Cascade Corp.

CASCADE CORP. Cascade Corporation and International union, United Automobile, Aerospace and Agricultural Implement Workers 'of Anienca;-UAW, and its Local Union No,1689 . Case 9-CA-5683 August 4, 1971 DECISIONAND ORDER BY CHAIRMAN- MILLER AND MEMBERS - FANNING AND BROWN On April 13, 1971, Trial Examiner William W. Kapell issued his Supplemental Decision in the above-entitled proceeding, finding that-the Respon- dent 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 Supplemental Decision. Thereafter, the Respondent filed exceptions `to the Trial 'Examiner's Supplemental Decision and a supporting brief, the Charging Party filed cross- exceptions and a supporting brief,'and the General Counsel filed a"`brief in answer to the Respondent's exceptions. The Respondent also requested oral argument. 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. I 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 Supplemental Decision, the exceptions and briefs, and the entire record in the case,' and hereby adopt the findings, conclusions,2 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, Cascade Corporation, Springfield, Ohio, itsofficers,_agents, successors, and assigns, shall take the action set forth in the Trial' Examiner's recommended Order. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed. insofar as it alleges violations of the Act not found herein. i The Respondent's request for oral argument is hereby denied, as the 192 NLRB No. 74 533 record, the exceptions, and the briefs adequately present theissues and the positions of the parties. 2 We agree with the Trial Examiner for the reasons stated by him that Respondent may not now relitigate matters disposed of in the representation proceeding. We need not consider nor do we adopt the Trial Examiner's conclusion that such evidence was previously available because it could have been obtained through an investigative subpena. We also agree with the Trial Examiner for the reasons stated by him that it is appropriate to issue a bargaining order in this case. Unlike 'Laura Modes, 144 NLRB 1592, where there had been no opportunity for the employees to make a-free choice in an atmosphere free of coercion,here a valid election was conducted and a certification had issued before any violence took place. While we do'not condone the violence, and indeed our General Counsel hadissued a complaint and was prepared to prosecute the Union for alleged violations of Section 8(bXlXA), that case was settled and 'a firm and enforceable commitment obtained from the Union that like conduct shall not again occur. There is no allegation that the Union has violated the terms of that agreement, or any,evidence, that any union misconduct has occurred since that agreement . Under these circumstances, where the Union was chosen as the employees',`representative pursuant to an orderly process, and where proper -remedial action has taken place and provides adequate assurances that future union misconduct will not occur, we see no reason to deprive the employees of the right to be represented by the Union of their choice. - TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE WILLIAM W. KAPELL, Trial ' Examiner: -This matter, a proceeding under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard in Springfield, Ohio, on December 8 and 9, 1970,1 with all parties participating pursuant to due notice upon a complaint in Case 9-CA-5608 issued by the General' Counsel on June 5, and a complaint 2 in Case 9-CA--'5683 (the within proceeding) issued on September 18, which were consolidated for-hearing by order of the Regional Director dated October 14. As appears, infra, the record in the within proceeding was conditionally closed subject to reopening. The record in Case 9-CA=5608 was closed and inasmuch as a decision in that Case was not dependent upon ,and could be issued without awaiting further developments in the conditionally closed case, it was severed and a -decision therein was issued (TXD-123-71) on March 3, 1971. The complaint, as amended, herein alleges, in substance, that following an election, the Board-on April 28 issued a certification of representation to UAW, that since about April 30 UAW has requested-recognition and bargaining, that since about May 6 the Company has refused to comply with UAW's request, and that since. about May 18 certain employees of the company have engaged in a:strike caused and prolonged by its refusal to bargain, in violation of Section 8(a)(1) and (5) of the Act. In its duly filed answer, the Company admitted the issuance ,of the certification, its refusal to comply with UAW's request to bargain, and the strike by certain employees, and affirmatively alleged (1) that the UAW. certification was invalid, and (2) that beginning about May 18 UAW,,has engaged in coercive acts against company employees involving mass picketing, shooting at employees and their homes and cars, threaten- ing to inflict and inflicting physical injury on such employees, and damaging their cars and homes, as a result i All dates hereafter refer to the year 1970 unless otherwise noted. 2 Based upon a charge filed on June 9 by UAW and its 'Local No. 1689. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of which, the= Company is not obligated to bargain with UAW. As' indicated, supra the record herein was conditionally closed pending Board approval or rejecting of a settlement agreement in Case 9-CB-1930 in which a complaint was issued based on alleged misconduct by UAW violative of Section 8(b)(IXA) of the Act a Such misconduct was also pleaded, as an affirmative defense, in, the. instant case. Pursuant to arrangements made at the conditional close of the hearing herein, the record herein was to remain closed automatically in' the event the' Board approved of the proposed settlement agreement., If 'rejected by the Board; said record-was to,be reopened and the hearing. resumed in, connection' with the Company's motion to consolidate Case 9-CB-1830 for hearing-with the instant case, on which ruling had been,deferred -pending Board action on the proposed settlement., On March 31, 1971, the Board issued its Decision and Order in Case 9-CB-1-830 approving the' settlement agreement offered ' therein. Accordingly, the' record herein was automatically closed. Upon the entire record in the, case, and from my observation of the witnesses, I make the following: FINDINGS OF FACTO I. THE ALLEGED 8(A)(5) AND (1) VIOLATIONS A. Background Pursuant to the provisions of a Stipulation for Certifica- tion Upon Consent Election, the Board in Case 9-RC-8371 conducted am election in, a unit of the Employer's (the Company's) employees at its Springfield, Ohio, plant consisting of all production and maintenance employees, including inventory clerks and schedulers, but excluding' guards, -professionals, and supervisors within the meaning of the Act,=and all office clericatemployees. The UAW won the election by 131 votes A o 116 , for the intervenor (Employees Independent Union,- the former employee representative). The Company thereupon filed various Objections to Conduct Affecting the Results, of Election alleging, inter alia, that the Petitioner (UAW) caused substantial and material, misrepresentations of,, fact to be made in a , circular distributed to employees immediately prior to, the election.-In support of said Objection,-;the Employer-submitteda copy of a leaflet entitled-"Message from Portland, Oregon" at the bottom of which there appeared the -typewritten, name of Larry Vance secretary-' treasurer of Teamsters Automotive Local Union No. 255 of, Portland, Oregon. The leaflet purports to compare the higher wage rates of certain employees- in the Employer's Portland, Oregon, plant where allegedly an, independent union voted to affiliate with an International Union, with the rates of certain employees in the Springfield, Ohio, plant. The Regional Director appraised ' ^ the evidence submitted by the Employer in support of all its objections and,in his report concluded that the objections did not raise 3 Said agreement was offered in evidence by Respondent and admitted without objection. It provides for the entry of a Board Order and court decree containing , the usual cease-and-desist conditions with respect to the alleged violative conduct but makes no findings ;o1 violation and has a nonadmission clause. any substantial or-material issue affecting the results of,,the, election and recommended that -the,Board overrule all the objections ,and issue an, appropriate, certification- of representative. The Company filed;. exceptions, to; the Regional Director's report and recommendation , attacking in particular the finding with respect to the "letter" from Larry Vance, claiming it not only contained substantial misrepresentationsYbut was also a forgery . On April28 the Board issued its' Decision adopting the findings, conclu- sions, and recommendations of the Regional Director, and certified the UAW as the'exclusive,representative of the unit of employees described therein, - stating that the exceptions to the Regional Director's report raised no material issue of fact or law which would warrant reversal of the Regional Director's findings and recommendation of require a hearing., B. The. Certification,, The Company contends : that the certification -issued to UAW is invalid because of UAW's preelection conduct in distributing the leaflet containing the "signature " of Larry Vance because it contained substantial misrepresentations and was also a forgery . At the, hearing herein, it sought to prove the forgery or unauthorized use of the leaflet through the, testimony of Vance and served a subpena on him for that , purpose. Vance, however, ':failed to ' appear' at the hearing and the Company moved for a continuance to compel his appearance through enforcement procedures,, claiming that his evidence was previously unavailable. The motion was denied. C. Conclusions as, to the Certification The alleged misrepresentations and forgery of the leaflet were raised and considered by the Board in the related representation case. Vance's testimony was as available at that time through an investigative subpena as it was at the hearing herein. Moreover, ,; if , it were i proven that Vance's "name" was used without, his authorization, it would not affect the, validity of ' -the certification, The Regional Director, and the Board on exceptions, determined that the leaflet's adverse effects were 'promptly dissipated through the corrective action taken by UAW`and'the Company and therefore did not raise a material or substantial issue affecting the results of the election and requiring a hearing. It is the well established policy of the Board, in the absence of newly` discovered or previously unavailable evidence, or special circumstances, not to'permit relitigation in an unfair labor practice case of issues which were of could have been raised' in a prior -representation case 5 Furthermore, the Board's determination with regard to the leaflet is the law of the case and binding upon the Trial,Examiner at the present stage of the proceedings. I, accordingly, find no merit in the Company's contention and sustain the validity of the certification. 4 Findings were made in the Decision, in' Case 9-CA--5608 that at all times material herein the Company has been engaged as an employer and that UAW and its Local No. 1689 have been labor organizations , within the meaning of the Act. 5 Pittsburgh Plate Glass Co. v. N.L.P.B., 313 U.S.146, 162. CASCADE CORP. 535 D. The Alleged UAW Picket Line Violence The Company also contends that it should be relieved of the obligation to bargain with UAW because of the-latter's alleged acts of violence and intimidation to force it to abandon its efforts to have the validity of the election finally adjudicated. In addition to interposing such grounds as an affirmative defense in the instant case, the Company, as related above, also `filed 8(b)(1)(A) charges (Case 9-CB-1`830) against UAW and its agents, and, a'complaint issued'alleging 'that UAW and its agents engaged in certain acts and threats of violence at the picket line and elsewhere causing injury to employees and damage to their automo- biles in an attempt to prevent their entry to or departure from the plant. At the hearing herein, the Company offered in evidence, a proposed` settlement agreement of said-case signed by UAW and its agents-named therein consenting to a Board Order and court decree.' The agreement and the complaint6 on which it was- based were admitted in evidence upon consent of all parties, and counsel for the General Counsel recommended its"approval by the Board. Pending -Board ' approval or rejection of the proposed settlement, ruling, was deferred on the Company's motion to consolidate the hearing in that case with the hearing of the within proceeding. The' Company then elected to rest without offering any evidence in addition to that previously admitted concerning UAW's alleged violative conduct pending resolution- of the proposed settlement, and the 'record 'was closed subject to reopening and reactivation of the Company's motion to consolidate the CB case hearing in the event the Board rejected the proposed settlement., As indicated above, the'- Board approved the proposed settlement agreement, thereby mooting the Company's motion to consolidate, " and automatically closing , the hearing herein. The only evidence of UAW's alleged violence or misconduct on the picket fine consists of the following testimony: Cecil Clary, a company employee, testified that on May 19 or 20 he drove a company pickup truck to work and when he started to turn in at the center gate of the plant he found about 10 or 15 pickets, including Pride,7 standing in the entrance. The pickets refused to get out of the way and about 10 of them grabbed hold of the truck, shaking and bouncing it. Pride,'who did not touch the truck, asked him why he wanted to come in and scab to which he replied that he was going to work for what he believed in'and to do so-in an orderly manner. Pride then told him, "Clary, you better get home before you get hurt and hurt bad., Thereupon, Clary backed out, drove away, and entered the plant through, another entrance. Pride testified in connec- tion with this incident that he had asked Clary not to cross the picket line to which Clary replied that he had to go in because he needed the money, and that then Clary pulled away with his truck. Ronald Massie, a company employee, testified that on May 20 he drove to work in his car and pulled up behind a few cars waiting to enter the plant. When the driver in front of him, a foreman, was permitted to enter, he began driving in. Robert Goodfellow, a picket, yelled "stop him," and a 6 It was stipulated that UAW's answer denied engaging in the alleged violations. group of men rushed to his car and someone yelled "Let's turn it over," The pickets, including, Pride, started lifting and rocking the car and the left rear tire,blew out. The pickets then dropped the car and scattered. Pride testified that he was present at this incident on the picket line and admitted having his hands on she car but denied rocking it. Based on the, demeanor of the witnesses, I credit the testimony of Clary and Massie as,hereinabove related.; Pride also testified that he followed a truck as it left the plant to go to the premises, of. Commercial Trucking Company where he and five other individuals set up a picket line in front of the truck, carrying a placard for a period of about 3 hours. E. Conclusions Regarding UA W's Picket Line Violence The Company cites the'Board's decision in Laura Modes, 144 NLRB 1592, in support of its contention that UAW's alleged acts of violence on the picket line has the effect of absolving it from bargaining with 'UAW pursuant to the latter's certification. It contends that the- United Mineral and Chemical Corporation case (155 NLRB 1397) where the Board issued a bargai=n order - despite incidents of violence by strikers is distinguishable on the ground that the incidents of violence are far greater in the instant case and are directly attributable to UAW and its agents, and also further notes that the court denied enforcement of the Board's bargaining order because of the violence that occurred. The General Counsel and UAW contend, (1) that the settlement agreement approved by the Board in Case 9-CB-1830 not only contains no findings of violation but also has a nonadmission clause, and, therefore, cannot constitute evidence of violation, (2), that the adduced evidence of UAW's alleged picket line violence, even if credited, would not constitute sufficiently flagrant or widespread misconduct to absolve the Company from bargaining with it, (3) that whatever violence occurred was caused by the Company's unlawful refusal to bargain, (4) the instant case presents an even stronger ground that the United Mineral case for the issuance of a bargaining order when comparing the misconduct of the respective alleged unions, and (5) the Board in refusing a bargaining order in the Laura Modes case specifically noted that the offending union would be denied the right to invoke the Board's statutory processes in aid of a demand for recognition as bargaining representative of the employer's employees unless and until it demonstrated its majority status through the election procedures, whereas the UAW herein had already perfected its bargaining status through an election and certification, "A refusal to bargain is a common method for challenging the Board's certification of a union since Board decisions in representation proceedings usually are not reviewable by the Courts of Appeals." N.L.R.B. v. Smith Industries, Inc., 403 F.2d 889, 891 (C.A. 5). However, the employer acts at his peril in the event he fails to prevail with respect to his refusal to bargain. It appears that although 7 The General Counsel failed to sustain the alleged discriminatory discharge of Paul Pride in Case 9-CA-5608, which was heretofore severed. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UAW,requested bargaining since April 30, the,Company has, -refused to comply with- that request since May 6, although admittedly UAW did- -not, engage in any misconduct,until May 18. Thus, the Company's refusal to bargain from May 6 to May 18 was based solely on the invalidity of the 'certification to UAW. In view of the finding made herein as to the certification's validity, I conclude that,theCompany violated Section 8(a)(5) and (1) during that period. Thereafter, UAW engaged in the misconduct related above. In appraising that misconduct, the problem is essentially one of weighing the gravity of employee misconduct against the employer's unfair -labor practice which, in the first place, provoked the employees to resort to unprotected-. activities.8 Viewing UAW's • misconduct, especially in view of the Company's refusal to bargain, I conclude that the few proven incidents, while reprehensible and not to be •condoned, were not so widespread or pervasive as to relieve it from bargaining with UAW. See World Carpets of New York Inc., 188 NLRB No. 10. 'Upon the.foregoing findings of facts and upon the,entire record-of thiscase; I make the following: • - 'CONCLUSIONS 013 LAW 1. Respondent Company'is an employer whose opera- tions affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. UAW and its Local No. 1689 are labor organizations within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Company's Springfield, Ohio, plant, including inventory clerks and schedulers, ' but' excluding guards, professionals, and supervisors' within the meaning of the Act, and all office clerical employees, constitute a unit appropriate for the purpose o.collective-bargainng within the meaning of Section 9(b) of theAct. 4. Since April 28 the above-named labor organization has been and now is the certified exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5., By refusing on about May 6, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representa- tive of all the employees of the Company in the appropriate unit, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By theaforesaid refusal to bargain, the Company had 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 8 See N.L R.B. v. Thayer Company, 213 F.2d 748 (C.A. 1), cert. denied 348 U.S. 883. 9 Citing International Union of Electrical. Radio and Machine Workers (Tiidee Products) v. N L.R.B.,, 426 F2d 1243, 1253 (C.A.D.C.), cert demed 4K (JS. 0A; and Amalgamated Clothing Workers (Levi Strauss & Co.) v. N L.R B, 441 F2d 02 (C.A.D.C.). 10 Ex-Cell-O Corporation, 185 NLRB No. 20. Recently, however, on March 19, 1971,'the Court of Appeals for the District of Columbia in a 2 to I decision (449 F.2d 1046,) remanded the case to the Board for further thereby-,engaged imand is engagingin unfairlabor 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. THE REMEDY Having found that Respondent has, engaged in unfair labor, practices, within the meaning of Section a8(a)(5) and (1) of the "Act, I shall recommend-that it cease and desist therefrom, `and, upon request, bargain collectively with UAW as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. ' In order to insure that the employees„in the' appropriate unit will be, accorded the services of their selected bargaining representative for the period provided by law, I shall recommend that the initial period of certification shall be construed as beginning on the date, Respondent commences to bargain in good faith with UAW as the bargaining representative in the appropriate unit: Burnett -Construction Company, 149 NLRB 1419 enfd. 350 F.2d'57 (C.A.10). UAW in its brief, seeks a compensatory remedy designed to grant the employees the benefits which they would have received through `bargaining,with'Respondent, but for the latter's,refusal to recognize and bargain with it .9 While the cited cases appear to' vest the Board with autho'nty to grant compensatory relief in appropriate cases, I find that in its last pronouncement on the matter In the Board disclaimed such authority. Until the Board, changes its position or, the Supreme Court reverses it, that decision, remains binding:, 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: 11 ORDER Respondent, Cascade Corporation, 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 Automo- bile, Aerospace and Agricultural Implement Workers of America, UAW, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and, maintenance employees at its Springfield, Ohio, plant, including inventory clerks, and schedulers, but excluding guards, professionals, and supervisors within the meaning of,the Act, and all office clerical employees. (b) In any like or related manner interfering with, findings as to whether the employer's ' objections to certification were frivolous or fairly debatable and whether a "make whole" remedy was appropriate. - 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 m Section 102.48 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. CASCADE CORP. 537 restraining, or coercing employees in the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon, request, bargain. with the above-named labor organization as the exclusive representative of all employ- ees in the aforesaid appropriate unit 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 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 Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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. (c), Notify the Regional Director for Region 9, in writing, within 20-days from the receipt of,this Decision, what steps have been taken to.comply herewith 13 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." 13 In the event 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 BYORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by refusing'to recognize and bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca, UAW, pursuant to its certification: WE WILL NOT refuse to bargain collectively with the above-named Union 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 bargaining representative of all employees in the bargaining,unit described below, with respect to wages, hours, and other terms and conditions of employment, and,, if an understanding is reached, embody such understanding in a signed agreement: The bargaining unit is: All' production and maintenance employees at the Company's Springfield, Ohio, plant, including inventory clerks and schedulers, but excluding guards, professionals, and supervisors within the meaning of the Act, and all office clerical employees. CASCADE' CORPORATION (Employer) Dated By (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 thisnotice or compliance' with its provisions may be directed to the Board's Office, -Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.