, "without resorting to strike or lockout . for period of sixty days after such notice," or until the contract has expired. Employees "who engage in a strike" during the 60-day period lose their status as "employees," unless subsequently reem- ployed. Clearly, Section 8(d) was designed to provide a cooling-off period during which a labor organization is forbidden to strike to enforce its demands to modify or terminate the contract.3 Of course, there is no strike, or even a threat thereof, in the present case. Here, the Company attacks the validity of the 60-day notice of modification solely on the ground that it was given by Local 213, which was not a "party" to the agreement. The Company does not claim that the notice was untimely or that it was in ambiguous terms. Nor does the Company argue that the notice was prejudicial to any of its substantive rights under the agreement. Unquestion- ably, the Company fully understood the plain intent and purport of the notice and its claim that the notice was legally insufficient is bottomed on a highly technical proposition. In an attempt to support its position the Company relies upon the decisions in Non-Corrosive Products Company of Texas (116 NLRB 1027) and Rumford Chemical Works (115 NLRB 1260), in which the Board held that the contract in each case was a bar to a representation proceeding. In the Non-Corrosive Products case, the Board held an employer association's notice to terminate the association wide contract was not sufficient to also terminate the separate contract of a nonmember employer which was identical and had been signed in accordance with the practice of nonmembers in the area to adopt the contract pattern established by the association. The Board found that the petitioning employer was not bound as a member of the contracting association and there was nothing to indicate that the association had authority to act for the employer. In the Rumford case, the Board held that a notice by a unit of a local, which local was signatory to the agreement with the employer of the unit employees, was insufficient to terminate the agreement since the local had final and exclusive authority as bargaining representative to terminate the agree- ment and the unit sent the notice unilaterally, without the consent or approval of the local. The Board also found that notice to modify prior contracts had origin- ated from the local, not from any unit thereof. I do not consider the foregoing cases as authority for the Company's position for they are not only distinguishable on factual bases, but also turn on the lack of any authorization or approval from the party to the contract to the individual giving the notice. Closely analogous to the present facts is Duval Sulphur & Potash Co., (116 NLRB 1073, footnote 3), a representation case. There two of the local unions involved asserted that an International Representative's timely notice to terminate their agreements was insufficient and not binding on them because he had no authority to act on their behalf. The Board rejected these contentions because the International representative had negotiated the contracts, had signed one of them and had represented the locals at a representation hearing, and, therefore, he had "at least apparent authority" to give effective notice of termination. Ac- cordingly, the Board held that his notice was sufficient to terminate the contracts. Here, as in the Duval case, the notice was approved and signed by Morris, who was a signatory, on behalf of the Union, to the agreement. Thus, the notice on its face shows that if Morris was not in fact acting on behalf of the Union, he was plainly approving and authorizing Local 213 to send the notice on 3 Procter & Gamble Independent Union of Port Ivory, N.Y. v. Procter & Gamble Hann- faoturing Company, 312 F. 2d 181, 188 (CA. 2) ; United States Gypsum Company, 90 NLRB 964, footnote 11. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its behalf. Considering all the circumstances, I find and conclude that the notice herein was in conformity with the terms of the agreement and the provisions of Section 8(d), and therefore constituted adequate and sufficient notice of the Union's desire to modify the terms of the agreement .4 Since the Company admits that it has refused to bargain collectively with the Union on its proposed contract modifications on and after about October 11, 1963. I find and conclude that the Company thereby engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. As a corollary to this finding, I find that by unilaterally granting wage in- creases about March 23, 1964, to the employees in the unit, the Company thereby violated Section 8 (a) (5) and (1) of the Act.5 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 its operations set forth 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 the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Square Tube Corporation is an employer as defined in Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) thereof. 2. International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW), AFL-CIO, is a labor organization as defined in Section 2(5) of the Act. 3. All production-labor employees at the Respondent's Marlette, Michigan, plant, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the Union has been, and now is, the exclusive representative of all the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain collectively with the Union on and after about October 11, 1963, and by unilaterally granting wage increases to employees employed in the appropriate unit, the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I recommend that Square Tube Corpora- tion, its officers, agents, successors, and assigns, shall: 1. Cease and desist from (a) Refusing to bargain collectively with International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW), AFL- CIO, as the exclusive representative of all its employees in the unit found to. be appropriate in regard to modification of its existing collective-bargaining agree- ment with the said Union, or by unilaterally granting wage increases to employees within the unit, or otherwise changing the terms and conditions of employment of the aforesaid employees without prior consultation and bargaining with the aforesaid Union. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. ' For the same reasons, I find no merit in the Company's contention that the notices to the Federal and State agencies were defective and that they were prematurely served. 5 N.L.R B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co , 369 U.S. 73r,; Southern Coach A Body Company, Inc, 141 NLRB 80. SQUARE TUBE CORPORATION 613 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with International Union , United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, as the exclusive representative of all its employees in the unit found appropriate with respect to modification of the existing agreement , including wage increases and related matters, and, if an understanding is reached , embody such understanding in a signed agreement. (b) Post at its plant at Marlette, Michigan , copies of the attached notice marked "Appendix." 8 Copies of the notice, to be furnished by the Regional Director for Region 7, shall , after being signed by the Respondent's representa- tive, be posted by it immediately upon receipt thereof and be maintained by it for a period of 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 said Regional Director, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps the Respond- ent has taken to comply herewith.? It is further recommended that unless on or before 20 days from the date of the receipt of this Decision and Recommended Order, the Respondent notifies the said Regional Director in writing that it will comply with the above Recom- mended Order, the National Labor Relations Board issue an order requiring it to take such action. 0 In the event that this Recommended Order be 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 In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " 7 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, as to 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica (UAW), AFL-CIO, as the exclusive representative of all our employees in the appropriate unit described below with respect to modification of our existing agreement with the said Union, or by unilaterally granting wage increases to employees within the unit, or otherwise changing the terms and conditions of employment of the aforesaid employees, without prior consultation and bargaining with the aforesaid Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, upon request, bargain collectively with the said Union as the exclusive representative of all employees in the appropriate unit with respect to modification of the existing agreement, including wage increases and related matters, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All production-labor employees at our Marlette, Michigan, plant, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. SQUARE TUBE CORPORATION, Employer. Dated------------------- •By------------------------------------------- (Representative) (Title) 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 question concerning this notice or compliance with its provisions. Unit Manager, Citronelle Unit and District 50, United Mine Workers of America. Case No. 15-CA-2358. November 10, 1964 DECISION AND ORDER On August 19, 1964, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 [Chairman McCulloch and Members Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Trial Examiner James R. Webster, in Mobile, Alabama, on January 20 and March 24 and 25, 1964, on complaint of the General Counsel as amended at the hearing, and on answer of Unit Manager, Citronelle Unit, herein called Respondent. The complaint, which was issued on November 29, 1963, upon a charge filed on September 27, 1963, alleges that the Respondent violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended. Briefs have been filed by the General Counsel and by the Respondent, and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is engaged in the management, operation, and development of Citronelle Field, an oilfield near Mobile, Alabama, on behalf of, and pursuant 149 NLRB No. 66.