Martech Corp.

MARTECH CORP. 479 Martech Corporation and Pattern and Model Makers Association of Warren and Vicinity, Pat- tern Makers League of North America , AFL-CIO. Case 7-CA-5863 January 30,1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 23, 1967, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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 to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 the entire record in the case, and hereby adopts the findings,' I conclusions, and recommendations2 of the Trial Examiner, except as modified herein. 2. Add the following to the first indented para- graph of the notice: If we are unable to reinstate any of these em- ployees, we will place the names of those em- ployees who are not reinstated on a preferential hiring list. ' The Trial Examiner found that Respondent violated Section 8(a)(5) by releasing the woodmen and assigning the work performed by them to the plastics men without bargaining with the Union. We agree with this find- ing. He also found that the remedy for this refusal to bargain would be the same reinstatement and backpay that is normally prescribed for unlawful discharges. Since we are holding that the discharges violated Section 8(a)(3), we find it unnecessary to consider whether, under these circum- stances, the remedy for the 8(a)(5) violation would be the same reinstate- ment and backpay that is normally prescribed for unlawful discharges. S The Trial Examiner recommended that Respondent be ordered to offer reinstatement to the six dischargees. We note, however, that the record does not indicate whether the woodshop employees were capable of performing the work that remained in the plastics shop after January 16. Neither does the record indicate whether the Respondent had a seniority policy which, if adhered to, would have resulted in the retention of some of the dischargees after January 16. Since it is impossible to determine which of the dischargees if any, would have been retained after January 16 if no discrimination had been practiced, it is also impossible to determine which of the dischargees, if any, are entitled to immediate rein- statement. Until these questions are resolved, the loss of earnings suffered by each dtschargee as a result of the discrimination cannot be computed. Respondent will have the opportunity to adduce evidence on all of these issues during the compliance proceedings. See Cambria Clay Products Company, 215 F.2d 48, 56 (C.A. 6), and cases cited. 3 If, in the compliance proceedings, it is determined that the woodshop employees cannot perform the work available in the plastics shop, these employees would, of course, be entitled to preferential hiring only in the woodshop, if and when operations in the woodshop are resumed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Martech Corporation, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified: 1. Add the following as paragraph 2(c) to the Trial Examiner's recommended Order and reletter paragraph 2(c) through 2(f), accordingly: "(c) Establish a preferential hiring list consisting of those dischargees who are not entitled to im- mediate reinstatement, following the system of seniority, if any, customarily applied to the conduct of Respondent's business, and if jobs become available in either the plastics pattern shop or the wood pattern and molding shop, offer reinstatement to those employees to their former or substantially equivalent positions."3 FREDERICK U. REEL, Trial Examiner: This case was tried at Detroit, Michigan, on September 12 and 13, 1967, pursuant to a charge filed the preceding January 10, a complaint issued April 7, and an answer filed April 14. It presents questions as to whether Respondent, herein called the Company, (a) threatened to close part of its plant to avoid recognizing and bargaining with the Charging Party, herein called the Union; (b) discharged six employees because of their union membership and ac- tivity; and (c) refused to bargain with the Union which represented a majority of the Company's employees in an appropriate unit. Upon the entire, record, including my observation of the witnesses, and after consideration of the brief filed by the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a Michigan corporation, engaged in Detroit in the manufacture, sale, and distribution of models for automotive body and chassis components and related products, has a gross annual income in excess of $900,000, of which a major portion is derived from its contracts with Ford Motor Company, herein called Ford, and U.S. Steel Corporation. Company counsel, conced- 169 NLRB No. 74 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that if Ford produced its own models as part of its business of manufacturing automobiles , the men em- ployed in making the models would be within the protec- tion of the National Labor Relations Act, nevertheless ar- gued that because the Company's models did not leave the State, the Company and its employees were not sub- ject to the Act. The contention too narrowly conceives the constitutional powers of Congress , exercised to their full in the Act, to cover unfair labor practices "affecting commerce" (Sections 2(7) and 10 (a) of the Act), and I therefore find that the Company is an employer whose operations affect commerce within the meaning of the Act. Cf. N.L.R.B. v. Dixie Terminal Co., 210 F.2d 538, 539 (C.A. 6), cert. denied 347 U.S. 1015, citing N.L.R.B. v. Vulcan Forging Company, 188 F.2d 927, 930 (C.A. 6). II. THE LABOR ORGANIZATION INVOLVED Testimony establishes that the Union is an organiza- tion in which employees participate, and which exists for the purpose, at least in part, of dealing with employers concerning terms and conditions of employment. I there- fore find that it is a "labor organization" within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The History of the Wood and Plastic Shops Prior to January 5,1967 The Company was created in the summer of 1965, and 1 year later, in July 1966, it expanded its operations (theretofore confined to metal work) by opening a wood pattern and molding shop. Dario Moriconi was hired early in August to be the foreman of that shop, and a few days thereafter Moriconi hired one Douglas Oakey to assist him. Late in November additional employees were hired for that shop, namely Colin Cockram, John Petrella, and Michael Moriconi, Dario's son, who was an ap- prentice or helper. A short time later, early in December 1966, employees Allen Lux and Herbert Reinel were hired for that shop, so that after December 6 and until the events described below, the wood pattern shop consisted of a foreman, an apprentice, two journeymen (Cockram and Reinel), and three other regular employees (Oakey, Lux, and Petrella) of intermediate skills. Each of the em- ployees, at the time he was hired and continuing thereafter, was a member of the Union, with the possible exception of Michael Moriconi, who testified only that he was a member as of January 5, 1967. In December 1966 the Company started a plastic pat- tern shop. The supervisor, John Marshall, was hired December 5; he hired one man that week, one on December 29 (this employee had been doing part-time work in the plastic shop), and one on January 4, 1967. Marshall was head of both the wood and plastic shops, and had authority over Moriconi in the former. The principal, although not the only, customer of the Company to require the services of the wood pattern shop was the Ford Motor Company. One major project which the wood shop performed for Ford was the produc- tion of a "seating buck" under a contract given the Com- pany on November 15, 1966, with a completion date of January 3, 1967. This latter date was later informally ex- tended to January 16. This "buck" was the principal item being worked on in the wood shop during the first week of January, and the employees were putting in long hours of overtime on the "buck." B. The Requests for Recognition of the Union Early in December 1966 Gerald Noe, an International representative of the Union, called at the office of Com- pany President Robert Curcuru, told him that the Union represented a majority of his employees, and requested recognition and a contract. Curcuru at that time ex- pressed his opposition to having a union represent his em- ployees. He indicated his belief that while perhaps a few of his wood pattern shop employees were union mem- bers, he doubted that any, of the plastics workers were unionized. Noe left a proposed contract with Curcuru and departed. On January 5, 1967, Noe telephoned Curcuru to state that the men definitely desired to be represented by the Union. Curcuru told Noe that the Company would not recognize the Union and would close the pattern shop and buy patterns from outside sources rather than sign a union contract. That afternoon, the six employee members of the wood pattern shop (a majority of the bargaining unit which also embraced three plastics employees) came to Curcuru's office, where they met with Curcuru, General Manager Henry Brainer, and Shop Supervisor John Marshall. Oakey, acting as their spokesman, told Curcuru that they were all members of the Union and wanted the Union to represent them. In the ensuing discussion Curcuru ex- plained his reasons for not wanting a union (basically, he believed his small shop needed more flexibility in trans- ferring men from job to job than he would have under a union contract), and he asked the men to go out and talk it over again. During the discussion Curcuru also stated that if the Union came in "he wouldn't be able to keep his shop going."2 The next morning, January 6, the men all came to their foreman, Dario Moriconi, told him they wanted the Union to represent them, and directed him to advise management of their decision. Moriconi that day did so report to Curcuru and the latter's chief assistants, General Manager Henry Brainer and Marshall. Curcuru told Moriconi to "go out and talk to the men and see if they want it. Get a vote from them." Moriconi called the men together, and they told him they had already decided "one hundred percent" that they wanted the Union. Mor- iconi duly reported back to Curcuru, who replied that he "would see about it." C. The Discharges The Company discharged or laid off Oakey, Reinel, and Mike Moriconi on Saturday, January 7; Cockram on Sunday, January 8; and Lux and Petrella on January 16. During the week commencing Monday, January 9, the Company brought in the three men from its plastics shop 1 At the hearing the parties stipulated that the employees in the wood and plastics shops together constituted a single appropriate unit. 2 According to Curcuru, at this meeting employee Colin Cockram said: "Well, what are we talking about this for at this point , when we hear there is no more work for us." Cockram did not remember saying that or any words to that effect. Brainer, a company witness , at first did not remember whether anything was said along that line and later thought "It possibly could have been." Marshall, likewise a company witness , also did not "recollect" any such statement having been made. Under the circum- stances I do not find that the statement was made. MARTECH CORP. 481 to finish the work on the Ford buck. This work, according to company witness Brainer, then general manager of the Company, could have been done either by men from the plastics shop or by the wood pattern men. Also during that week the Company learned that Ford was dissatisfied with the work on the buck, and that the out- look for future wood model business from Ford was not bright. By January 16 when the Ford buck left the wood shop, the Company had virtually no work left in that shop. Ac- cording to Brainer, however, the imminence of running out of work had been a recurring problem in the wood shop, and had frequently been the subject of discussion among management. On other occasions, efforts were made to solicit new business, but on January 7, when Foreman Dario Moriconi asked to go to the Fisher Body Company to solicit new business (an offer he made when told of the impending layoff of four men), company offi- cials told him not to do so. When Moriconi asked the reason, they replied, "Well, there are extenuating circum- stances." According to Curcuru, he had decided on the January 7 layoffs on or about January 3, after a joint consultation with General Manager Brainer and with John Marshall, the manager of the wood and plastic shop. But Curcuru admitted that he never mentioned the matter to Noe on January 5 or to the men who assembled in his office that afternoon or to Moriconi the next morning. On the con- trary, he told the men (according to Reinel, whom I credit) that "he would like to build the shop up and make a good model and pattern shop." Moreover, Marshall testified that as late as January 6, the Company bid on a new Ford job for the wood shop. Finally, Brainer testified that there had been no discussion prior to January 5 re- garding the layoff of these employees, and Marshall placed the discussion as occurring January 7. After the decimation of the wood pattern shop through the "layoff" or discharge of all the employees, the Com- pany received comparatively little work to be done in that shop. On one occasion in the spring of 1967 it considered recalling Oakey for a job, but it lost the contract in question before making him an offer. D. Concluding Findings I find that the Company in discharging or "laying off' the six men in the wood shop was motivated, at least in substantial part, by their having expressed the desire to be represented by the Union, and that the Company therefore violated Section 8(a)(3) and (1) of the Act. The record establishes that Curcuru knew of their union ac- tivity, that he threatened to close that aspect of his busi- ness rather than deal with the Union ,3 and that the discharges or layoffs occurred immediately after he learned that they adhered to their decision to have the Union represent them. Moreover, the record shows that as late as Thursday, January 4, the Company hired a new man for the plastics shop who was placed on work in the wood shop the next week. Finally, contrary to Curcuru's testimony , he had not decided on these "layoffs" in discussions with other representatives of management be- fore the meeting at which he learned the men desired union representation . His failure to mention the im- minence of layoffs in his discussions with Noe and the men on January 5 confirms the testimony of Company witnesses Brainer and Marshall that the decision to let the men go was not made until on or after that date.4 Cf. N.L.R.B. v. Clark Products, Inc., 395 F.2d 396 (C.A. 7). The Company argues that economic conditions dic- tated the layoffs , and that the union activity at this time was purely coincidental. It is true that the wood shop was on the verge of running out of work , but this was a com- mon situation , and the Company did not learn until after the first layoffs that it was not likely to get new business from Ford. Finally, even assuming arguendo and contrary to the foregoing findings, that only lawful economic motives led the Company to lay off the wood pattern men and bring in the newly hired, nonunion plastics men to do the work in the final week-on the Ford buck, the Company's action was nevertheless violative of the Act. In releasing the wood men and giving the work to the plastics men, the Company was changing the terms or conditions of em- ployment of the employees in the bargaining unit, which embraced both the wood and plastics shops. The Com- pany was aware at this time that the Union represented a majority of the employees in this unit. Under settled law (see the cases cited by the Board in Dixie Ohio Express Company, 167 NLRB 573), the Company was under a duty to notify the Union and give it an opportunity to bar- gain before the Company shut down part of its operation and transferred or laid off the employees. The con- sequence of this refusal to bargain would be the same reinstatement and backpay remedy (hereinafter recom- mended) that is normally prescribed for unlawful discharges. Cf. Fibreboard Paper Products Corp. v. N.L.R.B ., 379 U.S. 203. The Company's "unilateral ac- tion," as well as its refusal to recognize the Union despite Noe's request of January 5, confirmed by the assembled employees on that date and again by Moriconi the day after, violated Section 8(a)(5) and ( 1). The proof of majority was crystal clear when the men assembled in Curcuru's office where , in the presence of all, their spokesman, Oakey, stated that each was a member of the 3 This statement to his employees at the January 5 meeting violated Section 8 (a)(1) of the Act. 4 The Company' s brief relies heavily on Curcuru's testimony that he de- cided on January 3 to lay the men off, but it does not refer to, let alone ex- plain, the contradictory testimony of its own witnesses . As Curcuru's testimony was, in effect, contradicted by company witnesses Marshall and Brainer, there is no need to discuss the Company's reliance on what Judge Pope has termed the "ancient fallacy" that "where a witness' testimony is not contradicted, a trier has no right to refuse to accept it." N.L.R.B. v. Howell Chevrolet Company, 204 F.2d 79, 86 (C.A. 9), affd. 346 U.S. 482. See also N.L.R.B. v. Walton Manufacturing Company, 369 U.S 404, 408, quoting Dyer v. MacDougall, 201 F.2d 265, 269 (C.A. 2). Also the Company states in its brief, p . 10. "It is submitted by the Respondent that it is equally reasonable to infer a good motive for the layoff (i.e., lack of work and financial loss) as an unlawful one (i.e , discrimination because of the time sequence) ...." [emphasis by the Company], and then cites N.L.R.B. v. Huber & Huber Motor Express, 223 F.2d 748 (C A. 5), for the proposition that "If the evidence is such that it would be just as reasonable for the Board to infer a proper motive for the discharge as to infer an unlawful one, the Board may NOT find that there was an unlawful motive for the discharge" [emphasis by the Company]. I do not find the evidence nearly as balanced as the Company suggests , but I direct coun- sel's attention to the express overruling of the doctrine he reties on. N.L.R B. v. Fox Manufacturing Company, 238 F. 2d 211, 214-215 (C A. 5) As the Company's brief also cites N L.R.B. v. Walton Manufacturing Company, 286 F.2d 16 (C.A. 5), and N L.R.B. v. Tex-O-Kan Flour Mills Company, 122 F.2d 433 (C.A. 5). Counsel's attention is also directed to N.L.R.B. v. Walton Manufacturing Company, 369 U.S 404. But these oversights aside, the company brief correctly poses the issue as whether union activity played a substantial role in the decision to discharge or layoff. I find that it did. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and wanted it to be the bargaining representative. Cf. N.L.R.B. v. Tom's Supermarket , Inc., 385 F.2d 198 (C. A. 7). CONCLUSIONS OF LAW 1. By threatening to close the wood shop if the em- ployees were represented by the Union, the Company en- gaged in an unfair labor practice affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 2. By discharging or laying off the six employees in the wood shop in January 1967 because they wanted the Union to be their bargaining representative, the Company engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 20 and (7) of the Act. 3. By refusing to recognize and bargain with the Union, and by changing terms and conditions of employ- ment in the bargaining unit without notice to the Union, the Company engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. THE REMEDY I shall recommend that the Company cease and desist from its violations of the Act, that it bargain with the Union upon the latter's request, and that it offer to rein- state the six employees in the wood shop with backpay, computed under the formulae set forth in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. For the possible impact of adverse economic circumstances on the reinstatement and backpay provisions, see N.L.R.B. v. Cambria Clay Products Company, 215 F.2d 48, 56 (C.A. 6 ), and cases there cited. As noted above, I would recommend the rein- statement with backpay of the discharged employees to remedy the violation of Section 8(a)(5), even if (contrary to fact) I found no violation of Section 8(a)(3). Accordingly, upon the foregoing findings and conclu- sions, and upon the entire record in this case, I recom- mend, pursuant to Section 10(c) of the Act, issuance of the following: ORDER Respondent Martech Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain, upon request, with Pattern and Model Makers Association of Warren and Vicinity, Pattern Makers League of North America, AFL-CIO, as the bargaining representative of Respondent's employees in the following appropriate unit: All wood and plastic pattern and model makers em- ployees of the Respondent employed at the Re- spondent's place of business at 901 Southfield, Detroit, Michigan, but excluding office clerical em- ployees, guards, supervisors as defined in the Act, and all other employees. (b) Changing terms or conditions of employment within the aforesaid bargaining unit without giving notice and opportunity to bargain thereover to the aforesaid Union. (c) Discharging or otherwise discriminating against any employee because of his union membership or activi- ty, or because of his choice of a collective-bargaining representative. (d) Threatening to close its plant, or any part thereof, if the employees select a union to represent them in col- lective bargaining. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively (as defined in Section 8(d) of the Act) with aforesaid Union as represen- tative of the employees in the aforesaid unit. (b) Offer to reinstate Colin Cockram, Allen Lux, Michael Moriconi, Douglas Oakey, John Petrella, and Herbert Reinel to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole in the manner described in the section of the Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against them. (c) Notify any of the above-named employees if serv- ing in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Decision. (e) Post at its plant at Detroit, Michigan, copies of the attached notice marked "Appendix."5 Copies of such notice, on forms provided by the Regional Director for Region 7, after being duly signed by an authorized representative of the Respondent, shall be posted im- mediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees 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. (f) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith.6 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. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." B 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 Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor MARTECH CORP. 483 Relations Act, as amended, we hereby notify our em- MARTECH CORPORATION ployees that: (Employer) WE WILL offer the following employees their former jobs and pay them for wages they lost since their discharge in January 1967: Colin Cockram, Allen Lux, Michael Moriconi , Douglas Oakey, John Petrella, and Herbert Reinel. WE WILL recognize and bargain with the Pattern and Model Makers Association of Warren and Vicinity, Pattern Makers League of North America, AFL-CIO, as bargaining representative of our em- ployees in the wood and plastic shops. WE WILL NOT threaten to close our shop or any part of it because the employees join a union or select it as their bargaining representative. WE WILL NOT discharge our employees for such activity , or interfere in any way with their right to join or assist or be represented by a union. By Dated (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 application 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, 500 Book Building, 1249 Washington Boulevard Detroit, Michigan 48226, Telephone 226-3244. 350-212 0-70-32