Wickes Corp.

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wickes Corporation, Wickes Manufactured Housing Division and International Union, United Automo- bile, Aerospace and Agricultural Implement Work- ers of America (UAW). Cases 7-CA-8795 and 7-CA-8795(2) June 22, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 1, 1972, Trial Examiner Eugene E. Dixon issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in response to these exceptions.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,2 and conclusions3 and to adopt his recommended Order. 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 Wickes Corporation, Wickes Manufactured Housing Division, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i The Charging Party also filed a motion to disregard respondent's exceptions and the Respondent filed an answer thereto We find no merit in the position of the Charging Party, and its motion is hereby denied 2 In agreeing with the Trial Examiner that this case is clearly distinguishable from Coamo Knitting Mills, Inc, 150 NLRB 579, we find it unnecessary to go beyond the fact that Respondent reached an agreement with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No 1191, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local Union No 388; and International Brotherhood of Electrical Workers, AFL-CIO, Local Union No 665, parties of interest, before a majority of employees designated them as their bargaining representative 3 Respondent, in its Exception 4, attacks certain minor factual findings by the Trial Examiner relating to the signing of the cards However, even assuming those facts are as asserted by the Respondent, they cannot affect our conclusion herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner: This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat, 136), herein called the Act, was heard by me at Lansing, Michigan, on November 2, 1971, pursuant to due notice. The consolidated com- plaint and notice of hearing, issued by the Regional Director for Region 7 representing the Acting General Counsel for the National Labor Relations Board (herein called the General Counsel and the Board) on August 20, 1971, and based upon duly served charges filed June 23 and July 7 by International Union, United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca, herein called the UAW or the Charging Party, alleged that Wickes Corporation, Wickes Manufactured Housing Division, Respondent herein, had engaged in unfair labor practices in violation of Section 8(a)(1)(2) and (3) of the Act. In its duly filed answer Respondent denied the commis- sion of any unfair labor practices. Upon the entire record in the case, and from observation of the witnesses, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS At all times material herein Respondent has been a corporation duly organized under and existing by virtue of the laws of Delaware. Respondent has maintained its principal office and place of business in Mason, Michigan, where it is engaged in the manufacture, sale, and distribution of single dwelling residential units. During the 12-month period ending July 1, 1971, which period is representative, Respondent in the course and conduct of his business operations purchased and caused to be transported and delivered to its Mason plant wood, bricks, and other goods and materials valued in excess of $50,000, which goods and materials were transported and delivered to its plant in Mason, Michigan, directly from points outside Michigan. During the same period of time Respondent manufac- tured, sold, and distributed at its Mason, Michigan, plant products valued in excess of $500,000 of which $50,000 worth were shipped from said plant directly to points located outside the State of Michigan. Respondent at all times material herein has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS International Union , United Automobile, Aerospace and Agricultural Implement Workers of America , at all times material has been a labor organization within the meaning of Section 2(5) of the Act. Also at all times material , within the meaning of the same Section of the Act , the following parties of interest have been labor organizations: (1) United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 1191; (2) United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, local Union No. 388 ; and (3) International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 665. All three of the above will be referred to herein as the Tri-Trades. 197 NLRB No. 128 WICKES CORPORATION 861 Ill. THE UNFAIR LABOR PRACTICES previous negotiations and contract agreement with Re- The issues in this case are (1) whether or not certain Section 8(a)(1) conduct was engaged in by Respondent including the posting of an illegal no-solicitation rule; (2) whether Respondent engaged in certain 8(a)(2) conduct including recognition and entering into a contract with the assisted Union and (3) whether Respondent engaged in 8(a)(3) conduct by the discharge and reprimands of its employee Joseph Salvaggio. Although Respondent was represented by counsel at the hearing he took essentially no part in the proceeding and put in no evidence whatsoever. What defense was raised to the complaint was adduced by counsel for the parties of interest. He cross-examined the General Counsel's witnesses and called one of the Ti- Trades representatives, Fred Ikle, who did not controvert the General Counsel's evidence except with respect to one denial that, as will be seen, I do not credit. Since there is no dispute as 'to the evidence I see no reason to go into great detail. Accordingly, I shall make my findings in broad outline. Somewhere around March 1, 1971, Respondent opened a new plant in Mason, Michigan, and by midyear was employing over 200 people in the new operation. Shortly after its plant opened Respondent contacted the Tri- Trades and asked for a meeting "to discuss Tri-labor agreements as they related to modular homes."' The meeting took place around the first of April. At that time the possibility of recognition of Tn-Trades as bargaining agent of the employees was discussed. From that point Respondent and Tri-Trades entered into a series of negotiation sessions which culminated on June 15, 1971, in agreement on terms of a collective-bargaining contract for the employees subject to the Tri-Trades securing authoriza- tion cards from a majority of the employees. Thereupon, as stated in the Tri-Trades brief, Tn Trades arranged for a union meeting to be held in Holt, Michigan, some 15 miles away from the employ- er's facility. This meeting was to be held on June 16, 1971 for submission of the tentative agreement to the employees. During the course of the day of June 16, 1971, application for membership cards were attached to the timecards of the employees by a representative of the employer2 and a notice was posted by a union representative3 above the timeclock informing en employees of the meeting that evening. Sometime during the course of the afternoon of June 16, 1971, a representative of the Tri Trades called the plant superintendent and asked him to announce that the meeting would take place over the public address system? The announcement was made by Plant Manager Ward Phelps. At the meeting Tri-Trades informed the employees of the 1 At the time they were hired several employees were told by Respondent that there would be a union in the plant in a short time and at least one was told it would be the Tn-Trades 2 A secretary came down from the office and gave William Fischer, the Janitor, a batch of over 200 Tri-Trades authorization cards with instructions to attach them to the individual timecards While he was doing this some employees asked him what they were for. Fischer told Plant Supenntendent Ray Holzman about these inquiries Holzman told Fischer that a notice would be posted concerning the cards and not to worry about it. spondent and proceeded to read the contract in anticipation of ratification by the employees. Several questions and considerable opposition were voiced by the employees to various features of the contract. There was some indication on the part of the union representatives that an attempt would be made to negotiate further with Respondent. Finally, one of the union representatives, in the words of one of the General Counsel's witnesses (corroborated in substance by several others), told the employees that "the (Tn-Trades) was the union we were going to have and we had 2 weeks to settle this thing and to ratify a contract .. . or else there would be no union at all at the ... plant, and ... there were 1400 people willing to take our jobs for $2.50 an hour."5 Ultimately, a secret ballot "yes" or "no" vote was taken (which some of the employees did not understand as a vote for ratification or rejection of the contract) resulting in a predominantly "yes" vote-about 74 to 9. Thereafter, most of the employees present signed and turned in the authorization cards that had been appended to their timecards. The following day, June 17, Tri-Trades wrote Respon- dent, submitting the authorization cards to Respondent,6 and requested formal recognition. By letter dated June 22 Respondent granted recognition and on June 23 executed the previously agreed-on contract. Joseph Salvaggio was hired by Respondent on May 31, 1971, and was discharged on June 18. Prior to his discharge he "talked to numerous employees at the plant about getting a union . . . in particular . . . about . . . UAW," but the consensus was that UAW would not be interested because Respondent did not make automobiles. The day after the Tri-Trades meeting Salvaggio got in touch with the UAW and received a large batch of UAW authoriza- tion cards which on the following morning (June 18) prior to work he started to pass out at the gate to the incoming employees. He had gotten a few signed when Plant Superintendent Ray Holzman approached and demanded to know who he was. Salvaggio told Holzman that it was none of his business because he had "never met the man ... had no indication who he was." Holzman then asked if Salvaggio worked for Respondent. Learning that Salvaggio was an employee Holzman entered the gate. Salvaggio continued to get cards signed and when it was time to start the shift started to enter the gate but was stopped by Holzman and told that he was discharged. When he returned to the plant on June 22 to pick up his check Salvaggio was called into Holzman's office where Holzman and his foreman recited to Salvaggio his "shortcomings as a worker for Wickes Corporation." The very next day Salvaggio was offered his job back and was asked to come in and talk about it. At the plant it was explained to him by another official that "perhaps Ray 3 Actually the notice was posted by one of Respondent's foremen In this notice the employees were instructed to turn the cards in to the office ° He told the employees "There will be a union meeting tonight . This is for your benefit, so be there." 5 I do not credit a slightly different version adduced in Tn-Trades' testimony as to what was said on this occasion. 6 At this time there were 228 employees . Received in evidence were 126 authorization cards dated June 17 or before, 8 with no date, and 8 dated June 18. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Holzman had been a little rash in dismissing" him and that Respondent thought it only right that he be given another chance because he did not have "that many ... discipli- nary actions against" him. At this interview Salvaggio stated that when he returned he "was going to try to organize the UAW . . ." and was assured he could do anything he wanted to do in that regard.? Not only was 'Salvaggio reinstated but he was also paid for the time he had missed because of the discharge. Nonetheless, Salvaggio was not at first assigned to his former job of layout work but was put on a sanding operation, "the worst job in the plant." Within a few days, however, he was returned to his previous layout work. On the first day of his reassignment he was given a written reprimand for an error "delaying the job 3 man hours" which took him about 20 minutes to correct and this at a time when his work was "so far ahead of the rest of the plant in terms of production" that in effect he had nothing to do. On another occasion (July 8) Salvaggio needed some left- handed doors for the work he was then on and asked one of the employees if he knew where there were any left- handed doors. At this point Foreman Crane walked up to him and said, "I don't want you to be talking about union business on company time." Salvaggio denied the charge and Crane said, "don't tell me" that. Later in the day Salvaggio received a disciplinary note signed by Foreman Crane and Plant Superintendent Holzman stating "I have on more . . . than . . one occasion observed Joe promoting UAW on company time both in and out of my area. His activities have caused much dissension among other employees and I have warned him once verbally." After his return to work Salvaggio continued to solicit support for the UAW during his free time and was observed doing so by various of Respondent's officials. Along this line right after the 4th of July after he had punched out Salvaggio individually notified everyone punching out that there was going to be a UAW meeting. Two days after the UAW meeting Respondent posted at various places in the plant the following no-solicitation rule and handed one personally to Salvaggio with the statement "this is especially for you:" ATTENTION No solicitation for any reason will be permitted on company property during working time. Violation of this rule will be cause for disciplinary action. IV. CONCLUDING FINDINGS A. The Alleged Section 8(a)(1) Violation Foreman Crane's threat to discharge an employee if he did not take off a UAW button is clearly a violation of Section 8(a)(1) of the Act. As for the no-solicitation rule, if the remark-to Salvaggio that it was "especially" for him as he was personally handed one doesn't show that it was 7 The sincerity of this concession is brought in question by the fact that not long after this, around the first of July, foreman Crane was overheard by one of the employees telling another one to take off a UAW button he was wearing "or he'd be fired " 8 Indeed, the results of the football pools were customarily posted on the promulgated solely to curtail activity on behalf of the UAW, the disparity of its enforcement does. Thus the record shows that the solicitation and administration of check pools and football pools was universally practiced in the plants after the posting of the notice with the full knowledge of the supervisors. Moreover, after the notice was posted Respondent allowed the Tn-Trades to solicit, during working time, checkoff authorizations from the employees. I find that the posting of the no-solicitation rule violated Section 8(a)(I) of the Act. B. The Alleged Section 8(a)(2) Violation In my opinion the legal assistance rendered by Respon- dent to Tri-Trades is so clear as to need no discussion. And this would be true even if Tn-Trades' conduct at the company sponsored meeting had not in and of itself coercively motivated the card signing there by the employees.9 In this connection Respondent maintains that the facts here are "exactly analogous" to those in Coamo Knitting Mills, Inc., 150 NLRB 579, and supply a complete defense to the 8(a)(2) charge. In that case on July 17 the employer permitted the Union (after announcing the meeting over the public address system) to meet with and address the employees and pass out authorization cards. Thereupon a majority authorized the Union to represent them. On July 19 a collective-bargaining agreement was reached between the Union and the Employer. At this time no other union was in the picture. The facts here are clearly distinguisha- ble. Here Respondent itself distributed the authorization cards in effect. Here the agreement was reached before the employees designated the Union as their bargaining agent. Moreover, Respondent's recognition and contract agree- ment here were not in a one-union context as in Coamo, since, as shown by Salvaggio's discharge, Respondent was well aware of the UAW's interest. C. The Alleged Section 8(a)(3) Violation As clear cut a violation as Crane's threat of discharge for wearing a UAW button is Respondent's discharge of Salvaggio . That he was reinstated almost immediately and made whole for the wages he lost serves only to accentuate Respondent's guilt and in any event does not obviate the discriminatory nature of the discharge and its effect on the employees. Besides the foregoing discrimination by Respondent I also find as alleged in the complaint that the two written reprimands as described above were also discriminatorily directed against Salvaggio because of his activity on behalf of the UAW and, like the discharge, violated Section 8(a)(3) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, bulletin board 9 1 refer specifically to the statement by the Tn-Trades that threatened loss of employment and that there would be no other union if the employees did not ratify the contract and in effect join the Union WICKES CORPORATION 863 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 of commerce. practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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- 12 The Remedy Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In this connection I shall recommend that Respondent withdraw recognition from the organizations making up the Tn-Trades and cease giving effect to its current contract with that organization, unless and until Tri-Trades be certified by the Board as bargaining representative of the Respondent's employ- ees.10 Nothing in this recommended order, however, shall be deemed to require Respondent to vary or abandon any of the substantive features provided for in said agreement or to prejudice their assertion by the employees. I shall also recommend that Respondent reimburse all employees for all the initiation fees and dues deducted from their pay on behalf of the Tri-Trades. Also, I shall recommend that Respondent remove the reprimands in Salvaggio's person- nel file discussed herein.ii I shall also recommend the usual posting of the usual notices. Upon the basis of the foregoing findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW I International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW); United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No 1191: United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local No. 388; and International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 665, are all labor organizations within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, as found herein, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By assisting and contributing support to the three last named Unions above known as Tri-Trades, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 4. By discriminating against its employees, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor 10 Seamprufe, Inc, 82 NLRB 892, Bowman Transportation, Inc, 113 NLRB 786, 787 11 Since Salvaggio was reinstated with full backpay the customary remedy in this respect is not needed 11 In the event no exceptions are filed as provided by Section 102 46 of ORDER Respondent, Wickes Corporation, Wickes Manufactured Housing Division, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing its employ- ees in the exercise of their Section 7 rights by threatening discharge for exercising such rights or by promulgating or enforcing an illegal no-solicitation rule. (b) Discouraging membership of its employees in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, or any other labor organization by discriminatorily discharging or reprimanding them or in any other manner discriminating against them in regard to their hire, tenure of employment, or any term or condition of employment. (c) Illegally contributing support to or assistance to United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 1191; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local Union No. 388; and International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 665; and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local Union No. 388 (herein known as the Tri-Trades), or any other labor organization of its employees. (d) Recognizing said organization, or any successor thereto, as the representative of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organization shall have been certified by the National Labor Relations Board as such representative. (e) Recognizing or giving effect to its current collective- bargaining agreement with said labor organization, or to any modification, extension, supplement or renewal there- of, or to any other contract, agreement, or understanding entered into with said labor organization relating to grievances, disputes, wages, or rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the National Labor Relations Board (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization , to bargain collectively through representa- tives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining or other the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, 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 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from the Tri- Trades as described above, or any successor thereto, as the representative of any of its employees for the purposes of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment unless and until said organization shall have been certified by the National Labor Relations Board as the representative of the employees concerned. (b) Reimburse employees for all initiation fees and dues deducted from their pay on behalf of the Tri-Trades. (c) Remove the reprimands dated June 29 and July 8, 1971, from the personnel file of Joseph Salvaggio. (d) 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 the amount of initiation fees and dues to be paid back to the employees under the terms of this recommended Order. (e) Post at its plant at Mason, Michigan, the attached notice marked "Appendix." 13 Copies of said notice on forms provided by the Regional Director for Region 7, shall, after being duly signed by an authorized representa- tive of Respondent, be posted by Respondent 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. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps. the Respondent has taken to comply herewith.i4 IT IS FURTHER RECOMMENDED that, unless on or before 20 days from the receipt of this Decision the Respondent notify said Regional Director, in writing, that it will comply with the foregoing recommended Order, the National Labor Relations Board issue an order requiring it to take such action. 13 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 " 14 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 7 in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local Union No. 388, and International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 665 (known as the Tri- Trades), as the representatives of our employees for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, unless and until such organizations shall have been certified by the National Labor Relations Board as such representa- tives. WE WILL cease performing or giving effect to our current collective-bargaining agreement with the afore- said labor organizations , or to any modification, extension, supplement or renewal thereof or to any other contract, agreement, or understanding entered into with said organizations relating to grievances, disputes, wages, or rates of pay, hours of employment, or other conditions of employment, unless and until said organizations shall have been certified by the National Labor Relations Board. WE WILL reimburse all employees for all initiation fees and dues deducted from their pay on behalf of the aforesaid labor organizations. WE WILL remove the reprimands dated June 29 and July 8, 1971, from the personnel file of Joseph Salvaggio. WE WILL NOT discourage membership in Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, or any other labor organization , by discriminatorily discharg- ing or reprimanding our employees or in any other manner discriminating against them in regard to their hire, tenure of employment, or any term or condition of employment. WE WILL NOT threaten discharge or other reprisals for the wearing of the button of the UAW or any other union. WE WILL NOT promulgate or enforce an illegal no- solicitation rule. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All of our employees are free to belong , or not to belong, to International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW). APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL withdraw and withhold all recognition of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 1191; United WICKES CORPORATION, WICKES MANUFACTURED HOUSING DIVISION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. WICKES CORPORATION 865 This notice must remain posted for 60 consecutive days directed to the Board's Office, 500 Book Building, 1249 from the date of posting and must not be altered, defaced, Washington Boulevard, Detroit, Michigan 48226, Tele- or covered by any other material. Any questions concern- phone 313-226-3200. ing this notice or compliance with its provisions may be