Universal Oil Products Co.

UOP NORPLEX DIVISION OF UNIVERSAL OIL PRODUCTS UOP Norplex Division of Universal Oil Products Company and Lodge 1616, International Association of,Machinists and Aerospace Workers, AFL-CIO. Case 18-CA-2710 , November 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On September 4, 1969, Trial Examiner John P. von Rohr issued his Decision in the above-entitled `proceeding, finding that the Respondent had engaged in and was engaging 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, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting 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-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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein,` and orders that the Respondent, UOP Norplex Division of Universal Oil Products Company, Black River Falls, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the, Trial Examiner's Recommended Order, as so modified. in connection with pars 2(b) and 2(c) of the Trial Examiner's Recommended Order, as adopted, it is to be noted that, if the number of substantially equivalent vacant positions, together with vacancies created by dismissals (if necessary) of any persons hired on or after November 7, 1968, are insufficient to permit reinstatement of all the unfair labor practice strikers, the Respondent shall offer reinstatement to the remaining strikers whenever a vacancy does occur in the future, and in the event Respondent fails to make such offer in a timely fashion, such strikers shall be made whole for losses from the date a vacancy occurs until the date of reinstatement See The Laidlaw Corporation, 171 NLRB No 175 in the event that the Board's Order be enforced by a judgment of a United States Court of Appeals, the words, "a Judgment of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order" in the notice 657 Delete from end of paragraph 2(b) the words "who were not in the Respondent's employ on that date," and change the comma to a period after " 1968." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P VON ROHR, Trial Examiner. Upon a charge, duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 18 (Minneapolis, Minnesota), issued a complaint on March 4, 1969,, against UOP Norplex Division of Universal Oil Products Company, herein called the Respondent or the Company, alleging that it engaged in unfair labor practices within the meaning of Section 8(a)(1),and (5) of the National Labor Relations Act, as amended, herein called the Act The Respondent's answer denies the allegation of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Trial Examiner in Black River Falls, Wisconsin, on April, 10, 1969 All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs have been received from the General Counsel and from the Respondent and they have been carefully considered Upon the entire, record in .this case, and from my observation of the"witnesses, I hereby.make the following. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation having a plant and place of business at Black River Falls, Wisconsin and LaCrosse, Wisconsin The sole facility involved ' in this proceeding is its plant at Black River Falls, Wisconsin, where it is engaged in the manufacture of plastic parts for the automotive, electronics and other industries During the year preceding the hearing herein, the Respondent sold and shipped goods manufactured at its Black River Falls plant valued in excess of $1 million to points and locations outside of the State of Wisconsin. The Respondent concedes , and I find, that it is engaged in commerce within the meaning of Section 2 (6) of the Act It THE LABOR ORGANIZATION INVOLVED Lodge 1616, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act - III THE UNFAIR LABOR PRACTICES The complaint alleges that since on or about November 7, 1968, the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the Union in good faith in that it insisted, as a condition precedent to entering into a collective-bargaining agreement, that the Union rescind or agree not to enforce fines or other discipline against union members who returned to work during the period of a strike which began on May 14, 1968 179 NLRB No. I11 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A The Facts Pursuant to certification by the Board on December 18, 1958, (Case 18-RC-3813), the Respondent has recognized the Union as the collective-bargaining agent for its employees in the following unit which I find to be appropriate ' All hour rated production employees employed at the Black River Falls, Wisconsin Plant, excluding office and clerical employees, engineers, foremen, supervisors and guards as defined under the Act. It appears that Respondent enjoyed a harmonious relationship with the Union until the dispute involved herein The last contract between the parties was entered into on June 19, 1965, with an expiration date of March 31, 1968. In' about March -1967, the parties undertook brief negotiations toward extension and modification of the existing contract These efforts proved unsuccessful and the parties thereupon agreed to wait until the normal notice date. Following timely notice by the Union, formal contract negotiations began on February 6, 1968 2 Following a series of collective-bargaining meetings, the Union engaged in an economic strike commencing on May 14. It is undisputed that at this time 92' employees' were employed in the unit, of whom 54 went out on strike During the period between approximately June 15 and August 26, 13 striking employees crossed the picket line and returned to work at Respondent's-plant As indicated more fully hereinafter, pursuant to disciplinary action taken by the Union, these employees were each fined approximately $500 A collective-bargaining meeting, which involved utilization of the Federal Mediation Conciliation Service, was held on November 7, 1968 ' At this meeting the Respondent advised the Mediator that any contract must include agreement that the Union would withdraw the fines imposed on the employees- who crossed the picket line and returned to work ° The Mediator conveyed this to the Union at a meeting held on the following day The Union responded that it would not withdraw the fines At this meeting the Respondent also offered a 17-point contract proposal to the Union, the 17th of which stated . Management insists upon ' protection from' fines for those employees who accepted the Company's invitation to return to work during the strike, and, who now have had fines levied against them by the local union . Near the conclusion of a bargaining meeting held on November 20, Respondent advised the Union that any agreement would be predicated on the Union's withdrawal of any disciplinary action against employees who had crossed the picket line and returned to work 5 The Union advised that it would not drop the fines, at the same time manifesting its-position that this was an internal affair of the Union. 'The employer designated at this time was ,Norplex Fabricators, Inc , Respondent's predecessor Respondent, as successor employer (in about 1965), continued to recognize the Union 'Unless otherwise indicated , all dates hereinafter refer to the year 1968 'Except for the matter of fines, there is no contention that Respondent did not bargain in good faith concerning wages , hours, working conditions, and other mandatory subjects of collective bargaining I therefore do not deem it necessary to discuss the progress of negotiations pertaining to these subjects during the various collective - bargaining meetings , but rather shall restrict this discussion to the position taken by the parties with respect to the subject of the Union ' s disciplinary fines 'This is undisputed and conceded in Respondent 's brief 'Ibid The final bargaining meeting was held on March 7, 1969. As 'indicated in a memoranda concerning this meeting prepared by Respondent's attorney,- the three principal unresolved issues ' remaining at this time were (a) the term of the contract, (b) wages; and (c) the demand of the Company that the Union withdraw the fines. It is undisputed that at this meeting the Company continued to insist that the fines be withdrawn and that the Union adhered to its initial position that this was an internal affair of the Union and that it would not bargain over the matter ° The meeting ended without agreement B Additional Facts, Concluding Findings Although Respondent's answer admits the complaint's allegation (par 7 thereof) that "since about December 18, 1958 the Union has been the certified and the recognized collective-bargaining representative of the employees of the Respondent," near the conclusion of the hearing Respondent's counsel took the position that the'Union no longer represented a majority of the employees ' I think this matter may be disposed of by 'reference to the undisputed fact that on October 21, 1968, the Regional Director approved a settlement agreement wherein Respondent agreed, inter alia, that it would bargain collectively with the Union as the exclusive representative of employees in the heretofore described appropriate unit.' It is well settled that an employer who enters into a settlement agreement of this kind is under obligation to honor the agreement for a reasonable time after its execution without questioning the representative status of the Union.' And where the parties had not reached an impasse in negotiations, 6 months has not been held to be "a reasonable time " N J MacDonald & Sons, Inc , 155 NLRB 71 Under all-the circumstances of this case, I find that a reasonable time had not elapsed and that the Union, through the auspices of the General Counsel, was not bound to. establish the Union's majority as a fact 11 prerequisite to any finding of a refusal to bargain here The particular circumstances to which I refer include (1) Respondent's admission in its answer that the Union was 'It may be noted that the complaint involved herein had been served on Respondent a day or two prior to the March 7 meeting Concerning this and the ' subject of the union fines Respondent ' s memoranda of the March 7 meeting states The items still outstanding can easily be resolved with regard to those concerning the language Management feels that it and the Union are fairly close on wages and the terms of the'agreement But the question of fines is keeping them far apart, charges filed by the Union have resulted in a Complaint being issued by the National Labor Relations Board and a hearing is scheduled for April 10 But the matter will not be 'settled there Management feels that this matter is negotiable, at this point Management does not know who is right and who is wrong, and only the Board and Courts will resolve the issue [Emphasis supplied I 'In support of this contention Respondent points out that , according to the unrefuted testimony of Donald Berry , the industrial relations manager, on November 7, 1968, there were 112 production and maintenance employees employed in the plant, while 41 employees remained outside on strike Berry testified that as of April 9, 1969, there were 119 in the plant and 41 outside 'in this connection, the Respondent advised the Union on August 16, 1968, that it no longer represented a majority ,' that it proposed to petition for an election, and that it was withdrawing , its latest proposed contract offer ' In the subsequent above-mentioned Settlement Agreement, Respondent agreed to bargain collectively by furnishing the Union certain specified information and also to offer reinstatement to the striking employees upon their application The agreement further provided for residual 8(a)(1) relief (Case 18-CA-2667 ) 'Poole 'Foundry and Machine Company, 95 NLRB 34, enfd 192 F 2d, 740 (C A 4 ), cert denied 342 U S 954 UOP NORPLEX DIVISION OF UNIVERSAL OILPRODUCTS 659 the certified and recognized bargaining representative, (2) the fact that Respondent continued to recognize the Union and to bargain with it (or was to be prepared to bargain with it) until the time of the hearing herein, provided that the Union withdraw the fines,- and (3) the fact that Respondent engaged in unfair labor practices, as hereinafter found, beginning on November 7, 1968, this approximately only 2 weeks after entering into the aforementioned settlement agreement. Accordingly, I find that the Union is and has been the exclusive representative of the employees in the aforementioned appropriate unit at all times material hereto." Turning to the merits of the case, from the foregoing recital of facts it is clear, and I find, that since November 7, 1968, the Respondent at all times insisted that the Union withdraw the fines which it had imposed upon the 13 employee-members who crossed the picket line and returned to work as a condition to entering into a collective-bargaining agreement with the Union The General Counsel relies upon the Board's decision in Allan Bradley Company': wherein the Board held that an employer's proposal to limit a union's authority to discipline or fine its members for exercising their statutory right to refrain from engaging in strikes or other concerted activity was not a mandatory subject of collective bargaining Although the United States Circuit Court of Appeals refused to enforce the Allan Bradley case," the General Counsel correctly points out that in Local 283, United Automobile, Aircraft and Agricultural Implement Workers of America [Wisconsin Motor Corporation] and Allan Scofield, 145 NLRB 1097, the Board stated that it "does not acquiesce" in the Court's decision 11 Accordingly it appearing that the Board has not changed its view as thus expressed in the Allan Bradley case, as Trial Examiner I am bound to follow the Board's decision therein The subject of union fines having been held not to be a mandatory subject of collective bargaining, I find that Respondent, by conditioning the execution of a contract upon the dropping of the fines, thereby violated Section 8(a)(5) of the Act, and derivatively, Section 8(a)(1) thereof 11 Although it is clear that the strike began as an economic strike, I am constrained to further find, as alleged in the complaint, that the foregoing unfair labor practices tended to prolong the strike and therefore converted the strike into an unfair labor practice' strike.' 6 Thus, as heretofore noted, ,Respondent itself concedes that as of March 7, 1968, "management feels that it and the Union are fairly close oh wages and the terms of the agreement - but the question of fines is keeping them far apart "Thus, on March 24 or 25 Respondent sent a letter to the Mediator indicating that it was still willing to meet with the Union Indeed, Respondent 's counsel (and also its negotiator ) stated during the instant hearing "We had hoped right up until 9 30 this morning that there still would be a resolution, but after 9 30 this morning there obviously can be no resolution if you must follow the rulings of the National Labor Relations Board " "Cf Aero Engineering Corporation , 177 NLRB No 31 "127 NLRB 44 "Allan Bradlev v NLRB , 286 F 2d 442 (C A 7) "Affirmed sub non Scofield v N L R B , 393 F 2d 49 (C A 7), 394 U S 423 "In seeking to differentiate this case from the Allan Bradley case, Respondent points out that here the Respondent made no demand for a clause (covering the subject of union fines ) in the contract However, I think it clear that the principle involved in either case is the same Suffice it to say that the violation herein found is predicted upon Respondent's insistence that a non-mandatory subject of collective bargaining be injected into the process of collective bargaining See N L R B v Wooster Division Although I have found adversely to the Respondent, I am not unsympathetic with Respondent's position that the fines in the circumstances of this case appear to be excessive and might well tend to inflict undue hardship upon the union employees who returned to work during the strike Thus, six female employees, each of whom were fined $500, testified that they abandoned the strike and returned to work because of personal financial difficulties, such as the need to support themselves and their children The wage rates of these employees ranged between $1 66 and $1 88 per hour In this connection, it is noteworthy that there are presently pending before the Board three cases wherein Trial Examiners have found that the labor organizations involved violated Section 8(b)(1)(A) by imposing excessive fines upon members who worked behind picket lines " The fines imposed in these cases were similar, in proportion to wages earned, to those imposed by the-Union here While the Board has not yet passed upon the question in these cases concerning the reasonableness of a fine, or whether an excessive fine is violative of Section 8(b)(1)(A) of the Act, I point to the foregoing only because under the present state of the law it would appear that any relief in a situation involving excessive fines for working behind a picket line might well lie by instituting appropriate proceedings under Section 8(b)(1)(A) of the Act Unfortunately for the Respondent, it cannot press the issue in the manner which it did here 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 operations of the Respondent 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 thereof V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, it shall be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act As the Respondent on November 7, 1968, and at all times thereafter, has refused to bargain collectively with the Union as the certified representative of its employees in an appropriate unit with the good faith required by the' Act, it will be recommended that, the Respondent, upon request, bargain collectively with the Union, and, if,an understanding is reached,, embody such understanding in a signed agreement It has also been found that the strike by the Respondent's employees which was in progress at the time of the hearing was prolonged by the Respondent's unfair labor practices and thereby on November 7, 1968 was converted to an unfair labor practice strike. The of Borg Warner Corporation , 356 U S 342 "It is found that this conversion took place on November 7, 1968, the date on which Respondent first interjected the subject of fines as a condition to an agreement "Booster Lodge No 405, International Association of Machinists and Aerospace Workers. AFL-CIO [The Boling Company) TXD-737-68, Communication Workers of America, Local 6222 [John H RemboldJ, TXD-259-69, Communication Workers of America, Local 6135 [Judith GwUon , et at J, TXD-270-60 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees who were on strike on'that date and thereafter thus became unfair labor practice strikers who were entitled to reinstatement upon application irrespective of whether their positions have been filled by - the Respondent's hire of other employees as replacements for them Accordingly, in order to restore the status quo as' it existed prior to, the conversion of the strike on November 7, 1968, and thereby to effectuate the policies of the Act, it will be recommended that Respondent shall, upon application, offer reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all their employees who were on strike on and after November 7, 1968, dismissing, if necessary, any persons hired after that date It • is also recommended that the Respondent be ordered to make whole those employees who were on strike on and after November 7, 1968, for any loss of pay they may, have suffered or may suffer by reason of the Respondent's refusal, if any, to reinstate them, by payment to each of them a -sum of money equal to that which he normally would have earned as wages during the period from 5 days after that date on which he applied for reinstatement, to the date of Respondent's offer of reinstatement Backpay shall be computed in the manner prescribed by the Board in•F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co , 138 NLRB 716 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following CONCLUSIONS OF LAW I The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. Lodge 1616, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 All hourly rated production and maintenance employees at Respondent's plant located in Black River Falls, Wisconsin, excluding office and clerical employees, engineers, foremen, supervisors and guards 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 The above-named labor organization was on December 18, 1958, and has been at all times thereafter, the exclusive representative of all employees in the above-described unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 5 By refusing to bargain 'collectively with the above-named labor organization, as - the exclusive representative of all the employees in the unit described above, 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 the aforesaid conduct, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by 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. 7. 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 this case, I recommend that Respondent UOP Norplex Division of Universal Oil Products' Company, its officers, agents, successors, and assigns, shall l Cease and desist from (a) Refusing to bargain collectively with Lodge 1616, International Association of Machinists and Aerospace Workers,' AFL-CIO, as the exclusive bargaining representative of its employees in the unit comprising all hourly rated production and maintenance employees at Respondent's Black River Falls, Wisconsin, plant, excluding office and clerical employees, engineers, foremen, supervisors and guards as defined in the Act, as amended (b)' In any like or related manner, interfering with, restraining or coercing employees in the exercise of the rights guaranteed by 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 Lodge 1616, International Association of Machinists and Aerospace Workers,- AFL-CIO,' as the exclusive representative of the employees in the appropriate unit, as found above, and, if an understanding is reached, embody such 'understanding in a signed agreement (b) Upon application, offer immediate and- full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who were on strike on and after November 7, 1968, and who have not already been reinstated to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing if necessary any persons hired by the Respondent on or after November 7, 1968', who were not in the Respondent's employ on that date (c) Make whole the employees specified in paragraph numbered 2(b), above, 'for any loss of.pay they may have suffer by reason of the Respondent's refusal, if any, to reinstate them in the manner provided in paragraph numbered 2(b), above, by payment to each of them a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applied for reinstatement to the date of the Respondent's offer of reinstatement, less his net earnings if any during said period (d) Post at its plant in Black River Falls, Wisconsin, copies of the attached notice marked "Appendix "18 Copies of said notice, on forms provided by the Regional Director for Region 18, shall, after being signed by the Respondent's representative, be posted by Respondent 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 by the Respondent to insure that said notices are not altered, defaced, or covered by any other material in the event that this Recommended Order is adopted by the Board, the words, "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in-the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words, "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " - UOP NORPLEX DIVISION OF UNIVERSAL OIL PRODUCTS 661 (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel cards and reports, and all other records necessary to analyze the amount of backpay which may be or become due and the rights of employment under the terms of this Order (f) Notify the Regional Director for Region 18, in writing, within 20 days from the receipt of this Recommended Order, what steps the Respondent has taken to comply herewith 'y " 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 " 'WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the appropriate unit, and, if any understanding is reached, embody such understanding in a signed agreement WE WILL NOT, in any_ like or related manner, interfere with, restrain, or' coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL, upon application, offer immediate and full reinstatement to their former or substantially equivalent positions', without prejudice to their seniority or other rights and privileges, to all our employees who were on strike on and after November 7, 1968, and who have not already been reinstated to their former or substantially equivalent, positions, without prejudice to their seniority or other rights and privileges, dismissing if necessary any persons hired on or after November 7, 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 Lodge 1616, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of the employees in the appropriate unit The appropriate bargaining unit is All hourly rated production and 'maintenance employees at our plant in Black River Falls, Wisconsin, excluding office and clerical employees, engineers, foremen, supervisors and guards as defined in the Act, as amended 1968. WE WILL make each such employee whole for any loss of pay suffered by him as a result of our failure to reinstate him within 5 days after his application. Dated By UOP NORPLEX DIVISION OF UNIVERSAL OIL PRODUCTS COMPANY, (Employer) (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, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-725-2618