Cooper-Hewitt Electric Co., Inc.

COOPER-HEWITT ELECTRIC CO. Cooper-Hewitt Electric Company , Inc. and Sperti Drug Products, Inc. and District 34 of the Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO. Cases 9-CA-8000, 9-RC-9702,' and 9-RC-9741 December 4, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On July 31, 1974, Administrative Law Judge Eugene E. Dixon issued the attached Decision in this proceed- ing. Thereafter, the Charging Party filed exceptions and a supporting brief, and Respondent filed limited exceptions and an answering brief. 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 Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that the certification issued to the Union in Cases 9-RC-9702 and 9-RC-9741 be, and it hereby is, revoked, and that Cases 9-RC-9702 and 9-RC-9741 be, and they hereby are, remanded to the Regional Director for Region 9 for appropriate action consistent with the decision herein, including the direction of a new election if desired by the Petitioner. I The representation proceedings have been consolidated with the instant unfair labor practice proceeding in order to determine the issues that were raised in both proceedings 2 The Charging Party 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 credibil- ity 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 3 Respondent, in its limited exceptions, has excepted to the failure of the Administrative Law Judge to revoke the Union 's certification as collective- bargaining representative We find merit in this exception and shall amend the Order accordingly - DECISION STATEMENT OF THE CASE 277 EUGENE E. DIXON, Administrative Law Judge: This pro- ceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Cincinnati, Ohio, on May 20, 1974. The complaint dated September 17, 1973, was issued by the Act- ing Regional Director for Region 9 on behalf of the General Counsel of the National Labor Relations Board, herein called General Counsel and Board. On March 16, 1973, the Charging Party, District 34 of the International Association of Machinists and Aerospace Workers, AFL-CIO, won a Board conducted representation election in an appropriate unit of Respondent's employees. Respondent filed timely objections alleging, inter alia, that the Union had told employees that if it won the election initiation fees would be waived for those who joined prior to the election but that employees who joined afterwards would have to pay the regular fee. On the basis of then Board law Respondent's objections were overruled by the Region and the Union certified. Respondent's subsequent request for re- view of the Regional Director's decision was denied by the Board. The Union then made demand for bargaining which Re- spondent refused in order to get a hearing on its objections. Charges were filed and a complaint alleging a refusal to bar- gain issued on September 27, 1973. On the.grounds that Respondent's answer raised no issues that were not or could not have been litigated in the representation proceeding, the General Counsel filed a Motion for Summary Judgment. Before the Board had an opportunity to rule on the motion the Supreme Court, on December 17, 1973, handed down its decision in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270, in which it held that a union's offer to waive initiation fees for employees who joined it prior to an election while assessing those who joined afterwards with a fee, interferes with the employees' right to refrain from union activities as guaranteed by Section 7 of the Act and infringes in their free choice in selecting a bargaining representative inherent in Section 9(c) of the Act. On April 22, 1974, the Board issued its Order denying General Counsel's Motion for Summary Judgment and re- manded the proceedings to the Regional Director for hearing in the light of the Supreme Court's Savair decision. The Board further ordered that the hearing be held before a duly designated Administrative Law Judge for the purpose of tak- ing evidence to resolve said issue. The General Counsel at the hearing took the position that the matter was before me solely as a hearing pn Respondent's objections to the election. Thus, after introducing the formal papers, which by stipulation showed a request for bargaining in an appropriate unit and Respondent's rejection thereof, rested claiming neutrality as to the merits. Thereafter, Re- spondent called four employee witnesses and rested. Then the Union called four union officials and two employees. Upon the entire record and from my observation of the witnesses, I make the following: 215 NLRB No. 60 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent, Cooper-Hewitt, a subsidiary of Sperti Drug, is a New Jersey corporation engaged in the manufacture of sunlamps at its plant located at Fort Mitchell, Kentucky. During the 12 months preceding issuance of the complaint, which is a representative period, Respondent, Cooper- Hewitt, had a direct outflow of goods valued in excess of $50,000 which it sold and caused to be shipped directly in interstate commerce from its Fort Mitchell, Kentucky, loca- tion to points outside the State of Kentucky. At all times material Respondent, Cooper-Hewitt, has been an employer as defined in Section 2(2) of the Act, engaged in commerce in operations affecting commerce as defined in Section 2(6) and (7) of the Act, respectively.' 11. THE LABOR ORGANIZATION District 34 of the International Association of Machinists and Aerospace Workers, AFL-CIO, at all times material has been a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES Debbie Scott, called by Respondent , testified that several days prior to the election Shelby Gibson, a principal sup- porter of the Union who became chairman of the negotiating committee and a union observer at the election , approached Scott and a fellow worker during a break and told Scott that if she "would sign the card . . . before the election (she) would not have to pay initiation fees, which she estimated at $25" but if she did not sign before the election she would have to pay initiation fees . This stands undenied in the record. Gibson testified that she could not remember what she told Scott on that occasion . I credit Scott. Shirley La Chance and Delora Sowders, two other wit- nesses called by Respondent, on direct, testified that at a union meeting on March 15, the evening before the election, union membership application cards were passed out at the meeting. They also testified that union officials told the as- sembled employees that if they signed membership applica- tion cards then they would not have to pay an initiation fee, but if they waited until after the election they would have to pay such a fee. Jack Werff, a representative of AFL-CIO who "for the most part" conducted the meeting on March 15 on behalf of the Union, testified that a question of initiation fees was raised at the meeting . According to Werff, he told the people at the meeting "that no one currently employed or employed prior to signing a contract will be required to pay an initiation fee. That after a contract is negotiated and ratified by the people any new employee then coming into the Company and the union-shop agreement, not having fought for the benefits I The complaint alleged that Sperti Drug Products, Inc., was a single employer with Cooper-Hewitt and, as an employer within the meaning of Section 2(2) of the Act, was named as a Respondent. The answer denied this allegation. That no proof as to the matter was offered is immaterial in view of my recommendation herein to dismiss the complaint in its entirety. and conditions, and consistent with the Local Union's prac- tice of applying an initiation fee to new employees, that new employees, after a contract has been ratified, coming into the Company would be required to pay an initiation fee. But those people currently employed or employed prior to signing the contract there would be no initiation fee. It was unilater- ally waived." Werff denied that he passed out any material to the people at the meeting. Asked if to his knowledge any material was passed out he answered, "I cannot truthfully say." He also denied asking anybody to join the Union that night and stated that he had no knowledge of anyone else doing so. Werff also denied that any dollar amount of an initiation fee was men- tioned. Arnold Tucker, business representative of District 34, at- tended the March 15 meeting. He testified that he did not "believe," was "not sure," and did not "recall" any member- ship applications being passed out at the meeting. About the question of initiation fees he testified as follows: One or more of the four girls that I'm talking about now asked if there would be an initiation fee. And, as we have previously told them in previous meetings also and handbilled the plant and told them that we would not charge initiation fees if they join the Machinists Union if the majQrity of the employees voted for Machinists Union. They were told specifically by me that as in all organiz- ing campaigns within District 34 that we did not charge initiation fees for the employees who joined prior- I told them, as we do in all organizing campaigns within District 34, the district that I represent, that we do not charge initiation fees until we have a signed contract with the employer. This means we must win the election and then sit down and negotiate a contract. And all of this period of time people joining our union would not have paid an initiation fee. They were told this in several different meetings, but specifically on the 15th of March. Tucker also testified that the dollar amount of the initiation fee was raised and discussed at the meeting. Grand Lodge Representative Jack Anderson also attended the meeting. He confirmed that the amount of initiation fees was discussed but also testified that he told the people that there would be no initiation fee for anyone prior to the signing of a contract. He also testified that he did not pass out any membership cards explaining that he did not "think anybody even had any." John Taggard, a current employee called by the Union, was asked if he saw "any of the white membership applications the night of March 15?" He answered, "No, sir; I don't think so." He also corroborated the union officials as to what was said at the meeting about the payment of initiation fees. Conclusions Considering all the evidence and my impression of it as it was adduced, I am of the opinion that Respondent's version here should be credited. It appears to me that the union officials were being defensive and less than forthright in their COOPER- HEWITT ELEC'T'RIC CO testimony regarding the passing out of membership cards at the meeting as compared to Respondent's witnesses who were quite explicit and detailed about it in their testimony. Ac- cordingly, I find that the cards were in fact distributed on that occasion. This of course does not prove what was said about them. But it does tend to give the lie to Werffs denial of trying to solicit memberships on the eve of the election with the statement that "if you haven't got your election won by the eve of the election you're not going to win it." And it also would indicate that circumstances such as initiation fees in connection with membership was, as is admitted, discussed. In this connection we find a conflict between Werff and Tucker as to whether the dollar amount of the initiation fee was mentioned. Considering the foregoing, and considering that a few days before the meeting Gibson had told Scott (as found above) the very thing Respondent's witnesses attribute to the union offi- cials in the meeting, and further considering that as of that time such a pitch by a union had not been disapproved by the Board, I am persuaded that Respondent's version is to be credited. I find, therefore, on the basis of the Savair decision supra, that Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) and recom- mend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 279 1. Cooper- Hewitt Electric Company, Inc., and Sperti Drug Products, Inc, is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act 2. District 34 of the International Association of Ma- chinists and Aerospace Workers, AFL-CIO, is a labor or- ganization within the meaning of Section 2(11) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. From 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: ORDER' The complaint is dismissed in its entirety 2 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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