Press Specialties Manufacturing Co.

PRESS SPECIALTIES MANUFACTURING CO. Press Specialties Manufacturing Co. and District Lodge 24, International Association of Machinists and Aerospace Workers, AFL-CIO and Press Spe- cialties Manufacturing Co. Employee Committee, Party to the Contract . Cases 36-CA-2615 and 36- RC-3342 September 16, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On March 19, 1975, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, Respondent and the Union filed exceptions and Respondent filed a brief in support of its 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that Respondent, Press Specialties Manufac- turing Co., Portland, Oregon, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: These cases were heard at Portland, Oregon, on January 8, 1975, based on a charge and amended charge filed August 26 and November 13, 1974, respectively,' and complaint is- sued November 13 with concurrent order consolidating cases and notice of hearing on the complaint and on objec- tions to an election conducted August 20. The complaint alleges that Press Specialties Manufacturing Co., called Re- spondent, violated Section 8(a)(1) and (2) of the National Labor Relations Act, as amended, by interrogating em- All dates and named months hereafter are in 1974, unless indicated otherwise. Where context warrants, 1974 may be shown. 361 ployees concerning their activities on behalf of District Lodge 24, International Association of Machinists and Aerospace Workers, AFL-CIO, called the Union, threat- ening employees with plant closure in the event they select- ed the Union as their bargaining representative and render- ing assistance and support to the Press Specialties Manufacturing Co. Employee Committee, called the Com- mittee, by executing a collective -bargaining agreement with the Committee notwithstanding that (1) the Commit- tee assertedly did not at the time represent an uncoerced majority of employees covered by such agreement and (2) the Union had made a demand on Respondent for exclu- sive recognition and filed a petition for certification of rep- resentative. Upon the entire record , including my observation of the witnesses, and upon consideration of oral argument made by General Counsel and a posthearing brief filed by Re- spondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATIONS INVOLVED Respondent, a corporation located in Portland, Oregon, engages in the manufacture of printing press accessories. It annually sells and ships goods valued in excess of $50,000 directly from its Portland, Oregon, facility to points outside the State of Oregon. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union and.the Com- mittee are labor organizations within the meaning of Sec- tion 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Facts and Discussion Respondent and the Committee 2 were parties to a four- page "agreement" with provisions covering wages (rates as of May 1, 1973), hours and other terms of employment. This agreement was negotiated by a committee consisting of employees Leroy Lockwood, Don Mays, Paul Adams, and Dewey Sparks. Although wage rates set forth in the agreement were to be "for one (1) year," new rates were negotiated in late 1973 and reduced to writing on a one- page document 3 dated January 4. An election among employees established the original composition of a committee to renegotiate the 1973-74 agreement. T. H. (Thomas) Kinney, acting in the capacity of recording secretary, handprinted a three-page document dated May 14 in letter format addressed to "PSM Manage- ment." This document referred to a "[M]eeting of the em- 2 References shall appear both to the Committee and to committee(s) of employees. This is respectively intended to mean the legal entity as party to this proceeding and the group of individuals, fluctuating as to composition, which functioned as a collective negotiating body, handler of documenta- tion exchanged relative to the negotiation process and communicator to and between its constituency (represented at the most material point in time by the 19 numbered employees listed in the lower portion of G.C. Exh. 4). 3 A tool requirement for employees and a provision for periodic 6-month evaluation were also expressly contained in this document. 220 NLRB No. 65 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees [held May 6 ] for the purpose of discussing a renew- al of the agreement between the employees and manage- ment" and specified 20 items for bargaining . Kinney later handprinted a one-page document dated June 20 in similar format which alluded to "long delay" and requested a meeting for June 27. By letter dated July 15 Respondent addressed the "Negotiating Committee" and proposed a ]-year agreement with wages based on $6 per hour journeyman's base, an unchanged medical plan, a change to noncontributory retirement program, and a pledge to discuss complaints and foreman problems .4 On or about July 15 committee members Lockwood, Mays, and Marvin Haworth, together with employees Sparks (Dewey) and Alan Swartz, contacted the Union by appearing at its office and speaking with Business Repre- sentative Robert Kennedy. Lockwood testified that the group's purpose at this point was to "threaten the company with [the Union] " by having a "wedge or lever [as in 1973] " and "get our contract settled." On July 16 Lock- wood and others again appeared at the Union's office. This time authorization cards were obtained. Committee mem- bers passed them out among employees and by late in the day approximately 15 signed cards had been returned to Lockwood's possession. He delivered them to Grand Lodge Representative Richard M . Russell that evening. The cards were promptly used in support of a petition filed July 17 by the Union as Case 36-RC-3342. A copy of this petition was mailed to Respondent on July 17 and conced- edly received during the afternoon of July 19 by Al (Elmer R.) Thomsen, Respondent's president.5 On July 18 Al Thomsen approached Lockwood at the latter's work station and commenced a conversation. Lock- wood testified that after several remarks Al Thomsen asked if he (Lockwood) knew anything about "a rumor that the fellows want the union in." Lockwood falsely de- nied any knowledge on the point. Subsequently that day both Al Thomsen and Norman Thomsen appeared at the morning coffeebreak and spoke to assembled employees. Norman Thomsen spoke of costs involved in joining a union and Al Thomsen added that Respondent was a small company that possibly could not pay union wages and would instead close. Al Thomsen then spoke of hearing ,.we were thinking about getting a union" to which Lock- wood (breaking an apparently awkward silence) volun- teered that "the union's already been contacted." Al ° Two documents received in evidence are noteworthy to the chronology of negotiations . First is a handprinted three-page document with status statements associated to the original 20 items for bargaining and concluding paragraph relative to wage retroactivity . A second handprinted document bears the date July 10 and harmonizes with Respondent's bargaining posi- tion as stated in its July 15 writing. Both documents lack conventional evidentiary foundation ; however, the extent of recognition conceded by Lockwood and surrounding circumstances permit the inference , which I make, that they were each prepared by or on behalf of a committee member to formalize dealings at fixed points in time 5 On July 19 Respondent also received the Union 's recognition request letter dated July 17. Al Thomsen observed the envelope containing this letter during "late afternoon" on July 19 but did not then open it since it was addressed to Norman Thomsen, his son and Respondent's general manager. Norman Thomsen was away from Respondent's office on July 19 and returned July 22 (Monday). Thomsen's reaction was to promptly declare the meeting adjourned. On July 19 committee members met with Al Thomsen .6 Respondent increased its pay offer for journeyman by 15 cents per hour in reflection of recent wage settlements by the Union in the geographic area and vacation language was clarified.' After concluding discussion with Al Thom- sen, the latest status of negotiations was presented to a group meeting of employees during late morning of July 19. They voted the subject and chose to accept what had been "finally [gotten] together" with Respondent. A pro- posed contract document of four typed pages was soon prepared and actually executed 8 on July 24. This new agreement revised medical coverage, transferred the $15 monthly cost of employee retirement program to Respon- dent and, by slightly restructured and enlarged language, continued the right of "employees representative and or the employee committee" to discuss or negotiate "items of importance." Subsequent to this, Respondent and the Union entered into an agreement for consent election upon which ballot- ing was conducted August 20. Four votes were cast for the Union and 14 against. On August 26 the Union filed timely objections asserting the Respondent had engaged in con- duct violative of Section 7 of the Act and signed an agree- ment "reached in illegal negotiations" while a question of representation existed. The Union contended by its objec- tions that these acts made "impossible" a free choice in the election by employees. The merits of this case are primarily geared to the Mid- west Piping doctrine .9 The evidence shows a course of pro- crastinative bargaining which Lockwood countered by contrived liaison with the Union. The dynamics so set in motion resulted in creation of majority representation 10 by the Union at and from the point of July 16. This fact, coupled with the timely petition, II suffices to meet the first branch of the Midwest Piping doctrine; namely, that a real -question concerning representation exists. Secondly, execu- tion of the 1974-75 agreement on the fifth calendar day after knowledge of such rival claim breached Respondent's obligation of neutrality. The absence of vigorous organiza- tional efforts, the manipulative development of the Union's card majority, and the closeness of issues remaining in dis- pute between the parties to bargaining are all inconsequen- 6 The only testimony concerning bargaining events occurring on July 19 is Lockwood's This witness' general recollection was sketchy I believe he deliberately obscured basic factual framework of the case As to July 19, he repeatedly described this as a day when his faculties were sub-standard. Bargaining also dealt with the wage "spread" between classifications Committee members believed it was "too close" from specialist to journey- man (parenthetically identified in the original 1973 agreement as "90%"). The January wage changes left this spread at 25 cents or 95.3 percent, the final wage rate pattern for 1974-75 showed a spread of 45 cents or 92.7 percent 8 This agreement, to be effective from May 1 (1974) to May 1, 1975, bears six signatures The stated date of execution is based on par. V11 of Respondent's answer Lockwood's signature appears, but he was not ques- tioned about when he signed. 9 Midwest Piping & Supply Co, Inc, 63 NLRB 1060 10 It was stipulated that during the period July 17-19 Respondent em- ployed 19 persons in the production and maintenance unit (described in the Union's recognition request letter, its petition, and the consent election agreement) and of these 15 signed authorization cards for the Union 11 Appalachian Shale Products Co., 121 NLRB 1160 (1958). PRESS SPECIALTIES MANUFACTURING CO. tial factors,12 What controls is the showing that Respon- dent "arrogated" to itself the resolution of a representation issue by the significant step of purportedly concluding a pending course of bargaining at the very time that a sub- stantial rival claim formally existed. This conduct amounts to extending unlawful assistance and support to the Com- mittee in a manner violative of Section 8(a)(2). See 13 Sig- nal Oil and Gas Company, 131 NLRB 1427 (1961); Peter Paul, Inc., 185 NLRB 281 (1970); Playskool, Inc., et al., 195 NLRB 560 (1972); Tappan Knitting Industries, Inc., 201 NLRB 3 (1973); Inter-Island Resorts, Ltd., d/b/a Kona Surf Hotel, 201 NLRB 139 (1973); Haley Bros., Inc., 201 NLRB 389 (1973); Suburban Transit Corp., 203 NLRB 465 (1973); Traub's Market, Inc., 205 NLRB 787 (1973). Respecting allegations of interrogation and threat of plant closure, these must be viewed in larger case context. The general tenor of Respondent's conduct does not show a renunciation of collective bargaining, by accepted mean- ing of the phrase. It is true that Respondent appeared com- fortable with the weak bargaining tactics advanced by rank-and-file employees diffusively functioning as the Committee. Further, and assuming Respondent acquired knowledge of the comprehensive card signing conducted on July 16, reaction was as much related to whether good strategy dictated an acceleration of negotiations as com- pared to directly opposing the Union. During the span of time the Committee functioned it relied openly and exten- sively on contract terms achieved elsewhere by the Union. In such circumstances, the individual questioning of Lock- wood smacks more of inquiry necessary only to Respondent's immediate position in pending committee negotiations. Similarly the remarks to employees assem- bled together on a break period, given the smallness and permeating informality of relationship between them and Respondent's family management , were more in the nature of permissible predictions tied to the prospect of institu- tionalized unionism. Neither Lockwood nor employee Jo- seph Smith testified to the actual utterances with particular certainty. Overall, I do not find sufficiently substantial evi- dence to support paragraph 8 of the complaint." 12 Since execution of the new agreement was completely separate in point of time from receipt of the Union's petition , it is unnecessary to rely on inferential analysis relating to the "meeting" conducted by the Thomsens on July 18. The Peter Paul, Playskool, Kona, Suburban, and Traub's cases were each denied enforcement 467 F.2d 700 (C.A. 9, 1972), 477 F.2d 66 (C.A. 7, 1973), 507 F.2d 411 (C.A. 9, 1974), 499 F.2d 78 (C.A. 3, 1974), and 507 F.2d 730 (C.A. 3, 1974), respectively. The Board adheres to Midwest Piping notwith- standing the disposition of several courts of appeals, most significantly the Third, Seventh, and Ninth, to view the issue of what constitutes a real question concerning representation in a way conceptually different from the Board's. See N.L.R.B. v. Swift & Company, 294 F.2d 285 (C.A. 3, 1961). i am bound by the Board's continuing respectful disagreement with the courts' general posture on this issue . See Traub 's Market, supra 14 The proclivity of Respondent's employees to ride free with the Union at their convenience made Al Thomsen's remarks of July 18 more in the nature of "[A]n opinion based on demonstrable facts as to the economic consequences which might reasonably be expected to result from unioniza- tion." B. F. Goodrich Footwear Company, 201 NLRB 353, 354 (1973) Cf. Fiberfil, Division of Dart Industries, 210 NLRB 1086 (1974), Peter Paul, Inc, supra at 285, 286. Sufficient contrast is found between this and the instance of threatening a plant closure not "[L]inked to economic conditions outside [a] respondent's control." Swain Manufacturing Company, 201 NLRB 681, 684 (1973) Cf. Versatube Corporation, 203 NLRB 456 (1973); J C Penney Co., Inc., 209 NLRB 313 (1974); Benner Glass Co, 209 NLRB 686 (1974). 363 The vice in Respondent's action is thus confined to exe- cution of the 1974-75 agreement on July 24. Respondent's contention that this was "simply" a formality misses the primary issue. Transformation of the agreement from oral to written (meaning with signatures constituting legal exe- cution) form after full notice of the rival petition deepens Respondent's commitment to one labor organization in de- rogation of the other. This is exactly what Midwest Piping seeks to prohibit by holding such matters in status quo, to await resolution of the conflicting claims by Board pro- cesses. Respondent's reliance on Felix Audye, d/b/a Audye Construction, The Gates Rubber Company, and Utility Tree Service 15 is utterly misplaced as none of these cases are germane to a Midwest Piping adjudication. CONCLUSIONS OF LAW 1. All production and maintenance employees of Re- spondent, excluding all office clerical employees, profes- sional employees, draftsmen, guards and supervisors as de- fined in the Act and all other employees constitute a unit appropriate for the purposes of collective bargaining with- in the meaning of Section 9(b) of the Act. 2. Respondent, by executing a collective-bargaining agreement with the Committee on July 24, 1974, at a time when a question concerning the representation of its em- ployees existed, and by maintaining this collective-bargain- ing agreement and giving it effect, has rendered and is ren- dering unlawful assistance and support to the Committee and has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the exercise of Section 7 rights in violation of Section 8(a)(1) and (2) of the Act. 3. Respondent has not violated the Act in any respect other than as specifically found. REMEDY General Counsel has proven perfected majority repre- sentation by the Union and unlawful support of the Com- mittee (constituting a derivative violation of Section 8(a)(1) ). From this a bargaining order is requested on the authority of Steel Fab, Inc., 212 NLRB 363 (1974). The Steel Fab doctrine essentially represents decisional policy to eschew Section 8(a)(5) of the Act in Gissel-type 16 cases warranting a bargaining order. The rationale of this change has been thoroughly explicated in the face of per- sistent disavowal by the two Board members. It suffices to note that Steel Fab pertains to "numerous and egregious violations" and its progeny require a similar showing,17 Such is not the scope or thrust of Respondent's conduct is 173 NLRB 1346 (1968), 182 NLRB 95 (1970). and 215 NLRB No 152 (1974), respectively 16 N L R.B v. Gissel Packing Co, Inc, 395 U.S. 575 (1969) 17 Variously characterized as "substantial," `serious," and "pervasive" in Premiere Corp, 212 NLRB 382 (1974), Oahu Refuse Collection Co., Inc, 212 NLRB 224 (1974) and M & J Trucking Co, Inc, 214 NLRB No. 63 (1974), respectively See also Blaser Toot & Mold Company, Inc. 196 NLRB 374 (1972); Howard Creations, Inc., 212 NLRB 179 (1974) Gerbes Super Market, Inc, 213 NLRB 803 (1974); Hennepin Broadcasting Associates, Inc, 215 NLRB No. 32 (1974) But cf Kimmel's Shop Rite, 213 NLRB 440 (1974). 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD here. The case is more one of personalities than doctrine. The role of Lockwood is fully exposed since he alone, of committee members, testified to events. My harsh apprais- al of him is solely based on the obligation to resolve credi- bility issues. The exploitive tactics of the Committee, by action of its individual members or collectively, is not my concern, other than as how this drew Respondent into a Midwest Piping violation. Paramount throughout is the question of employee rights under the Act and how they may best be preserved. It is doubtful that by August 20 the employees of the voting unit seriously considered the ques- tion of authorizing representation for the future. The dy- namics involved in recent ostensible conclusion of their contract had usurped that interest, making the actual bal- loting sterile and mechanistic . It is appropriate to now re- quire that further recognition of the Committee be with- drawn and maintenance of the agreement be discontinued (with protective qualification)." THE REPRESENTATION CASE It is settled that conduct during the critical postpetition period that constitutes an unfair labor practice is, a fortiori, interference with the exercise of a free and untrammeled choice in an election. Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962); Sayers Printing Company, 197 NLRB 73 (1972). Accordingly, it is recommended that the Region- al Director for Region 19 sustain the Union's objections, set aside the election of August 20, and conduct a second election at such time as circumstances are deemed to per- mit free choice in whether to have a bargaining representa- tive. Upon the foregoing findings of fact with resolution of credibility of witnesses, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 19 Respondent, Press Specialties Manufacturing Co., Port- land, Oregon, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting or contributing support to the Press Spe- cialties Manufacturing Co. Employee Committee, by re- cognizing or contracting with such labor organization as the exclusive representative of any of its employees for the purpose of collective bargaining at a time when there exists a real question concerning representation. (b) Giving effect to, performing, or in any way enforcing the collective-bargaining agreement executed with the 16 By its terms the contract has only approximately 6 weeks to run. It contains no provision for automatic renewal ; thus, its viability is completely lost by this recommendation. 19 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 Committee on July 24, 1974, covering its employees, or to any modification, extension, renewal, or supplement there- to, unless and until the Committee has been certified by the National Labor Relations Board as the exclusive bar- gaining representative of such employees; provided, how- ever, that nothing herein shall require Respondent to vary or abandon any wages, hours, seniority, or other substan- tive feature of its relations with its employees which have been established in the performance of said agreement, or to prejudice the assertion by such employees of any rights they may have thereunder. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist District Lodge 24, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from the Press Specialties Manufacturing Co. Employee Committee as the representative of its employees for the purpose of collective bargaining unless and until the said labor organi- zation has been duly certified by the National Labor Rela- tions Board as the exclusive representative of such employ- ees. (b) Post at its place of business in Portland, Oregon, copies of the attached notice marked "Appendix." 20 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 19, after being duly signed by Respondent's representative, shall be posted 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. IT IS ALSO FURTHER ORDERED that Case 36-RC-3342 be severed and returned to the Regional Director for Region 19 to set aside the election of August 20, 1974, and conduct a second election at an appropriate future time. 20 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." PRESS SPECIALTIES MANUFACTURING CO. 365 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assist or contribute support to the Press Specialties Manufacturing Co. Employee Committee by recognizing or contracting with this labor organiza- tion as the exclusive representative of our employees for the purpose of collective bargaining while a real question concerning representation exists. WE WILL NOT give effect to the agreement executed with the Committee on July 24, 1974, covering our employees or to any renewal, extension, modification, or supplement thereof, unless and until the Committee has been duly certified by the National Labor Rela- tions Board as the exclusive representative of our em- ployees, but nothing herein shall require that we vary or abandon any existing term or condition of employ- ment. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization , to form labor orga- nizations, to join or assist District Lodge 24, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from engaging in any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act , as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL withdraw and withhold all recognition from the Press Specialties Manufacturing Co. Employ- ee Committee as the collective -bargaining representa- tive of our employees unless and until this labor orga- nization has been certified as such by the National Labor Relations Board. PRESS SPECIALTIES MANUFACTURING CO.