Auto Crane Co.

780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Auto Crane Company and International Union, Unit- ed Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW).' Cases 16- CA-5365 and 16-RM-475 DECISION STATEMENT OF THE CASE November 7, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On June 25, 1974, Administrative Law Judge Paul E. Weil issued the attached Decision 2 in this pro- ceeding. Thereafter, Respondent Employer filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in answer to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified herein and hereby orders that Respondent Employer, Auto Crane Company, Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as modified below. Delete paragraph 1(b) and substitute the follow- ing: "(b) Granting unilateral wage increases and the thrift plan to its employees without first bargaining with the Union about them." IT IS FURTHER ORDERED that the election held on September 12, 1973, be, and it hereby is, set aside, and that the petition filed in Case 16-RM-1175 be, and it hereby is, dismissed. 1 The name of the Charging Party Union is corrected to read as above 2 The Administrative Law Judge, in the second paragraph of his Decision, inadvertently referred to the date of the election as "December 12, 1973," and in the seventh paragraph of sec III to the tally of ballots as "16 to 14 " These are hereby corrected to read "September 12, 1973," and "17 to 15." respectively In the "Conclusions of Law," par 2 is corrected to state the complete name of the Charging Party Union, that is, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and in par 3, the Administrative Law Judge's inadvertent failure to exclude plant clerical employees is hereby corrected PAUL E. WEIL, Administrative Law Judge: On November 30, 1973, International Union of United Automobile, Aerospace and Agricultural Implement Workers of Amen- ca, hereinafter called the Union, filed with the Regional Director for Region 16 of the National Labor Relations Board, hereinafter called the Board, a charge alleging that Auto Crane Company, hereinafter called Respondent, vio- lated Section 8(a)(1) and (5) of the Act by unilaterally changing wages and benefits of employees without consul- tation or bargaining with the Union as the certified collec- tive-bargainmg representative of certain of its employees. On April 16, 1974, the said Regional Director on behalf of the Board's General Counsel issued a complaint and notice of hearing alleging that Respondent had engaged in vari- ous acts of misconduct in violation of Section 8(a)(5) and (1) of the Act. By its duly filed answer Respondent denied the commission of any unfair labor practices. On July 31, 1973, the Respondent filed a petition with the Regional Director (16-RM-475) and on August 27, 1973, the Regional Director, the Union, and Respondent entered into a stipulation for certification upon consent election pursuant to which an election was conducted on December 12, 1973, in a unit consisting of all production and maintenance employees of Respondent at its Tulsa, Oklahoma, plant including truckdrivers, leadmen, shipping and receiving employees, and warehouse employees, but excluding all office clerical employees, plant clerical em- ployees, timekeepers, guards, watchmen, service manager, and supervisors as defined in the Act. Of 33 eligible voters, 15 cast their votes for the Union and 17 against the Union, there were no challenges. On September 19 the petitioner filed objections alleging that by a letter from the Employer to all unit employees dated September 6, 1973, the Employer informed the employees of certain changes it had unilaterally made in their wages and working conditions prior thereto and placed the onus on the Union for its failure to make other changes favor- able to the employee. After investigation of the objections, the Regional Director concluded that they lacked merit for various reasons. The Union filed exceptions to the Region- al Director's decision, the Regional Director reviewed the Union's exceptions as a motion for reconsideration, re- quested the Board to remand the proceeding to him, and issued a supplemental report reaffirming his recommenda- tion that the Board overrule the objections. The Union on February 14, 1974, filed exceptions to the Regional Director's Supplemental Report on Objections and on April 5, filed a motion to remand the proceeding to the Regional Director. The Board, stating that the issues in the case were so intertwined with the issues in Case 16- CA-5365 that the matter should be remanded for consoli- dation for hearing and decision, so ordered and the Re- gional Director thereafter on behalf of the General Coun- sel consolidated the two cases for hearing. The consolidat- 214 NLRB No. 106 AUTO CRANE COMPANY ed matter came on for hearing before me on May 21, 1974, at Tulsa, Oklahoma. All parties were present, represented by counsel, and had an opportunity to call and examine witnesses, adduce relevant and material evidence, argue or- ally on the record, and file briefs. Oral argument was pre- sented by counsel for the Union, briefs have been received from the General Counsel and Respondent. On the entire record in this case and in consideration of the oral argu- ment and briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is an Oklahoma corporation manufacturing cranes in its plant in Tulsa, Oklahoma. Respondent annu- ally sells and distributes its products valued in excess of $50,000 in interstate commerce directly to States of the United States other than the State of Oklahoma. Respon- dent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On April 20, 1972, the Union was certified as the collec- tive-bargaining representative of the employees of Respon- dent in a production and maintenance unit. On October 1, 1972, the Union and the Employer signed a 1-year con- tract. In the last week in May, 1973, Bob J. White, Respondent's personnel director called Glenn B. Beck, the Union's business agent, and told him that the Company would like to have agreement from the Union to grant a wage increase by June 1. Beck stated that he was going out of town on vacation and would be in touch with White when he got back. On June 7 White and Beck by telephone set up a meeting for June 12 and on June 8 White caused a document to be hand delivered to Beck setting forth ques- tions and answers on a so-called "theft plan" to be under- written by the Aetna Fund and confirming a meeting at Respondent's premises at 10:15 a.m., Tuesday, June 12. On June 12 Beck and a committee of employees met with Mr. C. C. Simmons, the president of Respondent, Bob White the personnel representative, and the representative of Aet- na Life Insurance Company. During this meeting the Aet- na representative explained the thrift plan and Simmons advised the union representatives that Respondent was going to implement the thrift plan and a 6-percent wage increase retroactive to June 1. Beck told Simmons that both of these were negotiable items and that the Union was willing to enter into negotiations on them but suggested that the negotiations be tied in with negotiations which would be forthcoming shortly under the terms of the con- tract. Simmons response was that the items were not nego- 781 Liable and that the Respondent was implementing them immediately. With that the meeting broke up. On June 11, Respondent prepared a letter to all of the employees in the unit informing the employees that they had arranged a thrift plan and that a 6-percent wage in- crease was granted effective June 1. Although Respondent presented testimony that the letter, which was written on June 11, was not mailed until after the meeting of June 12, Paul Green, a unit employee, testified that he was present at the meeting and on the same day received the Company's letter on his return home from work. I find it unnecessary to resolve this issue in light of my findings below. The next paycheck received by employees, on June 20, contained the 6-percent wage raise announced in the June 11 letter. On July 25 the Union received a letter dated July 23 from Respondent stating as a proposal the 6-percent wage increase and the thrift plan. The following day, Beck on behalf of the Union gave notice to the Respondent by letter in compliance with the requirements of the current contract of the Union's desire to modify and/or amend the current agreement. No an- swer was ever received to that document, however, on July 31, the Respondent filed its petition and admittedly made no further attempt to bargain with the Union. The Union agreed to an election on the Employer's peti- tion to be conducted on September 12, 1973. On Septem- ber 6, the Employer addressed a letter to all employees, the entire contents of which are material to the decision herein and are set forth below. Dear Fellow Employee: As you know from reading the notices on the Compa- ny bulletin boards, there will be a new election Wed- nesday, September 12, 1973, held by the National La- bor Relations Board. This election is to determine if the shop employees want to continue being repre- sented by a union or to act as their own representative directly to the Company. At the present, an employee must join the union with- in 30 days. He has to pay a $20.00 initiation fee, plus two times his hourly rate for monthly dues. This amounts to approximately $75.00 to $100.00 per year; and in this day and time, could certainly be put to better use by employees and their families. Whether you belong to a union or not, the manage- ment of the Company is interested in the welfare of its employees and their families. Auto Crane Company wants its employees to be paid proper wages and have good benefit programs. We also strive to maintain good employee relations and want employees to feel they are treated fairly. In good faith, the Company has shown this by improv- ing the Insurance Program in April of this year, when we converted from Blue Cross-Blue Shield to Con- necticut General. The amount of life insurance was 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increased, a disability income insurance was added and hospital and medical benefits increased with no increase in cost to you. In May of 1973 , the Company made a proposal to the Union Representative and to your three local commit- teemen for a 6% General Wage Increase , and a new Thrift Savings Plan, where the Company would con- tribute .50¢ for every $ 1.00 the employee would con- tribute to the plan. Due to the cost of living increases and the need to keep good skilled employees , the Company placed in effect a 6% General Wage Increase and a Thrift Sav- ings Plan on June 1, 1973, for all employees of Auto Crane Company . Ninety-five percent (95%) of the non-bargaining unit employees are participating in the Thrift Plan. None of the employees covered by the bargaining unit have been allowed to actively partici- pate because the Union has not allowed you to vote on this proposal. We have been waiting for three months for them to let you vote on this and give us an answer so you could begin participation in this Thrift Plan. The Union does not make jobs for you. The Company makes your job by generating new business and keep- ing old business . The Union can not keep your job for you. This depends entirely on the Company's contin- ued growth. You, the employees, are important, because your pro- duction efforts and quality workmanship help keep our customers happy with Auto Crane products. The Company can not and will not make any prom- ises as this is against the law, however , we can state the fact that when Auto Crane Company grows, the employ- ees benefit, with or without a Union. We encourage you to be at work on September 12 to exercise your right to vote on this very important is- sue. Very truly yours, C. C. Simmons, President Six days later the Union lost the election 16 to 14. On September 30, the contract expired and on October 1, Re- spondent implemented the Thrift Plan although timely ob- jections to the election had been filed. B. Discussion and Conclusions The Respondent contends that the wage increase was necessitated by the fact that it had fallen behind other em- ployers in its employment area in wages and was unable to hold or obtain competent help. Respondent produced testi- mony that it had heard rumors that a wage freeze was imminent and would in fact take place on June 1.1 For this reason, sometime in the last week in May, White after con- ducting a "survey" in the area, determined that a 6-percent raise was necessary and attempted to call Beck to set up a meeting. When the meeting took place on June 12, howev- er, the rumored wage freeze had not taken place and in- deed on June 13 a freeze was imposed that specifically excluded wages. Nevertheless the Respondent went ahead with its unilateral imposition of the wage increase which, according to White's testimony, Respondent could have blocked any time up until June 20. Respondent made no effort to negotiate with the Union about the wage increase. On the contrary with the Union's negotiating team present on June 12, Simmons announced that the wage increase would be given retroactively and stated categorically that it was not negotiable. Respondent makes much of the fact that Beck was not available to negotiate between some time in the last week of May and June 12, but it was not until June 12 that he informed the Union that the 6-percent wage increase had been settled upon by Respondent and denied the Union an opportunity to negotiate. Nothing is more basic in labor relations than the negoti- ation of the basic wage structure. Respondent's excuse that it did not have time to negotiate on wages is simply not borne out by the facts. If Respondent was indeed suffering from its inability to hire employees in its area marked, there is no reason why it could not have negotiated with the Union on June 12 or subsequently thereto. Respondent offered no evidence supporting testimony that it could not compete for employees on the open market, either as to its loss of employees, if any, or what attempts it had taken to secure more employees, if it had taken any. By the time the wage raise was imposed the rumors must necessarily have fallen of their own weight since, according to White, the rumor was that a wage freeze would take place on June 1. The duty to bargain is not satisfied by the announce- ment to the Union that the Employer has unilaterally de- cided to grant a specific wage increase and the Employer's refusal to negotiate about it. To warrant such a highhanded action on the part of Respondent, a great deal more eco- nomic necessity than was shown in this case must exist. I find that in the granting of the wage increase under these circumstances Respondent violated Section 8(a)(5) of the Act. With the granting of the wage increase Respondent is- sued its letter of June 11 to the employees announcing not only the unilateral grant of the wage increase but the unila- teral grant of the thrift plan. The thrift plan provides that employees may turn back a certain portion of their wages which will be matched on a one-to-two basis by the Em- ployer and deposited with the Aetna Fund where presum- ably it will draw interest and grow, ultimately vesting in the employees. This is definitely an emolument of employment and a negotiable subject, yet the thrift plan, too, was uni- 1 1 note that on April 30 Congress passed a I-year extension of the Eco- nomic Stabilization Act which was promptly signed by the President and that in the weeks immediately following the chairman of the council of economic advisors and the director of the cost-of-living council stated in public appearances that there would be no immediate or drastic changes in Phase III AUTO CRANE COMPANY laterally adopted by Respondent, announced to the Union, which was given the meeting of June 12 to ask questions and then imposed. White explained on the witness stand that the thrift plan was not negotiable because if any changes were negotiated in it, it would have to be resubmit- ted to IRS for approval. The plan unilaterally adopted by Respondent had already been approved by IRS for use with other employers, according to White's testimony. This of course assumes that negotiation would have resulted in changes of the thrift plan or that the changed thrift plan, if such were adopted, would not be one that had already been approved by IRS. In addition, however, White testi- fied on cross-examination that the thrift plan was not im- plemented until October 1, after the union contract expired and, asked why he waited that long, answered "because it was not causing us a problem. There was no need to imple- ment it, in other words, as there was to get people and pay the wages due to the freeze . . . there was no concern about the time. We could have delayed the thrift plan." It is clear from this answer that the implementation of the thrift plan without bargaining and indeed after refusing to bargain was compelled by no immediate economic necessi- ty. This even more clearly than the wage freeze was a unila- teral grant of benefits, a refusal to negotiate and bargain in denigration of the Union's rights in that regard and in vio- lation of Section 8(a)(5) of the Act. It could be noted that the letter of June 11 which Respondent contends was sent out in order to give the employees information which they would be better able to discuss in a union meeting made no mention of the Union but gave the impression that this was a unilateral gift of the Employer. The letter ended with the following statements: The enclosed question and answer sheet covers some of the points of the thrift plan. Each employee will be given the opportunity to discuss his questions concern- ing this plan on June 13 and 14. Please talk this over with your wife or others con- cerned and be ready to take advantage of the plan as much as possible. I find that by the announcement of the wage increase and the thrift plan to the employees, Respondent violated Section 8(a)(5) of the Act. There is no explanation for Respondent's letter of July 23, 1973, which contains in proposal form that which Re- spondent had already announced to the employees would be granted. With this letter it would appear that Respon- dent was trying to gloss over its refusal to bargain with the Union by presenting the unilateral changes as a contract proposal. When the union reacted to the "proposal" with its letter opening the contract, Respondent's only reaction was to file an RM petition on July 31. No evidence was adduced that Respondent in fact had any reason to believe that its employees no longer wanted the Union or that a question concerning representation existed. However the Union apparently fell neatly into the trap and signed the consent-election agreement, upon which was printed, among other provisions, a stipulation that a question con- cerning representation existed. The Respondent with its fil- 783 ing of the petition admittedly adopted the attitude that it had no duty to bargain until after the Union had again proven its majority. This was the only hurdle remaining in what appears to me to be a carefully planned course of action on the part of Respondent. On Thursday, September 6, 1973, Respondent issued a letter in which it not only took all the credit for the benefits that the employees had received as a result of its unilateral action in granting the wage increase but blamed the Union because it had not allowed the employees to vote on the thrift plan and accordingly the imposition of the thrift plan had been delayed for the bargaining unit employees. As the General Counsel points out, the Union was faced with a "Hobson's choice" with the first announcement of these benfits, either holding up the raises or agreeing to less than the employees thought the raise should be, in either case losing the goodwill of the employees. With the September 6 letter, however, Respondent did the final damage to turn the employees against the Union. Its statement with regard to the failure of the Union to allow the employees to vote assumed facts that did not exist; e.g., that there had been negotiations, that there had been an exploration of the thrift plan, and that a vote of any kind was necessitated in order to enable the employees to participate in the plan, the last directly contrary to the Respondent's announce- ment of June 11 to the employees. The employees would not have received the letter until they got home from work on Friday night and the Union would probably not hear of the letter until September 10, the next following workday. Between September 10 and the election on September 12 there was hardly time for the Union to meet this propagan- da, especially in view of the explanations necessitated by the assumption in Respondent's letter of facts not shown to have existed. The result of Respondent's letter should not have surprised anyone. The Union lost the election by two votes. I find that the entire course of conduct of Respon- dent culminating in the September 6 letter, which falls within the critical period for objections, warrants sustain- ing the Union's objections to the election and setting it aside. I find further that by its unilateral actions through- out the period, June through October 1, Respondent failed and refused to bargain with the Union with which it had a duty to bargain thereby effectively dissipating the Union's majority representation. Under all the circumstances here- in, I shall recommend a bargaining order. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow thereof Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Auto Crane Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Agricultur- al Implement Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Re- spondent at its Tulsa, Oklahoma, plant including truckdri- vers, leadmen, shipping and receiving employees and ware- house employees, but excluding all office clerical employ- ees, timekeepers, guards, watchmen, service manager and supervisors as defined in the Act constitutes a unit appro- priate for collective bargaining within the meaning of the Act. 4. The Union is, and at all times relevant hereto has been, the exclusive collective-bargaining representative of all the employees in the unit spelled out above. 5. By unilaterally granting and announcing to the em- ployees the grant of wage increases and the thrift plan while refusing to bargain with the Union thereupon, Re- spondent violated its duty to bargain in good faith with the Union as the collective-bargaining representative of its em- ployees in the unit spelled out above in violation of Section 8(a)(5) of the Act. 6. By the activity spelled out above, Respondent inter- fered with, coerced, and restrained its employees in the exercise of their rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 8. By its letter to the employees dated September 6, 1973, Respondent interfered with the conduct of the elec- tion conducted on September 12, 1973, and destroyed the laboratory conditions necessary to a fair election. THE REMEDY It having been found that Respondent engaged in an unlawful refusal to bargain with the Union in good faith, I shall recommend that it be ordered to do so upon request and to cease and desist from such unfair labor practices in the future. Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act I hereby issue the following recommended. ORDER' Auto Crane Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, as the exclu- sive representative of all employees in the bargaining unit. (b) Granting unilateral wage increase to its employees without first bargaining with the Union about them. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form, loin, or assist any labor organization, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of all employees in the appropriate unit described above, with respect to rates of pay, wages, hours of employment and other terms and conditions of employment and if an understanding is reached embody such understanding in a signed agree- ment. (b) Post at its place of business in Tulsa, Oklahoma, copies of the attached notice marked "Appendix." i Copies of said notice, on forms provided by the Regional Director for Region 16, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director in writing, within 20 days from the receipt of this Decision what steps it has taken to comply herewith. Z In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec 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 3In 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to pre- sent their evidence, an Administrative Law Judge of the National Labor Relations Board has found that we violat- ed the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection; and AUTO CRANE COMPANY 785 To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT refuse to bargain collectively with International Union, United Auto- mobile, Aerospace and Agricultural Implement Work- ers of America, as the exclusive collective-bargaining representative of our employees in the unit appropri- ate for collective bargaining. WE WILL NOT grant wage increases or other benefits to our employees in the unit without first bargaining collectively with the above-named Union. WE WILL bargain collectively upon request, with this Union as the exclusive representative of all our em- ployees in the bargaining unit with respect to rates of pay, wages, hours of employment and other terms and conditions of employment, and if an understanding is reached embody such understanding in a signed agreement. AUTO CRANE COMPANY