Universal Security Instruments, Inc.

DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Universal Security Instruments, Inc. and Industrial Union of Marine & Shipbuilding Workers of America, AFIL-CIO. Case 5-CA 1()917 October 31, X80() DECISION AND ORDER BY CHiAIRMAN FANNING ANI) Ml.M1:RS PINIl 0 ANI) ZIMMIERMAN On August 6, 180, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting 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 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 Iaw Judge and hereby orders that the Respondent, Universal Secu- rity Instruments, Inc., Owings Mills, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. APPENDIX NoTrclCi To EMPI.OYHIES POSTEI) Y ORI)IR OF I HE NArIONAI. LABOR RIi.AlIONS BOARI) An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WlE W'I.L. NOtI refuse to recognize or bar- gain in good faith with Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, as the exclusive collective-bargain- ing representative of our employees in the ap- propriate unit which is: All production and maintenance employees employed by the Employer at its Baltimore, Maryland, facilities at 2829 Potee Street, 253 NLRB No. 19 3341 Hollins Ferry Road, and at its Owings Mills, Maryland, plant, including custodial and plant clerical employees, but excluding all office clerical employees, professional employees, watchmen, guards and supervi- sors as defined in the Act. WI wVl 1 NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. Wi wil I recognize and, upon request, bar- gain with Industrial Union of Marine & Ship- building Workers of America, AFL-CIO, as the exclusive bargaining representative of our employees in the appropriate unit concerning rates of pay, wages, hours of work, and condi- tions of employment of our employees, and, if an understanding is reached, embody such un- derstanding in a signed agreement. WtI Wlli apply the terms of the collective- bargaining agreement to our employees in the appropriate bargaining unit uworking at the Owings Mills, Maryland, plant WI! wi 1. make whole, with interest, those employees at the Owings Mills plant for any loss of benlefits they may have suffered by our failure to apply the terms of the collective-bar- gaining agreement to them. Wi. w it make whole the above-named Union, with interest, for any moneys that would have been due it under the terms of any checkoff authorizations executed by employees which were not deducted and transmitted to the Union as a result of our failure to apply the terms of the collective-bargaining agree- ment for these employees. UNIVI.RSAI. S.CURITY INSTRUMI NTS, INC. DECISION S'IAII NI-N 0 I1{ CASI- HINRY L. JAI il ii. , Administrative Law Judge: This proceeding involves allegations that t}in Universal Secu- rity Instruments, Inc., herein called Respondent, violated Section 8(a)(1), (3), and (5) of the Act. The proceeding was initiated by a charge filed by the Union on May 2, 1979,1 pursuant to which complaint issued on July 6. On January 31 and February 1, 1980, a hearing was held in Baltimore, Maryland. 'Ulces, olhcr ise indicalcr, aill dlle, hereinafter are in 979 17h LtNIVEIRSAL SECURIlY INSTRUMENIS. INC Upon the entire record, including my ohservation of the witnesses, and after consideration of the briefs of the parties,2 I hereby make the following: FINI)IN(,S O FC I I. 'tHt IFAC IS Respondent, a Maryland corporation, is engaged in the manufacture of burglar alarms and electronic security de- vices at a facility at Owings Mills, Maryland.:' This fa- cility went into operation on or about August 1977. Prior thereto, in 1973, Respondent had been engaged in essen- tially the same business at a facility at Potee Street, Halti- more, Maryland. That was then its only facility. In April 1973, the Union was certified by the Board as bargaining representative of the production and maintenance em- ployees at Potee Street, and thereafter, Respondent and the Union entered into successive collective-bargaining agreements. In 1975, Respondent opened an additional plant at Hollins Ferry Road to manufacture the same products manufactured at Potee Street, and sometime thereafter voluntarily recognized the Union as representative of the employees at the Hollins Ferry Road facility and agreed to extend the collective-bargaining agreement to cover the employees employed there. Shortly after Respondent opened the Owings Mills fa- cility in August 1977, the Union requested recognition as representative of the employees employed there, and Re- spondent declined to grant recognition. On or about March 1, 1978, Respondent closed the Hollins Ferry Road operation and transferred certain of the employees to Owings Mills. On February 23, 1979, Respondent advised the Union of the possibility that the work performed at Potee Street would be transferred to Owings Mills and the Potee Street plant would be closed. Respondent request- ed that a meeting be arranged to discuss whether there should be a transfer of work and, if so, to negotiate about the impact on the Potee Street employees. On March 3, representatives of the Union and Re- spondent had a meeting at which Respondent explained its financial situation and the possible need to consolidate the operations at Potee Street with those at Owings Mills. The Union did not dispute Respondent's represen- tations, but expressed two concerns: recognition at Owings Mills and the impact of the closing on Potee Street employees. Respondent indicated that, in the event it decided to transfer production from the Potee Street facility and close it, it would not recognize the Union as representa- tive of the employees at Owings Mills. As to the impact of the closing on the Potee Street employees, Respond- ent indicated its intention to offer them transfers to equivalent jobs at Owings Mills with seniority, pay, and fringe benefits no less than they were presently receiv- 2 Responden's motion for leave to file a supplemenial memorandum is hereby granted, and the memorandum has been considered 3 Jurisdicliln is not in issue The complaint alleges, Respondent adlmit,, and I find that Resrpodenl nleets the Board's 5(f.(XX direct inflou stand- ard for the aertiln of jurisdiclion ing. Respondent sought to discuss severance pay, but the Uniiion declined to do so. O()n March 12, Respondent decided to consolidate op- erations by moving the Potee Street production lines to the Owings Mills plant, and by letter of that date gave notice of its decision to the Union. With such notice, Re- spondent also announced its intention to speak individ- ually with each of the Potee Street employees and to offer each a job at ()wings Mills. In addition, Respond- ent proposed a formula for severance pay to those em- ployees who did not accept employment at O()ings Mills. By letter dated March 14, the Union notified Respond- ent that it viewed Respondent's refusal to recognize it at Owings Mills as violative of the Act, and, for that reason, it declined to engage in any discussions n the matter of severance pay. The Union stated it had no ob- jection to Respondent's engaging in se. erance pay dis- cussions with Potee Street employees On March 15, lant Manager William McCusker held a meeting of employees to advise them that the Potee Street plant was closing. Employees asked if they would be transferred to Owings Mills and he told them es Employee Alice Smith asked if there was a union at Owings Mills and he said no. On March 23, McCusker, Amedee Dean. ice prcsi- dent of manufacturing, and Mark Millman. director of human resources, met with each of the employees indi- vidually. Each employee was reminded of the impending closing of Potee Street and offered a transfer to Owings Mills. Each employee was told that in the event he de- clined to transfer he would receive a specified amount of severance and vacaltion pay. Of 41 eniployees so inter- viewed, 14 accepted transfers and 27 declined. Accord- ing to McCusker and Millman, all the employees A',ho declined transfers did so because of transportation or re- lated problems. No employee gave as a reason the ab- sence of union representation at Ouings Mills. Only 3 of the 41 employees interviewed by Respond- ent as described above testified at the hearing. To of these, Alice Smith and Katherine Robinson, accepted transfers. Dorothy Banfield declined. She testified she told McCusker she was declining because the Union xsas not being recognized at Owings Mills and because of the distance and lack of transportation. Production at Potee Street ceased about April I By mid-April, the production facilities had been transferred to Owings Mills. Thereafter, all that remained at Potee Street ,.ere some cleanup duties. The doors were phys- ically closed in October or November. Respondent has continued in its refusal to recognize the Union at Owings Mills. t1. ANAt ySiS ANI) CONCIt SIONS The complaint alleges that Respondent \violated Sec- tion 8(a)(1) and (5) of the Act by refusing to recognize the Union at its Owings Mills facility. The theory of the case is that the Owings Mills facility was merely a relo- cation of the Potee Street facility with the same manage- ment and production line and that under principles of ac- 177 DIECISIONS ()F NA'I'I()NA. I.A()R RII.ATI()NS )ARI) cretion Respondent was obligated to continue its recog- nition of the Union. As noted earlier, in March 1978, Respondent had closed its Hollins Ferry Road operations and transferred certain of its employees to Owings Mills. Then, as in this case, it had refused to recognize the Union as the repre- sentative of the production and maintenance unit of its employees at Owings Mills. Such refusal was the subject of a charge and complaint in Case 5-CA-9026. After hearing, Administrative Law Judge Leonard Wagman issued a Decision on August 8, 1979, in which he found, inter alia, that Respondent had violated Section 8(a)(1) and (5) of the Act by refusing to recognize the Union at Owings Mills and he recommended that Respondent be ordered to recognize and bargain with the Union in a unit consisting of all production and maintenance em- ployees employed by Respondent at its Potee Street, Hollins Ferry Road, and Owings Mills facilities. On July 17, 1980, the Board affirmed his findings, con- clusions, and recommendations in that regard.4 In the circumstances, analysis of the details of centralized man- agement, continuity of supervision product mix, makeup of employee complement, and the like, seems to be wholly superfluous. If the Union were entitled to recog- nition for the employees at Owings Mills in 1978, absent unusual circumstances not here present, perforce it was entitled to recognition in 1979 when Respondent further consolidated its operations by transferring production and an additional number of unit employees from Potee Street to Owings Mills. Accordingly, its refusal to recog- nize the Union at ()wings Mills was a repetition of its earlier refusal to bargain and violative of Section (a)(1) and (5) of the Act. The complaint alleges that Respondent terminated cer- tain of its Potee Street employees by conditioning their transfer to the Owings Mills facility on their relinquish- ment of the right to representation by the Union. The record does not support the allegation. As noted earlier, of 41 employees interviewed on March 23 and offered transfers to Owings Mills, 14 ac- cepted and 27 declined and accepted severance pay. Of these 27, only Dorothy Banfield testified. The only evi- dence as to the other 26 is the testimony of McCusker and Millman, both of whom testified that all the employ- ees who declined transfers stated it was because of trans- portation or related problems, and no employee stated it was for lack of union representation. Accordingly, there is no basis for a finding of unlawful termination. Univer- sal Security Instruments, Inc., supra. In the case of Banfield, there is a touch of equivoca- tion in her testimony about whether or not she would have accepted a transfer even with union representation. It appears she would have done so "if' I could have found transportation." Such testimony suggests, and con- firms McCusker's and Millman's testimony, that the only reason Banfield did not accept a transfer was because of transportation problems. I so find. 4 nivrsul Securit Inrunen. Inc., 250 NIR.KB hI (1980) CoN I lSI()NS ()I .AW 1. Universal Security Instruments, Inc., is an employer engaged i commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its Baltimore, Maryland, facili- ties at 2829 Potee Street, 3341 Hollins Ferry Road, and at its Owings Mills, Maryland, plant, including custodial and plant clerical employees, but excluding all office clerical employees, professional employees, watchmen, guards and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 8(a)(5) of the Act." 4. By failing and refusing to recognize and bargain with the Union as the exclusive bargaining representative for the production and maintenance employees at its Owings Mills plant, Respondent has violated Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not othewise violated the Act. Till R.MEI)Y Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) and (5) of the Act by refusing to recognize the Union at its Owings Mills plant, I shall recommend not only that it recognize the Union, but also that it apply the terms of the collective-bargaining agreement between it and the Union to the Owings Mills employees retroactively; that it make its employees whole for any losses they may have suffered as a result of its unlawful refusal to recog- nize the Union, and its failure to extend the terms of the collective-bargaining agreement to them; and that it make the Union whole for any dues lost as a result of its unlawful conduct, with interest thereon as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977), and Isis Plumbing & Heating Co., 138 NLRB 716. (1962). The collective-bargaining agreement expired by its terms on August 1, 1979, but provided for an extension for I year and from year to year thereafter, unless either party gave 60 days notice of a desire to modify or termi- nate the agreement. As Respondent had unlawfully re- fused to recognize the Union, it had no opportunity to give such notice. Accordingly, I shall recommend that, upon request, Respondent bargain with the Union about rates of pay, wages, and hours of work, shall maintain in effect the terms of the collective-bargaining agreement; provided however, that nothing herein shall be deemed " It may appear incongruous to include he lHollins Ferry Road and Potee Sreet plants in the unil description, inasmuch as hey have beenl closcd ltosc cr, it ecrns appropriate do s, ill he ven . h cver un,- likely. Ihal Respolident s hll uld ropet such faclhtles 17X UNIVE'RSAI. SFI:CURIrK Y INSIFRUMI NIS. INC. to require Respondent to take away any benefits granted to employees. Upon the entire record, the findings of fact, and con- clusions of law, arid pursuant to Section 10(c) of the Act, I hereby issue the follovwing recommended: ORDER' The Respondent, Universal Security Instrumets. Inc.. Owings Mills, Maryland. its officers, agents, successors. and assigns. shall: 1. Cease and desist from: (a) Refusing to recognize and bargain in good faith with Industrial Union & Marine Shipbuilding Workers of America. AFI. CIO, as the exlcusive collective-bargain- ing representative of its employees at its Owings Mills, Maryland. plant in the following appropriate unit: All production and maintenance employees em- ploed by the Employer at its altimore, Maryland. facilities at 2829 Potee Street, 3341 Hollins Ferry Road, and at its Owings Mills, Maryland, plant, in- cluding custodial and plant clerical employees, but excluding all office clerical employees, professional employees, watchmen, guards and supervisors as defined in the Act. (b) In any like or related mariner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act: 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) Recognize and, upon request. bargain with Indus- trial Union of Marine & Shipbuilding Workers of Amer- ica, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the appropriate unit employed at its Owings Mills, Maryland, facility. (b) Apply the terms and conditions of the collective- bargaining agreement executed by Respondent and In- " In tihe eXent 1ino xcpions aire ilfed as prosided h See 112 46 of the Rules ad Regiulations. of the National .ahbor Relaiionls BHoard. he find- ig.,. oncI)IUtJioin, ilild recommended Order herein shall, as prosided in See 1)2 4 of Ihe Rules and Rgulailloi h adopted h the oard iand hcomc its findings, cilncluills. and ()rder ilnd all ohijecions thereto shall he deelmed ailverd for all purposes dustrial Union of Marine & Shipbuilding Workers of America, AFL CIO, to the employees in the appropriate unit employed at its Owings Mills Maryland. plant. (c) Make whole the employees at the Owings Mill plant for any losses of benefits which would have ac- crued to them under the terms of the collectlive-bargain- ing agreement during the time Respondent refused to apply the terms of the agreement to said employees. (d) Make whole the above-named Union for any moneys that would have been due the Union under the terms of any checkoff authorizations executed by Re- spondent's employees, but which were not deducted arid transmitted to the Union as a result of Respondent's fail- ure to apply the terms of the collective-bargaining agree- ment to said employees. (e) Preserve and, upon request. make available to the Board, or its agents, for examination aid copying, all payroll records. reports, and all other records necessary to determine the amounts due employees and the Union under the terms of this Order. (f) Post at its Owings Mills plant and at the Potec Street plant, if it reopens, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 5. after being duly signed by Respondent, shall be posted immnic- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places. in- eluding places where notices are customarily posted Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other materi- al. (g) Notify the Regional Director for Region 5. in rit- ing, within 20 days from the date of this Order, awhat steps Respondent has taken to comply herewith. It IS F:RIHER ORI)tRlt) that the complaint be dis- missed insofar as it alleges unfair labor practices not found herein. 7 the ccnt tihat this ()rder is enfirced h a Judgment f 1'niild Sl.ates Court of Xppeal.s. he ,rd, in the noitlce reading 'ostmi hb )rder of the Naliitnal I abor Relatlons aJi rd shall read "'ortel 'ilr, ainl to aI Judgment lof the United Sates C(,urt of Appeals I nfforcllg .i ()rder of the National I aot Relations ioa.ird 1 7q