Patt Engineering & Manufacturing Co., Inc.

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminating against them for engaging in concerted activities, including law- ful picketing, for the purpose of mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed under the National Labor Relations Act, as amended. WE WILL offer Jessie Austin and Doline Lindsay, immediate and full rein- statement to their former or substantially equivalent positions, without preju- dice to their seniority and other rights and privileges previously enjoyed. WE WILL make whole the above employees for any wages and tips they lost as a result of the termination of their employment on August 5, 1964. All our employees are free to become or refrain from becoming members of the above-named labor organization, or any other labor organization. EDIR, INC., D/B/A WOLFIE'S, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify 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 Training and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 826, Federal Office Building, 51 SW. First Avenue, Miami, Florida 33130, Tele- phone 350-5391. Patt Engineering & Manufacturing Co., Inc. and Local Union 170, Sheet Metal Workers International Association , AFL-CIO. Case P21-CA-6815. June 20,1966 DECISION AND ORDER On April 15, 1966, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged 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 to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. 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. [The Board adopted the Trial Examiner's Recommended Order.] 159 NLRB No. 70. PATT ENGINEERING '& MANUFACTURING CO. 703 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This matter was heard at Los Angeles, California , on November 8, 1965, before Trial Examiner Martin S. Bennett . The complaint 1 alleges that Respondent, Patt Engineering & Manufacturing Co., Inc., had engaged in unfair labor practices with- in the meaning of Section 8(a)(5)(1 ) of the Act. Briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Patt Engineering & Manufacturing Co., Inc., is a California corporation maintain- ing its principal place of business at Gardena, California, where is is engaged in the manufacture and sale of aquarium tanks, aquarium supplies, and pet supplies. Respondent annually purchases and receives materials and supplies valued in excess of $50,000 which are shipped to it directly from points outside the State of Cali- fornia, and it likewise annually sells and delivers products valued in excess of $50,000 to points outside the State of California. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union 170, Sheet Metal Workers International Association, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issue The Union was duly certified on or about September 5, 1963, by the Regional Director, after winning an election, and entered into a contract with Respondent covering the period from December 15, 1963, through June 15, 1965. This contract contained a union-shop clause but not a dues-checkoff provision . A grandfather clause required union membership for employees at the time of signing who voluntarily joined. On April 26, 1965, the Union mailed its proposal for a new contract to Respond- ent. Various proposals were exchanged and seven meetings were held between May 19 and June 25. On June 26, Respondent submitted its last proposal to the Union. However, on July 1, Respondent's labor relations representative wrote to the Union as follows: This is in regard to your relationship with Patt Engineering and Manufactur- ing Company for a new labor agreement and the Company's last offer to you dated, June 26, 1965. As the Union has not seen fit to accept said offer in writing by July 1, 1965, the Company hereby withdraws any and all offers to the Union as of this date. Further, there is a true doubt on the part of the Company that your organiza- tion represents the majority of their employees in regard to wages, hours, and other conditions of employment . In fact Mr. Hartley stated in our meeting of June 25th that only eight (8) employees of Patt were current in their dues to the Union. (there were 34 in the bargaining unit at that time). Therefore, the Company again states that the old agreement that terminated on June 15th is hereby terminated and when and if the Union can prove through a lawful election that they do in fact represent a majority of the Employees of the Company, the Company will bargain in good faith to reach an agreement covering the employees in the bargaining unit with your organi- zation or any organization that might win an election. [Emphasis supplied.] The General Counsel alleges that by taking this position on July 1 , 1965, Respond- ent has refused to bargain in good faith . More specifically, he contended that the Union represented a majority of Respondent 's employees on July 1, 1965, and that Respondent did not entertain a good-faith doubt of this majority on that date. It i Dated September 13, 1965, and based on a charge filed July 2, 1965, by Local Union 170, Sheet Metal Workers International Association , AFL-CIO, herein called the Union. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is readily apparent, and I so find, that Respondent withdrew recognition of the Union until such time as it was duly certified . There is little if any dispute on the facts. B. The refusal to bargain 1. Appropriate unit The 'complaint alleges, Respondent's answer admits, and I find that all produc- tion and maintenance employees of Respondent , including shipping and receiving employees, truckdrivers, and leadmen, but excluding all office clerical and pro- fessional employees, guards, watchmen , and supervisors constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. Majority representation There were 50 employees in the above -described appropriate unit at the time material herein, July 1 , 1965. In support of his claim of majority representation, the General Counsel introduced in evidence the official records of the Union. These consisted of 33 individual ledger sheets , one for each of the employees relied on, with appropriate entries thereon. Under its constitution , a member is in good standing until such time as he is 3 months in arrears on his dues payments ; at that time he is suspended. Dues being .payable no later than the 10th of the current month, this is uniformly interpreted by union officials to mean , and union records so disclose, that the 3-month period commences directly after the end of the month in which there has been a default; that ,is, if April dues are not paid , the member is suspended as of the end of July. The General Counsel relies herein on the Union 's records for 23 employees which disclose that; as of July 1 , they were either members in good standing with their dues payments current or less than 90 days in arrears. He further relies on the records of nine employees which disclose that they had applied for membership and were making payments on their initiation or reinitiation fees.2 Under union policy, dues payments are not exacted from initiates until membership is achieved, and it is clear that those in this category are not members until their fees have been paid in full 3 Initially, I note that most of these employees had enjoyed lengthy union mem- bership despite the absence of a dues checkoff . Respondent, in effect, attempts to equate union membership , as such, with designation of a labor organization as a bargaining representative, urging that reliance may not be placed on those paying initiation fees who had not achieved membership. Respondent similarly appears to urge that union members who are running behind in their dues payments ought not to be counted as union supporters . In this respect, as found below, it should be noted that the great majority of suspension for nonpayment of dues came to fruition at the end of July, following upon Respondent's withdrawal of recognition from the Union on July 1. The Board, with established court approval, has long counted in support of a union majority those who have unequivocally signed union authorization cards designating a union as bargaining representative , despite the lack of payment of initiation fees and entirely aside from the question of union membership. A fortiori, it would certainly follow that those who are paying initiation fees with the object of achieving union membership , and in fact have gone further and paid dues, have well disclosed their desire to be represented by a labor organization for the pur- poses, of collective bargaining. That a union member may not pay his dues until shortly prior to the deadline when he becomes subject to suspension is hardly a surprise . It is common knowl- edge that the great majority of income tax returns are not made well in advance of the crucial date and that the line at the post office on April 15 is substantially larger than the line, if indeed there be one, some weeks earlier. There is also evidence , adduced by Respondent, that union stewards, two in num- ber as of July 1, 1965 , paid dues, but were reimbursed in like amount because of 21 deem it unnecessary to treat with the card of a 33d , Leslie J Brown, who paid his March dues on May 12 but was suspended as of June 30 for nonpayment of dues for the months of April, May, and June. 3 The initiation fee is $50 ; the reinitiation fee for a member suspended for nonpayment of dues is $20. PATT ENGINEERING & MANUFACTURING CO. 705 their services in collecting dues from fellow employees. I fail to see how this amounts to evidence that they did not favor union representation . There is also some evidence, but not in specific cases, that the Local relaxed the requirements of the constitution under which it operated in declaring members in suspension for tardiness in dues payments . Here as well , I fail to see how this refutes an overt manifestation by employees to be represented by the Union . Stated otherwise, an overt manifestation to be represented by a labor organization for the purposes of collective bargaining is somewhat less than membership in good standing and cur- rency in dues payments to a labor organization, but the former is all that the Act requires . See U.S Gypsum Company, 143 NLRB 1122, 1126, and New England Lead Burning Company, Inc., 133 NLRB 863, 867. I find, therefore, that on July 1 , 1965, and at all material times thereafter;, the Union represented at least 32 of the 50 employees in the above -described appro- priate unit, and that it then was and now is the majority representative of said employees for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. Refusal to bargain Actually, there is no substantial evidence to support a claim by Respondent that it had a good-faith doubt on July 1, 1965, of the Union's majority status. (1) Respondent has seized upon a statement made by Business Manager Joseph Hartley of the Union at the last negotiating meeting on June 25 when Hartley, in urging the inclusion of a dues-checkoff clause in the new contract, made reference to difficulty experienced by the Union in collecting dues. Hartley conceded herein that he might have stated at this meeting, attended by Respondent's industrial rela- tions representative , that approximately eight employees were current in their dues. (2) It is initially noted that Respondent did not challenge the union majority at this meeting, despite the purported significance of this admission , as it were, con- ceding the low percentage of currency in dues payments. (3) To the contrary, on the following day, June 26, Respondent's labor rela- tions representative submitted a counterproposal to the Union , listing several items, but with an absolute silence as to any challenge to the union majority. (4) There is no testimony by any representative of Respondent that this state- ment by Hartley on June 25, assuming it was made, caused a good-faith doubt, on the part of Respondent , of union majority status . Respondent made no inquiry as to the period of dues delinquency required for suspension of a member. And, as noted, the Union's constitution does not support Respondent herein. (5) Indeed, Hartley's statement, on the posture most favorable to Repondent, referred only to dues not being paid on time and not to lack of good standing. (6) To sum up, the evidence warrants the conclusion that Respondent hastily decided on July 1 that it had been presented with a "gimmick," as it were, whereby it could shed itself of the Union. It then knew nothing of the status of the Union's books, although, as indicated, the books do not support the position taken by Respondent on July 1. It seized upon Hartley's inadvertent statment of June 25 as to the low currency of dues payments and attempted to tailor its July 1 letter to that statement. This is hardly representative of a good-faith doubt of union majority. As indi- cated, the Union was in a stronger position than labor organizations which have merely obtained signatures to union authorization cards without any payment of initiation fees. And while Respondent has pointed to some suspensions as of July 31, at that date subsequent to the crucial date herein, it would clearly appear to be estopped from so claiming, in view of its withdrawal of recognition on July 1. Franks Bros. Company v. N.L.R.B., 321 U.S. 702, and Medo Photo Sup- ply Corporation v. N.LR.B., 321 U.S. 678. In essence, there is no substantial objective evidence to support this claim by Respondent . And, as noted, it is not reconcilable with the submission of a new contract proposal on June 26, the day following Hartley's statement. In view of all the foregoing considerations, I conclude , on a strong preponder- ance of the evidence, that Respondent did not entertain a good-faith doubt of the Union's majority on July 1, 1965. I find that by withdrawing recognition on that date it has refused to bargain in good faith within the meaning of Section 8(a)(5) of the Act and has, derivatively, engaged in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 243-084-67-vol. 159-46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III and occurring in connection with its operations described in section I, above, have a close, intimate, and sub- stantial 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 thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall 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 foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Patt Engineering & Manufacturing Co., Inc. is an employer within the mean- ing of Section 2(2) of the Act. 2. Local Union 170, Sheet Metal Workers International Association, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Respondent, including shipping and receiving employees, truckdrivers, and leadmen, but excluding office clerical and professional employees, guards, watchmen, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Local Union 170, Sheet Metal Workers International Association, AFL-CIO was on July 1, 1965, and at all times material herein has been and now is the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By withdrawing recognition on July 1, 1965, and refusing to meet further with the Union unless certified, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing conduct, Respondent has engaged 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, I recom- mend that Respondent, Patt Engineering & Manufacturing Co., Inc., Gardena, Cal- ifornia, it officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Local Union 170, Sheet Metal Workers International Association, AFL-CIO, as the representative of its employees in the above-described appropriate unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 except to the extent per- mitted under Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectu- ate the policies of the Act: (a) Recognize the Union as the exclusive representative of its employees in the above-described appropriate unit; upon request, meet with and bargain collectively with the Union concerning the provisions of a contract; and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant at Gardena, California, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Direc- tor for Region 21, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it 4 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. 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." KENTUCKY NEWS, INCORPORATED 707 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision,5 what steps it has taken to comply herewith. 6 In the event that this Recommended Order is 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 refuse to recognize and bargain collectively with Local Union 170, Sheet Metal Workers International Association, AFL-CIO, as the repre- sentative of our employees in the unit described below. The bargaining unit is: All production and maintenance employees, including shipping and receiv- ing employees, truckdrivers, and leadmen, but excluding all office clerical and professional employees, guards, watchmen, and supervisors. WE WILL recognize the above-named labor organization as the exclusive representative of our employees in the aforesaid appropriate unit; upon request, meet and bargain collectively with said labor organization concerning the provisions of a contract; and, if an understanding is reached, embody said understanding in a signed agreement. PATT ENGINEERING & MANUFACTURING CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone 688-5204. Kentucky News, Incorporated and General Drivers, Warehouse- men and Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Cases 9-CA-3710, 3720, and 3682. June 00, 1966 DECISION AND ORDER On March 30, 1966, Trial Examiner Alba B. Martin issued his Deci- sion in the above-entitled proceeding, finding that the Respondent 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 Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. 159 NLRB No. 56.