Art Steel Co., Inc.

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Art Steel Co., Inc. and District 65, Wholesale, Retail & Office Processing Union and Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and Local 400, Sheet Metal Workers International Association, AFL-CIO. Cases 2-CA- 12327, 2-CA- 12331 September 10, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On July 21, 1971, Trial Examiner Max Rosenberg 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 and the Charging Party, Local 400, Sheet Metal Workers International Association , AFL-CIO, in Case 2-CA-12331, filed exceptions to the Decision and supporting briefs, and the Charging Parties, District 65 , Wholesale, Retail & Office Processing Union and Truck Drivers Local Union No. 807, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, in Case 2-CA-12327, filed a brief in opposition to the exceptions and brief of Local 400. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision , the exceptions and briefs, and the entire record in this proceeding , and hereby adopts the findings, conclusions, and recommenda- tions 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, Art Steel Co., Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE MAx ROSENBERG, Trial Examiner: With all parties represented, these cases were tried before me in New York, New York, on June 2, 1971, on complaint of the General Counsel of the National Labor Relations Board and an answer filed thereto by Art Steel Co., Inc., herein called the Respondent.' The issue presented by the pleadings raise the question as to whether Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by the circulation of certain leaflets to its employees prior to the conduct of a scheduled Board representation election. Briefs have been received from the General Counsel and Respondent, which have been duly considered. Upon the entire record made in these proceedings, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, a New York corporation with offices and places of business in the City of New York, is engaged in the manufacture, sale, and distribution of office equipment, furniture, and related products. During the annual period material to these proceedings, Respondent manufactured, sold, and distributed products valued in excess of $500,000 of which products valued in excess of $50,000 were shipped from its several places of business in New York directly to points located outside of that State. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED District 65, Wholesale, Retail & Office Processing Union, herein called District 65; Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Local 807; and Local 400, Sheet Metal Workers International Association, AFL-CIO, herein called Local 400, are labor organizations within Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Section 8(a)(1) of the Act by the following conduct: (a) On or about October 29, 1970, and December 1, 1970, Respondent distributed leaflets to the employees in which it offered and promised to accord them improved medical, hospitaliza- tion, and pension benefits if they refrained from becoming or remaining members of District 65, Local 807, or Local 400, if-they withheld their assistance and support from those labor organizations and if they abandoned their membership in and activities on behalf of these unions, and The complaint, which issued on May 14, 1971, is based on a charge in Case 2-CA-12327 filed and served on April 9, 1971, and a charge and amended charge in Case 2-CA-12331 filed and served on April 14, 1971, and April 26, 1971 , respectively 193 NLRB No. 19 ART STEEL CO., INC. (b) On or about March 29, 1971, Respondent, by a leaflet distributed to its employees, conducted a raffle whereby its employees were offered the chance to win a free ]-week vacation, conditioning participation in the raffle by any employee upon his execution of a statement to the effect that he did not wish to be represented for the purposes of collective bargaining by the aforementioned labor organi- zations and that he desired that the Unions return his signed authorization card Respondent admits that it circulated the foregoing documents to its work complement on the dates alleged in the affirmative pleadings. However, it takes the position that the leaflets were not statutorily offensive. Alternatively, Respondent argues that, assuming that its conduct interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them under the Act, its action was legally privileged because District 65, Local 807, and Local 400 made concurrent promises and granted benefits similar to those which Respondent proffered. On August 24, 1970, District 65 and Local 807 filed a joint petition with the Board in Case 2-RC-15473 seeking an election among Respondent's employees, and, on August 26, 1970, Local 807 petitioned for an election in Case 2-RC-15450 Not to be outdone, the Respondent filed an election petition on September 23, 1970, in Case 2-RD-756. The three petitions are pending before the Board. No election has yet been conducted because of the pendency of the instant charges. On October 29, 1970, Respondent's industrial relations department distributed a leaflet to its employees which recited: During the last few weeks you have undoubtedly been overwhelmed by `pie in the sky' promises from all the unions that are trying to overrun our shop and make it a difficult place to do business District 65 and Local 807 probably promise to give you a `great' welfare plan. And Local 400 is claiming it has a better one and if you stick with them they'll improve it.2 Well, we have examined all these so call `fantastic' welfare plans. We don't think they are really good for you at all. So when the contract expires your Company is going to put into effect it's own welfare plan for all the workers. And what do we ask in return9 Do we ask that you pay us dues, fines or assessments? No! All we expect is an honest days work. The Company's new welfare plan-and this is a promise which we will not break-will be better than anyone offered by District 65 and Local 807 and better than the one you are getting now. However, this is for the future. As for now, because of the chaotic state of affairs and because we don't feel Local 400 has your best interests at stake, we are not going to pay the welfare contributions which Local 400 is demanding. You will decide what is best for you. THE MANAGEMENT On December 1, 1970, Respondent circulated the following flyer to the employees which contained a Spanish translation and which read: 2 Although the record is not particularly illuminating, it would appear that, at the times material to the filing of the petitions, Local 400 95 Dear Employee: The contract with Local # 400 is tied up in Court. Under that contract, your Company made contrib- utions to the Union welfare and pension funds which gave you hospitalization and surgical benefits and retirement income. At the request of District 65 and Teamsters Local 807, we have stopped making payments to the Local #400 Union welfare funds. As a result, Local #400 will soon formally advise you that you no longer can receive benefits. Your Company does not intend to let you lose all of your medical or pension benefits. When all the unions are rejected in the election, we will provide you with a better Company Hospitalization and pension plan than you have received in the past. Protect your jobs. Your Company will serve you better and more honorably when you vote NO UNION. THE MANAGEMENT On March 29, 1971, Respondent's president distributed a raffle circular to the workers with an accompanying Spanish translation. This document advised the employees to Sign this slip below and send to the Personnel Department in the attached envelope. The slip will be used for a drawing. One name from each plant and the warehouse will be picked for a free Easter week for two (2) in Puerto Rico or the Dominican Republic including: Air Transporta- tion, hotel accommodations, and full wages for the week. To Local 400/District 65/Local 807 I don't want your union and I want my union authorization card back. Signature This slip will be used for the drawing. The parties stipulated and I find that the foregoing raffle slip was handed out to all employees. However, only 19 chose to participate in the drawing. Even the most casual reading of the leaflets of October 29 and December 1 would convince the reader, as it does the undersigned Trial Examiner, of their legal taint. Thus, the October 29 document informed the employees that "when the contract expires your Company is going to put into effect it's own welfare plan for all the workers.... The Company's new welfare plan-and this is a promise which we will not break-will be better than anyone offered by District 65 and Local 807 and better than the one you are getting now." (Emphasis supplied). And, in the December I leaflet, Respondent made its promise clear that "When all the unions are rejected in the election, we will provide you with a better Company Hospitalization and pension than you have received in the plant." Finally, the raffle leaflet which Respondent circularized on March 29, 1971, plainly proffered a desired economic benefit but was available only to those employees who publicly manifested their desire not to be collectively represented by any of the labor represented Respondent's employees and a collective agreement existed between Respondent and Local 400 embodying a welfare plan. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations involved herein. When viewed against the backdrop of a spirited organizational campaign and an impending election, I am convinced and conclude that Respondent's leaflets interfered with, restrained, and coerced the employees in the exercise of rights guaranteed them under Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. I turn next to Respondent's defense that its conduct should not be condemned because the contesting unions engaged in parallel activities. The record shows and I find that, on April 2, 1971, Respondent filed charges in Cases 2-CB-4962-1 and 2-CB-4962-2 alleging that District 65 and Local 807 had violated Section 8(b)(I)(A) of the Act by restraining, coercing, intimidating, and physically assault- ing its employees. By letter dated April 22, 1971, the Acting Regional Director for Region 2 dismissed the charges. In doing so, he noted that "Although not specifically alleged in your charge, I have considered your contention that District 65 has unlawfully granted certain medical benefits to employees and find that this is not deemed to warrant further proceedings in light of all the circumstances herein, including your conduct in eliminating such medical benefits and promising greater benefits if District 65 and Local 807 and their rival union lost the election in the pending representation case, and similar offers by the rival union to furnish the benefits eliminated by you." Thereaf t- er, Respondent appealed the Region's dismissal of its charges to the General Counsel. On June 11, 1971, the General Counsel upheld the Acting Regional Director's determination. I find no merit in the Respondent's defense for, as the Board has emphatically announced in prior cases, the Unions "alleged unfair labor practices, if established, do not lessen the need for vindicating and protecting employee rights under the Act, which the [Respondent has] infringed,-much less justify the [Respondent's] violation of these rights." 3 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent set forth 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 Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Inasmuch as some of Respondent's employees apparently speak and read only Spanish, I shall recommend that the 3 See Local No 1150, United Electrical, Radio & Machine Workers of America, 84 NLRB 972, 979, United Furniture Workers of America, 81 NLRB 886, 888 4 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 notices required to be posted by Respondent pursuant to the Recommended Order herein shall be printed in both English and Spanish. Upon the basis of the foregoing findings of fact and conclusions and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 65, Local 807, and Local 400 are labor organizations within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the purview of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommend- ed: ORDER4 Respondent, Art Steel Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Offering and promising employees improved medical, hospitalization, and pension benefits to induce them to refrain from becoming or remaining members of District 65, Local 807, Local 400, or any other labor organization, and to refrain from giving any assistance or support to the aforesaid unions and to induce them to abandon their membership in and activities on their behalf. (b) Conducting raffles among its employees in which they are given the opportunity to win a free 1-week vacation, where participation in such raffles is conditioned upon the employees signing a statement that they do not wish to be represented collectively by District 65, Local 807, or Local 400, and that they desired that the said labor organizations return their signed authorization cards. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-mentioned unions, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act. findings, conclusions, recommendations, and recommended Order herein shall, as provided in 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. ART STEEL CO., INC. 97 (a) Post at its plants in New York, New York, copies of the notice attached hereto and marked "Appendix."5 Copies of said notice, to be furnished by the Regional Director for Region 2, shall, after being duly signed by a representative of Respondent, be posted by Respondent in both English and Spanish immediately upon receipt thereof and 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. (b) Notify the Regional Director for Region 2, in writing, what steps Respondent has taken to comply therewith.6 5 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" 6 In the event that the 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 2 , in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " our employees to refrain from giving any assistance or support to the Unions and to make the employees give up their membership in or activities on behalf of the Unions. WE WILL NOT hold raffles among our employees in which they are given the chance to win a free 1-week vacation, where participation in the raffles is condi- tioned on their signing statements that they do not desire to be represented by District 65, Local 807, or Local 400, and that they want the Unions to return their signed authorization cards. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above-mentioned unions or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become or refrain from becoming members of the above-named unions or any other labor organization. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT offer or promise our employees improved medical, hospitalization, and pension benefits to induce them to refrain from becoming or remaining members of District 65, Wholesale, Retail & Office Processing Union; Truck Drivers Local Union No. 807; or Local 400, Sheet Metal Workers International Association, AFL-CIO or any other labor organization, and we will not offer or promise those benefits to induce ART STEEL CO., INC. (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 this notice or compliance with its provisions, may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0300.