Signal Manufacturing Co.

1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and vacations for its employees independently; and there is no em- ployee interchange or interlocking officers with the other Overton stores. On these facts, we are persuaded Marvin B. Overton, Inc., no longer belongs in the bargaining units heretofore established. Accordingly, we find that the units now appropriate for purposes of the second election in the Retail Clerks case and covered by the Meat Cutters certification, consist of the employees specified below at the four stores owned by Overton Markets, Inc., J. W. Overton & Son, Inc., and W. S. Overton, Inc. CLARIFICATION OF CERTIFICATION The certification issued Local 305, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, on June 23, 1964, is hereby amended to show that the said labor organization is the exclusive statutory bargaining representative of the employees in the following unit : All meat department employees at the four retail grocery stores owned by Overton Markets, Inc., J. W. Overton & Son, Inc., and W. S. Overton, Inc., excluding meat department managers, and all other supervisors as defined in the Act, and all other employees. [Text of Direction of Second Election omitted from publication.] Signal Manufacturing Co. and Amalgamated Local 257, Inter- national Union of Electrical, Radio and Machine Workers, AFL-CIO. Case No. 1-CA-4621. January 21, 1965 DECISION AND ORDER On November 5, 1964, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth ,in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of 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 [Chairman McCulloch and Mem- bers Brown and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 150 NLRB No. 110. SIGNAL MANUFACTURING CO. 1163 The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, includ- ing the Respondent's exceptions and brief and the General Counsel's brief in support of the Trial Examiner's Decision, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. 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, Signal Manufacturing Co., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A hearing in the above-entitled proceeding was held before Trial Examiner Thomas A. Ricci on August 31, 1964, at Boston, Massachusetts , on complaint issued by the General Counsel against Signal Manufacturing Co., herein called the Respondent or the Company. The issue litigated was whether the Respondent has violated Section 8(a)(5) of the Act by illegally refusing to bargain with a duly selected union agent. Briefs were filed after the close of the hearing by the General Counsel and the Respondent. Upon the entire record , and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Signal Manufacturing Co., a corporation organized under the laws of the Com- monwealth of Massachusetts , maintains its principal office and place of business at the city of Salem, Massachusetts , where it is engaged in the manufacture , sale, and distribution of domestic floor vacuum cleaners and polishers and related products., In the course of its business the Respondent causes large quantities of supplies and materials, purchased by it, to be transported in interstate commerce from other States to its plant in the city of Salem ; the Respondent annually ships finished products from this plant, valued in excess of $50,000, to points located outside the Commonwealth of Massachusetts. I find that the Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED Amalgamated Local 257, International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the Union, is a labor organization within the mean- ing of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICE The Issue For a number of years the Union has been the recognized collective -bargaining rep- resentative, under successive contracts , for the Respondent's approximately 700 pro- duction and maintenance employees. In the spring of 1964 , during the term of the last negotiated agreement , the Respondent refused to permit Charles Silvia, one of its employees duly elected departmental steward under the contract, to act in that capacity as representative of the Union at any stage of the grievance procedure. The sole issue presented is whether the Respondent's adamant insistence that Silvia not participate in the collective-bargaining process at any stage constituted a refusal to bargain within the meaning of Section 8(a) (5) of the Act. 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Facts The contract in effect between the parties provides for a three -step grievance pro- cedure; the first is a conference of the employee involved, the departmental union steward, and the foreman. The second step rests on a written appeal, signed by both the employees and the departmental steward, leading to a conference attended by the shop committee-consisting of all 19 departmental stewards-and the chief steward, with management representatives. The third is also a conference of all those shop stewards who choose to attend , the Union's business agent, the plant manager, the personnel manager, and the company lawyer. Silvia is a regularly elected departmental steward . He is also part-time business representative of the Union on a paid basis; as such his duties are to confer with employees outside the plant and occasionally to communicate with management. On May 14, 1964, Louis Zaiger, an elderly gentleman who had been the founder of the Company and many years its president and operating head, unfortunately passed away. As a commemorative gesture of respect management decided to close the plant the next day, a Friday. The employees were all informed and asked to remain a while and be paid that day because Friday was the regular payday. When Doucette, a department foreman, told Silvia of Zaiger's death, Silvia commented: "Good, why didn't he take Bernie Ruskin with him." 1 Ruskin is director of manufacturing. Shortly thereafter, Doucette reported this comment to Mattera, his superior, and to Ruskin himself. In a discussion among higher management representatives that same afternoon, including Kajos, the personnel director, Ruskin, and Lapham, the com- pany president and son-in-law of Zaiger, it was decided that because of Silvia's remark the Company would thenceforth refuse to deal with him as a steward or representative of the Union in any capacity. The decision to exclude this elected steward from the bargaining process has been adhered to continuously and was reaffirmed by Respondent's counsel at the hearing. For the discourteous remark Silvia was given a disciplinary warning notice. He filed a grievance on it and signed the second step written form with his name both as employee involved and as departmental steward. The Company refused to accept it until his name was removed as steward. On May 26, Silvia appeared at a regularly scheduled third-step grievance conference; he was among the stewards who constituted the shop committee pursuant to the con- tract provisions. The company lawyer announced there would be no grievances discussed at all so long as Silvia was present, and stated the reason was because of the comment he had voiced to Doucette. As a result no grievances were discussed at that meeting. Apart from the warning notice, no action has been taken against Silvia as an employee. Grievances have since been processed in accordance with the contract, with the night steward over Silvia signing and appearing in his place. But for the continued refusal to permit Silvia to function as a union representative, the Respondent has in no other respect failed in its duty to bargain. The complaint`alleges, the answer admits, and I find that all production and mainte- nance employees of the Respondent employed at its Salem, Massachusetts, plant, exclu- sive of factory clerical employees in the engineering department, office clerical employees, and supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. The complaint also alleges, the answer admits, and I find that at all times material herein the Union has been the representative for purposes of collective bargaining of the majority of the employees in the said unit, and by virtue of Section 9(a) of the Act has been and is now the exclusive representative of all the employees in the said bargaining unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. Analysis and Conclusion It is undisputed that Silvia was a union steward duly elected by the employees in his department. The Respondent's unequivocal refusal to permit him to act in this 1 In view of the critical importance of Silvia 's alleged comment in this case , Doucette's perfectly acceptable demeanor as a witness, and Silvia's failure to deny having made the statement, there is no reason not to credit Doucette's testimony. SIGNAL MANUFACTURING CO. 1165 capacity constituted a literal refusal to bargain within the intendment of Section 8(a) (5) of the Act, as that language has been interpreted by two longstanding lines of Board and court decisions. The handling of grievances in the day-to-day implementa- tion of collective-bargaining agreements is a form of collective bargaining.2 An employer may not dictate to a union its selection of agents or negotiators.3 In the light of these fundamental principles the sole question here is whether the Respondent has come forward with persuasive justification to remove this case from application of the ordinary rules. The only reason it advances to thus disqualify Silvia from acting as union agent -is that he expressed -pleasure at the death, of the founder of -the Company. Silvia's callous indifference at that moment toward the, Company's loss of its widely respected founder is by no means to be condoned. How- ever ill-advised and even offensive the remark may have been, it cannot be said to reveal fundamental hostility to the interests of the Company such as to justify a con- clusion that Silvia's continued participation in the collective-bargaining process would impede the smooth course of collective bargaining such as this Company and Union have enjoyed in the past. There is not the least evidence, nor is it claimed, that this steward ever acted or spoke improperly in his entire career as a union representative dealing with this or any other employer; instead there is indication that he participated in the contract negotiations which have produced exemplary labor relations in this plant. At bottom, what is really involved here is the'right of the employees themselves to be represented by a spokesman of their own choosing; apparently they continue to desire Silvia's perhaps more articulate ability to speak on their behalf on grievance matters. To deny to that entire group now the right guaran- teed by statute to be represented by a fellow worker of their own choice, solely on the ground of an isolated utterance, however improper by Silvia, would amount to an unreasonable balancing of his single act of disrespect against their fundamental privileges. This case is not to be compared to the situation in N.L.R.B. v. Kentucky Utilities Company, 182 F. 2d 810 (C.A. 6), upon which the Respondent relies, or cases of that type, where a would-be union agent's entire course of conduct reveal a "purpose to, destroy the Respondent financially" and "made any attempt at good faith collective bargaining a futility." Apart from the single expression of discourtesy and dislike' toward certain management representatives, Silvia did and said nothing tending to indicate that in whatever grievance procedures he might thereafter participate he would not, as he had in the past, conduct himself properly in every sense. It was not even clear that any person other than Doucette heard Silvia's comment that day; Doucette said only that one other employee was within earshot at the time. Whatever publicity the words were given came about by choice of the company officials. - Perhaps appropriate here are the words of Judge Hutcheson, in N.L.R B. v. Roscoe, Skipper, Inc., 213 F. 2d 793 (C.A. 5): This small tempest in a smaller teapot, this pitifully picayune controversy, this minuscular dispute between Labor and Management, which in and by this,solemn and legalistic proceeding has been blown up to the proportions of a mimic war, is a sad commentary on human pridefulness and temper. The Respondent also excluded Sylvia from bimonthly-dinner meetings, in which the company officers acted as host to the union officers and stewards. The purpose of these occasions was described only as "to improve relations and have better com- munications." They do not appear to be bargaining sessions, and the General Counsel did not seriously urge that the Respondent is obligated to continue Silvia as its guest. Whether or not, after a public apology by Silvia, the Respondent sees fit to restore this courteous invitation to him, is a matter strictly to be decided by the company repre- sentatives themselves. - - On the record in its entirety I find that the Respondent was not justified in refusing' to deal with Silvia as the duly elected union steward of the employees in his depart= ment, and that, by such refusal, it violated Section 8(a)(5) and (1) of the Act.4 2 Bethlehem Steel Company, Shipbuilding Division, et al, 89 NLRB 341, set aside on other grounds 191 F. 2d 340 (C.A.D C ). 3 Deena Artware, Incorporation, 86 NLRB 732, enfd. 198 F. 2d 645 (C.A. 6), cert. denied 345 U S. 906; The Prudential Insurance Company of America, 124 NLRB 1390, enfd. 278 F. 2d 181 (C.A. 3). - - ^, , 4 Deeco, Inc., 127 NLRB 666. . 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connec- tion with the operations of the Respondent set out 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to 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. Signal Manufacturing Co. is an employer within the meaning of Section 2(2) of the Act. 2. Amalgamated Local 257, International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Respondent employed at its Salem, Massachusetts, plant, exclusive of factory clerical employees in the engineering department, office clerical employees, and all guards, janitors, professional employees, quality control employees, and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Amalgamated Local 257, International Union of Electrical, Radio and Machine Workers, AFL-CIO, was on May 14, 1964, and at all times since has been, the exclu- sive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and deal with a designated representative of the Union, the Respondent has refused to bargain with the Union, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By the above conduct, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) 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 , I recommend that Signal Manufacturing Co., Salem, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Amalgamated Local 257, International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive repre- sentative of all employees in the appropriate unit, with respect to rates of pay, wages, hours of employment, or other conditions of employment, by refusing to recognize or deal with its designated representative. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form a labor organiza- tion, to join or assist the aforesaid Union , or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protec- tion, 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. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon proper request, bargain collectively, including the negotiation of griev- ances, with Amalgamated Local 257, International Union of Electrical, Radio and Machine Workers, AFL-CIO, through any representative properly chosen by it, including Charles Silvia, as the exclusive representative of all employees in the above appropriate unit. SIGNAL MANUFACTURING CO. 1167 (b) Post in its plant at Salem, Massachusetts, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for Region 1, shall, after being signed by the Respondent or its duly authorized representa- tive, be posted immediately upon receipt thereof, and be maintained by it for a period of at least 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 notice is not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply therewith.6 It is further recommended that, unless within 20 days from the date of receipt of this Trial Examiner's Decision the Respondent notifies the said Regional Director that it will comply with the foregoing Recommended Order, the Board issue an order requiring the Respondent to take the aforesaid action. 5 In the event that 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 " 6 If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 1, in writing, within 10 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, as amended, you are notified that: WE WILL NOT refuse to bargain collectively with Amalgamated Local 257, International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive bargaining representative of our employees in the appropriate unit described below, by refusing to recognize or deal with any of its designated representatives. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , or to refrain from any or all such activities. WE WILL, upon proper request, bargain collectively with Amalgamated Local 257, International Union of Electrical, Radio and Machine Workers, AFL-CIO, through Charles Silvia or any other representative chosen by it, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, or other conditions of employment, including the negotiation of grievances. The bargaining unit is: ' All production and maintenance employees employed at our Salem, Massachusetts, plant, exclusive of factory clerical employees in the engineer- ing department, office clerical employees, and all guards, janitors, profes- sional employees , quality control department employees, and supervisors as defined in the Act. SIGNAL MANUFACTURING 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, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. 775-692-65-vol. 150-75