Modine Manufacturing Co.

MODINE MANUFACTURING COMPANY 629 Modine Manufacturing Company and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW) and Sheet Metal Workers International Association, Local No. 2, Party to Contract. Case 17-CA-4206 November 18, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon a charge duly filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), hereafter referred to as UAW, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint dated March 30, 1970, against the Respondent, Modine Manufacturing Company, alleging that the Respon- dent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5), (2), and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the Respondent. The complaint alleges, in substance, (1) that, although the UAW was duly certified after a Board election as the exclusive bargaining representative of the Respondent's employees in the appropriate unit, the Respondent has, since requested to do so on or about February 2, 1970, refused, and is refusing, to recognize or bargain with the UAW; (2) that on or about January 7, 1970, Respondent posted a written notification designed to encourage, and which did encourage, employees to vote for Sheet Metal Workers International Association, Local No. 2, herein called Sheet Metal Workers, and against the UAW in the January 12, 1970, election; and (3) that since the election of January 12, 1970, the Respondent has continued to recognize and bargain with the Sheet Metal Workers, and maintained in full force, a contract between them including provisions pertain- ing to union security and dues checkoff, and thereby has rendered unlawful assistance and support to the Sheet Metal Workers. The Respondent filed its answer denying certain allegations of the complaint. On June 1, 1970, the Respondent, the UAW, and Counsel for the General Counsel filed a motion to transfer proceeding to the Board and stipulation of , In par. 4 of the stipulation the parties designated as a part thereof, "in view of Section 9(d) of the Act," the record of the hearing in the underlying representation proceeding . The Board in that proceeding considered the record, reached a decision on the merits, and directed an election. (Decision and Direction of Election in Case 17-RC-5945, published at 180 NLRB No. 70, of which the Board is requested to take official notice.) It is settled that, in the absence of newly discovered or previously unavailable parties. The parties stipulated that the entire record in this proceeding shall consist of the charges, com- plaint, notice of hearing, answer, and the stipulation of facts, including the exhibits attached thereto. The parties waived their rights to a hearing and to the issuance of a Trial Examiner's Decision. By an Order issued on June 5, 1970, the Board approved the aforesaid stipulation and transferred the matter to the Board. 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. Upon the aforesaid stipulation and the entire record in this case,' including the briefs of the Respondent, the UAW, and the General Counsel , the Board makes the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT The Respondent, a Wisconsin corporation, operates several plants throughout the United States, including one at Trenton, Missouri, the only operation involved herein, where it is engaged in the manufacture of radiators for automotive and agricultural equipment. In the course and conduct of its business at the Trenton plant, the Respondent annually ships prod- ucts valued at in excess of $50,000 directly to points outside the State of Missouri, and receives goods valued at in excess of $50,000 for its Trenton plant from points outside the State of Missouri. The Respondent admits, and we find, that it is, and has been at all material times herein, engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The UAW and the Sheet Metal Workers are now, and have been at all material times herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Refusal to Bargain This case arises out of the organizational activity at Respondent's Trenton, Missouri, plant by the Sheet evidence, the Board does not litigate in an unfair labor practice case issues which were, or could have been, litigated in a prior representation proceeding.'(lPittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 161-162.) Thus, no reason therefor having been given, we will not reconsider the record made in the representation hearing. Accordingly, the representation case record is part of the stipulated record in this unfair labor practice case only for the purpose indicated by Sec. 9(d) of the Act. 186 NLRB No. 84 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metal Workers and the UAW. In the course of that activity, Respondent, on January 21, 1969, recognized the Sheet Metal Workers. Shortly thereafter the UAW filed a petition for an election.2 A hearing was held, and the case was transferred to the Board for decision. A panel of this Board decided that, contrary to the Respondent's and the Sheet Metal Workers conten- tion, the recognition and subsequent execution of a contract3 was not a bar to the petition filed by the UAW, and directed an election. Pursuant to this decision, the Regional Director for Region 17 conducted an election on January 12, 1970. The tally of ballots shows that of 124 ballots cast, the UAW received 71 votes and the Sheet Metal Workers 47, with 2 votes for neither and 4 challenges. Thereafter, on January 20, 1970, the Regional Director for Region 17 certified the UAW as collective-bargaining representative in the appropriate unit.4 On February 2, 1970, the UAW requested the Respondent to bargain with it over wages, hours, and working conditions. The Respondent replied that it would refuse to do so, claiming that its recognition of the Sheet Metal Workers had been proper. In the instant case, the Respondent takes the position that the UAW did not have a substantial showing of interest at the time the Respondent recognized the Sheet Metal Workers and, therefore, that the initial recognition was lawful and a bar to the election.5 In support of its position, the Respondent requests the Board to open the record and produce all of the UAW membership and authorization cards in order to determine the extent of the UAW's showing of interest at the time recognition was extended to the Sheet Metal Workers. In this connection the Respon- dent has subpenaed the UAW cards.6 The Respon- dent claims that the Hearing Officer, in the represent- ation proceeding, under the guise of complying with the Board policy that showing of interest is not litigable, erroneously revoked a subpena for the UAW cards. The Board has ruled in the representation proceed- ing that the Hearing Officer's rulings were without error, that the Respondent's contention that the UAW did not have a substantial interest is without merit, and that the recognition of the Sheet Metal Workers was not a bar to the UAW's petition for an 2 Whether the petition was filed 7 days after the recognition agreement (as the Respondent claims herein ) or 5 days thereafter (as found in the underlying representation proceeding) is immaterial to the issues involved herein . Nevertheless, we inadvertently left out the word "working." Pursuant to Section 10(d) of the Act, we shall order, and it hereby is ordered, that in the underlying representation proceeding the term "5 days" be corrected to read "5 working days." 3 On March 30, 1969, the Respondent and the Sheet Metal Workers entered into a collective-bargaining agreement, which provided , inter alia, for union security and dues checkoff. 4 All production and maintenance employees, including the shipping and receiving clerk and the inspectors, employed by the Employer at its Trenton, Missouri, plant, excluding all office clerical employees, guards, election. Thus, the Board has already decided the very questions which the Respondent now raises. As noted earlier, Board policy does not permit litigation, in an unfair labor practice case , of issues which were, or could have been, litigated in a prior representation proceeding. Under these circumstances, we find that the Respondent has failed to raise any issue which is properly litigable in this proceeding.? Accordingly, as the Respondent is obligated to meet and bargain with the UAW upon request, we find that the Respon- dent's refusal, on and after February 2, 1970, to bargain collectively with the UAW as the exclusive bargaining representative of the employees in the appropriate unit was and is violative of Section 8(a)(5) and (1) of the Act. Having found that the Respondent has unlawfully refused to bargain with the UAW, we shall order it to bargain collectively with the UAW as exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement . In addi- tion, to ensure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the UAW as the certified bargaining representative of the employees in the appropriate unit.8 B. Interference and Assistance The complaint alleges a violation of Section 8(a)(2). The facts show that the Respondent has continued to recognize the Sheet Metal Workers and to give effect to the contract, even though the UAW won the election and has been certified at the exclusive collective-bargaining representative. The contract, which was executed on March 30, 1969, contains provisions for union security and dues checkoff. We have found that the Respondent has a duty to bargain collectively with the UAW, the statutory representative of the Respondent's employees, and that Respondent violated that duty. This obligation is exclusive and exacts "the negative duty to treat with no other."9 Thus, we conclude that on and after professional employees , and supervisors as defined in the Act. 5 In its brief Respondent confuses the number of showing of interest cards necessary to support a petition and the number which would be sufficient to demonstrate that there is an intervening rival interest substantial enough to require resolution of the question concerning representation by secret ballot and warrant participation therein. See American Bread Company, 170 NLRB No. 20, fn. 1. 6 Subpoenas duces tecum B-84248 and B-84249. I Counsel for the General Counsel 's motion to revoke subpoenas duces tecum B-84248 and B-84249 is granted and said subpenas are hereby revoked. a See Mar-Jac Poultry Company, Inc., 136 NLRB 785. 9 N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 44. MODINE MANUFACTURING COMPANY 631 January 12, 1970, the Respondent's continued recog- nition of the Sheet Metal Workers, and its maintain- ing in full force and effect the bargaining agreement with the Sheet Metal Workers including the provi- sions pertaining to union security and dues checkoff, violated Section 8(a)(2) and (1) of the Act.1° As we have found that the Respondent, by giving continued recognition to the Sheet Metal Workers and continued effect to the aforesaid contract, has violated Section 8(a)(2) and (1) of the Act, we shall order it to cease and desist therefrom. We shall also order the Respondent to withdraw and withhold recognition of the Sheet Metal Workers as collective- bargaining representative of its employees and to cease giving affect to said collective-bargaining agreement. In order to effectuate the policies of the Act and since employees, by the unlawful continua- tion of the union-security provision, would thereby be coerced into joining and/or continuing their member- ship in the Sheet Metal Workers and paying dues to it, we shall order the Respondent to reimburse all its employees for monies paid by or withheld from them on and after January 12, 1970, for initiation fees, dues, or other obligations of membership in Sheet Metal Workers.ii In accordance with the Board's decision in Isis Plumbing & Heating Co., 138 NLRB 716, and Quality Coal Corporation, et a!., 139 NLRB 492, interest should be included on such dues reimburse- ment, such interest to be computed in the manner set forth in Seafarers International Union, 138 NLRB 1142. purposes of collective bargaining of the Respondent's employees in the appropriate unit. 5. By refusing to bargain collectively with the UAW as the exclusive representative of all the employees in the appropriate unit on and after February 2, 1970, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By continuing, since January 12, 1970, to recognize the Sheet Metal Workers, and by continu- ing to give effect to a collective-bargaining agreement with the Sheet Metal Workers which contained, inter alia, provisions for union security and dues checkoff, the Respondent has assisted and supported a labor organization and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(2) of the Act. 7. By the aforesaid refusal to bargain and the assistance and support of a labor organization, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER CONCLUSIONS OF LAW 1. Modine Manufacturing Company, Trenton, Missouri, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Ae- rospace and Agricultural Implement Workers of America (UAW), and Sheet Metal Workers Interna- tional Association, Local No. 2, are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including the shipping and receiving clerk and the inspectors, employed by the Employer at its Trenton, Missouri, plant, excluding all office clerical employ- ees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all material times since January 12, 1970, the UAW has been the duly selected and, since January 20, 1970, the certified exclusive representative for the 10 See American Beef Packers, Inc, 176 NLRB No 42 Having found that Respondent has hereby violated Section 8(a)(2) of the Act, we find it unnecessary to pass upon, and do not decide, whether Respondent also violated Section 8(a)(2) by posting and reading a notification to employees Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Modine Manufacturing Company, Trenton, Missour- i, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive bar- gaining representative of the employees in the appropriate unit. (b) Giving effect to its contract dated March 30, 1969, or any modifications, extensions, or renewals thereof, or any other contract, agreement, arrange- ment, or understanding entered into, with Sheet Metal Workers International Association, Local No. 2, or any successor, relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor on January 7, 1970, 5 days before the election N L R B v. Revere Metal Art Co, 280 F 2d 96 (C A 2), enfg 123 NLRB 114. cert denied, 364 U S 894 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization shall have been certified by the National Labor Relations Board as the exclusive representative of the Respondent's employees; provided, however, that nothing in this Decision and Order shall be construed to require the Respondent to vary or abandon any wages, hours, seniority, or other substantive features of its relations with its employees which Respondent has established in the performance of said contract, or to prejudice the assertion by employees of any rights they may have thereunder. (c) Recognizing Sheet Metal Workers International Association, Local No. 2, or any successor thereto, as representative of any of its employees for the purposes of collective bargaining, unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of such employees. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Bargaining collectively with the International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW), as the exclusive representative of all employees in the appropriate unit in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The unit for bargaining is: All production and maintenance employees, in- cluding the shipping and receiving clerk and the inspectors, employed by the Employer at its Trenton, Missouri, plant, excluding all office clerical employees, guards, professional employ- ees, and supervisors as defined in the Act. (b) Reimburse all of its employees, former and present, for moneys paid by or withheld from them on and after January 12, 1970, for initiation fees, dues, or other obligations of membership in Sheet Metal Workers International Association, together with interest thereon at the rate of 6 percent per annum, in the manner set forth in this Decision. (c) Withdraw and withhold all recognition from Sheet Metal Workers International Association, Local No. 2, or any successor labor organization, as the representative of the Respondent's employees for the purposes of collective bargaining, unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive representative of such employees. (d) Post at its plant in Trenton, Missouri, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. 12 In the event this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a case in which all sides had the chance to present their positions, the National Labor Relations Board found that we, Modine Manufacturing Com- pany, violated the National Labor Relations Act. The Board therefore ordered us to post this notice. The Act gives all employees these rights: To engage in self organization To form, help, or join unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. The National Labor Relations Board found that: 1. The International Union, United Auto- mobile, Aerospace and Agricultural Imple- ment Workers of -..merica (UAW), is the Union you have chosen, through a secret- ballot election, as your representative for collective bargaining. 2. We unlawfully refused to bargain with the UAW about wages, hours, and other conditions of employment. 3. We unlawfully continued to recognize and bargain with the Sheet Metal Workers when they did not represent a validly desig- nated majority of our employees. 4. We unlawfully continued to give effect to a contract with the Sheet Metal Workers MODINE MANUFACTURING COMPANY 633 when they did not represent a validly desig- nated majority of our employees. Accordingly, we give you these assurances: 1. We recognize International Union, Unit- ed Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as your exclusive bargaining representative with respect to wages, hours, and other conditions of employment. 2. We will bargain with the UAW over the subjects named above. 3. We will cease giving effect to our contract with Sheet Metal Workers Interna- tional Association, Local No. 2. 4. We will cease recognizing the Sheet Metal Workers and withdraw and withhold all recognition from them as your representa- tive for collective bargaining. 5. We will reimburse each of you for money paid by you, or withheld from your wages, after January 12, 1970, for initiation fees, dues, or other obligations of membership in Sheet Metal Workers, with 6-percent interest. MODINE MANUFACTURING COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.