K. Wm. Beach Mfg. Co., Inc.

K. WM. BEACH MFG. CO., INC. K. Wm. Beach Mfg, Co., Inc. and District Lodge 82, International Association of Machinists and Aero- space Workers, AFL-CIO. Case 9-CA-599$ July 22, 1971 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On June 4, 1971, Trial Examiner William J. Brown issued -his-Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices 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 Respondent's exceptions and brief, and the entire record in the case,' and hereby adopts the findings, conclusions, and recom- mendations.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 recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, K. Wm. Beach Mfg. Co., Inc., Springfield, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i Respondent's request for oral agreement is demed, as in our opinion the record submitted, including the Respondent's brief, adequately presents the issues and positions of the parties. 2 As found by the Trial Examiner, on Friday, December 4, the Union represented a majority of Respondent's employees and requested recognition from Respondent ; on Monday, December 7, Respondent discharged all its employees, its production manager commenting that "he's closing the place down on account of the union." Several days later Respondent hired an entire new work force . We have no difficulty concluding that Respondent's lightning and totally unlawful response to its employees' union activities will not quickly be forgotten by them, and that a bargaining order is justified and required under any or all of the tests of N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969). We adopt the Trial Examiner's conclusion in this regard. TRIAL EXAMINER'S DECISION 203 WILLum J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the "Act," came on to be heard at Springfield, Ohio, on March 24 and 25, 1971. The original charge of unfair labor practices was filed December 21, 1970,' by the above-indicated Charging Party, hereinafter sometimes referred to as the Union; the complaint herein was issued February 3, 1971, by the General Counsel of the National Labor Relations Board acting through the Board's Regional Director for Region 9. It alleged, in addition to jurisdictional matter, that the above-captioned Respondent, hereinafter sometimes re- ferred to as the Company, engaged in unfair labor practices within the scope of Section 8(axl), (3), and (5) of the Act. The Company's duly-filed answer admits the jurisdictional allegations of the complaint and the status of the Union as a labor organization; it denies the commission of unfair labor practices. At the hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues. Subsequent. to, the close of the hearing briefs were received from the General Counsel and the Company and have been fully considered. On the entire record2 herein and on the basis of my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The pleadings and evidence establish and I find that the Company, a corporation organized and existing under and by virtue of the laws of the State of Ohio, is engaged at Springfield, Ohio, in the manufacture of gaskets and electrical insulation. During the 12-month period preceding issuance of the complaint herein, admittedly a representa- tive period, the Company shipped from its Springfield plant directly to points outside the State of Ohio, products valued in excess of $50,000, while receiving at said plant goods and materials valued in excess of $50,000 and shipped directly from points outside the State of Ohio. I find, as the Company concedes, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish and I find that the Union is a labor organization within the purview of Section 2(5) of the Act. - i Dates hereinafter, unless otherwise noted, relate to the calendar year 1970. 2 The transcript is corrected. 192 NLRB No. 47 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES This case concerns events occurring in the course of a 1970 campaign of production and maintenance employees 3 of the Company to secure 'representation by the Union, earlier efforts in this connection, 4 apparently having proved unsuccessful. The= Company's manufacturing operations have been at all material times carried on by a workforce of some 21 employees, mostly females. K. William-Beach, president of the Company, appears to be in direct and intimate control of operations with Robert Rapp, production manager-and an -admitted supervisor, in direct charge of manufacturing. Bret `and Bill Beach,'-sons; of-K. William Beach, are vice presidentsW in charge of production and sales, respectively, and Roger-Webb is the Company's office manager. On December;3-in=the afternoon, the Company posted a notice (G. C. Exh. -11) announcing the suspension of regular bonus "payments- due to customer pressure for lower prices on Company products. Employee Woneda Knight appar- ently had received from a source in the Company office, advance word of the discontinuance -of the bonus and had contacted the Union- on December 2. On December 3, 156 employees in the unit signed cards authorizing the Union to either petition for a Board representation election or 'to demand recognition by the Company. The signatories plainly constituted a majority in any conceivably appropri- ate unit. - - On December 4, Union Business Representative Clell Boggs, to whom the authorization cards had been delivered by employees, wrote the Company advising it of the Union's selection by a majority of production and maintenance employees as their collective-bargaining representative, offering to submit the proof of employee designation of the Union to a neutral third person such as a clergyman or a Federal conciliator, and requesting collective bargaining. The Union letter, sent by certified mail,7 was returned unopened because of a Company policy and instructions to' the post office authorities. The Company received a post office notice that certified mail had been received and that the addressee (i.e., the Company) should call at the window. The Company apparently did not call at the window, instead offering in evidence as Respondent's Exhibit 4, P.O. -Form 3907, apparently available in violation of postal instructions contained thereon. Boggs also testified that on December 4 he telephoned the Company at its listed telephone number, asked to speak to "Mr. Beach" and when a male voice identified the speaker as "Mr. Beach," Boggs, according to his account, claimed to represent a majority of employees, requested 3 The appropriateness of the production and maintenance employee unit (with the usual exclusions, viz, office clericals, professionals, guards, and supervisors as defined in the, Act) is established not only by the presumption of appropriateness, Appliance Supply Company, 127- NLRB 319, but also by Board direction of May 1, 1959, (G. C. Eilh. 2). 4 See G. C. Exh. 2 indicative of a 1959 organizational campaign. 5 Company President Beach's testimony indicates that the bonus was generally paid monthly between the 1st and 15th based on the preceding month's earnings. 6 This figure includes employee, Inez Hoover absent on sick leave in the period October 15 until January 6, 1971. A 16th authorization card was signed December 5 by employee Theodore Patten. recognition as representative of the employees and offered to submit proof of majority status to a third party whereupon the voice of "Mr.- Beach" said either "No" or "Good Bye" and hung up. President Beach testified that he did not arrive at the plant on that day until noon and denied ever speaking on the telephone to Boggs. Vice Presidents Bret and Bill denied speaking on the telephone to Boggs on the day in question. I credit Boggs' testimony and find that he on the day in question, December 4, spoke to either President Beach or Vice President Bret or Bill Beach and demanded recognition after claiming to represent a majority of Company employees." On Monday, December 7, employees reported for work at their regular scheduled time, 8 a.m., for full-time production and maintenance workers. Office Manager Webb received a telephone call from-President Beach-about 8:30 a.m. directing him to go to the production area and tell employees=to shut off their machines and go home;,Beach gave no reason, for this instruction. Webb notified Rapp immediately and the latter complied with the instructions. Francis Martin; the setup -man in the shop, testified-that in relaying Beach's instructions to - him, Rapp stated that Beach was shutting 'the plant down onn account of the Union. I conclude from the= evidence relating to the shutdown that it was, as appears from uncontradicted testimony of employees Kathryn Mills, Knight, and Eugenia Mills, not - only that there was a volume of important uncompleted work in process but that Pro- duction Manager Rapp 9 was as shown by his owntestiniony; completely uninformed of the shutdown until after the start of the morning shift on December 7. Within 2 days the Company commenced the hiring of a completely, new production and maintenance, staff. I conclude. that the decision to shut down operations, terminate the entire employee complement in the plant, and resume with a new workforce was in fact subsequent to and motivated by the Union's telephone call of December 4. I find and conclude on the basis of ' all' the evidence and particularly my conviction that Boggs' testimony is entitled to credit and that of 'Beach, is not so entitled,, that the Union, possessed of authorization cards from a substantial majority of employees, in the appropriate unit,' properly demanded recognition; and that the demand was answered by a discriminatory shutdown and the discharge of all unit employees, the Company conduct in this regard constitut- ing unfair labor practices defined in Section 8(a)(1), (3), and (5) of the Act. T This letter is postmarked as of December 3, apparently due to a missetting of the Pitney-Bowes meter. a Boggs filed a representation petition respecting the unit here involved on December 9; it states that recognition was requested on December 4 and resulted in no reply. 1 8 Rapp had been in the Company's employ for 23 years, 12 years as production manager; it is inconceivable to me that the replacement of the entire workforce would not ,have been discussed with him 'if it were a decision made as a result of bona fide business , considerations. I do not credit the testimony of President, Beach, ' which is, incidentally, uncorroborated by Bret or Bill Beach,' that the decision to terminate the workforce was reached at stockholders' meetings on November-12 and 27. 'K. WM. BEACH MFG. CO., INC. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, there found to' constitute unfair labor 'practices, occurring.in connection with the-business operations of the Company as set forth in section 1, 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 such commerce and the free flow thereof. THE REMEDY In view of the findings above set forth to the effect that the Company has . engaged in unfair labor practices affecting commerce it will be recommended that it be required to cease and desist therefrom and, in view of the findings of massive discriminatory discharge, from any unfair labor practices. N.L.R.B. v. Entwistle Mfg. Co., Inc., 120 F.2d 532, (C.A. 4). It will also be recommended that the Company be required to take such affirmative action as appears necessary-and appropriate to effectuate the policies of the Act, including recognition of the Union as exclusive representative of employees in the unit here involved, N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, and reinstatement : of the employees discriminatorily terminated on December 7 with backpay and. interest computed in accordance with the remedial policies set forth in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act. 3. All production and maintenance employees of the Company, excluding office clerical and professional employees, guards, and supervisors constitute a unit appropriate for collective bargaining. 4. By refusing from and after December 4 to recognize and bargain collectively with the Union as exclusive representative of employees in the aforesaid appropriate unit the Company has engaged in unfair labor practices within the scope of Section 8(a)(5) and (1) of the Act. 5. By discharging all production and maintenance employees on December 7 in reprisal for their selection of the Union as collective-bargaining representative the Company has engaged in unfair labor practices within the scope of Section 8(a)(3) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 10 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102A8 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 205 Upon the foregoing findings 'of fact, conclusions, of law, and the entire record, and pursuant to `Section 10(c) of the Act, I hereby issue the following recommended:10 , ` ORDERS Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the' Union or any other labor organization of its employees by discharging or otherwise discriminating against them with respect to hire, tenure, or any term or condition of employment, except as may be required under an agreement lawfully entered into pursuant to the proviso clause of Section 8(a)(3) of the Act. (b) Refusing to bargain collectively with the Union as exclusive representative of employees`in the unit aforemen- tioned. (c) In any manner interfering with, restraining, or coercing employees in the exercise of their rights under the Act. 2. Take the foll owing affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) On request bargain collectively with the Union as exclusive representative of employees in the aforesaid unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment and embody in a written and signed memorandum of agreement any understanding reached as a result of such bargaining. (b) Offer employees discharged on December 7Y1 immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for loss of earnings in the manner set forth in the section above entitled "The Remedy." (c) 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 records and reports, and all other records necessary to analyze and give effect to the backpay requirements hereof. (d) Post at its Springfield, Ohio, plant copies of the attached notice marked "Appendix." 12 Copies of said notice on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of Respondent, shall be posted by it immediately upon receipt thereof, and be 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, 11 This shall include employee Inez Hoover, on sick leave on, December7. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within 20 ,days, from the ,date, of receipt of this Decision, what steps Respondent has taken to comply herewith.13 33 In theevent'that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 9, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To. EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that:' WE ' - VILL NOT discourage membership in District Lodge 82, international Association of Machinists and Aerospace Workers, AFL-CIO, or any ' other -labor organization of our employees by discharging or otherwise discriminating against' them respecting hire, tenure, or any term or condition of employment in violation of the National Labor Relations Act, as mended. a WE WILL NOT refuse to bargain collectively with the aforesaid labor organization as exclusive bargaining representative of employees in the appropriate unit, viz: All production and maintenance employees, excluding all office clerical employees, guards, and supervisors as, defined in the National Labor Relations Act. WE WILL on request bargain with the aforesaid Union for said,unit. WE war. offer, immediate and full reinstatement to their former or substantially equivalent positions to all 'employees discharged on December 7, 1970'and ' we will make them whole for loss'. of 'pay' resulting `from our discrimination against them. WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act, as amended. Dated By K. WM. BEACH MFG. Co., INC. (Employer),, (Representative) , (Title) This is an official notice and must not ,be defaced by anyone This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this Notice,or compliance with ,its provisions,, ' may be directed to the Board's. Office, Federal _ Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.