State Radiator Co.

STATE RADIATOR COMPANY David E. Weber, d/b/a State Radiator Company and International Association of Machinists and Aero- space Workers, District Lodge No. 94, AFL-CIO. Cases 21-CA-10923 and 21-CA-11116 March 12, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On November 16, 1972, Administrative Law Judge David E. Davis issued the attached Decision in this proceeding. Thereafter, Respondent David E. Web- er, d/b/a State Radiator Company, filed exceptions and a supporting brief, and counsel for General Counsel filed a brief in answer to the exceptions thereto. 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 and to adopt his recommended Order, as modified herein. We find merit in General Counsel's exception that, though the Administrative Law Judge recited the pertinent testimony of employees Burke, Alexander, Able, and Ball, he failed to make a specific finding that these conversations constituted coercive interro- gation in violation of Section 8(a)(1). Amended Conclusions of Law 1. Add to Conclusion of Law 3 immediately after the word "Respondent," the following: "in violation of Section 8(a)(5) and (1) of the Act." 2. Add to Conclusion of Law 4 the following: "(e) Interrogation of employees concerning their union activities a4d sympathies." 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 Administrative Law Judge and hereby orders that Respondent, David E. Weber, d/b/a State Radiator Company, Los Angeles, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. DECISION STATEMENT OF THE CASE 335 DAVID E. DAVIS, Administrative Law Judge: This consolidated proceeding was heard by me on September 20, 1972, at Los Angeles, California, on a consolidated complaint issued on August 25, 1972,1 by the Regional Director for Region 21 of the National Labor Relations Board, herein called the Board, pursuant to charges filed by International Association of Machinists & Aerospace Workers District Lodge No. 94, AFL-CIO, herein called IAM or Charging Party, on May 4,2 in Case 21-CA-10923, and on July 17,3 in Case 21-CA-11116. The charges, as amended, alleged that State Radiator Company, Respon- dent herein, had engaged in unfair labor practices since March by refusing to bargain in violation of Section 8(a) (1) and (5) and had, on or about April 23, discharged Lee Burke, an employee, in violation of Section 8(a)(1) and (3). Respondent's answer admitted certain allegations of the consolidated complaint, but denied it had engaged in any unfair labor practices. Upon the entire record,4 my observation of the witness- es, and upon careful consideration of General Counsel's brief and Respondent Counsel's oral argument, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY David E. Weber, Respondent herein, is, and has been at all times material herein, the sole proprietor of the firm doing business under the name State Radiator Company. Respondent is engaged in the business of repairing automobile and truck radiators in Los Angeles, California. During the course and conduct of its operations , Respon- dent performs services valued in excess of $50,000 for customers located in the State of California, each of which purchases and receives products directly from points located outside the State of California valued in excess of $50,000 annually, or causes products valued in excess of $50,000 annually to be delivered directly to customers located outside the State of California. As the foregoing allegations of the consolidated complaint were not denied by Respondent's answer, I find them to be admitted. Accordingly, it is found that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The consolidated complaint alleges, Respondent's an- swer does not deny, and I find that International Association of Machinists and Aerospace Workers, Dis- I Hereafter all dates will refer to the calendar year 1972 unless otherwise specified. 2 Served on Respondent on May 5. 3 Served on Respondent on August 18, amended on August 24, and served on Respondent on August 25. 4 The record stands corrected in certain particulars. 202 NLRB No. 32 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trict Lodge No. 94, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement Respondent and the IAM have been parties to a series of collective-bargaining agreements for approximately 10 years. The latest of these agreements5 was effective April 1, 1969, and expired by its terms on April 1. Shortly prior to the expiration date and for a period of time thereafter, the evidence shows that Respondent engaged in certain conduct described below, which tended to undermine the IAM's majority status and violated Section 8 (a)(1) of the Act by interfering with employees' rights under Section 7 of the Act. These acts in turn were advanced by Respondent as an excuse for its refusal to enter into negotiations for a new collective-bargaining agreement in violation of Section 8(a)(5) of the Act. In addition, the complaint alleged and evidence was introduced, as described below, to show that Respondent discharged one employee in violation of Section 8(a)(3) of the Act. Respondent did not call any witnesses to refute the evidence of the General Counsel but relied upon oral argument contending that the General Counsel had failed to prove that Respondent had engaged in any unfair labor practices . As I find below, contrary to Respondent's contentions, that the General Counsel has in fact proved a strong prima facie case, it is further found that the General Counsel has indeed sustained the burden of proof required by law to prove the allegations of the complaint. B. Alleged 8(a)(1), Interference, Restraint, and Coercion Marvin Wedell testified that he was employed by Respondent from April 11 to July 25; that about 1 week after he commenced his employment, Foreman Jack McCrary told him that they were circulating a petition to get the Union out of the shop as the boss could not compete with other shops that were not union. McCrary then said that if he wanted to sign the petition, Sam Luna, another employee, would be coming around with a petition in a few days .6 A few days later, Luna approached Wedell and said he had been selected by the boss to pass around the petition to get the Union out and to sign it "if you want an election to get the Union out." Wedell signed the petition.? I find that Luna on this occasion was Respon- dent's agent thereby Respondent further violated Section 8(a)(1) of the Act. On cross-examination, Wedell testified that prior to his conversation with McCrary, referred to above, he had heard from other employees that the plant was a union shop. Lee Burke, an employee from July 1969 until his discharge on April 13, testified that he was classified as a general radiator mechanic; that Weber approached him in the work area a few days before April 1 and said that the Company was negotiating with the Union for a new contract; and that if the Union "stayed in," he would have to close the shop. Weber added that the Union was not going to do anything for the men and that the money paid to the Union by the men and himself could be added to their paychecks. Burke replied that the Union had been doing a "pretty good job for us," and that he (Burke) was not in favor of getting rid of the Union because it meant security. Burke also told Weber that he would not sign anything to get rid of the Union. The conversation concluded with both Weber and Burke becoming angry. A little later, while Burke was on a break having coffee with three other employees, Weber approached and asked the group8 if they had made up their minds about the Union. Burke said he still felt that they needed a union. Weber, asked by Ball what kind of benefits he would grant, said he couldn't give them anything in writing but would check around to see what other shops were doing. Burke continued to assert he was in favor of the Union and wouldn't vote the Union out. On cross-examination, Burke testified that after the incidents described above, Weber mentioned to him that he had been absent several times. Clarence Alexander testified that he was in his fourth year of employment with Respondent; that he was a radiator mechanic, and was a member of IAM; that he was the shop steward; that on March 21, Weber called him into his office and handed him a papers with figures purporting to show how much the employees were paying the Union and how much Weber was paying the Union by way of contributions; that Weber mentioned that a new contract was coming up; that he was asking the employees to get out of the Union because the money being paid to the Union could be put into the employees' pockets; that Weber said that if the employees remained in the Union, Weber could not compete with other radiator shops and would have to sell the business or shut the doors; that later that evening Weber gave him another paper 10 asking him to pass it around and have the men sign it. Alexander took the paper, showed it to some of the men, and then put it into a drawer of his desk. Continuing his testimonial account, Alexander said that later he notified Crago of the incidents; that about a week later Weber again called him into his office and showed him another paper" with some figures on it; that Weber on this occasion said that the figures represented the total Weber had to pay out a year; that about a week later Weber called a shop meeting of the men;12 that Weber said at this meeting that he was asking if they would sign to get out of the Union because he could distribute to the men the money he was paying to the Union; that they could also have in their own pockets the money they were paying to the Union; that if they remained in the Union, he could not compete with other shops and would have to sell the business; that if there was a strike, he would sell the business and that he presently had opportunities to sell the business. Alexander also 5G.CExh9 6 Foreman Crary's conduct is clearly violative of Sec. 8(a)(1) as it interferes with an employee's rights guaranteed by Sec. 7 of the Act It is so found 7GCExh2. 8 The group consisted of Burke, Clarence Alexander, Robert Able, and Ernest Ball 9 G. C. Exh. 6. 10 G. C Exh 7 11GCExh.8. 12 Able and Burke were absent STATE RADIATOR COMPANY 337 testified that a few days later, Alexander overheard Weber talking with Able and Burke, repeating what he had said at the meeting of employees that was held when they were absent; that Weber also asked if all the men were in the Union and what they decided to do about it; that Able at this point walked away and left Burke talking to Weber. On cross-examination, Alexander testified that Weber had called him in to talk about the expiration of the union contract because Weber thought Alexander had influence with the men. Robert Able, a helper in the employ of Respondent since April 1971, testified that Sam Luna contacted him about signing a petition to oust the Union; that Alexander told him that Weber had given him such a petition; that Alexander had shown him the paper but did not ask him to sign it; that he was present at the employee meeting when Burke was present; that Weber on that occasion asked them to drop the Union; that Weber said that if this was done it would benefit them by putting more money in their pockets; that Burke said he was for the Union and that Ball had asked Weber how the employees would benefit. Ernie Ball testified that he has been in the employ of Respondent as a helper for the past 2 1/2 years; that Alexander told him about the petition' Weber gave him; and that he was present at both meetings of employees when Weber attempted to persuade the employees to drop out of the Union; Ball's testimony concerning the various statements made by Weber at these meetings corroborated the testimony of Able, Alexander, and Burke. The evidence recited above is uncontradicted in the record and the General Counsel's witnesses impressed me as being worthy of credit. I, therefore, find that Respon- dent by coercing employees, by promising benefits to employees, by threatening employees with reprisals, and by attempting to dissuade employees from continuing their support of the Union, interfered with the employees' rights guaranteed to them in Section 7 of the Act and thereby engaged in conduct violative of Section 8(a)(1) of the Act. C. Alleged 8(a)(3) Allegation; The Discharge of Burke The record discloses that Burke was most articulate in voicing his open opposition to Weber's attempts to persuade the employees to withdraw from the Union. Burke, a journeyman mechanic, had been in Respondent's employ for almost 3 years. There is no evidence to demonstrate that Burke's work was deficient or that his absences were more numerous than those of other employees or that his absences were not excused. Never- theless, Burke was discharged on April 13 without any prior notification. McCrary told Burke at the close of business that day that he was being laid off because work was slow. However, there was no evidence to show that work, in fact, was any slower than it had been for several months previously. When Burke filed for unemployment insurance benefits, he was denied benefits because his employer, Respondent herein, had reported that Burke had walked off the job. The evidence adduced at this hearing shows that Burke did not walk off the job at anytime and that he left early on occasion with the permission of management because there was no work. In addition to the above reasons for Burke's discharge, Weber told Crago that Burke was continually being garnished and that he had paid off on Burke's behalf a number of times so that he would not take Burke back after he had walked off the job. The shifting defenses and reasons for Burke's discharge hardly constitute a rebuttal of the credited evidence on the record. The evidence shows that Weber and Burke had argued several times concerning the employees' continued adher- ence to the Union and on one occasion at least the argument was quite heated . It was also shown that Respondent's unlawful conduct , described above, occurred within a period of 1 month prior to Burke's discharge and that Burke's arguments with Weber also occurred within the same period. Under all the circumstances, I conclude that Burke's strong, vociferous, and adamant adherence to the Union was the motivating factor in his discharge on April 13. Accordingly, I find that Burke was discharged in violation of Section 8(a)(1) and (3) of the Act. D. The 8(a)(5) Allegation; Refusal To Bargain Thomas Crago, business representative of the IAM, testified that he wrote a letter to Respondent about the latter part of January, notifying him, as was customary 60 days before the expiration of a contract, that the IAM was opening the contract for negotiation of modifications. After meeting with the employees sometime in February, Crago forwarded a list of proposed modifications to Weber and stating that he was prepared to negotiate a new contract whenever Weber was available. About I week later, not having heard from Weber, Crago called Weber and reached an agreement with him to meet on March 28. Weber stated business reasons prevented an earlier meeting. On the morning of March 28, Crago called Weber to verify his appointment and was told by Weber that urgent business made him unavailable to meet that day. As Crago was scheduled to be out of town until April 9, he told Weber to call his office and leave word when they could meet. Finding no messages for him when he returned, Crago tried to reach Weber. Later that evening, one of the employees, Craig Alexander, called Crago and told him that Weber had given him a petition for decertification to pass among the employees. A few days later, Crago heard that an employee, Lee Burke, had been discharged out of seniority allegedly for lack of work. Crago called Weber but was unable to reach him and talked with a foreman referred to as "Jack." Jack told Crago that Burke had walked off the job and was terminated. Crago told Jack to have Weber call him as "we have a contract to settle." Hearing nothing further from Weber, Crago consulted his attorney who wrote a letter to Weber stating that if he did not hear from him on or before April 21, charges would be filed with the National Labor Relations Board. About 4:30 p.m. on April 21, Weber called Crago and arranged a meeting for April 25. When Crago arrived at Weber's office on April 25, Weber said that he understood the men had filed a petition to get out of the Union and that they did not want the Union; therefore, "there was no sense in talking about an agreement." The foregoing sequence of events, relating to the subject 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter of this section, amply demonstrates that Respon- dent predicated his refusal to bargain on his own misconduct. Moreover, in contradiction to his statement to Crago, the evidence shows that the employees did not, in fact, file a petition for decertification despite Weber's threats and, promises.13 The circumstances compel the rather obvious conclusion that Respondent arbitrarily, unilaterally, and without legal reason attempted to sever his relationship with the Union and gave an unjustifiable excuse for his refusal to enter into negotiations. It seems clear that Respondent, by the foregoing conduct, violated Section 8(a)(5) and (1) of the Act. E. Respondent's Oral Argument Initially, counsel for Respondent argues that the General Counsel has failed to establish by a preponderance of the evidence that unfair labor practices have been committed. Contrary to this contention, I find that there is an abundance of evidence recorded without contradiction to support findings that Respondent unlawfully engaged in a course of conduct for objects proscribed by the Act. In enumerating various allegations of the complaint and attempting to absolve Respondent, counsel, in his argu- ment, failed to give proper weight to uncontradicted testimony of witnesses whom I find to be credible and thereby has failed to draw the proper legal conclusion. In these circumstances, I find that counsel's oral argument does not warrant the conclusions urged by him. Upon the basis of the foregoing findings of fact and 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, commencing March 28, 1972, unlawful- ly refused to recognize and bargain with the Union as the collective-bargaining representative of its employees in the appropriate bargaining unit, described as follows: All radiator production and maintenance employees and apprentices; excluding all office and clerical employees, guards, professional employees, and super- visors as defined in the Act. 4. Respondent violated Section 8(a)(1) of the Act by engaging in the following conduct: (a) Threatening employees with curtailment of work and work opportunities unless they withdrew their support from the Union; (b) Circulating or causing to be circulated petitions among employees renouncing union membership. (c) Soliciting employees to withdraw from the Union. (d) Promising monetary and other benefits to the employees if they withdrew their support of the Union. 5. By discharging Lee Burke because of his member- ship and adherence to the Union, Respondent unlawfully discriminated against Burke and thereby violated Section 8(a)(3) of the Act. 6. Violations alleged in the complaint and not specifi- cally found herein are hereby dismissed. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it be required to take certain affirmative action designed to effectuate the policies of the Act. As Respondent unlawfully discriminated against Lee Burke by discharging him on April 13, 1972, it will be recommended that Respondent offer Burke immediate and full reinstatement to his former position without prejudice to his seniority and other rights and privileges or, if this job no longer exists, to a substantially equivalent position, and to make him whole for any loss of pay that he may have suffered by reason of Respondent's discrimination against him, by paying to him a sum of money equal to that he normally would have earned as wages from April 13, 1972, to the date of Respondent's offer of reinstatement, less his net earnings during that period. The amount of backpay due him shall be computed according to Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, with interest on backpay computed in the manner set forth in Isis Plumbing & Heating Company, 138 NLRB 716. Payroll and other records in possession of Respondent are to be made available to the Board or its agent to assist in such computation. It will also be recommended that Respondent bargain collectively with the Union. In view of the nature of the unfair labor practices which I have found to have been committed, I shall further recommend that Respondent cease and desist from in any manner interfering with its employees' rights guaranteed under Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that there be issued the following: 14 ORDER Respondent, David E. Weber, d/b/a State Radiator Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Associa- tion of Machinists and Aerospace Workers , District Lodge No. 94, AFL-CIO, or any organization of its employees by discharging any of its employees because of their member- ship in, sympathy for, or activity in behalf of, the above- named Union or any other labor organization, or by discriminating against its employees in any like or related 13 Even if such a petition had been filed during the 60-day insulation conclusions, and recommended Order herein shall, as provided in Sec period, prior to April 1, Respondent's duty to bargain in good faith would 102 48 of the Rules and Regulations, be adopted by the Board and become not be terminated. its findings, conclusions , and Order, and all objections thereto shall be 14 In the event no exceptions are filed as provided by Sec. 102 46 of the deemed waived for all purposes. Rules and Regulations of the National Labor Relations Board, the findings, STATE RADIATOR COMPANY manner in regard to hire or tenure of employment or any term or condition of employment. (b) Refusing to bargain with the above-named Union as the exclusive representative of its employees in the unit found above to be appropriate for the purposes of collective bargaining. (c) Coercively interrogating its employees concerning their union activities, sympathies, or desires. (d) Causing to be circulated or circulating petitions among its employees for withdrawal from the Union. (e) Threatening employees with economic reprisals by closing or selling the business and thereby curtailing work available or work opportunities. (f) Promising benefits to its employees in order to dissuade them from continued union adherence or mem- bership. (g) Soliciting employees to withdraw their support of the Union. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Lee Burke immediate and full reinstatement to his former position without prejudice to his seniority, and other rights and privileges or, if, his job no longer exists, to a substantially equivalent position, and make him whole in the manner set forth in the Section of this Decision entitled "The Remedy." (b) Upon request, bargain collectively in good faith with the above-named Union as the exclusive bargaining representative of its employees in the unit found appropri- ate herein with respect to pay, wages, hours of employment and other conditions of employment and, if an understand- ing is reached, embody such understanding in a signed agreement. (c) 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 records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Los Angeles, California, copies of the attached notice marked "Appen- dix." 15 Copies of the notice on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 15 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 339 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or activity on behalf of International Association of Machinists and Aerospace Workers, District Lodge No. 94, AFL-CIO, or any other labor organization, by dis- charging any of our employees or by discriminating against them in any like or related manner in regard to hire or tenure of employment or any term or condition of employment, except as authorized in Section 8(aX3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT coercively interrogate our employees concerning their union activities, sympathies, and desires. WE WILL NOT circulate nor cause to be circulated petitions among our employees to withdraw from the above-named Union or any other labor organization. WE WILL NOT threaten our employees with economic reprisals, loss of employment or loss of opportunities for employment because of their continued support of the above-named Union. WE WILL NOT promise benefits to employees in order to dissuade them from continued union adherence and membership. WE WILL NOT solicit our employees to withdraw their support of the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL offer to Lee Burke immediate and full reinstatement to his former job without prejudice to his seniority or other rights and privileges, or if this job no longer exists, to a substantially equivalent job, and we will make him whole for any loss of pay he may have suffered as a result of the discrimination against him. WE WILL, upon request, bargain collectively in good faith with the above-named Union as the exclusive bargaining representative of our employees in the unit found appropriate by the National Labor Relations Board for the purposes of collective bargaining with respect to pay, wages, hours of employment, and other terms or conditions of employment and, if an under- standing is reached, embody it in a signed agreement. The bargaining unit is: All radiator production and maintenance em- ployees and apprentices; excluding all office and clerical employees, guards, professional employ- ees, and supervisors as defined in the Act. DAVID E. WEBER, D/B/A STATE RADIATOR COMPANY (Employer) 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dated By or covered by any other material. Any questions concern- (Representative) (Title) ing this notice or compliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, This is an official notice and must not be defaced by 849 South Broadway, Los Angeles , California 90014, anyone. Telephone 213-688-5229. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced,