Modern Plating Corp.

1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To ALL EMPLOYEES 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 interrogate our employees concerning their organizational activ- ities, engage in surveillance of their meetings, or threaten to close down our mining operations if they join or assist a labor organization. WE WILL NOT discourage membership in United Mine Workers of America, District No . 28, or any other labor organization, by laying off, discharging, or otherwise discriminating in regard to the hire or tenure of employment or any term or condition of employment of employees who join or engage in concerted activities for the purpose of collective bargaining or other mutual aid of protection. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist the above-named or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for their mutual aid or protection , or to refrain from any or all of such activities. WE WILL offer Ray Hutchinson and Ledford Osborne immediate and full rein- statement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges of employment , and make each of them whole for any loss of wages and other emoluments he may have suffered by reason of our discrimination against him. WE WILL also make whole Leo Bennett, Joseph H . Barton, Charles R. Dixon, and Ferrell Lester for any loss of wages and other emoluments each of them may have suffered by reason of our discrimination against him to the date on which he declined to accept reemployment by us. All our employees are free to become or remain or refrain from becoming or remaining members of the above-named or any other labor organization. DOVE COAL COMPANY, LARK COAL COMPANY, Employers. Dated------------------- By------------------------------------------- (Representative )- ( Title) NoTE-We will notify the above-named employees presently serving in the Armed Forces of the United States, if any, of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Military Training 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland , Telephone No. 752-8460, Extension 2100, if they have any question concerning this . notice or compliance with its provisions. • Modern Plating Corporation and Lodge 1096, International Association of Machinists, AFL-CIO. Case No. 13-CA-6316. January 19, 1965 DECISION AND ORDER On November 16, 1964, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled proceeding, finding that the Re- 150 NLRB No. 115. MODERN PLATING CORPORATION 1151 spondent had engaged in and was engaging in certain unfair labor practices and recommending that , it-cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions, with a supporting brief, 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 [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. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations 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, Modern Plating Corporation, its officers, agents, successors, and assigns, shall take the action set forth in the -Trial Examiner's Recommended Order. 'In support of his finding that the Respondent violated Section '8(a) (1) by conditioning its consideration of a pay raise on the employees abandoning union . activity, the Trial Examiner cited N.L.R B. v. Erchango Parts Company, 375 U.S. 405. We agree that the case is applicable but do not adopt the Trial Examiner' s broad interpretation of the Court's holding. TRIAL EXAMINER'S DECISION In this proceeding, under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), the complaint' alleges that Respondent, by inter- rogating its employees concerning their union membership and activities; by offering to consider granting a wage increase on condition that they cease-such concerted activ- ities; by granting wage increases to induce them to cease such activities, and by threatening the discontinuance of overtime work if they designated a union as their collective-bargaining representative, interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act and thereby violated Section 8(a) (1) thereof. Respondent answered, denying the commission of unfair labor practices and a hear- ing on the issues was held before Trial Examiner Sidney D. Goldberg at Freeport, Illinois, on July 22, 1964, at which all parties were represented, afforded an oppor- tunity to adduce evidence ,, cross-examine witnesses, and argue upon the facts and the law. Briefs thereafter filed by the General Counsel and counsel for Respondent have been considered. For the reasons hereinafter set forth in detail, I find that Respondent interfered with, restrained, and coerced its employees as alleged in the complaint and thereby violated Section 8 (a) (1) of the Act. i Issued June 4, 1964, on a charge filed March '30, 1964. 775-692-65-vol. 150-74 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based upon-the entire ,record in this case and from my observation of,the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent, an Illinois corporation, is engaged at Freeport, Illinois, in the business of electroplating metals. It admits that it annually purchases and imports into the State of Illinois goods , and materials valued at more than $ 150,000. It also admits, and I'find, that it is an employer engaged in commerce within .the meaning of the Act. II. THE LABOR ORGANIZATION The Charging Party (herein called the Union ) is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES The allegations of interference, restraint, and coercion herein are based upon three incidents in March and early April 1964.2 A. The meeting with President Servatius • 1. The facts During the last week in February and first week in March, Robert Miller , a business representative of the Union , met with employees of Respondent and several of them signed application cards. Some began 'to wear union buttons in the plant. On March 9, several employees in the polishing room decided to approach Richard Servatius, Respondent's president, about a wage increase. They consulted their fore- man, who advised them to talk first with Plant Manager Stearns and to send a dele- gation to the president's office rather than go en masse . They did as advised and a group consisting of Frank Thruman, Charles Eichmeier, Charles Nicklaus, James Thruman, Robert -Parker, and Calvin Thompson went to Servatius '" office. Charles Nicklaus, acting as spokesman , asked Servatius whether it was true that his office was always open and that the men were free to come in and discuss matters with 'him: Servatius agreed that it was and Nicklaus said that the men had come in to ask for "a dime" raise. Servatius then asked, according to Nicklaus , whether the men were speaking for themselves or whether they were asking "for a union raise," that is, for the whole plant. Nicklaus said he referred to the whole plant.. Servatius answered that he-meaning Respondent-could not afford it because he "had bills" and was trying to get a new plant which would mean a lot of new bills coming up but he pointed out that the men had "the best insurance in Freeport." The men stated that they, too, had bills and Thompson remarked that it was necessary for him to hold two jobs to make ends meet. Thompson was wearing a union button and Servatius asked him what it was and whether he was in the Union, Thompson ,said he was not. There was some further general talk 3 and Servatius then asked,' according to Frank Thruman whether, if a raise were considered , "would this union crap lie dropped9" 4 There is no evidence-except that of Servatius , discussed below'-that any of the employees answered this question but Servatius then said , according to Nicklaus, that he would think it over and that the men could come back in 2 -or 3 days and they would discuss it further. Servatius' version of the interview differed, in several respects , from that of the employees . According to Servatius, when he saw the union buttons he asked the men whom they were representing and they said only themselves . He also testified that, when the men asked for a raise , they coupled the request with the statement that "this union talk would probably be stopped" if they were granted the increase. Fur- thermore, according to Servatius , he told" the men at once that Respondent had been 3 All dates herein are 1964. 3 The account of this meeting, Insofar as It is not expressly attributed to the testimony of any specific person ,- is a synthesis of undisputed testimony by Frank Thruman , Charles Nicklaus , Calvin Thompson , and Richard Servatius A Nicklaus testified that Servatius asked whether if a raise were considered, the men would consider "dropping this mess that was going around here " Servatius , on cross- examination , reconstructed his question as asking whether "that union garbage" would stop. On the basis of this admission and the testimony of Nicklaus and Thruman, I find that Servatius ' question was couched in language as testified by Thruman MODERN PLATING CORPORATION 1153 planning to give a 5-cent raise -to everyone who hadn 't had one in the last 10 months but that he did not think it possible to give a 10-cent across-the -board increase. Serv- atius, also testified that the question of a rate raise had been under consideration among Respondent's officials since the previous October or November and he stated that, in addition to occasional "merit" raises, blanket increases of 5 cents had been granted in 1956,1957, 1959, and 1962. ' A day or two following the interview, Servatius stopped at Nicklaus ' work station and told him that there would be a 5-cent raise for all who had not had a raise within the past 10 months. About 2 weeks later such a raise was put into effect beginning with the workweek March 8 to 14.5 2. Conclusions The complaint alleges that, at this interview, Servatius improperly interrogated the employees concerning their union membership and that he offered, promised, and granted the employees wage increases conditioned upon their refraining from union activities, or to induce them to do so. All three employee witnesses testified that Servatius, referring to the buttons some of the men were wearing, asked whether they belonged to the Union. Servatius admit- ted that he asked them what the buttons were and whom the men were representing. I credit the employees' testimony and find that Servatius questioned them concerning their membership in the Union. - Since there was no valid reason for Servatius to inquire concerning the union mem- bership or activities of Respondent's employees, his interrogation, coupled as it was with a conditional promise to consider a wage increase if the "union crap"- were dropped, was a clear indication of his disapproval of their membership and interfered with their exercise of rights guaranteed them in Section 7 and violated Section 8 (a) (1) of the Acts The principal factual issue concerning the interview is whether it was Servatius who put the question to the employees whether, if a raise were considered, "would this union crap be dropped" or whether Nicklaus, asking for a raise, volunteered that, if it were granted, "this union talk would probably be stopped." Robert Miller, the Union's representative, testified that about half the cards, 15 or 20, were signed before the raise was granted-about March 11. It may reasonably be presumed that at least a dozen had been signed prior to the interview.with Servatius. The evidence concerning the manner in which that interview originated would not indicate that the employees involved were in close touch with the organizing cam- paign or that they could control its conduct. Under these circumstances, it appears unlikely that they could have-or would have-proposed that union activities would cease if the requested raise were granted. On the contrary, the Employer, having parried the request for a raise with an indication that it might be considered, might well make such counterproposal as a riposte. Based upon the testimony of Frank Thruman, Charles Nicklaus, and Richard Servatius, and upon their demeanor while testifying, I find that the exchange occurred as the employees testified and that Serv- atius offered to consider granting a wage increase if the men would cease their union activities. In its recent decision in N.L.R.B. v. Exchange Parts Company., 375 U.S. 405, the Supreme Court made it clear that any benefit conferred by an -employer against'a background of union organizing activity-even without proof of antiunion motiva- tion-nevertheless constitutes interference with its employees rights of self-organiza- tion and violates Section 8(a)(1). A fortiori, therefore, an employer's offer of bene- fit to the employees expressly conditioned upon their abandonment of union activities constitutes interference violative of that section. The wage increase of 5 cents and the one'of 10 cents granted those employees who had not had a raise during the past 10 months was,'according to'Servatius, the result of a study commenced some months previously and was similar to raises granted in earlier years. These vague statements are insufficient to justify Respondent's conduct: it is reasonable to assume that any multiemployer enterprise is constantly engaged in some sort of study, formal or informal, concerning its wage rates and there is no evidence that Respondent's review of its -wage structure called for a raise at this par- s It was stipulated that 52-men received 5-cent raises and that 1 man received a 10-cent raise. 6 Blue Flash Empress, Inc., 109 NLRB 591 ;:Burke Golf, Equipment Corp., 127 NLRB 241, set aside 284 F. 2d 943 (C.A. 6). 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ticular time.? Nor does the mere statement that wage- increases had been granted in 1956, 1957, 1959, and 1962 establish a pattern which would, in itself, have dictated an increase at this particular time. Any implication in Servatius' testimony that the raises were the result of such factors is rejected.8 I find that Respondent granted the increases herein to persuade the employees to abandon'their self-organizational activ- ities and that it constituted interference with the employees' rights in violation of Section 8 (a) (1) of the Act. B. The statements of Plani Manager Stearns Sheldon Shenbereger testified that one evening "around" the first week in March he was receiving his instructions for that night's work from Plant Superintendent Clifford Stearns when-Stearns asked him "how many guys had signed up for the Union." Shenberger said "a couple" and Steams then said that a union had been "in there before" and that the men would be better-off if they tore up the cards and for- got about the Union. Steams did not testify and I find that he made the statements testified to by Shenberger. ' Like the questioning by Servatius discussed above, Steams' inquiry concerning the employees' membership in the Union was improper (a) because there were no circum- stances making it necessary or appropriate at that time for Respondent to seek, this information concerning the employees' self-organizing activities 9 and (b) his other statements, contemporaneously made and hereinafter found to be coercive, served to cloak the interrogation with an air of coercion. . Steams' statement the men would be "better off if they would tear up the cards and forget about the union," although somewhat vague in its terms, was quite clear in its general import. It could not be interpreted otherwise than as a threat designed to restrain the employees in the exercise of their guaranteed right of self-organization. I find that both of these statements, made by the plant superintendent to one or-more employees, constituted violations by Respondent of Section 8 (a) (1) of the Act. C. The statements of Foreman Loring - 1. Facts On April 1 several employees and ex-employees of Respondent arranged a party at the V.F.W. clubhouse in Rockford as an expression of regard for a fellow employee who had retired after about 25 years of service. Among those present were Alvin Leroy Loring, one of Respondent's foremen, Ronald LeBaron, a former employee, and about 10 of Respondent's employees, including Frank Thruman and Charles Eichmeier. Loring, LeBaron, Thruman, and Eichmeier were in a group when the talk turned to the subject of unions. Loring asked LeBaron whether he was "getting anything" out of the organizing campaign and LeBaron said he was simply helping his local. Loring, replied, according to LeBaron's testimony, that he did not know how the Union could do the men any good as, with overtime, they were making as much as anyone in town and that, if the Union came in, they would probably get "only a 10-cent raise" which would go for union dues. Loring followed this, according to both LeBaron and Thru- man, with the statement that, if the Union got in, Respondent would reduce the employees' hours by doing away with overtime and would employ a third shift. Loring admitted having engaged in the conversation and that he had said that there was no need for a union at Respondent's plant because there had been one there before and it had not "worked out." He also admitted having discussed overtime, saying that it would be discontinued and that, if necessary to get out the work, a third shift would be instituted. He testified, however, that this statement was based upon a rumor that the Union would get Respondent's employees up to $3 an hour and that the Company could not afford, upon that rate, to pay overtime. LeBaron and Thru- man denied that there had been any discussion of wage rates at Respondent's plant. 2. Finding and conclusions It is to be noted that the interview with Servatius occurred on March 9; that Steams' statement to Shenberger occurred about the same time; that Servatius informed Nick= laus a day or two afterward that the raises would be granted and that they were put 7 It was conceded by Respondent that this particular review was not completed until a date "on or after March 4." 8 Compare: Jackson Tile Manufacturing Company, 122 NLRB 764. 9 Blue Flash Express, Inc., 109 NLRB 591. MODERN PLATING' CORPORATION 1155 into effect 2 or 3 weeks later, or close to the end of March . The party at the V.F.W. hall on April 1 was, therefore, closely connected in time with Respondent's campaign to thwart the Union's organizational drive and it appears, from Loring 's admitted statements, that he openly grasped the opportunity to make his contribution to that effort. LeBaron and Thruman credibly testified that Loring made the flat statement that if the Union got in , overtime would be discontinued and they categorically denied that he linked it with any union wage goal . I find that Loring made this statement: that it was not an expression of opinion but constituted a threat of reprisal to inter- fere with and restrain the employees in their self-organizational activities and that it constituted an unfair labor practice in violation of Section 8(a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent found to constitute unfair labor practices as set forth in-,section III, occurring in connection with Respondent's operations described in section I, have a close, intimate, and substantial relation to trade, traffic, and com- merce 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 Respondent has engaged in certain conduct interfering with, restraining, and coercing employees in the exercise of rights guaranteed in the Act and constituting unfair labor practices affecting commerce , I shall recommend that it cease and desist therefrom, and take certain affirmative action in order to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By offering, on March 9, 1964, to consider granting its employees a wage increase on condition that they cease their self-organizational activities ; by thereafter granting its employees a wage increase to induce them to cease such activities ; by advising its employees , on or about March 9, 1964, to tear up their applications to, and forget about, the Union; by threatening, on April 1 , 1964, to diminish its employees' compensation by eliminating overtime if their self-organizational efforts were suc- cessful, Respondent interfered with, restrained, and coerced its employees in the exer- cise of rights guarantees by Section 7 of the Act, and thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and pur- suant to Section 10(c) of the Act, it is recommended that Respondent , Modem Plating Corporation, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union membership ; offering to consider granting wage increases on condition that its employees cease their self- organizational activities or activities in support or behalf of the Union ; granting wage increases to induce its employees to cease such support or activities : provided, how- ever, that nothing in this Recommended Order shall be construed as authorizing or requiring Respondent to vary or abandon any economic benefit or any term or condi- tion of employment which it has heretofore established; 10 advising its employees to "tear up their cards" or otherwise cease their self-organizational activities or threat- ening that overtime work would be discontinued if the employees exercise their right of self-organization. (b) In any like or related manner interfering with , restraining, or coercing its employees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guar- anteed in Section 7 of the Act , 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 in conformity with Section 8(a) (3 ) of the Act. 10 See : Emchange Parts Company, 131 NLRB 808, 807, enforcement directed , 375 U.S. 405. 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its premises in Freeport, Illinois, copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by Respondent's representative, be posted,by Respondent immediately upon receipt thereof, and be maintained by it for 60,con- secutive days thereafter, in conspicuous places, including places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.12 "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". , , 12 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, 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, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their membership in, or activities on behalf of, Lodge 1096 , International Association of Machinists, AFL-CIO, or any other labor organization. ' WE WILL NOT offer to consider granting a wage increase on condition that our employees withdraw their support or cease their activities on behalf of said labor organization or any other labor organization. WE WILL NOT grant wage increases to induce our employees to withdraw their support or cease their activities on behalf of said labor organization or any other labor organization ; provided, however, that nothing in this notice, or the posting thereof, shall be construed as authorizing or requiring us to vary or abandon any wage rate or term or condition of employment heretofore established. WE WILL NOT advise our employees to "tear up" their application cards to or cease their support of the said labor organization , or any other labor organization. WE WILL NOT threaten to discontinue overtime work if our employees exercise their right to self-organization or to join the said labor organization , or any other labor organization. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the right to self-organization , to form labor organizations, to join or. assist Lodge 1096, International-Association of Machin- ists, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , or to engage in other concerted activities for the purpose of mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. All our employees are free to become or to remain members of Lodge 1096 , Inter- national Association of Machinists , AFL-CIO, or any other labor organization, or to refrain from such membership, except to the extent that this right may be affected by an agreement authorized by Section 8 (a) (3) of the Act. MODERN PLATING CORPORATION, . 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. KINGSPORT PRESS, INC., PETITIONER 1157 Employees may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone 828-7572, if they have questions concerning this notice or compliance with its provisions. Kingsport Press, Inc., Petitioner and International Typographi- cal Union and Local 940, International Typographical Union, AFL-CIO. Case No. 10-RM-391. January 19, 1965 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer Scott P. Watson. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the Employer and the Unions involved herein filed briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. The petition named International Typographical Union and its Local 940, referred to here collectively as Typographers, as the rep- resentative of the unit in which an election is sought. Typographers was certified for this unit in 1940. Local 175, Electrotypers Union, International Stereotypers & Electrotypers Union of North America, AFL-CIO, referred to here as Electrotypers, was permitted to inter- vene on the basis of its claim that certain employees whom the Employer would include in its proposed unit properly belong in a unit which it presently represents. 3. The Employer questions the majority status of Typographers on the ground that it has been engaged in an economic strike for more than a year and that substantially all the strikers have been permanently replaced. The Unions seek dismissal of the petition on the ground that the Employer does not now refuse to recognize Typographers as the exclusive representative of the employees in the unit petitioned for. The Board uniformly processes a petition filed by an employer if the statutory requirements for filing such a petition are met and, as here, there is no contract or certification bar. The requirements are a claim of representative status in the unit covered by the petition, and rejection or questioning by the employer of the union's claim to 150 NLRB No. 113.