Schlen Body and Equipment Co., Inc.

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schlen Body and Equipment Co., Inc. and United Steelworkers of America, AFL-CIO-CLC. Case 14-CA-7785 January 9, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On September 18, 1974, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and supporting briefs, the Charging Party filed cross-exceptions and a supporting brief, and the General Counsel filed exceptions limited to the Administrative Law Judge's failure to make refer- ence in his conclusions of law, recommended Order, posting requirements , and notice to Plaza Truck Service as comprising a single employing enterprise with Respondent. The Respondent also filed an answering brief. 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. ORDER Steelworkers of America, AFL-CIO-CLC, referred to herein as the Union, on February 4, 1974, pursuant to which complaint issued on April 22, 1974, alleging that Schien Body and Equipment Co., Inc., referred to herein as the Respondent, had engaged in unfair labor practices in violation of Section 8(aX5) and (1) of the National Labor Relations Act, as amended . On May 29, 1974, a hearing was held in St. Louis, Missouri. Upon the basis of the entire record herein , including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, is engaged in the manufacture and installation of truck bodies and equip- ment, and the servicing of trucks, at its facility in Carlinville, Illinois. In the course and conduct of its business Respondent annually purchases and receives at its Carlinville, Illinois, facility goods valued in excess of $50,000 directly from points located outside the State of Illinois. I find, on the basis of the foregoing admitted facts, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent's answer admits, and I find that United Steelworkers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 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 the Respondent, Schien Body and Equipment Co., Inc., Carlinville, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 While we agree with the Administrative Law Judge's conclusion that the Respondent did not violate Sec . 11(ax5) and (1) of the Act by unilaterally transferring bargaining unit work to Plaza Truck Service , we do so on the basis of all the facts and circumstances of this case, not solely because the employees suffered no detriment to their employment . We find it unnecessary to consider or pass upon the Administrative Law Judge's statement that the Respondent and Plaza Truck Service are a single employing enterprise. This conclusion is not relevent to the unfair labor practices found or the remedy ordered herein . Member Penello finds that the cases cited by the Administrative Law Judge in relying solely on lack of detriment to the employees are distinguishable and inapposite. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: This proceeding arose out of a charge filed by United III. THE UNFAIR LABOR PRACTICES A. The Refusal to Bargain On March 22, 1973, a majority of Respondent's employees in a unit of its production and maintenance employees, including warehouse and parts department employees, by a secret ballot election , conducted under the supervision of the Regional Director for Region 14 of the National Labor Relations Board in Case 14-CA-7256, designated and selected the Union as their exclusive representative for purposes of collective bargaining with Respondent. Following the election, Respondent filed timely objec- tions to conduct affecting the results of the election. On April 24, 1973, following his investigation, the Regional Director issued his Report on Objections and Recommen- dations, recommending the overruling of Respondent's objections and the certification of the Union. Upon consideration of Respondent's exceptions to the Regional Director's report, the Board, on August 1, 1973, directed a hearing. Thereafter, on October 17, 1973, following a hearing, the Hearing Officer issued a report recommending that Respondent's objections be overruled. On January 15, 216 NLRB No. 15 SCHIEN BODY AND EQUIPMENT CO., INC. 111 1974, the Board issued its Supplemental Decision and Certification of Representative, overruling Respondent's objections and certifying the Union as the collective- bargaining representative of Respondent's production and maintenance employees, including warehouse and parts department employees . On January 28, 1974, Respondent filed with the Board alternative motions, one for reconsid- eration of the January 15 decision, the other for remand of the representation proceeding to the Regional Director for investigation of the alleged preelection offer by the Union to waive initiation fees, in light of the Supreme Court's decision in N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270 (1973). Thereafter, on April 12, 1974, the Board issued an order denying the motion for reconsideration on the ground that it raised "nothing not previously considered," and also denying the motion to remand upon finding it to be an untimely additional objection to the election. Since January 28, 1974, the Union has requested that Respondent bargain with it in accordance with the Board's certification. On and since January 30, Respondent has refused to bargain and in its brief to the Administrative Law Judge admits its refusal. However, both at the hearing and in its brief, Respondent has sought to defend its refusal to bargain by challenging the underlying certifica- tion. In neither instance has Respondent offered any newly discovered or previously unavailable evidence to support its timely filed objections. Nor has Respondent offered any special circumstance which might warrant reconsideration of any of the Board's determinations in the underlying representation proceeding. In short, Respondent has not raised any issue properly litigable in this proceeding respecting the validity of the certification.' I find, there- fore, that Respondent was, and continues to be, obligated to recognize and bargain with the Union which has been duly certified and that by refusing to do so Respondent has violated and is violating, Section 8(aX5) and (1) of the Act. B. The Transfer of Bargaining Unit Work2 In December 1973, John Schien and his wife Norma, who each own 35 percent of Respondent's stock, opened Plaza Truck Service, a truck safety and repair facility which they have since operated as a partnership. Plaza Truck Service is located approximately 400 yards down and across the road from Respondent's facility. John Schien stdffed Plaza Truck Service with a manager, Keith Medford, who is responsible for its day-to-day operations, two welder-mechanics, and a bookkeeper. John Schien sets the pay rates for Plaza Truck Service's employees, and together with his wife has set the pay rates for Respon- dent's employees. John and Norma Schien have set the layoff policies for both enterprises, and direct Respon- dent's day-to-day operations. It appears that in December 1973, the Schiens trans- ferred two front-end machines, a frame-straightener and a wheel-balancer from Respondent to Plaza Truck Service. Since the transfer, Respondent's employees have not performed front-end alignments , axle-straightening or wheel-balancing, because of the loss of these machines. Norma Schien credibly testified that the operation of the Plaza Truck Service has not reduced regular working hours, or overtime, nor caused any layoff or loss of pay at Respondent's facility.3 Respondent afforded the Union no notice of the equipment transfer and has never offered to bargain with the Union about the transfer or its impact upon the bargaining unit. Arguing that Respondent and Plaza Truck Service constitute a single entity, General Counsel contends that by unilaterally transferring bargaining unit work to Plaza Truck Service at a time when Respondent had a duty to bargain with the Union, Respondent violated Section 8(a)(5) and (1) of the Act. I do not agree. The Board has consistently refused to find transfers of unit work violative of Section 8(aX5) of the Act "where the employer's allegedly unlawful unilateral action resulted in no `significant detriment' to employees in the appropriate unit." Westinghouse Electric Corp., 153 NLRB 443, 446 (1965). Accord: Union Carbide Corporation, 178 NLRB 504, 508 (1964); American Oil Company, 151 NLRB 421, 422 (1965). In the instant case, there has been no showing of any "significant detriment" to unit employees. On the contrary, the credited evidence shows that no loss of overtime, layoff, or other reduction of bargaining unit working hours has resulted from the transfer of work to Plaza Truck Service. Thus, notwithstanding that the Schiens' dominant ownership or financial control, and overall control of the business and labor policy of the functionally related entities render Respondent and Plaza a single employing enterprise (N.LRB. v. Jordan Bus Company, 380 F.2d 219, 221, (C.A. 10, 1967)), and that the unilateral conduct occurred after the Union had won the representation election and Respondent's duty to bargain collectively had arisen (Laney & Duke Storage Warehouse 151 NLRB 248, 267 (1965), enfd. in pertinent part 369 F.2d 869 (C.A. 5, 1966)), there is no showing that Respondent's conduct iesulted in any significant detriment to the unit employees. Accordingly, I shall recommend that General Counsel's allegations regarding Respondent's unilateral conduct be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Respondent's activities as set forth in section III A, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship 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. I See Pittsburgh Plate Glass Co. v. N.LR.B. 313 U.S. 146,158, 161-162 (1941); Coronet-Western, a Division of Coronet Industries, Inc., 212 NLRB 524 (1974). 2 Except as discussed in fn . 3 below, no credibility issues are presented. 8 Union Representative Becker testified on redirect examination that Respondent's employees suffered a loss of "overtime or additional time" because of Plaza's opening. However, upon recross-examination Becker conceded that his testimony on redirect was an assumption and that no employee had ever complained to him about losing overtime . In light of Becker's subsequent concessions, I have not credited his testimony that there was a loss of overtime. Moreover , Norma Schien impressed me as an honest witness in firm possession of the facts . Further, the testimony of Respondent's employees Talkington and Hunt that the removal of the equipment had no impact upon their working hours tends to corroborate her testimony. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(aX5) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, I shall recommend that the initial period of certification be construed as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1%2); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1%2), enfd. 328 F.2d 600, 601 (C.A. 5, 1964), cert. denied 379 U.S. 817 ; Burnett Construction Company, 149 NLRB 1419, 1421 ( 1964), enfd. 350 F.2d 57, 60 (C.A. 10, 1%5). Upon the basis of the foregoing facts and the record, I make the following: CONCLUSIONS OF LAW 1. Schien Body and Equipment Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees includ- ing warehouse and parts department employees employed at Respondent's Carlinville, Illinois, facility, but excluding office clerical employees , plant clerical employees, sales- men, and driver-salesmen, over-the-road truckdrivers, 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. 4. Since January 15, 1974, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 30, 1974, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering 4 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. with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(axl) of the Act. 7. The aforesaid unfair labor practices are unfair labor 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: ORDER4 Respondent, Schien Body and Equipment Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with United Steelworkers of America, AFL-CIO-CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees including warehouse and parts department employees employed at Respondent's Carlinville, Illinois, facility, but ex- cluding office clerical employees, plant clerical employ- ees, salesmen, and driver-salesmen, over-the-road truckdrivers, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employ- ees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Carlinville, Illinois, facility, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." SCHIEN BODY AND complaint found not to have been sustained by a preponderance of the evidence be dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and conditions of employment with United Steelworkers of America, AFL-CIO-CLC, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. EQUIPMENT CO., INC. 113 WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees including warehouse and parts department em- ployees employed at Respondent's Carlinville, Illinois, facility, but excluding office clerical employees, plant clerical employees, salesmen, and driver-salesmen, over-the-road truckdrivers, guards and supervisors as defined in the Act. SCHIEN BODY AND EQUIPMENT CO., INC.