Shenango Steel Bulldings, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shenango Steel Buildings, Inc. and International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen's Local Union No. 527, AFL-CIO. Case 6-CA-9094 August 24, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 30, 1977, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions to the Administrative Law Judge's Decision and the General Counsel filed cross-exceptions and a sup- porting 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,' and conclusions of the Administrative Law Judge except as herein modified. The Administrative Law Judge found that Respon- dent technically violated Section 8(a)(l) and (5) in bypassing the Union to ascertain employees' desires for a 10-hour-a-day 4-day workweek. The Adminis- trative Law Judge noted that Respondent subse- quently submitted its proposal to the Union and withdrew such proposal after the Union responded that any hours beyond a regular 8-hour day had to be paid as overtime. Moreover, the Administrative Law Judge noted that Respondent's activities were designed to help employees because of the gas shortage rather than to disparage the Union's status. Accordingly, the Administrative Law Judge found it unnecessary, in these circumstances, to issue any remedial relief for this violation inasmuch as he had recommended a general bargaining order. The General Counsel excepted to the Administrative Law Judge's failure to issue a cease-and-desist order and notice for the violation that he found. We find merit in the General Counsel's exceptions. The Administrative Law Judge's general bargain- ing order does not contain a cease-and-desist provision which bars future unlawful direct dealing ' The Administrative Law Judge assumed that there was clear objective evidence of a lack of union majonty status by March 15, 1976. We find it unnecessary to pass on the validity of that assumption as we agree with the Administrative Law Judge that "any loss of majonty by that time (was I... meaningless in view of the earlier refusal to bargain. The Administrative Law Judge also found that Respondent did not violate Sec. 8(aX5) by unilaterally assigning unit work to a nonunit employee. In the absence of exceptions thereto, we adopt, pro forma, the Administrative Law Judge's finding. 231 NLRB No. 94 with employees. We cannot be sure that Respon- dent's direct dealing with employees will not again occur. Therefore, in order to assure employees that Respondent will not again bypass their collective- bargaining representative, we shall direct Respon- dent to cease and desist therefrom.2 The Administrative Law Judge's general bargain- ing order also contains no notice which informs employees that Respondent will not engage in future unlawful direct dealing. In effectuating the policies of the Act, the Board requires a respondent to post a notice to inform its employees of their statutory rights.3 Here, Respondent has interfered with the right of its employees to engage in collective bargaining through their statutory representative. In these circumstances, we perceive no reason for departing from our customary practice of requiring the posting of a notice to inform employees that Respondent cannot interfere with that statutory right.4 Thus, we find that, by bypassing the Union and dealing with employees in the unit found appropriate, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. Accordingly, we shall issue an appropriate remedial order and notice for the violation found. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Shenango Steel Buildings, Inc., West Middlesex, Pennsylvania, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Bypassing the Union and dealing directly with employees as to wages, hours, and other terms and conditions of employment covering employees in the unit found appropriate herein. (b) Refusing to recognize and bargain collectively with International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen's Local Union No. 527, AFL-CIO, as to wages, hours, and other terms and conditions of employment covering employees in the unit found appropriate herein. (c) Assisting its employees to file decertification petitions or to withdraw their dues-checkoff authori- zations. 2 Luxuray of New York Division of Beaunit Corporation, 185 NLRB 100 (1970). 3 Schuykill Metals Corporation, 218 NLRB 317 (1975); Local Union 99, International Brotherhood of Electrical Workers, AFL-CIO (Crawford Electric Construction Co.), 214 NLRB 723, fn. 2 (1974). 4 Jeffco Manufacturing Co., a Division of Ball Corporation, 211 NLRB 787 (1974), reversed on other grounds 512 F.2d 1248 (C.A. 4, 1975). 586 SHENANGO STEEL BUILDINGS (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collective- ly with International Association of Bridge, Structur- al and Ornamental Iron Workers, Shopmen's Local Union No. 527, AFL-CIO, as the exclusive bargain- ing representative of the employees in the unit found appropriate herein, and, if an agreement is reached, embody such agreement in a signed contract. (b) Post at its plant in West Middlesex, Pennsyl- vania, copies of the attached notice marked "Appen- dix." 5 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 6, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply here- with. , 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 L abor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT bypass International Association of Bridge, Structural and Ornamental Iron Work- ers, Shopmen's Local Union No. 527, AFL-CIO, and deal directly with our employees in deroga- tion of their exclusive bargaining representative. WE WILL NOT refuse to bargain collectively with International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen's Local Union No. 527, AFL-CIO, as the exclusive bargaining representative of our employees in an appropriate unit regarding wages, hours, and other terms and conditions of employment. WE WILL NOT assist our employees to file decertification petitions or to withdraw their dues-checkoff authorizations. 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. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the appropriate unit described below, 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 agree- ment. The bargaining unit is: All production and maintenance employees, excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. SHENANGO STEEL BUILDINGS, INC. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Mercer, Pennsylvania, on October 21, 1976, based on charges filed March 8, 1976, amended on June 2, 1976, and a complaint issued June 30, 1976, alleging that Respondent violated Section 8(aX)(1) and (5) of the National Labor Relations Act, as amended. The General Counsel and the Respondent have filed briefs. Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Shenango Steel Buildings, Inc., is a Pennsylvania corporation engaged in the manufacture and wholesale distribution of prefabricated steel buildings at West Middlesex, Pennsylvania. During the year preceding issuance of the instant complaint, Respondent both received and shipped goods and materials valued in excess of $50,000 from and to points outside the Commonwealth of Pennsylvania. 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 is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Union was certified as the exclusive bargaining representative of Respondent's production and mainte- nance employees in 1970, and in 1973 it executed its second collective-bargaining agreement with Respondent, to ex- pire April 30, 1976. On November 7, 1975, James Campbell, Respondent's general manager and vice presi- 587 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent and the son of its president, William Campbell, met with the employees to discuss the possibility of putting into effect a 10-hour 4-day work schedule, telling them that, if they were in favor of it, he would then present the proposal to the Union.' The employees were in favor of the plan, Campbell did present it to the Union, and the Union wrote back that any hours beyond 8 each day had to be paid for as overtime. Campbell posted his letter and the Union's response on the plant bulletin board, and nothing more was said or done about the proposal. On January 31, 1976, the Union wrote Respondent, stating: This letter will serve as official notification of the desire of Shopmen's Local Union No. 527 of the International Association of Bridge, Structural and Ornamental Iron Workers to terminate at the end of the current contract year, its existing collective bargain- ing agreement with your Company. We desire that our representatives meet with your representatives for the purpose of negotiating a new collective bargaining agreement to become effective as of the expiration of the current agreement, and we will therefore appreciate your advising us as far in advance as possible as to the date it will be convenient for your representatives to meet with our representatives for the purpose of starting such negotiations. Respondent replied, by letter of February 12, 1976, that it had decided "not to renew its present contract" with the Union. On February 18 and again on March I the Union wrote letters to Respondent requesting that it meet and bargain with the Union, and requesting dates upon which to begin bargaining negotiations. Respondent did not reply to those letters. On April 30, the day the contract expired, Union Business Agent James Puglin was at the plant and, he testified, "they actually had me call an attorney, and the attorney said no, he told them not to negotiate with me.2 About March 1, employee Ed Winters mentioned to James Campbell that he had talked to several employees about having a vote to see if they wanted the Union, and Campbell responded that Winters should notify the NLRB in Pittsburgh. Winters called the Board office at Pittsburgh and, he testified, was informed by a Board agent that a petition might be untimely because it would be less than 60 days before the contract's expiration date. 3 The next day Winters again spoke with Campbell, and Campbell called Attorney Bodoh asking him for NLRB petition forms. On or about March 4, Campbell gave Winters the forms provided by Bodoh. During the next few days, several employees signed the petition form in blank. Campbell testified credibly that the idea stemmed from a Shenango Valley Chamber of Commerce meeting where the gas shortage was discussed, including the possibility of a shutdown of plants in the area for I day a week to conserve energy. 2 The "they" apparently refers to William and James Campbell; the attorney is apparently Respondent's counsel William T. Bodoh. 3 Because of Winters' recollection of the Board agent telling him the petition might be untimely, which would have been the case after March 1, I credit his testimony as to the date of his conversation with James Campbell, who placed the date as about February 17. I found Campbell to be a credible witness, but believe he must have been mistaken as to this date. I According to Campbell, Bodoh told him he was "treading on pretty About March 7, Winters asked Campbell for help with the "legal wording" on the form. Campbell again called Attorney Bodoh, who told Campbell how the form should be prepared. 4 The form was then typed by Campbell's secretary, who then put it into an envelope and sent it to the NLRB. Winters was then informed by an NLRB agent that an amended petition would have to be filed, and he so informed Campbell. Campbell told Winters that if he "needed any help from the attorney, like if I needed any wording or anything like that, I could contact the attorney," and Campbell called Bodoh at that time, "jotting down" what Bodoh told him, then calling in his secretary to type the amended petition, in Campbell's presence. Toward the end of April, employee Nicoloff asked James Campbell whether his dues would continue to be deducted after the contract's expiration.5 Campbell then called an employee meeting for the purpose of discussing how the employees could revoke their checkoff authorizations, distributing a copy of his authorization to each employee. He prepared language for the employees to use if they wished to revoke them, and five or six of them copied the language, one or two in Campbell's presence. Campbell forwarded these revocations to the Union, having informed the employees at the meeting that he would do so. B. Discussion The principal issue in this case is Respondent's alleged refusal to bargain with the Union on and after January 31, 1976. The uncontradicted facts establish a clear violation of the Act in that respect, wholly apart from the subsidiary questions of whether Respondent unlawfully assisted employees in filing a decertification petition or in revoking their dues checkoff authorizations, both alleged as inde- pendent violations of Section 8(a)( ) of the Act. Thus, Campbell met the Union's initial request (the January 31 letter) by stating that it decided "not to renew" the present contract, and made no reply to the Union's two followup letters of February 18 and March 1. James Campbell explained that, although he read the entire January 31 letter, he in effect focused on the word "termination" in the first paragraph of that letter, and prepared the response dated February 12, which he sent to his father in Florida. 6 I credit Campbell, and believe his shallow water," with respect to his (Campbell's) role in helping with the filing of the petition. I Campbell testified that "possibly" Winters was with Nicoloff at the time. In view of his uncertainty, and because neither Nicoloff nor Winters, both witnesses in the case (Nicoloff for Respondent), so testified, I conclude that only Nicoloff made such a request of Campbell. 6 In 1973, as the contract then in effect was approaching expiration, the Union sent the Company a virtually identical letter to the one it sent January 31, 1976. William Campbell's reply at that time was that he would be in a position to discuss the matter dunng a particular week. James Campbell conceded that he read the 1973 exchange before composing the February 12, 1976, letter. 588 SHENANGO STEEL BUILDINGS explanation for responding to the Union as he did, and for not responding thereafter.7 That explanation, however, constitutes virtually an admission of a violation of the Act, for it establishes that Respondent not only had no objective evidence, at least prior to March 15,8 of any loss of majority by the Union, but also that, in failing to respond to the Union's February 18 and March I letters, as well as in replying to the Union's January 31 letter with an expressed desire "not to renew" the contract, James Campbell was not even relying on any possible loss of majority or facts that may have existed that might have suggested such a loss. The law is clear that a refusal to bargain with an incumbent union is violative of Section 8(a)(5) unless based upon objective evidence to support a good-faith belief that the union has lost its majority. Such a defense is neither advanced nor present on the facts here. Respondent argues in its brief that, even if a violation of Section 8(a)(5) occurred,9 it "continued only until March 15, 1976, at the latest." This contention is predicated on the "decertification petition" filed at that time. It cannot prevail, however, because, as already indicated, the refusal to bargain itself serves to vitiate any subsequent loss of majority, and also because by March 15 no decertification petition could be filed, as the parties were already in the insulated period where no question concerning representa- tion could be raised. Telautograph Corporation, 199 NLRB 892 (1972).'0 1 conclude, accordingly, that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union on and after February 12, 1976. In view of the above finding, and the resultant order, which I shall recommend, that Respondent bargain in good faith with the Union, the two alleged independent refusals to bargain are of no great significance, and would add nothing, if found, to the broad bargaining order. As to one of them, I have not as yet set forth any facts. It concerns Respondent's alleged unilateral alteration of a contractual- ly specified work assignment by assigning nonunit employ- ee Van Dougherty to perform unit work. I doubt whether a violation did occur for, without going into the facts at all, the statement of the alleged violation itself seems to indicate at most a breach of contract. tI Furthermore, what violation there may have been occurred long before the events herein. As to the asserted bypassing of the Union in connection with Respondent's assertaining employees' desires for a 10- hour-a-day 4-day workweek, I believe that there probably was a technical violation of the Act- for it is a union's job to ascertain employee opinion prior to any bargaining, not an employer's. But Respondent did go to the Union, after 7 That he sent the letters of February 18 and March I to his father in Florida. and that his father told him not to worry about things that he would be back before the end of March, and the Company had never started negotiations before that time. I For purposes of this portion of the case, it may be assumed that by March 15 there was, as Respondent puts it. "clear objective evidence of a lack of majority status," but the violation had already occurred. Any loss of majority by that time is necessarily meaningless in view of the earlier refusal to bargain. ' Suggesting an "earliest'" possible date of a failure to bargain on February 12. rather than January 31. In terms of the outcome here, that is. the Finding of a violation and the order based thereon, the choice of February 12 rather than January 31 is of no consequence. a0 I conclude below that Respondent unlawfully assisted in the filing of checking its employees' desires, and did not put the proposed new schedule into effect when the Union countered that it would not agree unless the Company paid premium pay for the 9th and 10th hours each day. Furthermore, the suggestion was to help the employees, and stemmed from the gas shortage of that period, and there is no indication that Respondent, in checking with the employees first, had any ulterior motive, any intent to disparage the Union. i2 As I said earlier, Respondent did commit a technical violation in this respect but I see no point, in the circumstances, in making any specific finding of a violation. It suffices that a general bargaining order will issue. The final issues herein concern the alleged unlawful assistance given by Respondent to employees in connec- tion with the decertification petition and revoking dues- checkoff authorizations. It is true, as Respondent contends, that an employer can lawfully respond to employees' questions about such matters as decertification petitions and the withdrawal of checkoff authorizations, provided there is no coercion of the employees of any sort. Respondent here, however, as the admitted facts reported above demonstrate, provided much more assistance to the employees that merely responding to questions from them. Attorney Bodoh told James Campbell that he was "treading on pretty shallow water" in connection with his activities relating to the decertification petition. In fact, the water was much too shallow to bear the weight of Campbell's assistance, both as to the decertification petition and the withdrawals of the checkoff authoriza- tions. See, for example, Dayton Blueprint Company, Inc., 193 NLRB 1100 (1971), Reilly Tar & Chemical Corporation, 151 NLRB 1503, 1508 (1965). I1 conclude, accordingly, that Respondent violated Section 8(a)(1) by its assistance to the employees in filing a decertification petition and in withdrawing their dues-checkoff authorizations. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. All production and maintenance employees em- ployed by Respondent at its West Middlesex, Pennsylvan- ia, facility, excluding all office clerical employees, and guards, professional employees, 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. 2. By refusing to bargain with the Union as the collective-bargaining representative of the employees in the that decertification petition. That, of course, would remove the petition as a valid ground for the Company refusing to bargain with the Union. even had the petition been otherwise timely, and even had Respondent based its refusal on that petition. The National Cash Register Companyr, 201 NLRB 1034, 1035 (1973); Telautograph Corp., supra L1 I also incline toward Respondent's contention that any violation of the Act in this respect was de minimis in nature. Also, the assignments to Dougherty were openly done, and are not shown to have caused any diminution of work to unit employees. 12 The posting by Respondent on the bulletin board of its letter to the Union and the Union's response is suggested by the General Counsel as being designed to discredit the Union. I accept Respondent's explanation that it was to let employees know the outcome. 589 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foregoing unit, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the Act. 3. By assisting the employees in the filing of a decertification petition and in withdrawing dues-checkoff authorizations, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not otherwise violated the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.] 590