Metropolltan Alloys Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metropolitan Alloys Corporation and Ronald Allen and Metropolitan Alloys Corporation Employee Committee, Party in Interest. Case 7-CA-13429 December 5, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 10, 1977, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer thereto and cross-exceptions and a supporting 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, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 1. We agree with the Administrative Law Judge's finding that Respondent has dominated and inter- fered with the administration of the employee committee and has contributed financial and other support to it, in violation of Section 8(a)(2) of the Act. 2. The record in this case shows that on March 2, 1977, the Acting Regional Director for Region 7 approved an informal settlement agreement dispos- ing of the issues raised with respect to the termina- tion of the Charging Party, as well as the allegations in the amended complaint as to various independent 8(a)(l) violations. The settlement agreement also shows that the Regional Director and the General Counsel expressly reserved the right to introduce evidence bearing on the issues settled in the agree- ment at any hearing held regarding the unsettled issues raised in the amended complaint, without seeking any remedy for conduct expressly disposed of through the settlement. Obviously the settlement agreement permits the General Counsel, in this proceeding, to introduce evidence concerning the matters disposed of by the settlement, but the use of such evidence is limited to that of shedding light on the issues raised by the amended complaint. No unfair labor practice findings can be made with respect to allegations which have been disposed of in the settlement agreement. However, the Administra- tive Law Judge did not observe this distinction and, as a result, he made rulings on the alleged 8(a)(1) conduct covered by the settlement agreement- 233 NLRB No. 145 finding some based on the testimony and dismissing others based on the lack of supporting evidence. As noted, each of these alleged violations was incorporated in the above-mentioned settlement and fully remedied pursuant thereto. Accordingly, we do not adopt the Administrative Law Judge's findings of independent 8(a)(1) viola- tions and we shall delete any reference to them in the Order and notice. We have, however, considered these matters to the extent that they relate to the other violation found. 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, as modified below, and hereby orders that the Respon- dent, Metropolitan Alloys Corporation, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as modified herein: 1. Delete paragraphs l(a) through (d) and reletter the remaining paragraphs accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT dominate or interfere with the administration of Metropolitan Alloys Employee Committee, or contribute other support thereto. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed under Section 7 of the Act. WE WILL completely disestablish the aforesaid Committee as the representative of our employees for the purpose, in whole or in part, of dealing with or discussing grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work. All our employees are free to become or remain, or refrain from becoming and remaining, members of any labor organization. METROPOLITAN ALLOYS CORPORATION 966 METROPOLITAN ALLOYS CORPORATION DECISION MAX ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was heard before me in Detroit, Michigan, on February 14 and 15, 1977, upon a complaint filed by the General Counsel of the National Labor Relations Board and an answer interposed thereto by Metropolitan Alloys Corporation, herein called Respon- dent.' At issue is whether Respondent violated Section 8(a)(l) and (2) of the National Labor Relations Act, as amended, by certain conduct to be detailed hereinafter. A brief has been received from Respondent which has been duly considered. Upon the entire record made in this case, including my observation of the demeanor of the witnesses as they testified on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent, a Michigan corporation with its office and place of business in the city of Detroit, is, and has been, at all times material herein, engaged in the manufacture, sale, and distribution of zinc and aluminum castings. During the annual period material to this proceeding, Respondent purchased and caused to be transported and delivered to its Detroit place of business aluminum and zinc and other goods and materials, valued in excess of $50,000, which were transported and delivered to its place of business in Detroit, Michigan, directly from points located outside the State of Michigan. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is undisputed and I find that International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 337, herein called the Union, and Metropolitan Alloys Employee Committee, herein called the Committee, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that, on various dates in August 1976,2 Respondent, by and through its agents and supervisors, violated Section 8(aX 1) of the Act by threaten- ing its employees with discharge for engaging in protected, concerted activities; coercively interrogating its employees regarding their attitudes and the attitudes of their fellow I The complaint, which issued on November 30. 1976, is based on a charge in Case 7-CA-13429 which was filed on October 18, 1976, and served on October 19, 1976, and a charge in Case 7-CA-13311, which was filed and served on August 31, 1976. At the hearing, the parties entered into an informal settlement agreement disposing of the issues raised in Case 7-CA-13311 wherein the General Counsel alleged that Respondent violated Sec. 8(aX3) of the Act by terminating the employment of Charging Party Ronald Allen on August 13, 1976. Thereupon, that case was severed from Case 7-CA-13429. employees toward, sympathy for, and adherence to, the Union; threatening its employees with reprisals because of their activities on behalf of the Union; and, promulgating a rule prohibiting its truck drivers from entering Respon- dent's plant for the purpose of preventing them from, and in retaliation for, engaging in activities on behalf of the Union and other protected, concerted activities. The complaint further alleges that, on various dates in August, Respondent violated Section 8(a)(2) of the statute by dominating and interfering with the administration of the Committee, and contributing financial and other support to it. Respondent denies the commission of any labor practices proscribed by the Act. Ronald Allen testified without contradiction, and I find, that on July I he obtained a job as a furnace operator with Respondent and toiled in this capacity until he left Respondent's employ on August 13. As he was leaving work on the afternoon of July 26, he and two other employees were met at the plant gate by Robert Spencer and Frank Walker. Spencer and Walker introduced themselves as business agents of the Union. Spencer inquired whether the men desired to read some campaign literature concerning the purposes and objectives of the Union. Spencer also distributed to them union authoriza- tion cards and advised the employees that, if they were interested in joining that labor organization, they should contact him at a later date. At this juncture, Shorty Jones, a foreman on the day shift, approached the gathering and Spencer proffered the literature and a designation card to him. Jones declined the offer, stating that he "was part of management." Allen further testified and I find that, at lunchtime on or about August 2, he observed Spencer leaving Respondent's plant. In the company of two other employees, Allen met with Spencer at the loading dock. Spencer asked the employees if they knew the whereabouts of the Spilmans,3 and was told that the Spilmans were at lunch. Spencer then informed the men that he had come to the plant "to talk to them [the Spilmans] about possibly becoming our bargain- ing agent." A short time later, Superintendent Joel Gordon joined the group and, according to Allen's undenied testimony, Spencer introduced himself to Gordon as a business agent of the Union. Ordering the employees to return to their jobs, Gordon "told Spencer that he [Gordon] knew he [Spencer] had a job to do, and that we would do our jobs." Spencer queried Gordon as to what time the Spilmans would return to the plant and, when Gordon expressed ignorance as to this matter, Spencer told Gordon that, "whenever they came back, he would be waiting outside the gate for them." Spencer stationed himself at the gate for approximately 2 hours, and then left. Shortly thereafter, the Spilmans entered the facility and proceeded to their office, accompanied by Gordon. 2 Unless otherwise indicated, all dates herein fall in 1976. 3 In its answer to the complaint, Respondent admitted that Emil Spilman was the president of Respondent, that Gilbert Spilman and Murray Spilman both were vice presidents, and that these individuals were supervisors within the meaning of Sec. 2(11) of the Act. The answer also admitted that Joel Gordon, the plant superintendent, and John Thomas Mahon, a foreman, were statutory supervisors. I so find. 967 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After a brief stay in the office, the Spilmans, Gordon, and Jeffrey Spilman, Murray's son, approached the employees in their work area. Jeffrey Spilman distributed to Allen and the other men copies of a contract which had previously been executed by the Committee and Respon- dent. Jeffrey instructed the employees to read the docu- ment. While Allen was doing so, President Emil Spilman came up to him and said "that if we struck or put up a picket line, that he would hire some people to break it, because we would be violating the present contract. He told us that if we joined the Teamsters Union, they wouldn't be in our best interest. We would end up paying more money to the Teamsters Union. He also mentioned that people would get fired if they walked out and picketed." After his conversation with Allen, Emil Spilman delivered a similar caution to the other workers. Allen further testified that, prior to this incident of August 2, he had never seen the agreement; had not been apprised of its existence when he was hired on July 1; was never told that a Committee had theretofore been elected to represent the employees; and had never paid any dues to support the Committee. 4 With respect to the contract to which Allen adverted in his testimony, employee Howard Bailey's testimony is undisputed and I find that Respondent sponsored a pre- Christmas party in its lunchroom on December 24, 1974, which was attended by the employees as well as the Spilmans and Superintendent Gordon. When the work complement had finished eating and drinking, Murray Spilman produced a contract covering terms and condi- tions of employment at the plant which he read to the assemblage. He then remarked that "we were getting ready to form a Committee that was just like a Union." Following this announcement, Murray Spilman distributed ballots to the employees which already contained the names of employees M. J. Scott, Willie Crews, and Joe Kirshin. Murray explained that the purpose of the ballots was to have the men select two employees as Committee members, and he informed them that only senior employ- ees had been nominated by Respondent because it "wanted the older guys, the older employees - they would be more capable of dealing with the company. They would know more about talking to the company than the younger guys." As a result of the balloting, either Murray or Gilbert Spilman proclaimed that Scott and Crews had been elected. According to Bailey's uncontroverted testimony, "everybody had voted for Willie Crews and M. J. Scott because we was told to do so. That is who they preferred." When the meeting ended, Crews and Scott, as Committee- men, were asked to and did sign the contract which Respondent had drafted. Murray Spilman then obtained the signatures of Bailey and Kirshin. It is Bailey's undenied testimony, and I find, that he had never seen this agreement prior to December 24, 1974, and that the employees were never afforded an opportunity to ratify or reject its contents. Bailey further testified without contradiction, and I find, that, in either July or August, he learned that the Union had embarked upon an organizational campaign at the 4 Allen filed a written grievance with Respondent following his termination on August 13 to protest this personnel action. The grievance found its way into the Spilmans' wastepaper basket. plant when one of the employees solicited his signature on a union authorization card. At this time, only M. J. Scott remained a member of the Committee. As he was preparing to leave work on a date in late July, Bailey received a visit from Respondent's President Emil Spilman. In Bailey's words, "He [Emil Spilman] came up to me and he asked me would I care to take the [Crews] position as one of the committee men, and he told me I could move up with the company by taking this position." Events abided until August 9, when a notice appeared on the plant bulletin boards announcing that "The Manage- ment" had scheduled a meeting for August 13 at which an election was programmed for the employees to select a successor to Crews as a member of the Committee. The meeting convened on the morning of August 13 with approximately 20 employees in attendance. Respondent was represented by Murray Spilman, Gilbert Spilman, Jeffrey Spilman, and its counsel, Marvin Breskin. At the outset, Murray Spilman stated that Attorney Breskin would conduct the balloting to install a new committee- man, and Breskin thereupon instructed the men as to how they should cast their vote. Before the ballots were passed out by the Spilmans and Attorney Breskin, John Dixon, the acting foreman on the night shift, told the employees that "by me [Bailey] having more seniority than the rest of the employees, that everybody should elect me." After he received and marked his ballot, Ronald Allen turned to Attorney Breskin and asked "if we were voting for a committee man, whether we were in fact voting for a bargaining agent, and he said yes, and then I asked him did that bargaining agent mean that they were voting for a Union, and he said yes. I then asked him about the constitution and by-laws for the Union. I asked him where they were. He said, 'Well, we are working on it.' " Allen inquired whether the employees were permitted to vote for a labor organization other than the Committee if they so desired, and Breskin answered in the affirmative. However, Allen received a negative response when he questioned Breskin as to whether the employees could cast a write-in vote for their own bargaining agent. At the conclusion of their conversation, Breskin advised Allen to "Just vote for one of the employees listed on the ballot." Breskin thereupon drew Allen aside and "said that it really wasn't a Union. It was more of a contract that was designed to keep out a Union." When the ballots were counted, Attorney Breskin proclaimed that Bailey had been elected as a member of the Committee. Bailey testified, and I find, that, sometime after the election, he telephoned Gilbert Spilman and told [Gilbert] that I had heard that they were trying to get a Union into the shop, and he asked me by whom, and I said I don't know who, but I heard it." Rounding out Bailey's testimony, he related that no grievances had ever been formally processed under the contract between Respon- dent and the Committee and, prior to the election of members of August 13, no meetings of the Committee had ever been held. Willie Crews testimonially recounted, and I find, that he had attended the meeting held on December 24, 1974, 968 METROPOLITAN ALLOYS CORPORATION when he was elected a committeeman. He averred that he had never seen the contract which Respondent had presented to the committeemen and employees prior to that date, and that the contents of the document had never been subjected to a ratification vote. Moreover, Crews stated that no meetings between the Committee and Respondent had ever been scheduled or held during his stint as a member of the Committee. Finally, employee Ewald Clem testified, and I find, that, prior to August 13, he had never seen the contract which was circulated at the meeting on that date, nor had he previously heard of it. He further testified that he had never filed a grievance under the agreement because he was unaware that he could do so, and that he had never paid any dues to support his membership in the Committee. On the basis of the foregoing uncontradicted testimony,5 I find that, on December 24, 1974, Respondent sponsored a pre-Christmas party for its employees which was attended by the Spilmans and Superintendent Joel Gordon. When the festivities were over, Murray Spilman produced a collective-bargaining agreement which had previously been drafted by Respondent and contained items relating to wages, hours, grievances, and other terms and conditions of employment. Murray Spilman read the document to the assembled employees, which the latter had never seen before and had never ratified, and then stated that "we were getting ready to form a committee that was just like a Union," an entity which had not therefore existed. He thereupon proceeded to hand out ballots which already contained the names of employees M. J. Scott, Willie Crews, and Joe Kirshin, and informed the men that an election would be conducted to select two employees to serve as members of the newly created Committee. Before the vote was taken, Murray Spilman announced that Respondent preferred the choice of "older employees" because "they would be more capable of dealing with the company. They would know more about talking to the company than the younger guys." He also instructed the voters that Respondent desired the selection of M. J. Scott and Willie Crews. When the votes were tallied, Murray Spilman pronounced Scott and Crews the victors, where- upon the new committee members signed the contract on behalf of the Committee. 6 I have heretofore found that, on July 26, the Union launched an organizational campaign to enlist the collec- tive support of Respondent's employees as their bargaining agent, and that this endeavor came to the attention of Respondent's officials on or shortly after this date. Determined to thwart the Union's efforts in this regard, Respondent undertook to dust off the dormant Committee and revitalize it. Accordingly, on August 9, Respondent posted notices on its bulletin boards announcing that a meeting would be held on August 13 to elect a successor to Committeeman Willie Crews who had left Respondent's 5 Respondent failed to summon any witnesses in this proceeding to defend its cause. 6 While the events which occurred on December 24, 1974, relative to the formation of the Committee by Respondent cannot be utilized to predicate a finding that the statute has been violated by Respondent because of the strictures of Sec. IO(b) of the Act, such anterior events may be used to shed light on the true character of matters occurring within the limitations' period. See Herbert D. Young, d'b;' Murfreesboro Pure Milk Co., 127 tsLRB 1101, 1102, fn. 3 (1960). employ on June 15, 1975.7 Meanwhile, in late July, Respondent's president, Emil Spilman, approached em- ployee Howard Bailey and inquired whether the latter would care to replace Crews as one of the committeemen. As an enticement, Emil Spilman promised that Bailey "could move up with the company by taking this position." I have found that a meeting of employees was held on August 13 as scheduled, with the Spilmans and their counsel, Marvin Breskin, representing Respondent. When the session opened, Murray Spilman advised that Attorney Breskin would supervise the balloting. Before the vote was taken, Acting Foreman Dixon told the men that, because Bailey was the most senior employee, "everybody should elect [Bailey]."s After he marked his ballot, Ronald Allen asked Attorney Breskin whether the men could choose a labor organization other than the Committee to represent them. While Breskin replied that such a choice was permissible, he added that the employees were debarred from casting a write-in vote for their own bargaining agent. At the conclusion of their conversation, Breskin informed Allen privately that the election was being conducted essentially to obtain a contract "that was designed to keep out a Union" and not to select one. In sum, I find that, commencing on August 2 and continuing to date, Respondent has dominated and interfered with the administration of the Committee, and has contributed financial and other support to it. By the foregoing conduct, I conclude that Respondent violated Section 8(a)(2) of the Act.9 I also find that, sometime after the election of Bailey as a Committeeman on August 13, Respondent's Vice President Gilbert Spilman coercively interrogated Bailey concerning the identity of the employees who championed the Union's cause in its organizational drive at the plant. By so doing, I conclude that Respondent violated Section 8(a)(l) of the Act. I find that, on August 2, Respondent's President Emil Spilman threatened employee Ronald Allen and other employees that they would be discharged if they engaged in a lawful work stoppage against Respondent, or if they participated in a strike in contravention of a no-strike clause embodied in the contract which Respondent had drafted for and foisted upon the dominated Committee. By this conduct, I conclude that Respondent contravened the provisions of Section 8(aXl) of the statute. Finally, I find that, on August 2, Respondent's president, Emil Spilman, threatened Ronald Allen and other employ- ees with reprisals if they engaged in activities on behalf of the Union. By the foregoing conduct, I conclude that Respondent additionally violated Section 8(aXI) of the Act. As the record fails to support the General Counsel's assertions that Respondent violated Section 8(a)(1) by Vice President Gilbert Spilman's telephoning of employees at 7 So far as appears on this record, no meetings of the Committee were held with management from the date of its establishment on December 24, 1974, until August 13, 1975. s Contrary to Dixon's assertion, Bailey had less seniority than other employees at the plant. I American Manufacrturing Company. Inc., 196 NLRB 248 (1972); NationalCash Register Company, 167 NLRB 1047 (1967). 969 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their homes on August 3 to interrogate them concerning their attitudes toward, sympathies for, and adherence to the Union, and those of their fellow employees; by promulgating a rule on August 5 prohibiting its truckdri- vers from entering the plant for the purpose of preventing them from, and in retaliation for, engaging in activities on behalf of the Union and other protected, concerted activities; and, during the week of August 9, by Foreman John Thomas Mahon's coercive interrogation of Respon- dent's employees concerning their union activities, I shall dismiss these allegations from the complaint. of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the purview 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 National Labor Relations Act, as amended, I hereby issue the following recommended: IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities set forth in section III, above, occurring in connection with Respondent's operations described in section 1, 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 thereof. v. THE REMEDY I have found that Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them under Section 7 of the Act, and thereby violated Section 8(a)(1) of the statute. I shall therefore order that Respondent cease and desist there- from. I have also found that, commencing on August 2, 1976, Respondent dominated and interfered with the administra- tion of the Committee, and contributed other support thereto, and thereby violated Section 8(a)(2) of the Act. I shall therefore recommend that Respondent completely disestablish the Committee as the representative of any of its employees for the purpose, in whole or in part, of dealing with or discussing grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in this case, I hereby 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 and the Committee are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By dominating and interfering with the administra- tion of the Committee, and contributing other support thereto, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX2) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed in Section 7 10 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. ORDER '0 The Respondent, Metropolitan Alloys Corporation, Detroit, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees regarding their attitudes toward, sympathy for, and adherence to the Union. (b) Threatening employees with discharge if they leave work and engage in a lawful work stoppage. (c) Threatening employees with discharge if they partici- pate in a strike in contravention of a no-strike clause embodied in the contract which it drafted for and foisted upon the dominated Committee. (d) Threatening employees with reprisals for engaging in activities on behalf of the Union. (e) Dominating and interfering with the administration of the Committee, or contributing other support thereto. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which I find necessary to effectuate the policies of the Act: (a) Completely disestablish the Committee as the representative of any of its employees for the purpose, in whole or in part, of dealing with or discussing grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work. (b) Post at its plant in Detroit, Michigan, copies of the attached notice marked "Appendix." 1 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. iI 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." 970 METROPOLITAN ALLOYS CORPORATION (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. 971