Jay Kay Metal Specialties Corp.

342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jay Kay Metal Specialties Corp . and Tool , Die and Moldmakers Guild , Independent and United In- dustrial Workers of North America of the Sea- farers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, Party to the Contract. United Industrial Workers of North America of the Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO ( Jay Kay Metal Specialties Corp.) and Tool, Die and Moldmakers Guild , Independent and Jay Kay Metal Specialties Corp., Party to the Contract . Cases 29-CA-1085, 29-CA-1161, and 29-CB-430 October 25, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 26, 1968, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, all parties filed ex-- )tions to the Trial Examiner's Decision and support_..g briefs. 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 these cases 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 Respondents' and the Gen- eral Counsel's exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor I We find merit in the General Counsel 's exceptions, and agree that the cost of the tool and die employees' health benefits should not be deducted from the refund to these employees of union dues withheld from their wages In addition , we shall further amend the affirmative provisions of the Order to reflect that it is the reimbursement of union dues and not "loss of wages" which is being ordered . We further find that the Trial Examiner 173 NLRB No. 63 Relations Board hereby orders that- I The Respondent Company, Jay Kay Metal Specialties Corp , New York, New York, its officers, agents, successors, and assigns shall- 1. Cease and desist from- (a) Refusing to bargain collectively with the Guild as the exclusive representative of its employees in the appropriate unit found above. (b) Discouraging membership in the Guild, or in any other labor organization of its employees, by discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. (c) Maintaining, enforcing, or otherwise giving effect to its collective-bargaining agreement with the Respondent Union insofar as it applies to employees in the aforesaid appropriate unit, or otherwise ren- dering unlawful assistance and support to the Re- spondent Union. However, nothing herein shall re- quire the Respondent Company to vary or abandon any wages, hours, seniority, or other substantive features of its relationship with the tool and die department employees which said Respondent has established in the performance of the aforesaid agreement, or to prejudice the assertion by said employees of any rights they may have thereunder (d) In any other manner interfering with, restrain- ing, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the Union or any other labor organization, to bargain collectively through repre- sentatives 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 rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Upon request, bargain collectively with the Guild as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Jointly and severally with the Respondent Union refund to the employees in the aforesaid appropriate unit all union dues withheld from their erred by failing to include a provision that the Order does not require the Respondents to vary or abandon any wages, hours , seniority , or other substantive features which it has heretofore established or prejudice the assertion by said employees of any rights which they may have acquired as the result of the agreement between Respondents. JAY KAY METAL SPECIALISTS wages on and after June 28, 1967, together with interest on such sums, computed as set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (c) 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 dues reimburse- ment due as provided for herein. (d) Post at its plant in Queens, New York, copies of the attached notice marked "Appendix A."2 Copies of said notice, on forms provided by the Regional Director for Region 29, shall, after being duly signed by the Respondent or its authorized representatives, be posted by Respondent immediate- ly 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 insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writing, within 10 days from the date of the receipt of this Decision and Order, what steps it has taken to comply herewith. II. The Respondent Union, United Industrial Workers of North America of the Seafarers' Interna- tional Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, its officers, agents, and representatives, shall. 1. Cease and desist from (a) Maintaining, enforcing, or otherwise giving effect to its collective-bargaining agreement with the Respondent Company insofar as it applies to em- ployees in the aforesaid appropriate unit. (b) Causing or attempting to cause the Respond- ent Company to discriminate against its employees in violation of Section 8(a)(3) of the Act. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Jointly and severally with the Respondent Company refund to the employees in the aforesaid appropriate unit all union dues withheld from their wages on and after June 28, 1967, together with interest on such sums, computed as set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records and documents necessary to analyze the amounts of dues reimbursement due as provided for herein. (c) Post at its business office and hall in Brooklyn, New York, copies of the attached notice marked "Appendix B.3 " Copies of said notice on forms 343 provided by the Regional Director for Region 29, shall, upon being duly signed by the Respondent Union's representative, be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for Region 29, signed copies of the attached notice marked Appen- dix B for posting by the Respondent Employer, if willing, at the office and places of business of Respondent Employer where Appendix A is placed. (e) Notify the Regional Director for Region 29, in writing, within 10 days from the date of the receipt of this Decision and Order, what steps the Respond- ent has taken to comply herewith. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words , "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." 3 See fn 2, supra APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order 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, upon request, bargain collectively with Tool, Die and Moldmakers Guild, Independent, as the exclusive representative of all employees in the following unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement The bargaining unit is: All tool room employees employed by Jay Kay Metal Specialties Corp. at its Queens plant, including tool and die and moldmakers A, B, and C and tool room machinists, exclusive of all other employees, guards and all supervisors as defined in the Act. WE WILL NOT discourage membership in the above union, or in any other labor organization of our employees, by discriminating against them in re- gard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT maintain, enforce, or otherwise give effect to our collective-bargaining agreement with United Industrial Workers of North America of the Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, insofar as said agreement applies to our employees in the above-bargaining unit, or other- wise render unlawful assistance and support to the 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seafarers' union. However, nothing in the Board's Order requires us to vary or abandon any wages, hours, seniority, or other substantive features of our relationship with the tool and die department employees which we have established in the per- formance of the aforesaid agreement, or to prej- udice the assertion by said employees of any rights they may have thereunder. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join, or assist The Guild, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL jointly and severally with the Seafarers refund to our employees in the above-bargaining unit all union dues withheld from their wages on and after June 28, 1967, together with 6 percent interest thereon. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization except to the extent that this right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. JAY KAY METAL SPECIALTIES CORP (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 directly with the Board's Regional Office, 16 Court Street, 4th Floor, Brooklyn, New York 11201, Telephone 212-596-3535. APPENDIX B NOTICE TO ALL MEMBERS OF UNITED INDUSTRIAL WORKERS OF NORTH AMERICA OF THE SEA- FARERS' INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT, AFL-CIO Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT maintain, enforce, or otherwise give effect to our collective-bargaining agreement with Jay Kay Metal Specialties Corp., insofar as it applies to employees in the bargaining unit of all toolroom employees found to be appropriate by the Board. WE WILL NOT cause or or attempt to cause Jay Kay Specialties Corp. to discriminate against its employees in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Jay Kay Metal Specialties Corp. refund to the employees in the said unit all union dues withheld from their wages on and after June 28, 1967, together with 6 percent interest thereon. Dated UNITED INDUSTRIAL WORKERS OF NORTH AMERICA OF THE SEA- FARERS' INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT, AFL-CIO (Labor Organization) 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 members have any question concerning this Notice or compliance with its provisions, they may communi- cate directly with the Board's Regional Office, 16 Court Street, 4th Floor, Brooklyn, New York 11201, Telephone 212-596-3535. JAY KAY METAL SPECIALISTS 345 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN H. EADIE, Trial Examiner This proceeding was held before me in New York, New York, on March 4 and 5, 1968, on the consolidated amended complaint of the General Counsel and the answers of Jay Kay Metal Specialties Corp , herein called the Respondent Company, and of United Industrial Workers of North America of the Seafarers' Inter- national Union of North America, Atlantic Gulf, Lakes and Inland Waters District, AFL-CIO, herein called the Seafarers or the Respondent Union., With respect to the Respondent Company, the complaint alleges that it engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as amended. As to the Respondent Union, the complaint alleges that it engaged in unfair labor practices within the meaning of Section 8(b)(1) (A) and (2) of the Act Both Respondents in their answers denied the commission of any unfair labor practices. After the conclusion of the hearing, the General Counsel, the Respondent Company and the Respondent Union filed briefs with the Trial Examiner. Based upon the record as a whole, and from his observation of the witnesses, the Trial Examiner makes the following- FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Respondent Company is a New York corporation with its principal office and place of business located at 3300 Northern Boulevard, in the Borough and County of Queens, City and State of New York. It is engaged in the manufacture, sale and distribution of electrical appliances and related products. During 1967 the Respondent Company manufactured, sold and distributed products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from its Queens plant in interstate commerce directly to States of the United States other than the State of New York. II. THE LABOR ORGANIZATIONS INVOLVED The Respondent Union and Tool, Die and Moldmakers Guild, Independent, herein called the Guild, are labor organi- zations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Respondent Company had a collective -bargaining agree- ment with the Seafarers which expired on or about July 27, 1966. This contract covered all production and maintenance employees at its plant located at 3300 Northern Boulevard, Queens. The Respondent Company and the Seafarers com- menced negotiations for a new contract during about May, 1966. On April 20 , 1966, the Guild filed a petition (Case 29-RC-451), seeking to represent the Respondent Com- pany's tool and die department employees. Hearings in the representation matter were held on May 5, 11 and 16, 1966 On May 23, 1966, a number of the employees in the tool and die department withdrew their authorizations for checkoff of union dues under the old contract between the Seafarers and the Respondent Company. On June 10, 1966, Pete Goodman, the Seafarers' shop steward for the fourth floor of the Queens plant,2 during working time solicited these employees to sign new authorizations for checkoff of dues He told them that if they did not sign the authorizations they would lose their benefits under the existing contract and would be discharged from their jobs. The Respondent and the Seafarers entered into a new contract with a term from July 28, 1966, through July 27, 1969. This contract, like the previous contract, covered employees in the tool and die department. It required membership in the Seafarers as a condition and tenure of employment. The contract's recognition clause provides in part as follows- The Employer recognizes the Union as the sole collective bargaining agency for those employees of the employer, covered by this agreement, in the bargaining unit heretofore certified by the National Labor Relations Board There is presently pending a representation proceeding for a unit of Tool and Die Room Employees, Case 29-RC-451. In the event the National Labor Relations Board should determine that said proceeding is properly pending and the Unit therein claimed appropriate, then the employees within the said Tool and Die Room Unit shall be excluded from this agreement. On June 13, 1966, the Regional Director issued a decision and direction of election in the representation matter. On June 16, 1966, the Seafarers filed a timely request for review of the Regional Director's decision. By telegraphic order dated August 4, 1966, the Board granted the request for review and stayed the election pending its decision. The Board in its decision on review, issued on March 31, 1967, agreed with the Regional Director's findings concerning the appropriate unit and remanded the case to him for the purpose of holding an election. At the election, held on May 4, 1967, 11 ballots were cast for the Guild and 6 were cast for the Seafarers. Six ballots were challenged. In his report on challenges, dated June 28, 1967, the Regional Director found that the Guild had received a majority of the valid votes and certified it as the exclusive representative of all employees in the following appropriate unit Included All tool room employees employed by the Employer at its 3300 Northern Boulevard, Long Island City, New York, location, including tool and die and mold makers, A, B, and C and tool room machinists. Excluded- All other employees, guards, and supervisors as defined in the Act. The Respondent Company made a request to the Board for review of the Regional Director's report on challenges. The Board denied the Respondent Company's request, stating that the request "raises no substantial issue warranting review." By letter dated June 30, 1967, the attorney for the Guild requested the Respondent to bargain collectively. After a series I The charges in Case 29-CA- 1085 and 29 -CA-1161 were filed on amended complaint issued on January 18, 1968. August 28 and November 24, 1967, respectively. The charge in Case 2 The tool and die department was located on the fourth floor. 29-CB-430 was filed on November 24, 1967 The consolidated 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of letters between the attorneys for the Guild and the Respondent Company, the attorney for the Respondent Company sent the following letter, dated August 24, 1967, to the attorney for the Guild. I have discussed your letter of August 23, 1967 with Mr Klinghoffer and have been instructed to seek a review of the unit determination of the National Labor Relations Board in the Courts In order to do so it is, of course, necessary that the Company refuse to bargain with the Union You may, therefore, treat this letter as notice of such refusal to bargain. The parties herein stipulated that the 1966 contract "has been in force and effect since the date it was executed", that pursuant to the contract all employees, including those in the tool and die department, received pay raises of 10 cents in July of 1967, and that all employees of the Respondent Company have been receiving group insurance identification cards from the trustees of the welfare fund which is jointly administered by the Respondent Company and the Seafarers.3 Monserate Caban, an employee in the mold department, testified without contradiction, "the raises I got, most of the time was from the boss. I had to go in and ask him for a raise. That is the only way you get a raise there. That is the only way I got my raises, only the last raise that we got from the union." Charles Trimble, a polisher, testified that he received pay increases, apart from the contract, from his foreman.4 Thomas Martin, personnel director of the Respondent Company, testified, in substance, that it is the policy and practice of the Respondent Company to grant individual merit increases to employees, including those in the tool and die department, without consultation with the Seafarers. The Respondent Company contends that its admitted refusal to bargain was not violative of the Act since the Board certified the Guild for an inappropriate unit, and since the Regional Director failed "to conduct an election in compliance with the Board's direction." These contentions are rejected. As related above, the Board refused the Respondent Company's request for review of the Regional Director's report on challenges and certification of the Guild upon the grounds that the request "raises no substantial issues warranting review." Accordingly, I find that the Respondent Company's refusal to bargain with the Guild on and after August 24, 1967, was violative of Section 8(a)(5) and (1) of the Act I also find that by continuing on and after June 28, 1967, to maintain and enforce its 1966 agreement with the Seafarers, insofar as it applied to the tool and die employees, the Respondent violated Section 8(a)(2) of the Acts Since the contract contains a clause which requires union membership as a condition of employment, I further find that the Respondent Company by enforcement of the contract has discriminated in regard to the hire, tenure and conditions of employment of the tool and die employees, thereby encouraging membership in the Seafarers and discouraging membership in the Guild, in violation of Section 8(a)(3) of the Act. With respect to the Respondent Union, I find that since June 28, 1967, it has violated Section 8(b)(1)(A) and (2) by 3 Walter Schilling , a tool and die maker, testified without contra- diction that the employees received "one [identification card 1 a month ." Ralph Quinnonez , regional director of the Seafarers , testified to the effect that in order to be eligible for welfare benefits an employee had to be a member of the Seafarers "because the fund clearly specified -the trust agreement clearly specifies those people in the unit for the 1967 contract." Quinnonez further testified that maintaining and enforcing the collective-bargaining agreement with the Respondent Company. The Respondent Union's conduct clearly restrained and coerced the tool and die employees and caused the Respondent Company to discrimi- nate against its employees within the meaning of Section 8(a)(3) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondent Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondents have engaged in unfair labor practices, it will be recommended that each of them desist therefrom and take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act. It has been found that the Respondent Company and the Respondent Union in violation of the Act have maintained and enforced their collective-bargaining agreement since June 28, 1967. Accordingly, it will be recommended that the Respond- ents, jointly and severally, be ordered to refund to the tool and die employees all union dues withheld from their wages on and after June 28, 1967, less the cost of their health insurance benefits, 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, I make the following CONCLUSIONS OF LAW 1. The Respondent Company is engaged in commerce within the meaning of the Act. 2. The Respondent Union and the Guild are labor organi- zations within the meaning of Section 2(5) of the Act 3. All tool room employees employed by Respondent Company at its Queens plant, including tool and die and moldmakers A, B, and C and tool room machinists, exclusive of all other employees, guards and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Guild has been at all times on and after May 4, 1967, 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. 5. By refusing at all times on and after August 24, 1967, to recognize and bargain collectively with the Guild as the exclusive representative of its employees in the aforestated appropriate unit, the Respondent has engaged in unfair labor employees in the tool and die department have been receiving welfare benefits since the contract was executed. 4 The parties stipulated that the Respondent Company's work history for Trimble showed that he received merit increases in January and February 1967, and that in June 1967 , he received a pay increase of 35 cents, resulting from his promotion and reclassification "to Ma- chinist A " 5 Sewanee Coal Operators Association , 167 NLRB No. 12. JAY KAY METAL practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. Since June 28, 1967, by maintaining, enforcing and applying to the employees of the Respondent Company in the unit described above a collective bargaining agreement previ- ously executed by them, the Respondent Company has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act and the Respondent Union has violated Section 8(b)(1)(A) and (2) of the Act. 7. By interfering with, restraining and coercing its employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Company, has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. By rendering unlawful assistance and support to the Respondent Union, the Respondent Company has engaged in unfair labor practices within the meaning of Section 8(a)(2) of the Act. SPECIALISTS 347 9. By discriminating in regard to the hire, tenure and other terms and conditions of employment of its employees, the Respondent Company has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act 10. By attempting to cause and causing the Respondent Company to discriminate against its employees, and thus to commit an unfair labor practice within the meaning of Section 8(a)(3) of the Act, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act 11. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 12. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication.]