Wilmington Heating Service, Inc.

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilmington Heating Service , Inc. and General Team- sters Local No. 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Cases 4-CA- 4522 and 4-RC-7536 October 1, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On July 22, 1968, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief and General Counsel filed a brief in answer to Respondent's exceptions and 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-mem- ber 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, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. 1. We agree with the Trial Examiner that Respond- ent violated Section 8(a)(1) of the Act. In making this finding, however, we do not rely, as did the Trial Examiner, on (a) President Tomczyk's statement to an employee that no one was going to tell him how to run his business, and (b) President Tomczyk's state- ment about the possibility of losing the Sears Roebuck account and resultant layoffs.' As to (a), this statement was made to an employee after Tomczyk had received a telephone call from a union representative which outraged him. He said to the employee: "You should have heard the way the [Union] guy talked to me on the phone," and then made the further statement which the Trial Examiner found unlawful. In this context, we find that the statement was not coercive, but merely reflected Tomczyk's indignation. As to (b), in making the statement about the possibility of losing the Sears I Member Brown would affirm the Trial Examiner in this respect and thus also rely on such conduct in support of the 8 (a)(5) finding Roebuck account with resultant layoffs, Tomczyk explained to employees that most of Respondent's work was for Sears Roebuck, that if it granted wage increases it would have to increase the prices charged Sears Roebuck, and that if it did he was afraid Respondent might lose the account, which would necessitate layoffs of employees. The statement there- fore merely conveyed to Respondent's employees Tomczyk's understanding of the possible economic consequences to be expected if business costs were increased. It was a prediction of the possible eco- nomic effect of increased costs rather than a threat of reprisal to force the employees to abandon the Union and was therefore not unlawful? 2. We adopt the Trial Examiner's finding that Respondent's grant of wage increases to employees Loveless and Marsh before the election violated Section 8(a)(1). In doing so, we find that Respond- ent's purpose in granting the increases at the partic- ular time was to affect the outcome of the scheduled election .3 3. We agree with the Trial Examiner that Respond- ent violated Section 8(a)(5) of the Act. In making this finding we rely on the fact that, as found by the Trial Examiner, at a meeting with employees on November 7, after the Union sought recognition, a majority of employees told Tomczyk that they had signed cards for the Union. And, in this connection, we also take into account, Respondent's unlawful conduct calcu- lated to dissipate the Union's majority status. We therefore conclude that Respondent's refusal to. ac- cord recognition to, and to bargain with, the Union was unlawful.' 4. As the Trial Examiner found merit in the Union's objections to the election held on January 16, 1968, we shall set aside the election. We shall also dismiss the representation petition in view of the finding that Respondent unlawfully refused to bar- gain with the Union and we shall issue a bargaining order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that Respondent, Wil- mington Heating Service, Inc., Wilmington, Delaware, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as so modified. Delete section 1(b) of the Trial Examiner's Recom- mended Order and substitute the following: "(b) Granting wage increases to employees for the 2 Wagner Industrial Products Company, Inc., 170 NLRB No. 157. 3 N.L.R.B. v Exchange Parts Co., 375 U.S. 405 4 Cf. Heck's Inc., 166 NLRB 186. 173 NLRB No. 15 WILMINGTON purpose of discouraging their union activities, pro- vided, however, that Respondent is not required to revoke any such benefits that it has granted." Delete the second indented paragraph of the Trial Examiner's "Notice To All Employees" and substi- tute the following. WE WILL NOT grant wage increases to employees for the purpose of discouraging their union activ- ities; provided, however, that nothing in the Board's Order requires us to revoke increases here- tofore granted. IT IS HEREBY FURTHER ORDERED that the election in Case 4-RC-7536 conducted on January 16, 1968, be, and it hereby is, set aside, and that the petition in Case 4-RC-7536, be, and it hereby is dismissed. TRIAL EXAMINER'S DECISION AND REPORT AND RECOMMENATIONS ON OBJECTIONS TO ELECTION BUCHANAN, Trial Examiner- The complaint herein (issued March 29, 1968; charge filed January 26, 1968), alleges that the Company has violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 73 Stat. 519, by threat, grant of wage increases while a representation pro- ceeding was pending, and refusal to bargain with the Union as collective-bargaining representative. The answer denies the allegations of unfair labor practice and certain allegations with respect to commerce. Consolidated with the trial on the above issues was a hearing with respect to certain objections to election filed by the Union concerning an election conducted by the Board on January 16, 1963. It was early agreed that the proof in support of the objections would be limited to that offered with respect to the unfair labor practices, or some of the latter. The case was tried before me at Wilmington, Delaware, on April 29, 1968. (I regret that eight intervening cases have delayed issuance of this Decision.) Pursuant to permission granted to all parties, a brief has been filed by the General Counsel. Upon the entire record in the case and from my observation of the witnesses, I make the following- FINDINGS OF FACT (WITH REASONSi THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED Certain facts concerning the Company's status as a T)ela- ware corporation and the nature and extent of its business are admitted. The Regional Director, in his Decision and Direction i My reasons, set forth in each decision , are those stated by me, and not different ones attributed by those who have not faithfully examined the record I now find it not only appropriate but also unfortunately necessary (Cf Central Machine & Tool Works, 171 NLRB No. 139) to note that my findings of violation are based on the evidence which has been properly presented by allegations , original or amended, or which has been fully litigated , as noted below. On the other hand, however clearly an act described on review may appear to be violative, my reason for not finding the violation when it is not placed in issue should be recognized as detailed in the Trial Examiner 's Decision and because of the lack of allegation and full litigation , which should be apparent on HEATING SERVICE 69 of Election of December 20, 1967, found and concluded that the Company is engaged in commerce within the meaning of the Act. Pursuant to Section 102.67(f) of the Board's Rules and Regulations, Series 8, as amended, I find and conclude ac.;ordingly, no request for review having been filed under Section 102.67(b). I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II THE UNFAIR LABOR PRACTICES A. The Alleged Independent Violation of Section 8(a)(1) Reference will be made to reduction in the number of employees in the unit from nine to three after union cards were signed. The most unusual circumstance in this case is not the interference or refusal to bargain which are alleged but that such reduction in force was apparently nondiscriminatory and is not alleged to have been violative. Armed with seven union membership cards and a like number of checkoff authorization cards, the Union filed the representation petition in the election proceeding herein on November 6, 1967, and Amatrudi, its representative, tele- phoned the Company's president, Tomczyk. We have not been favored with details of this conversation beyond mention of Amatrudi's statement of his representative capacity, his re- ference to a letter, and Tomczyk's denial of its receipt; he did thereafter receive the letter. Amatrudi evidently declared the Union's majority for Tomczyk, now upset, complained to employee Coulbourn, "You should have heard the way the guy talked to me on the phone." Employee Ryan was in Tomczyk's office during the call from Amatrudi. Tomczyk asked Ryan why he had done that to him, explained that "the place voted the union in" (we shall later note the absence of a good-faith doubt of the Union's majority), and threatened, "If you voted the union in you will be out of a job." To Coulbourn, Tomczyk also said that no one was going to tell him how to run his business, and this was violative in the context of his reference to a call from a union representative. Tomczyk was observably uncomfortable, and I do not credit his testimony as he denied that he had threatened to close the doors before letting someone tell him how to run his business. The next morning, Tomczyk joined the employees, who were having coffee, and told them, " ... you know what this can mean, me losing my best customer, which would be Sears and Roebuck." This was repeated several times during the next few weeks, with warnings that the men would be out of jobs. Such a statement, based on unsupported anticipated reaction by a customer is not a prediction but a violative threat,2 and no less so because Tomczyk added a speculative element by reference to losing Sears because of a wage increase. (We shall see that he did thereafter grant increases.) Although not examination of the record In short, what appears to be a clear violation may be without the necessary support in the facts properly before us Thus, with an objective concern for accuracy , I shall again point out below that a statement which may not be lawfully made is not found to be violative inasmuch as it was neither alleged nor litigated , whereas violation is found in another which, although not alleged was, as we shall see, litigated. 2 Neco Electrical Products Corporation , 124 NLRB 481, 482, 487, as modified by unreported Order of the Board dated April 13, 1961, after remand sub nom, International Union of Electrical, Radio and Machine Workers, AFL-CIO v N.L.R.B., 289 F.2d 757 (C.A.D.C.). 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged, this threat was fully litigated. There followed general discussions on November 7 (1 do not credit Tomczyk's denial that the Union was mentioned), in which it was made clear to Tomczyk: "Everybody was in, everybody signed cards." I find no violation in the further statement attributed to Tomczyk as related to the loss of Sears Roebuck: "Maybe this was all for the best, I will fall back on my oil business." If emphasis be necessary, let me say emphatically that such a threat may not be lawfully made; but unlike the other, it was neither alleged nor litigated. On December 22, when the election was pending, the Company gave a 20-cent increase to employees Loveless and Harry Marsh. (Other employees had received increases earlier.) Harry Marsh testified that he learned of the increase when he received his check, he did not recall when he had received the last prior increase. The record shows that Marsh had received half a dozen prior increases, never in December and each in the amount of 10 cents. Similarly, the single increase previously given to Loveless was 10 cents in May 1967. An explanation offered on the Company's behalf for increases given prior to the close of the fiscal year ending on October 31 falls far short of justifying the two larger ones given after the Decision and Direction of Election and when, as Tomczyk testified, business was not good. Necessity for the wage increases at that time has not been shown, nor were they part of a valid preexisting plan.3 I find and conclude that the Company made violative threats and further interfered with employees' protected concerted activities by granting wage increases while an election was pending. The basis for the findings and conclu- sions herein is clear without reference to credibility details which must leave them undisturbed. B. The Alleged Violation of Section 8(a)(5) The answer admits the allegation concerning the appropri- ate unit "if employer was engaged in `Commerce"', it denies the allegation because the Employer was not so engaged. Having found that the Company is engaged in Commerce within the meaning of the Act, I find and conclude that the following is an appropriate unit within Section 9(b) of the Act: All drivers, helpers, servicemen and installers at the Com- pany's Wilmington, Delaware, location, excluding office clerical employees, guards, watchmen, professional em- ployees and supervisors as defined in the Act. Whether at the trial level or any of the decisional levels, points made must be valid and applicable. Some, although valid, are not applicable. If applicable here, consideration of unusual circumstances and their effect confirm, as we shall soon see, the next step: recognition that the interference found and committed as soon as the petition was filed and recognition sought on November 6, and thereafter, not only tends to undermine the Union and to dissipate its majority, but also indicates absence of good-faith doubt of majority. We recall that the Union on November 6 claimed a majority and that the employees on November 7 confirmed to Tomczyk that they had signed union cards. In the absence of good-faith doubt,4 the obligation to bargain runs from time of demand and refusal where it appears that the Union has been authorized by a majority in the unit, and here, of nine employees, seven had signed cards. In the absence of "unusual circumstances,"5 that obligation con- tinues regardless of change in the number or identity of employees in the unit. Indeed, had the Company responded positively to the bargaining demand as under Joy Silk it should have, a later change in the unit under these circumstances would not have relieved it of the obligation to bargain. Thus with respect to reduction of the unit from nine employees to three, the obligation to bargain would have remained had such reduction been discriminatory. On the other hand, where it is nondiscriminatory, as here, a reduction so great between the time of petition and demand and the date of election is unusual - " . . . the size of the bargaining unit fluctuated radically within a short time.i6 But the 3 to 0 vote against the Union is not proof that the Company correctly and in good faith earlier appraised the situation when it refused to bargain. In this case peculiarly, it is clear for all to see that of the three employees who remained, all of whom are identified and voted against the Union, one had early signed membership and checkoff authorization cards and a second signed a checkoff card on November 16. To rely on the election result while ignoring the earlier signings would be to force on the Union the very choice which the Board decried in Bernel Foam. ' It would ignore the tendency of the employer's act to affect the employees in their right to engage in protected concerted activities. The Company itself barred the necessary conditions for a free election, and it may not complain of a direction to bargain as a proper remedy. I find and conclude that the Company rejected the collective-bargaining principle and, acting to undermine the Union, has unlawfully refused since November 6 to bargain with it The Company's "conduct has been sufficiently onerous to interfere with the election and to cause a substantial deterioration in the union's status."8 The violation is to be found and the remedy applied whether or not it be necessary to consider the reduction in the number of em- ployees. (I am here anticipating and making it difficult to overlook or ignore that I am myself suggesting that it is unnecessary to declare that such consideration is "unneces- sary.") III. THE OBJECTIONS TO THE ELECTION The objections referred to me are supported by the evidence concerning the violations found. Under the consolida- tion order, "further processing" is left to the Regional Director. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Company, Wilmington Heating Service, 3 Cf Kellwood Company, Ottenheimer Bros. Mfg Division, 170 5 Ray Brooks v. N.L R.B., 348 U.S996, 98. NLRB No. 183, Kellwood Company, Southern Division, 170 NLRB No 6 Id at 99. 184. 7 Bernel Foam Products Co., Inc., 146 NLRB 1277, 1280. 4 Joy Silk Mills, Inc., 85 NLRB 1263, 1265, enfd. as modified on 8 Ibid. other grounds 185 F.2d 732 (C.A.D C.), cert. denied 341 U.S. 914. WILMINGTON HEATING SERVICE Inc.. Wilmington, Delaware, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees in connection with protected concerted activities. (b) Granting wage increases while an election proceeding is pending, provided, however, the Company is not required to revoke any such benefits that it has granted. (c) Refusing to bargain collectively with the Union as exclusive representative of all employees in the appropriate unit with respect to rates of pay, hours of employment, or other conditions of employment. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the appropri- ate unit, and embody in a signed agreement any understanding reached. (b) Post at its place of business in Wilmington, Delaware, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by its representative, shall be posted by the Company, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' I FURTHER RECOMMEND that objections 4 and 5 to conduct affecting the election be sustained. 9In 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 Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " The language in the notice is "simple [ the employees are not] and readily understandable ." Cf Harry F. Berggren & Sons, Inc, 165 NLRB No 353 10 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 4, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES 71 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 Relations Act, as amended, we hereby notify our employees that WE WILL NOT threaten employees in connection with protected concerted activities. WE WILL NOT grant wage increases while an election proceeding is pending, provided, however, that we will not revoke increases heretofore granted. 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 General Teamsters Local No. 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other 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 in Section 8(a)(3) of the Act. WE WILL bargain, upon request, with General Teamsters Local No. 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Ameri- ca, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employ- ment, and embody in a signed agreement any understanding reached. The bargaining unit is. All drivers, helpers, servicemen and installers at the Company's Wilmington, Delaware, location, excluding office clerical employees, guards, watchmen, professional employees and supervisors as defined in the Act WILMINGTON HEATING SERVICE,INC (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 If employees have any question concerning this notice or compliance with its provisions, they may communicate di- rectly with the Board's Regional Office, 1700 Bankers Securi- ties Building, Walnut & Juniper Streets, Philadelphia, Penn- sylvania 19107, Telephone 597-7601.