Racine, Die Casting Co., Inc.

RACINE DIE CASTING CO. INC. Racine, Die Casting Co., Inc. and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), Local 627-Racine ' Die Casting Co. Unit. Case 30-CA-1475 August 4, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN Upon a charge filed by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), Local 627-Racine Die Casting Co. Unit, hereinafter called the Union, on January 14, 1971, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, issued a complaint on February 12, 1971, against Racine Die Casting Co., Inc., alleging that the Respondent had, engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(1),and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint in tisubstance alleges that the Union is the recognized collective-bargaining representative' of certain employees of Racine Die Casting Co., Inc.; 1 that it has had a, series of collective-bargaining agreements with the Respondent dealing with the wages, hours, terms, and conditions of employment of the employees, the, most recent of which was effective by its terms from February 1, 1968, to January 31, 1971; and that commencing on or about December 31,,1970, and at all times thereafter, the Respondent, iA violation of Section 8(a)(5) and (1) of the Act, has- refused, and continues to date to refuse, to bargain collectively with the Union as employees' exclusive bargaining representative, by refusing to meet and bargain with its duly designated bargaining commit- tee so long as the said committee includes, as a member thereof, the president of the Union. On February 19, 1971, Respondent filed its answer to the complaint, admitting in part the allegations in the complaint, alleging certain other facts in support of its defense, but denying the commission of any unfair labor practices on the grounds that the president of the Union, Robert Coombs, in whose presence it i in its answer, the Respondent admits that all production and maintenance employees at the Respondent's plant in Racine County, Wisconsin, excluding office clerical, plant guards, watchmen, engineering employees, foremen, employees of the tool room, and supervisory employees, constitute aunit appropriate for the purposes of, collective bargaining within the meaning of Section 9(b) of the Act. 529 refuses to bargain, is no longer an employee of Respondent, and requesting that the complaint be dismissed. On March 3, 1971, a hearing was held in the above- entitled proceeding before Trial Examiner Jerry B. Stone of the National Labor Relations Board, at which time certain exhibits were received into evidence and certain stipulations were entered into on the record. Pursuant to the stipulations, the parties agreed to waive oral argument before the Trial Examiner, the filing of briefs to the Trial Examiner, and the issuance of a Trial Examiner's Decision, and agreed to submit the case directly to the Board for decision, based on a record consisting of the stipula- tion of facts and the exbibits attached, thereto. The stipulation also provided for the filing of briefs with the Board. On March 23, 1971, the Board approved the stipulation of the parties, ordered the case transferred to the Board, and granted permission-and time for the filing of briefs. Thereafter,, the General Counsel and the Respondent filed briefs, and the General Counsel filed a motion to strike certain portions of Respon- dent's brief.2 Pursuant to the provsions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member'panel. Upon the basis of the stipulation, the exhibits, the briefs, and the entire record,in this case, the Board makes the following: FINDINGS OF FACT 1. JURISDICTION The Respondent, a Wisconsin corporation with its principal offices and plant located in Sturtevant, Racine County, Wisconsin, has, at all times material herein, been engaged in the manufacture and sale of castings. In the course and conduct of its business operations, the 'Company annually 'ships products valued in excess of $50,000 from its Sturtevant plant to customers located outside the State of Wisconsin and annually receives products valued in excess of $50,000 from points outside the State of Wisconsin. The Respondent admits that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and we find it will effectuate the policies of the Act to assert jurisdiction herein. 2 In its motion to strike, the General Counsel specifically designates that portion of Respondent's brief which incorporates a copy of its brief to an arbitrator in a related case, basing its motion on the grounds that the latter brief refers to facts contained in the transcript of the arbitration matter which are not part of the record evidence herein. In view of our decision herein, the General Counsel's motion to strike is hereby granted. 192 NLRB No. 73 530. DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION_ INVOLVED International Union, United Automboile, Aeros- pace 8 c Agricultural, Implement Workers of America (UAW), Local 627-Racine Die Casting Co. Unit, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR =LABOR PRACTICES A. Facts The parties stipulated, and we find, that the Respondent has refused to bargain with the Union at any time that Robert Coombs, president of the Union, is present for negotiations; that such refusal has taken place since December 31, 1-970, and has continued to date; that the Respondent bases this refusal to bargain in Robert Coombs' presence on the fact that he was terminated by the Respondent on August 3, 1970,' and therefore is - not an employee of the Respondent; that the parties have in fact bargained on the following days without the presence of Robert Coombs: January 25, 27, and 30,- February 3, 10, 12, 16, and 23, and March 1,1971; and that the validity of the termination of F,,abert Coombs has been submit- ted to arbitration by the parties. B. The Issue Involved and the Contentions Of, the Parties The 'sole issue thus presented is whether the Respondent's refusal to bargain with the Union because the latter's bargaining committee contains a member who is no longer an employee of the Respondent is privileged under the Act. The General Counsel contends that, the Respon- dent's refusal to bargain in the above-described circumstances violates the basic right of employees under Section 7 of the Act which guarantees to employees the right to bargain collectively through representatives of their own choosing and imposes, a ,correlative duty on the part of the Respondent to negotiate with the Union's appointed agents. The General Counsel further contends that there are no extenuating circumstances which would, in this- case, justify the Respondent's admitted refusal to bargain. The Respondent, in the course of this proceeding, has interposed several defenses to the allegation that it engaged in, an unlawful refusal to bargain. In its answer, the' Respondent, admitted that it has refused to bargain in the presence of Coombs, asserting that Coombs' failure' to return to work following a disciplinary suspension constituted a voluntary termi- s N.L.R.B. v. International Ladies' Garment Workers Union. 274 F. 2d 376,378 (C.A. 3). 4 N,L:R.B. v. Kentucky Utilities, Co., 182, F. 2d 810 (C.-6); Bausch & Lomb Optical Company, 108 NLRB 1555. nation of employment on his part, that, hip is no longer an employee of the Respondent,;and-that, as the most recent collective-bargaining agreement between, the parties provides only for assistance by an "outside representative" with respect to the disposition of grievances, such limitation precludes the Union from the use of outsiders, such as Coombs, in matters of contract negotiation. At the hearing, the Respondent stated that the only reason for refusing to bargain in Coombs' presence is the fact that he is no longer its employee. Notwithstanding, in its brief to the Board, the Respondent now contends that its refusal is based on the conduct, of Coombs which precipitated his suspension and which indicates clearly his extreme hostility toward the Respondent. C. Discussion and Conclusion Section 7 of the Act grants employees the right to select, with their discretion and without employer or other interference, those organizations which they will to' represent them for the purposes of collective bargaining. A fortiori, the right thus conferred- extends to the, selection of the agents of organizations thus chosen. Otherwise stated: Each party to the collective bargaining process' has a right `to choose, its' representative, and there is a correlative duty On the opposite party to negotiate with the appointed agent[31. This right is not absolute, and there may be extraordi- nary' situations; which render, any attempt at- good- faith bargaining a 'futility, where one party to negotiations may' validly object to' an agent of the other.4 However, an objection may not be validly asserted, as the Respondent here contends, merely because an agent of the union is not an employee of the employer under a duty to bargaiii.5 The Respondent's further contention, in its answer, that its most' recent agreement with the Union precludes 'the latter from utilizing nonemployee agents in, future contract negotiations is patently without'merit. That portion of the contract to which the Respondent refers relates merelyto the processing of grievances and in no way purports to deal with the basic statutory right of either party to select whomev- er it wishes as its representative' for the purpose of bargaining.6 Finally, the Respondent tardily contends in its brief that Coombs, by reason of his conduct' which precipitated disciplinary action, has evidenced ex- treme hostility to the Respondent justifying the latter's refusal to bargain in his presence. We are precluded from considering these belatedcontentidns 5 Canton Sign Co., 174 NLRB No. 133, TXD, sec. 1). 6 In these circumstances we deem it unnecessary to decide whether a Imitation, such as that which the Respondent suggests , would be repugnant to the purposes of the Act and, therefore , unenforceable. RACINE DIE CASTING CO. INC. 531 since they are predicated on facts which are not a part of the record in this case and which are inconsistent with the stipulation that the sole reason for Respon- dent's refusal to bargain? was the nonemployee status of Coombs. Therefore, in light of the record before us and for the foregoing reasons, we find that the Respondent, by, refusing to bargain in, the presence of Robert Coombs, has violated Section 8(a)(5) and (1) of the Act. 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 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 engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and, upon request, bargain collectively with the Union, or with any member of its duly designated bargaining committee, including Robert Coombs, as the exclu- sive representative of all employees in the appropriate unit and, if an, understanding is reached, embody such understanding in a signed agreement. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Racine Die Casting Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Ae- rospace & Agricultural Implement Workers of Ameri- ca (UAW), Local 627-Racine Die Casting Co. Unit, is a labor organization within the meaningof Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's plant in Racine County, Wisconsin, excluding office clerical, plant guards, watchmen, engineering employees, forement, employees of the tool room, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the above-named labor organization has been and now is the exclusive bargaining representative, of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on or about December 31, 1970, , and continuing to date, to bargain collectively with the Union or its duly designated bargaining commit- tee as the exclusive bargaining representative of the employees of Respondent in the appropriate unit, so long as its president, Robert Coombs, is present, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with,- restrained, and coerced, and is, interfering with, restraining, and coercing, employees in the exercise of the rights, guaranteed to them in Section 7 of the Act and thereby has 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 with in, the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(e) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Racine Die Casting Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union, , United Automobile, Aerospace & Agricultural Implement Workers of America (UA), Local 627-Racine Die Casting Co. Unit, or with any member of its duly designated bargaining committee, including Robert Coombs, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees at the Respondent's plant in Racine County, Wisconsin, exluding office clerical, plant guards, watchmen, engineering employees, foremen, employees of the tool room, and supervisory employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of 7 See fn. 2, infra. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all employees in the aforesaid appropriate unit or with all members of its designated bargaining committee; including' Robert Coombs, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. " (b) Post at its plant in Sturtevant, Racine County, Wisconsin, copies of the attached notice marked "Appendix:" 8 Copies ' of said notice, on forms provided' by the Regional Director for Region 30, after ' duly signed by Respondent's representative, shall be postedby the 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. Resonable steps shall be taken by the ' Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. , 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words m 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 COURTS OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." APPENDIX NOTICE TO EMPLOYEES POSTED BY 'ORDER OF THE NATIONAL LABOR RELATIONS' BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay , wages, hours, and, other terms and conditions of employment with Interna- tional" Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), Local 627-Racine Die" Casting Co. Unit, or with any member of its duly designated bargaining committee, including Robert Coombs, as the exclusive-representative-of the"employees in the bargaining unit-described below. WE, WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights "guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union as the exclusive representative of all employees in the bargaining unit described below or with all members of its duly designated bargaining committee, including 'Robert Coombs, with respect` to rates of pay, wages, hours, and other terms and conditions of , employment and, if an understanding is reached, embody such under- standing in a signed agreement. The .bargaining unit is: All,. production and maintenance employees at the Respondent's plant-in Racine County, Wisconsin, exlcuding ,office clerical, plant guards, watchmen, engineering employees, foremen, employees of the tool room, and supervisory employees. RACINE DIE CASTING Co., INC. (Employer) Dated By ti (Representative) (Title) This is an official noticeland 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 provisons may be directed to the Board's Office, Second Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Tele- phone 414-224-3561.