Marland One-Way Clutch Co., Inc.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marland One-Way Clutch Co., Inc. and Tool & Die Makers Lodge No. 113, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 13-CA-10823 November 14, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On July 17, 1972, Administrative Law Judge Jerry B. Stone' issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief answering the General Counsel's exceptions and supporting the Decision. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith. We agree with the Administrative Law Judge's dismissal of the 8(a)(5) and derivative (1) allegations of the complaint. Unlike the Administrative Law Judge, however, we are persuaded by the evidence that Respondent's conduct in conversations with employee John Russell independently violated Sec- tion 8(a)(1) of the Act. By way of background, this case is the sequel to Marland One-Way Clutch Co., Inc.,2 which involved the same parties. In that proceeding, the Board found, inter alia, that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally withholding a third quarter installment of the 1970 Christmas bonus and by failing to furnish the Union with certain information relevant and necessary to intelli- gent bargaining over bonus payments. The Board ordered Respondent to pay the installment withheld, furnish relevant information, and bargain with the Union concerning the fourth and any subsequent bonus installments. The record in the present case reveals that sometime in 1970 the Respondent's employees engaged in a strike. On or about July 15, 1971, employee John Russell had a conversation with Joseph A. Marland, Respondent's president, in which Russell sought to obtain a loan from the Company's profit-sharing fund. Marland explained he could not lend Russell any money from the fund, but offered and made a $500.00 personal loan to him. Before Russell left the office , Marland stated that ". . . if a certain person hadn't started the union over there that maybe [Russell ] wouldn't be short of funds . . . ." Marland then suggested that Russell start a letter to employees and "go around to some of the fellow's houses and talk to them about the amount of profit sharing this man had had, that it would be a nice idea if we were to ask him to share his profit sharing with the rest of us due to the fact that he was the cause of us loosing [sic] that money." During the same conversation Marland showed Russell figures which indicated "Stan" had $7,400 in profit sharing at the time of the discussion .3 At the same time he showed Russell a figure of $27,000 payroll loss attributable to the strike. The Administrative Law Judge, in dismissing the 8(a)(1) allegations based on the above transactions concluded that Marland's remarks were nothing more than a contention that as a result of unioniza- tion, the employees went on strike and lost wages. We disagree. In our view, Respondent's statement about the "certain person" allegedly starting the Union cou- pled with the name "Stan" clearly creates the impression of surveillance by suggesting Respondent was observing the union activities of its employees and had found out who had started such activity. It further blamed an employee because of his union adherence and activities for the financial losses suffered by the other employees. Accordingly, we find that such conduct violated Section 8(a)(1) of the Act. The record also reveals that Russell was at the Marland home on the evening of August 9, 1971, and the subject of the strike was brought up. After some discussion Marland stated to Russell, "I'll promise you the men will never get their bonus, and I'll sell the place before I settle." The Administrative Judge viewed Marland's statement as being no more than an argument that he would not settle the case and pay the bonus as a result of settlement . He further concluded that this was a statement of the legal position Respondent was taking in the litigation and not violative of Section 8(a)(1). We disagree. Marland's statement was made in the same conversation when the subject of unionism was raised and in a situation where no legal position was called for. It was made to an employee with no legal background who would not be able to distinguish a legal position from a threat of plant closure as a tactic Respondent would employ in opposition to its 1 The title of "Trial Examiner" was changed to "Administrative Law 3 At the hearing Stanley Terrutty testified that he was the union steward Judge" effective August 19, 1972. and organizer and that he was the only person the shop named Stanley. 2 192 NLRB No. 76. 200 NLRB No. 48 MARLAND ONE-WAY CLUTCH CO. 317 employees' union activities. Under such circum- stances, Respondent's statement could only be interpreted as a threat of plant closure which is violative of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By suggesting that it knew who the union organizer was, and blaming him and union activities for losses which the employees suffered, Respondent has created the impression of surveillance in viola- tion of Section 8(a)(1) of the Act. 4. By telling employees they would never receive a bonus and that it would close its plant before it would settle, Respondent has threatened employees with plant closure in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged and is engaging in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Marland One-Way Clutch Co., Inc., La Grange, Illinois, its officers, agents, successors, and assigns: 1. Cease and desist from: (a) Creating the impression of surveillance by suggesting to employees it knows the identity of the union organizer, and blaming him and union activities for losses the employees have incurred. (b) Telling employees they would never receive a bonus and that it would sell its plant. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Post at its plant in La Grange, Illinois, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT create the impression that our employees' union activities are under surveillance, and that such union activities are responsible for losses which the employees have suffered. WE WILL NOT threaten our employees with plant closure. MARLAND ONE-WAY CLUTCH 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 compli- ance with its provisions may be directed to the Board's Office, Room 881, Everett McKinley Dirk- sen Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on June 8, 1972, at Chicago, Illinois. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The charge was filed on August 17, 1971. The complaint was issued on May 15, 1972. The issues concern whether (1) Respondent has violated Section 8(a)(5) and (1) of the Act by (a) refusing to furnish certain information relating to bonuses and (2) by unilaterally deciding to withhold and withholding of bonuses in 1970, 1971, and 1972. (The referred to bonuses may be described as a "Christmas bonus" payable in quarterly installments. The referred to installments are the fourth quarter bonus installment in 1970, the four installments in 1971, and the first installment in 1972.) All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the Respon- dent, the Charging Party, and the General Counsel and have been considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The facts are based on the pleadings and admissions therein. Marland One-Way Clutch Co., Inc., the Respon- dent, is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Illinois. At all times material herein, Respondent has maintained its principal place of business at Washington and Elm Streets, La Grange, Illinois, where it is, and has been at all times material herein, engaged in the manufacture of mechanical clutches. The Respondent, annually, in the course and conduct of its business operation, manufactured, sold, and distributed its completed products valued in excess of $50,000 from its La Grange, Illinois, location directly to States of the United States other than the State of Illinois. Based on the foregoing and as conceded by Respondent, it is concluded and found that the Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The facts, findings, and conclusions herein are based on the pleadings and admissions therein. Tool & Die Makers Lodge No. 113, International Association of Machinists and Aerospace Workers, AFL-CIO, the Union , is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Supervisory Status The facts, findings, and conclusions are based on the pleadings and admissions therein. At all times material herein the following named persons occupied positions set opposite their respective names, and have been and are now agents of the Respondent, acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act and/or agents within the meaning of Section 2(13) of the Act: Joseph A. Marland-President Keith J. Aldrich-Vice President L. Lee Burks, Jr.-Labor Relations Representative R. G. Bowdish-Purchasing Agent E. M. Alisauskis-Agent B. Appropriate Bargaining Unit The facts, findings, and conclusions herein are based on the pleadings and admissions therein. All production and maintenance employees at the Respondent's LaGrange, Illinois, plant, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. C. The Majority Status of the Union; the Certified Status of the Union On or about September 3, 1970, a majority of the employees of Respondent in the unit described above, by a secret ballot election conducted under the supervision of the Regional Director for Region 13 of the Board, designated and selected the Union as their representative for the purpose of collective bargaining with the Respon- dent, and on or about September 14, 1970, the Acting Regional Director certified the Union as the exclusive collective-bargaining representative of the employees in said unit. D. Marland Clutch Co., Inc., 192 NLRB No. 76 This proceeding, involving Case 13-CA-10823, is the second case concerning alleged Respondent conduct violative of Section 8(a)(5) and (1) of the Act in connection with its handling of its Christmas bonuses and the four installments thereof. The first case involved therein was Case 13-CA-10161. The procedural facts relating to Case 13-CA-10161 are as follows: ( 1) The charge was filed on October 20, 1970; (2) the complaint was issued on December 22, 1970; (3) the unfair labor practice hearing was held on February 18, 1971; (4) the Trial Examiner's Decision issued on April 27, 1971; and (5) the Board's decision issued on August 12, 1971, and is reported as Marland Clutch Co., Inc., 192 NLRB No. 76. The Trial Examiner's Decision and recommended Order (issued on April27, 1971, and adopted in toto by the Board on August 12, 1971) found in effect that (1) Respondent's Christmas bonus and installments thereof constituted wages within the meaning of the Act; (2) Respondent had violated Section 8(a)(5) and (1) of the Act by the unilateral withholding of the 1970 third quarter installment of the Christmas bonus; and (3) Respondent had violated Section 8(a)(5) and (1) of the Act by failing to supply information which was relevant and reasonably necessary to the Union's intelligent bargaining concerning the bonus. The Trial Examiner's recommended Order, adopted by the Board, required (1) that Respondent make employees whole for loss suffered by the unilateral withholding of the 1970 third quarter installment of the Christmas bonus; (2) that Respondent bargain collectively, upon request, con- cerning the payment of the fourth quarterly installment of MARLAND ONE-WAY CLUTCH CO. 319 the 1970 Christmas bonus and any bonus installments, to employees within the appropriate unit represented by the Union; (3) that Respondent supply any information requested by the Union which is relevant and reasonably needed by the Union in order for it to bargain intelligently with Respondent concerning the Christmas bonus and any bonus. In addition to the foregoing, it should be noted that the Trial Examiner's Decision in Case 13-CA-10161 reflected the facts concerning the withholding of the fourth quarter installment of the 1970 Christmas bonus. E. The Instant Case The procedural facts relating to the instant case (Case 13-CA-10823) may be summarized as follows: (1) The charge in the instant case was filed on August 17, 1971. (2) The Regional Director for Region 13 issued a partial dismissal of said charge on October 29, 1971. Said dismissal in effect dismissed the refusal-to-bargain (8(a)(5)) allegation but did not "constitute dismissal of independent violations of Section 8(a)(1)." (3) The complaint in the instant case issued on May 15, 1972. (4) The Regional Director for Region 13 issued a letter, on May 17, 1972, withdrawing the dismissal of that portion of the charge which alleged that the Employer failed to bargain in good faith. F. The 8(a)(1) Issues Case 13-CA-10823 The General Counsel alleges and Respondent denies that Respondent, by its supervisor and agent, Joseph A. Marland, on or about July 15, 1971, blamed an employee, because of his union adherence and activities, for certain financial losses suffered by its employees. The General Counsel's evidence to the above alleged incident was adduced through the testimony of John Russell. Russell's credited testimony to this event was to the effect that he had a conversation with President Joseph Marland on July 15, 1971. What occurred is revealed by the following credited excerpts of Russell's testimony. Q. Now, will you tell us what Mr. Marland said to you, if anything, and what you said to Mr. Marland, if anything. A. Well, I had been off work for awhile and I had called up Mr. Aldrich and requested to borrow money from the profit sharing, and at first I thought it would be all right. And then Mr. Aldrich called me up and said Mr. Marland would like to see me in his office on the 15th of July at 11:00 o'clock. MR. KENT: Would you mind speaking up, sir, if you will? THE Wi rxnss: Mr. Marland would like to see me in his office at 11:00 o'clock on July 15th. So I went over there and he explained to me why he couldn't loan money from the profit sharing and we discussed some other subjects, and then he told me he could loan me $500 in a personal check, no strings attached, literally no strings attached. There were no strings attached to it. So I accepted the $500 in a personal check from him. Q. (By Mr. Coleman) Then what did he say, if anything? A. We discussed a few other little problems for awhile and then right before I was ready to leave he explained to me that if a certain person hadn't started the union over there, that maybe I wouldn't be short of funds or other people, you know the situation wouldn't be as bad there as they were. And then he said to me that he thought if I were to start a letter, go around to some of the fellow's houses and talk to them about the amount of profit sharing that this man had, that it would be a nice idea if we were to ask him to share his profit sharing with the rest of us due to the fact that he was the cause of us loosing [sic ] that money. Russell credibly testified to receiving a slip of paper from President Marland during the conversation. The slip of paper had the following notations thereon. 27,000-Payroll loss 7,400-Stan Profit Share Russell testified concerning the slip of paper as is revealed by the following credited excerpts from his testimony. Q. (By Mr. Coleman) Now, Mr. Russell, I notice on General Counsel's Exhibit 2 the second line there reads "7,400." It looks like it reads "Stan, profit sharing." Would you explain what that means? A. Well, the second line, 7,400, evidently is the amount, or Stanley had in his profit sharing at the time the discussion took place. Q. Do you know who Stanley is? A. Mr. Stanley Terrutty. He is a worker in the grinding department at Marland Clutch Company. Q. Do you know the top line-refer to the top line of 27,000 payroll loss. Did Mr. Marland explain to you what that was? A. That would have been the wages either in bonuses-he didn't explain exactly in what form these wages were. Some form of wages that were loss [sic] by the men due to the strikes or problems that had been incurred since the union came in. Considering the foregoing, I am persuaded that the remarks by President Marland did not interfere with, restrain, or coerce employees in the exercise of Section 7 rights. It follows that such conduct does not constitute conduct violative of Section 8(a)(1) of the Act. The record in this case indicates that the employees went on strike in 1970. Marland's remarks are no more than a contention that as a result of unionization employees went on strike and lost wages as a result. Under such circumstances, the referred to remarks do not constitute conduct violative of Section 8(a)(1) of the Act. The General Counsel alleges and the Respondent denies that Respondent, by its supervisor and agent, Joseph A. Marland on or about August 9, 1971, told its employees that the men would not receive their bonus payments and that he would sell the plant before he would settle. General Counsel's witness Russell testified to a conversa- 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion with President Marland on August 9, 1971.On August 9, 1971, President Marland, his wife, John Russell, and his wife attended a retreat at Ayles Ford.' Later the Marlands and the Russells went to the Russells' home for refresh- ments. Russell testified concerning a conversation Presi- dent Marland had with him. Such conversation, according to Russell, was as is revealed by the following excerpts of Russell's testimony. Q. Is that when you had this conversation? A. Yes, we had a conversation at the table. At one time during the conversation he said to me, "I'll promise you the men will never get their bonus and I'll sell the place before I settle." President Marland testified to the effect that he did not make the statement attributed to him by Russell. Mar- land's version concerning the incident is as revealed by the following excerpts from his testimony. When we returned to their home to take them back to their home in our car, why, Mrs. Russell invited us in for some light refreshment. I think it was tea and cookies. We then had some conversation. First of all, concerning their youngsters who were either at the preschool age or just about the beginning of school age. And then the question was brought up about the strike and our discussion followed on the points of difference on the strike. Somewhat my disappointment in the continuity of relations that were not as harmonious as they had been before. Negotiations had started to organize the union shop. And in that conversation I mentioned the fact that many of the conglomerates -there were a total at that time of 12 of the conglomerate organizations had approached us in writing or in person or in phone calls asking us if we would want to get rid of all these headaches of management and let them as a conglomerate manage- Q. (By Mr. Kent) Do you recall what Mr. Russell testified to with respect to the payment of the bonus? A. Yes. And that is a complete, diametrically opposed statement to what my thought had been or my purpose in making a statement would be, because I could not in good conscience state that the company would never pay a bonus. That would be something I could not bring myself or allow myself to think or state. I hoped, of course, there would be no pressure to force us to pay a bonus, but to speak definitely on this point that I would never pay a bonus, that was never entered my thoughts or thinking process. Q. Are you denying that you made the statement attributed to you? A. Totally and absolutely denying that, yes. I The retreat is of a religious nature. 2 1 found Russell to appear to be a very truthful witness. I credit his testimony to the effect that bonuses were discussed. 3 See New Enterprize Stone and Lime Co., Inc. 176 NLRB No. 71. See also Canton Sign Co., 186 NLRB No. 39. Because of the disposition of the 8(a)(5) issues in this case on other grounds, I do not pass upon the 10(b) I am persuaded that Marland did speak to Russell about the bonue2 and did indicate that he would sell his business before he would settle. Marland's testimony does not set forth what he said about the bonus but merely denies that he made the statement attributed to him by Russell. I am not persuaded that the facts as to what exactly was said has been presented by Russell. The reference to the fact that Marland would sell the place before he would settle indicates that the question of bonus was discussed in relationship to the pending case (13-CA-10161) and a settlement of the issues arising from such case. Under such circumstances, I do not find the evidence to be reliable to establish that Marland was more than arguing that he would not settle the case and pay the bonus as a result of settlement. In effect it was a statement of the legal position he was taking in litigation. Such conduct is not violative of Section 8(a)(1) of the Act. I so conclude and find. G. The 8(a)(5) Issues The General Counsel seeks to litigate in this case whether Respondent has violated Section 8(a)(5) and (1) of the Act (1) by withholding various installments of its Christmas bonus in 1970, 1971, and 1972 and (2) by failing to furnish relevant information necessary for intelligent bargaining concerning the Christmas bonus. The General Counsel, Charging Party, and Respondent are in agreement that the Board's Decision and Order in Case 13-CA-10823 (1) required collective bargaining by Respondent, upon request, as to all the bonus installments involved herein, and (2) required the furnishing of relevant information by Respondent, upon request, as to the bonuses. The General Counsel seeks, however, an order directing Respondent to pay the unit employees for all bonus payments withheld that have accrued up to the decision and recommended Order in this case. It is clear that General Counsel could have litigated the question of the unlawfulness of the withholding of the fourth quarter 1970 bonus payment in Case 13-CA-10161, and could have sought essentially the remedy he now seeks. What the General Counsel in real effect is attempting to do is to obtain a modification or clarification of the Order in Case 13-CA-10161. I am persuaded that as a matter of sound judicial administration of the Act, this complaint proceeding should not be utilized as a vehicle to in effect modify the Board's Order in Case 13-CA-10161 and to determine compliance issues in such proceeding. Accordingly, I recommend that the complaint allegations of conduct violative of Section 8(a)(5) and (1) of the Act be dismissed.3 issues relating to the litigability of Respondent's conduct as regards the fourth quarterly bonus installment in 1970. Nor do I pass upon the 10(b) problem presented by the Regional Director's partial dismissal of the charges on October 29, 1971, and the subsequent withdrawal of such partial dismissal on May 17, 1972. See Koppers Company Inc., 163 NLRB 517. MARLAND ONE-WAY CLUTCH CO. 321 Upon the basis of the above findings of fact, conclusions, ORDER and upon the entire record, I issue the following recom- mended:4 The complaint in this proceeding is dismissed in its _.^-- entirety. In the event no exceptions are filed as provided by Sec . 102.46 of the provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Rules and Regulations of the National Labor Relations Board , the findings, Board and become its findings , conclusions, and Order, and all objections conclusions, recommendations, and recommended Order herein shall, as thereto shall be deemed waived for all purposes.