Weltronic Co.

WELTRONIC COMPANY Weltronic Company and Local No . 155, International Union , United Automobile , Aerospace and Agricultural Implement Workers of America (UAW). Case 7-CA-6107 October 21, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On April 3, 1968, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recom- mending 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 An answering brief was filed by the Charging Party in response to these exceptions. 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. 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 briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications indicated herein.' 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, as modified herein, and hereby orders that Respondent, Weltronic Company, Southfield, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified 1. Delete paragraph 2(b) of the Trial Examiner's Recommended Order and substitute therefor the following: "(b) Give employees who previously performed plant central work at the Eight Mile Plant an opportunity to continue to perform such work, _ pending bargaining." 2. Delete the sixth indented paragraph of the 173 NLRB No. 40 235 appendix entitled "Notice to All Employees," and substitute the following- WE SHALL give employees who previously per- formed plant central work at the Eight Mile Plant an opportunity to continue to perform such work pending bargaining. 1 Like the Trial Examiner, we believe that a return to the status quo, so far as is practicable , is an essential part of the remedial order in this case In adopting the Trial Examiner 's Recommended Order, we construe the requirement that the collective- bargaining agreement be applied retroactively to the plant central work as an effort to restore conditions as they would have been had Respondent not moved the work without bargaining , whether the collective-bargaining agreement continues to be applied to the plant central work will depend, in all likelihood, on the outcome of the bargaining which we order, i.e , the disposition of the work and the workforce in question As part of the return to the status quo, we shall specifically provide that, pending the outcome of the bargaining , the Employer give to employees at Eight Mile who had previously performed the plant central work the opportunity to continue to perform it We have decided to make one additional modification in the Trial Examiner's Recommended Order Although, as the Trial Examiner found, it is clear that Respondent failed to satisfy its statutory obligation to bargain with the Union about the move of the plant central work, and its effect on employees , the record reveals that space is cramped at the old Eight Mile Plant, and at least in part, Respondent was motivated by economic considerations in making the move . In view of the fact that the work was moved only 3 miles away , we do not believe that physical return of the plant central work to Eight Mile in advance of the good -faith bargaining here directed is essential . See Unit Drop Forge Division Eaton Yale & Towne, Inc., 171 NLRB No 73 Accordingly, we give Respondent the option of not moving the physical performance of the work back to Eight Mile while it bargains , so long as it complies with all other aspects of the remedial order TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN H EADIE,Trial Examiner. This proceeding was held before me in Detroit, Michigan, on December 11, 1967, on the complaint of the General Counsel and the answer of Weltronic Company, herein called the Respondent.' The issue litigated was whether the Respondent violated Section 8(a)(1) and (5) of the Act After the conclusion of the hearing the General Counsel and the Respondent filed briefs with the Trial Examiner Upon the entire record in the case, and from my observa- tion of the witnesses, I make the following- FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation, has its principal office and place of business at 19500 West Eight Mile Road in the City of Southfield, Michigan, herein called the Eight Mile Plant. Since on or about April 1, 1967, the Respondent has maintained and operated a second plant at 20905 Telegraph Road, Southfield, Michigan, designated as its Plant Central Division and herein called the Telegraph Plant. The Re- spondent is engaged in the manufacture, sale and distribution 1 The charge was filed on May 29, 1967 The complaint issued on October 12, 1967. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of resistance welding controls, plant central equipment and related products During the year ending December 31, 1966, the Re- spondent manufactured, sold and distributed at its Eight Mile Plant products valued in excess of $500,000, of which products valued in excess of $200,000, were shipped from said plant directly to points located outside of the State of Michigan. The complaint alleges, the Respondent answer admits, and the Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act II. THE LABOR ORGANIZATION INVOLVED Local No . 155, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, herein called the Union , is a labor organization which admits to membership employees of the Respondent III. THE UNFAIR LABOR PRACTICES The Respondent and the Union have been parties to a collective-bargaining agreement since 1947 The relevant por- tions of the contract dated September 1, 1964, are as follows ARTICLE I Recognition Section 1. (a) The Company agrees to bargain with the Union as the exclusive bargaining agency for its employees at its plant located at 19500 West Eight Mile Road, Southfield Michigan with the exception of office em- ployees, watchmen, foremen, confidential employees and experimental engineers. (b) In the event the Company discontinues its opera- tions at the present site and moves to another location in the Detroit Metropolitan Area, seniority employees who can and are willing to accept work at the new location will be transferred to such a new location with all their seniority prevailing rates of pay and the prevailing contract with the AFL-CIO-UAW and Local 155 Section 2 The Company will negotiate at all times necessary in the manner provided herein, with the chosen accredited representative of its employees for the purpose of determining any disputes which may arise as to wages, rates, working conditions, discriminations or dismissals, and will adjust any grievances which may now exist or may arise in the future Section 4 The Union agrees that the Management of the Company has the right to manage the affairs of the business, to control its properties, and equipment, and to direct the working forces of the Company in accordance with and subject to the terms of this Agreement. Said functions of Management include the right to hire, dis- charge or discipline for just cause, to establish new jobs and discontinue jobs, maintain discipline and efficiency of employees, to determine the types of products to be manufactured, the location of plants, plan scheduling of production, methods, processes, and means of manu- facturing ARTICLE IV Seniority Section 9. In the event of a reduction in the work force, the following procedure shall be observed First Probationary employees shall be laid off and no overtime will be worked as long as employees with seniority are laid off, except in case of emergency by mutual agreement Second Seniority employees will be laid off in ac- cordance with their seniority standing, provided the senior employees are capable of meeting the normal standard of efficiency for the job they claim within a period not to exceed three (3) working days Third: When a further decrease of employees is neces- sary, no layoff shall occur if it is possible for all regular employees to work thirty-two (32) hours per week. The thirty-two (32) hour week shall not continue after four (4) weeks in any calendar year unless agreeed to by the Company and the Shop Committee. When an increase in force is necessary, the above procedure shall be reversed. Section 11 When new jobs are created or vacancies occur, the oldest employees in point of service shall be given preference in filling such new job or vacancy so far as consistent with the ability of the employee to perform the services required All new jobs will be posted forty-eight (48) hours before such vacancy shall be filled Since about 1960 the Respondent developed and manu- factured plant central equipment. Prior to April 1, 1967, such equipment was manufactured in six plants owned or leased by the Respondent or its subsidiary or affiliated companies at Southfield (Eight Mile), Oak Park, Detroit, Bay City and Clare, Michigan, and at Windsor, Ontario, Canada Since about May, 1965, some plant central work was carried on at the Eight Mile Plant This consisted of welding and assembly of cabinets, spray painting, and wiring and electronic assembly work. The wiring and electronic assembly work was performed for the most part by employees Pluma French and Helen Lobine Other employees at times also performed this work On or about April 1, 1967, without any prior notice to the Union, the Respondent moved the plant central wiring and electronic assembly work from the Eight Mile Plant to its new Telegraph Plant, located approximately 3 miles from the Eight Mile Plant.2 French continued on plant central equipment work for about 2 weeks after the move, finishing up work which had been assigned to her. She asked Robert Chinavare,3 her supervisor, and William Wood, general manager of the Respondent's plant central division, to be transferred to the Telegraph Plant They refused her request, telling her that she was "in a union shop" and that they did not know what they were "going to do " When she offered to call the Union to find 2 It appears that at or about this same time the Respondent moved work to the Telegraph Plant from the other five plants where components of plant central equipment previously had been manufac- tured 3 Chinavare testified that he is "plant manager of plant central division of Weltronic " WELTRONIC COMPANY out if she could be transferred, they again refused her request 4 The move of the plant central work from the Eight Mile Plant to the Telegraph Plant did not result in the layoff of any employees However, during September and October of 1966 14 employees had been laid off at the Eight Mile Plant The Respondent did not transfer any production employees from the Eight Mile Plant to the Telegraph Plant and did not recall any of the employees who had been laid off for work at the Telegraph Plant The Respondent hired five new employees prior to the hearing herein for the Telegraph Plant at rates considerably less than those specified in its contract with the Union. On April 14, 1967, the Union, under the terms of its contract with the Respondent, filed a grievance as follows. The employees of Wcltronic Co 19500 W Eight Mile road feel that said Company made a definite breach of contract by taking away from its employees the Plant Central job This job originated at Weltronic Co. 19500 W. 8 mile rd and here it should stay We feel that the Plant Central job would not only give our people who are now working steadier employment, but it would also enable the employees who are laid off to come back to work The parties met to discuss the grievance on or about April 23 The Union was represented by Marie Skierski, recording secretary of the Union, and by its shop committee John Anderson, in charge of the Respondent's public relations, stated that it was not possible to transfer employees or recall the laid off employees for work at the Telegraph Plant because the Respondent was paying wages at the Eight Mile Plant which it considered to be excessive for competitive reasons. He also stated that the space available at the Eight Mile Plant for work on plant central equipment was not sufficient When the parties were unable to resolve the grievance, Skierski requested arbitration The Respondent at first agreed to but later refused arbitration At Skierski's request, the Respondent's position was put in writing by letter to Skierski, dated April 26, 1967, as follows You have requested that we negotiate and arbitrate the question of whether we have the right to establish a Plant Central Division at 20905 Telegraph Road, Southfield, Michigan, without transferring the employees who worked on Plant Central at 19500 West Eight Mile Road, South- field, Michigan to a new location. Our contract does not provide for negotiation or arbitration of any management rights matters and it does provide that we retain all management rights, including the determina- tion of the location of plants The contract does not provide for transferring any employees to a new location unless we discontinue operations at 19500 West Eight Mile Road, Southfield, Michigan For the above reasons, we decline to negotiate or arbitrate the question referred to in paragraph one hereof. The Union filed another grievance dated May 5, 1967, as follows- The Company has violated Article I, Section 1 b of present agreement by refusing to transfer the seniority 4 French testified credibly to the above Neither Chmavare nor Wood denied that French asked to be transferred Chinavare denied that he mentioned the Union when French asked to be transferred Wood testified that he had no recollection of a conversation with French on the subject 237 employees with this work Article I, Section 2 by refusing to negotiate the moving of this work They have also violated Section 4 by refusing to recall the laid off Seniority Employees. The Respondent refused to meet on this grievance or to discuss the matter further. Contrary to the Respondent's contention, I find that the Union by agreeing to the management rights clause in the contract did not waive its right to bargain with respect to the relocation of unit work Any waiver of statutory rights by a union must be clear and unequivocal. Such is not the case here, especially in view of article I, section 1(b) of the contract. Further, the Respondent contends that lack of space at the Eight Mile Plant and the economic necessity of getting all plant central work, excepting cabinet work, under one roof prompted the moving of such work to its new plant. The evidence indicates that the Respondent was motivated by additional considerations. The testimony of French and Skierski shows that the reason the Respondent refused to transfer unit employees to the Telegraph Plant was in order to hire nonunion employees at rates far less than those called for in the contract. However, assuming arguendo that the Re- spondent was motivated by economic reasons alone, it still was obligated to negotiate with the Union concerning the transfer of unit work. Accordingly, I find that the Respondent by transferring unit work from its Eight Mile Plant to its Telegraph Plant, without first notifying the Union of its intention to do so or giving it an opportunity to bargain thereon, violated Section 8(a)(5) and (1) of the Act It is also found that the Respondent engaged in additional violations of Section 8(a)(5) of the Act by treating the plant central work as no longer being covered by the contract, by unilaterally changing the terms and conditions of employment by paying employees at rates less than those provided for in its contract with the Union, and by refusing to negotiate with the Union the transfer of unit employees to or the recalling of laid off employees for work at the Telegraph Plant. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's opera- tions described in section I, above, have a close, intimate and substantial relationship to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act It would be futile to attempt to remedy the violation if the Respondent's transfer of unit work to its Telegraph Plant was permitted to stand. No genuine bargaining over a decision to transfer work could be conducted where that decision has already been made and implemented. Therefore, it will be recommended that the Respondent be ordered to restore the status quo ante by returning the plant central work previously performed by its employees at its Eight Mile Plant and fulfilling its statutory obligation to bargain. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further, it appears that the Respondent's unlawful action caused the loss of employment to at least some of its laid off employees Under the circumstances, it will be recommended that the Respondent be ordered to apply the terms of its collective-bargaining agreement with the Union to the plant central work retroactively to the date of the transfer of such work to the Telegraph Plant, and to recall the laid off employees who were affected by the Respondent' s unilateral action, pursuant to the seniority and recall provisions of said contract, making them whole for any loss of earnings suffered as a result of the Respondent's unlawful conduct. Backpay shall be based upon the earnings which they normally would have received from the date that the unit work was transferred to the Telegraph Plant to the date of the Respondent's offer of reinstatement, less any net interim earnings, and shall be computed on a quarterly basis in the manner set forth in F W Woolworth Company, 90 NLRB 289, together with interest on such sums, such interest to be computed in accordance with the formula prescribed by the Board in Isis Plumbing & Heating Co, 138 NLRB 716 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2 All employees at the Respondent's plant located at 19500 West Eight Mile Road, Southfield, Michigan, with the exception of office employees, watchmen, foremen, confi- dential employees and experimental engineers, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3 The Union has been at all times material herein the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 4 The Respondent has engaged in conduct violative of Section 8(a)(5) and (1) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce 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 and upon the entire record in the case, I recommend that the Respondent, its officers, agents, succes- sors and assigns , shall be ordered to 1 Cease and desist from refusing to bargain collectively with the Union as the exclusive bargaining representative of the Respondent's employees in the appropriate unit with respect to wages, hours, and other terms and conditions of employment, unilaterally transferring unit work to other locations or otherwise changing the wages, hours, and other terms and conditions of employment of unit employees without prior bargaining with the Union or any other union they may select as their representative, unilaterally treating the plant central work as no longer being covered by its collective- bargaining agreement with the Union, and refusing to negotiate with the Union the transfer of unit employees to or the recalling of laid off employees for work at the Telegraph Plant 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Bargain collectively with the Union as the exclusive bargaining representative of the Respondent's employees in the appropriate unit with respect to wages, hours, and other terms and conditions of employment. (b) Return the plant central work which was previously performed by unit employees to its Eight Mile Plant (c) Apply the terms of the collective-bargaining agreement to the plant central work retroactively to the date of the transfer of such work, including recall of laid off employees pursuant to the seniority and recall provisions of said contract, as well as payment of backpay to the employees affected in the manner set forth in the section above entitled "The Remedy." (d) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying all records necessary for the determination of the amount of backpay due under these recommendations (e) Post at its store in Southfield, Michigan copies of the notice attached hereto and marked Appendix. 5 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent or its authorized representatives, shall be posted by Respondent immediately upon receipt thereof and maintained by it 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 to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this Decision, what steps it 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 Recommendations 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 " 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 Relations Act, as amended, we hereby notify our employees that WE WILL NOT refuse to bargain collectively with Local No. 155, International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW), AFL-CIO, as the exclusive representative of all employees in the following unit: All employees at our plant located at 19500 West Eight Mile Road, Southfield, Michigan, with the exception of WELTRONIC COMPANY 239 office employees, watchmen, foremen, confidential em- ployees and experimental engineers WE WILL NOT unilaterally transfer unit work to other locations or otherwise change the wages, hours, and other terms and conditions of employment without prior bargain- ing with the above-named Union WE WILL NOT unilaterally treat the plant central work as no longer being subject to the provisions of our collective-bargaining agreement with the above-named Union WE WILL NOT refuse to negotiate with the above union the transfer of unit employees to or the recalling of laid off employees for work at our plant located at 20905 Tele- graph Road, Southfield, Michigan WE WILL bargain collectively with the above union as the exclusive bargaining representative of our employees in the apps opriate unit with respect to wages, hours, and other terms and conditions of employment WE WILL return the plant central work to our Eight Mile Road Plant which was previously performed by employees represented by the above-named Union WE WILL apply the terms of our collective-bargaining agreement with the above Union to the plant central work retroactively to the date of transfer of such work, including recall of laid off employees pursuant to the seniority and recall provisions of said contract, as well as any backpay suffered by the employees affected as a result of our bypassing the above-named exclusive bargaining representa- tive and of our unilateral action WELTRONIC COMPANY (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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226 (Tel No 226-3244)