Hall Industries, Inc

HALL INDUSTRIES 785 Hall Industries, Inc and International Association of Machinists and Aerospace Workers, Local Lodge No 52, AFL-CIO and Janeal Bartus, Petitioner Cases 6-CA-20505, 6-CA-20577, and 6-RD-1026 April 25, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 26, 1988, Administrative Law Judge Walter H Maloney issued the attached decision The Respondent filed a consolidated request for remand for de novo hearing before a different ad ministrative law judge, exceptions, and a support- ing brief The General Counsel filed a brief in re- sponse The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record' in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 I The Respondent requests a remand for de novo hearing before a dif ferent administrative law judge alleging in effect that the judge discred ited every witness for the Respondent made adverse and hostile rulings against the Respondent used a rejected exhibit misquoted testimony and evidence questioned the Respondents witnesses in an argumentative fashion and misled the Respondent as to the need to develop particular lines of evidence We have carefully examined the entire record includ ing the judge s decision and we are convinced that the judge s conduct does not constitute legal prejudice nor even an appearance of partisanship sufficient to warrant a rehearing Pak Mor Mfg Co 214 NLRB 211 (1974) There is no basis for finding that bias or partiality existed merely be cause the judge participated in the examination of witnesses and resolved important factual conflicts ansing in the proceeding in favor of the Gen eral Counsels witnesses See M System Inc 123 NLRB 1281 (1959) Indeed it is the duty of the judge to inquire fully into the facts and he has the authonty to call examine and cross examine witnesses See Sec 102 35 of the Board s Rules Further as the Supreme Court has stated [T]otal rejection of an opposed view cannot of itself impugn the integn ty of competence of a trier of fact NLRB P Pittsburgh Steamship Co 337 U S 656 659 (1949) 3 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In his decision the judge inadvertently referred to the date of the de certification election as October 29 1988 It is clear that the proper date is October 29 1987 In affirming the judge s findings we do not rely on his use of informs tion and quotations from rejected G C Exh 10 and conclusions as modified, 3 and to adopt the rec- ommended Order as modified 4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Hall Industries, Inc, Pittsburgh, Pennsyl- vania, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Delete paragraph 1(f) and reletter the other paragraphs accordingly 2 Substitute the following for paragraph 2(a) "(a) Offer to Joseph Beringer full and immediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the deci- sion " 3 Insert the following as paragraphs 2(b) and (d) and reletter other paragraphs accordingly "(b) Remove from its files any reference to the unlawful discharge of Joseph Bennger and notify the employee in writing that this has been done and that the discharge will not be used against him in any way " "(d) Preserve and, on request, make available to the Board or its agents for examination and copy ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order " 4 Substitute the attached notice for that of the administrative law judge 3 We do not adopt the finding that the statement of Respondent s presi dent Hall to employee Beringer that he had recordings of statements made by Beringer during negotiations created the impression that the em ployees union activities were under company surveillance Cf Chemtron ics Inc 236 NLRB 178 (1978) 4 The judge failed to include expunction language to remedy the un lawful discharge of Joseph Bennger Accordingly we have inserted the appropriate modifications to the recommended Order and notice 293 NLRB No 96 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT threaten employees with plant closure if they continue to support the Internation- al Association of Machinists and Aerospace Work- ers, Local Lodge No 52, AFL-CIO WE WILL NOT sponsor or encourage the filing of a decertification petition WE WILL NOT discourage membership in or ac- tivities on behalf of the International Association of Machinists and Aerospace Workers, Local Lodge No 52, AFL-CIO, or any other labor organiza- tion, by discharging or laying off employees or otherwise discriminating against them in the hire or tenure of their employment WE WILL NOT refuse to bargain collectively in good faith with the International Association of Machinists and Aerospace Workers, Local Lodge No 52, AFL-CIO as the exclusive collective-bar- gaining representative of all of our working fore- men, tool and die makers, machinists, machinists helpers, apprentices, specialists, production work- ers, laborers, and helpers, employed at our two Pittsburgh, Pennsylvania plants, exclusive of office clerical employees, guards, professional employees, and supervisors as defined in the Act WE WILL NOT bypass the Union and negotiate directly with employees concerning wages , hours, and terms and conditions of employment WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Act WE WILL pay to the Union dues that we are ob- ligated to deduct from the wages of bargaining unit employees pursuant to dues authorizations that have been signed for any period of time up to De cember 27, 1987, with interest WE WILL pay to the IAM National Pension Fund all pension fund payments that we are obli- gated to make on behalf of our employees pursuant to the contract with the Union that expired in 1986 WE WILL offer Joseph Beringer immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings re sulting from his discharge, less any net interim earnings, plus interest WE WILL notify Joseph Beringer that we have removed from our files any reference to his dis- charge and that the discharge will not be used against him in any way HALL INDUSTRIES, INC Barton Meyers Esq and Patricia Scott Esq, for the Gen eral Counsel James Q Harty Esq, of Pittsburgh, Pennsylvania, for the Respondent Eugene Marcaccio, International Representative , of Wash ington, D C, for the Charging Party DECISION STATEMENT OF THE CASE WALTER H MALONEY, Administrative Law Judge This case came on for heanng before me at Pittsburgh, Pennsylvania, on a consolidated unfair labor practice complaint, ' issued by the Regional Director for the Board's Region 6, which alleges that Respondent Hall Industries, Inc 2 violated Section 8 (a)(1), (3) and (5) of I The principal docket entries in the complaint cases are as follows charges filed in Case 6-CA-20505 against the Respondent by Internation al Association of Machinists and Aerospace Workers Local Lodge No 52 AFL-CIO (Union or Machinists) on November 20 1987 amended charge filed on December 18 1987 complaint issued against the Re spondent by the Regional Director for the Board s Region 6 on Decem ber 23 1987 Respondents answer filed on December 31 1987 charge filed in Case 6-CA-20577 by the Union against the Respondent on De cember 18 1988 complaint issued therein by the Acting Regional Direc tor for Region 6 against the Respondent on February 10 1988 and con solidated with the outstanding complaint in the first case Respondents answer filed February 12 1988 amendments to consolidated complaints issued by the Acting Regional Director of the Board s Region 6 against the Respondent on February 26 1988 Respondents answer filed at the hearing heanng held in these cases at Pittsburgh Pennsylvania on March 7 and 8 1988 briefs filed by the General Counsel and the Re spondent with me on or before April 4 1988 The principal docket en tries in the consolidated representation case are as follows Decertifica tion petition filed by Janeal Bartus an individual on September 18 1988 in a unit composed of the production and maintenance employees at the Respondents two Pittsburgh Pennsylvania factories stipulated election agreement approved by the Acting Regional Director for Region 6 on October 9 1987 election held on October 29 1988 which resulted in an 8-8 tie with no challenged ballots objections to the conduct of the elec tion filed by the Union on November 4 1987 order directing hearing on objections and notice of hearing issued by the Regional Director for Region 6 on December 24 1987 2 The Respondent admits and I find that it is a Pennsylvania corpora non which maintains its principal place of business in Pittsburgh Penn sylvania where it is engaged in the manufacture and nonretail sale of screw machine parts and related products In the course and conduct of this business the Respondent annually purchased and received at its Pitts burgh Pennsylvania facilities directly from points and places located out side the Commonwealth of Pennsylvania goods and materials valued in excess of $50 000 Accordingly the Respondent is an employer engaged in commerce within the meaning of Sec 2(2) (6) and (7) of the Act The Union is a labor organization within the meaning of Section 2(5) of the Act HALL INDUSTRIES the Act More particularly the amended consolidated complaint alleges that, during the so called Goodyear period 3 the Respondent threatened employees with clos ing of the plant if the Union was not voted out created the impression among employees that their union activi ties were the subject of company surveillance, threatened employees with discharge if they continued to support the Union, promised employees continued employment if they eliminated the Union as their bargaining agent, and encouraged the filing of a decertification petition The consolidated complaints also allege that the Respondent unilaterally discontinued checkoff and pension fund pay ments in violation of its duty to bargain with the Union, that it discriminatonly laid off Joseph Beringer because of his union activities, and that it also bypassed the Union and dealt directly with employees by offering Beringer and another laid off employee, Warren Baxter, part time jobs at rates considerably lower than those pro vided for in the expired collective bargaining agreement The Respondent denies these allegations and asserts that Beringer was laid off because of lack of work On these contentions the issues were framed 4 I THE UNFAIR LABOR PRACTICES AND OBJECTIONABLE CONDUCT ALLEGED5 A Background The Respondent is a closely held family business which operates two production facilities in Pittsburgh, Pennsylvania It manufactures screws and similar items The president and principal owner of the Company is Harold Hall The main facility is a three story building located on Carson Street on the south side of Pittsburgh Respondent also owns and operates a small plant on the northside of the city, referred to in the record as the Barrett Machine Company The two plants are a mile or so apart and are part of the same production and mainte nance unit which has been represented for many years by the Union in this case The last formal contract be tween the parties expired on September 1 1986 Negotiations for a new contract have proved fruitless A few bargaining sessions took place in the fall of 1986 but the Union refused to accede to at least one of the Respondents requests for concessions so no agreement has been forthcoming No bargaining sessions took place in 1987 Certain testimony in the record from company witnesses suggests that the Union was remiss by aban doning its membership in failing to schedule any negoti ating sessions in 1987 However documents introduced by the Respondent are in sharp conflict with this tests mony On November 14 1986 Respondent's counsel James Q Harty, wrote a letter to James W Elnyczky, the Machinists' business representative who was conduct ing negotiations on behalf of the Union, in which he re fused the Unions demand for a meeting in the near future, expressing the opinion that further negotiations 8 The Goodyear period in this case extended from September 18 to Oc tober 29 1987 Certain errors in the transcript have been noted and corrected All conduct now relied upon by the Union in urging that the Octo her 29 election be set aside is also alleged in the consolidated complaint to be unfair labor practices 787 would not be productive Counsels letter also noted that the Union had relinquished its original bargaining demand for wage increases and stated that there had been mutual resolution of all matters except the question of the arbitration agreement contained in the prior agree ment " This was a reference to the Company s insistence that the binding arbitration provision in the previous contract be replaced by an agreement merely to mediate any grievances which could not be resolved in the first steps of that grievance procedure Such mediation would not result in an enforceable obligation on the part of either party to comply with a mediators determination but, under the company proposal the Union would still have to forego its right to strike to enforce its position In another letter dated May 7, 1987, the Company also refused to meet further with the Union claiming that ne gotiations had reached an impasse In this letter the Re spondent asked the Union if it was prepared to make fur ther concessions to meet the provisions of the Compa ny s best offer " In light of this ongoing stalemate, the parties executed an interim agreement, dated November 6, 1986, in which they agreed to continue in effect the recently expired agreement but giving either party the right to discontin ue the agreement on 5 days written notice The parties continued to operate for more than a year under this ex tension On December 22 1987, the Respondent wrote the Union a letter exercising its right to terminate the ex tension, so there has been no outstanding contract be tween the parties since December 27, 1987 B The Discharge of Joseph Beringer and Events Related Thereto Joseph Beringer worked for the Respondent at its Carson Street plant since 1966 He was employed as a union working foreman,' a bargaining unit position which meant that he was, in effect, a leadman 6 There is little doubt that, throughout his career with the Re spondent, Beringer was a leading union activist and that he was so regarded by company management In the late sixties and early seventies he had been the shop steward a post now held by James L Williams To use Harold Hall s words Joe Beringer has always been the thought provoker of union activities in our plant " Another man agement witness referred to him as a union champion' Beringer was the leadman for all the employees work ing in the automatic screw department located on the first floor of the Carson Street plant He often attended production meetings to receive production schedules and job assignments He was regarded as an expert in the handling of the machines in his department and he often trained the employees who used them, including the man who ultimately took his place For the past few years, production has declined at the Respondent's plants and a number of employees have been laid off' I credit Beringer's testimony that, some 6 All parties agree that Beringer was not a supervisor within the mean mg of the Act notwithstanding his job title 7 In 1986 11 employees on a seniority list of 24 were laid off In 1987 three layoffs took place on February 24 and one more was made in early June 788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD time in the summer of 1987 he became concerned about his own job tenure, notwithstanding the fact that he had more than 20 years service with the Company, so he ap proached Frank Schlafhauser, the general manager, and asked him about his status with the Company F Schlaf hauser told Beringer he had nothing to worry about, that he was the best union foreman that they had and the Company could see no benefit in having another one take Beringer s job On Tuesday, September 8, 1987 the day after Labor Day, F Schlafhauser took Beringer into the caucus room in the plant dropped an envelope on the table and told him that he was being laid off immediately The enve lope contained a check for 2 days pay, in observance of the contract provision that a laid off employee was enti tled to 3 days notice of a layoff Beringer was surprised and reminded F Schlafhauser of their conversation a few weeks earlier concerning his status at the plant F Schlafhauser simply shrugged his shoulders and told Ber inger that, if he wanted to know anything more, he would have to talk with Harold Hall, the company presi dent Beringer went up to the third floor with F Schlaf hauser and spoke with H Hall who was in an irate mood When Beringer asked him what was going on he simply replied You wanted to belong to the Union You supported the Union Here s what you get for be longing to the Union It s your turn Hall went on to remind Beringer of his activities back in the sixties during a strike saying You beat me The Union beat me Here's what you get for it' During the course of their conversation H Hall reminded Beringer that during the strike at the plant in 1976, he had supplied pickets with beer and they had littered the premises with beer cans He also told Beringer he had recordings of a statement Beringer assertedly made during negotiations in which he said piss on the Company H Hall told Beringer he would play them for him some day Ber inger kept asking H Hall what he had to do to save his job and he saying that the Union would not stay in the plant H Hall went on to explain what had immediately brought about this move He told Beringer that he had watched the Labor Day parade in Pittsburgh on televi sion and observed that the IAM had entered a float in the parade The float was a balloon or rocketship which had IAM written on its side 8 I credit Beringer s further testimony that H Hall said that he had decided, right there and then, the union would cease' at Hall Indus tries H Hall went on to say that if anyone wanted to work at the plant it would be without a union and that 9 H Hall never gave a completely coherent explanation as to why the presence of an IAM float from California in the Pittsburgh Labor Day parade triggered such an emotional response on his part There is no doubt it did H Hall complained that the float was expensive and that union dues had paid for it He suggested that he was one of those who had been forced to contribute to this extravagance although he was not an IAM member He also complained that what was going on in the California aerospace industry was wholly irrelevant to Pittsburgh where the wage scale was much lower I can only infer from H Hall s stated remarks that he must have felt that the presence of the float constituted an incitement to his employees to ask for higher wages he would close the plant rather than operate it with a union Beringer mentioned to him the conversation which he had with F Schlafhauser a few weeks previously con cerning his job security but Hall simply ignored him When he told H Hall that Schlafhauser had told him that he was the best working foreman in the Company H Hall s only reply was that he would write him a ref erence but the reference would contain a little edge Bennger asked him more than once what he could do to save his job but H Hall simply said that, if the Union stayed at the plant, he would close it down He told Ber inger that he had been planning to retire and to hand the Company over to his son, Jonathan Hall, and to Frank and John Schlafhauser He went on to say that, if Ber inger wanted to work at the plant in a nonunion status, he should speak to these individuals By this time both Schlafhauser brothers had come to H Hall s office Ber inger arranged to meet with them the following morning at 10 a in The meeting with H Hall closed with a hand shake, with H Hall saying to Beringer that if he had five more people like Bennger, he would have five more companies, but Beringer had not supported Hall when he needed him On September 9, 1987, at 10 a in Beringer met with Jonathan Hall the vice president of the Company F Schlafhauser, and John Schlafhauser the company comptroller in J Schlafhauser s office I credit Ber roger s version of this meeting Beringer started the meet ing with a question about what he could do to save his job At first they replied to this question rather hesitant ly stating that under the law they were not entitled to say anything to him unless he approached them Beringer repeated the question as to what he had to do to save his job J Hall replied by saying that he would not put up with what his father put up with over the years with the Union and that he would close the plant down sell the machinery and put his money in the stock market rather than operate with a union J Hall went on to tell Ber inger that he was a natural leader and that if anyone could persuade the employees to abandon the Union he could Beringer said he would give it his best shot if that was all he had to do to keep his job Beringer went downstairs to speak with his former crewmembers, who were eating their lunch in the plant lunchroom Five employees were present to listen to Beringer He told them that the Halls, Harold and Jona than, had told him that if the Union stayed in the plant they would close it down In 6 months, everyone would lose their jobs, there would be no Union, and there would be no Company He went on to say that if the employees wanted to decertify the Union they had to approach the Company because the Company could not approach them They discussed this matter for a few minutes and decided to go up to the company office and speak with the individuals that Beringer had been talking with a few minutes earlier A few minutes later they met with J Hall and the Schlafhausers in J Schlafhauser s office They asked management officials what they had to do to save their jobs These officials repeated what they had said to Ber HALL INDUSTRIES 789 roger earlier in the morning, namely, that employees had to approach them concerning decertification The Com pany could not approach employees concerning this sub ject Employees Mary Gnmaldi and John Kirsch spoke up, said that they were approaching the Company, and asked the company officials present what they had to do to decertify the Union Company officials replied that they did not know offhand what had to be done but they would consult their attorney and forward his reply to them I credit Williams testimony to the effect that J Hall said, during the course of this meeting, that they were not going to put any more money into the Compa ny so long as the Union was in the plant After consulting with counsel, the Respondent pre pared a document which read as follows The following information was provided by our labor attorney per your request on September 9, 1987 National Labor Relations Board (412-644-2977) Decertification Procedure METHOD 1 FORMAL Step a 30% or more eligible employees (those working or laid off less than one year) must sign petition for Decertification Step b Labor Board will then conduct an elec tion of eligible employees majonty prevails METHOD 2 INFORMAL Step a Signed and dated letter which contains a written statement that the employees no longer wish to be represented by the I A M signed by the majority of employees On the morning of September 10 1987, F Schlaf hauler called a bnef meeting of employees in the lunch room It was attended not only by those who had met in J Schlafhauser s office the preceding day but also by employees in the secondary department on the second floor of the Carson Street plant and employees from the Barrett Machine Company who had been summoned from that building to attend Respondent s management passed out the above quoted paper to everyone in attend ance Shortly thereafter, Shop Steward Williams went to the company office and with J Schlafhauser went over company records to determine the names of all employ ees who had been laid off within the preceding year Williams called a meeting of all employees for the fol lowing Monday September 14, 1987 at 3 30 p in at the end of the shift It was attended not only by employees from both buildings but also by laid off employees who had been contacted either by him or by others Williams invited Elnyczky to attend Williams had prepared a document which he laid on the table for the signatures of all employees At the top of the page the following had been typed To Labor Board This Petition is in regard to Decertification of IAM Lodge 52 For Decertification Against Decertification Some discussion took place regarding the pros and cons of petitioning the Board to conduct a decertification election Elnyczky spoke bnefly urging employees to stick with the Union Williams asked those who favored an election to sign the paper accordingly and those who opposed it to indicate their opposition as well Five em ployees signed for decertification These were the five individuals who had participated with Beringer in the group meeting with Respondent's management Ten indi viduals, including Beringer, signed against decertifica tion The following day Williams brought the signed docu ment to the plant, laid it on a table, and said that, as shop steward, he was not going to have anything more to do with it Employee Gnmaldi took the document with her and, after work, visited her niece Janeal Bartus, who had been on layoff status for about a year She indicated to Bartus that she was going to take it to the Labor Board, however, Bartus volunteered to do it for her in light of the fact that she was not working and had more time available At this point the record is muddled regarding the pre cise chain of events which led to the filing of a decertifi cation petition by Janeal Bartus on Friday, September 18, 1987 At some point Bartus took the document which had been signed at Williams Monday afternoon meeting to the Board s Regional Office in downtown Pittsburgh She was informed that it was incorrect as to form and insufficient to serve as a showing of interest foundation for a decertification petition She was further informed by a Board agent of the correct wording which had to be used on an employee petition for decertification She went to the plant, spoke with Grimaldi, and the two of them went to the company office on the third floor They asked a secretary to type up a petition in proper form and she did so whereupon they went back to the lunchroom and obtained the signatures of the five individuals who had originally signed for decertification Bartus also obtained individual handwritten statements from each of the five signers to the effect that each of them no longer desired to be represented by IAM Lodge 52 She took these documents back to the Board ofice and filed the decertification petition in Case 6-RD-1026 Sometime after the petition was filed, Warren Baxter, an employee who had been laid off in February 1987, called the plant to inquire about recall prospects His call was routed to William King a longtime management em ployee of the Company s Baxter gave King his new ad dress and phone number and asked him how things were going I credit Baxter s testimony that King told him in the course of this phone conversation that the Union 9 The Respondent concedes that King is a management employee but denies that he is a supervisor within the meaning of the Act Baxter de scribed King as the Company s chief inspector King is in charge of final inspection He occupies an office on the second floor rather than any work station on a production floor and dresses similarly to other manage ment employees He does no production work He schedules work at tends daily production meetings and establishes priorities on jobs He as signs particular employees to particular jobs and is authorized to grant time off when employees request it I conclude that King is a supervisor within the meaning of the Act for whose acts and statements the Re spondent is vicariously liable 790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was still in at the plant and that we have to get the Union out It s causing a lot of trouble King went on to say that Hall would close the doors eventually if things were not resolved with the Union The decertification election was held on October 29 1987 And resulted in a tie vote Objections to the con duct of the election, which form a part of this proceed ing, were filed on November 4 1987 As recited above, in mid December the Respondent wrote to the Union terminating the contract extension effective December 27, 1987 The first complaint in this case was issued the day after Harty s letter to the Union discontinuing the contract extension There is no factual dispute that, since November, the Respondent has not checked off any dues or remitted any dues payments to the Union There is also no factual dispute that since that date, the Respond ent has made no pension fund payments as required by the provisions of the expired agreement The Respondent acknowledges a continuing obligation to recognize the Union so long as objections to the de certification petition are pending It met once with the Union on January 12, 1988, to discuss contract matters but nothing came of this meeting By letter of January 14, 1988, from Harty to Elnyczky, the Respondent with drew the outstanding offer which it had made in Septem ber 1986, and informed the Union that it would forward a new contract proposal in a few days It did so The new proposal reiterated the grievance mediation provi sion which the Union found objectionable and lowered wage rates even further, providing specified individual rates for named employees who were then on its payroll These rates were presumably what these individuals were making at that time The Union did not respond to this offer Late in January 1988, the Respondent contacted both Baxter and Bennger to offer them part time employment as laborers at $7 an hour This rate is concededly lower than what either employee was earning on the dates of their respective layoffs and is not a rate which was pro vided for in the expired agreement 10 Neither Baxter nor Beringer accepted the offer II ANALYSIS AND CONCLUSIONS A Independent Violations of Section 8(a)(1) of the Act (a) When, dunng his conversation with Bennger on the occasion of the latter s discharge, H Hall stated that here's what you get for belonging to the Union It's your turn Respondent was threatening employees with discharge in reprisal for engaging in union activities in Violation of Section 8(a)(1) of the Act (b) When on the same occasion, H Hall told Bennger that if anyone wanted to work at the plant it would be without a union because he would close the plant rather than operate with a union the Respondent was threaten ing employees with plant closure in reprisal for engaging 10 There is no job classification of laborer in Appendix A of the ex pired agreement in which contractual classifications and wage rates are set forth There are wage rates for various classifications (e g $5 61 to $7 38) which span $7 per hour but none which specifies that rate in union activities in violation of Section 8(a)(1) of the Act (c) On the occasion of the meeting with Bennger in the company office on September 9, J Hall stated to Beringer that he would not put up with what his father had put up with over the years with the Union and, rather than do so, he would close the plant, sell the ma chinery, and put his money in the stock market Such a statement constitutes a threat to close the plant in viola tion of Section 8(a)(1) of the Act (d) On the occasion of their meeting with several screw department employees on September 9, 1987 com pany officials were met with the question of what em ployees had to do to save their jobs This question had been prompted by remarks made by J Hall a few min utes earlier to Beringer, when Beringer posed the same question, namely, that if anyone could bring about decer tification of the Union Bennger could This remark is sufficient to designate Beringer as the Respondents agent for the purpose of bringing about the decertification of the Union From that moment onward Beringer s state ments and activities are legally attributable to the Re spondent Bennger went down to the first floor of the plant where he had formerly been a leadman and called to gether the employees who were working there It is clear from the time sequence established in the record that he spoke with them on September 9 not only on company property but on company time The same is true for the meeting which ensued a few minutes later in J Schlafhauser s office Beringer, on behalf of the Re spondent told five screw department employees that the two top company officials had told him that, if the Union stayed the plant would close down and that in 6 months, there would be no Union and no Company He also said that the Company could not approach them concerning decertification they had to approach the Company It is with this impetus all generated by the company spokesman that a meeting took place in John Schlafhauser's office a few minutes later The conversation in J Schlafhauser s office between company officials and the group Beringer brought to the office began with the same employee question posed a few minutes earlier by Beringer and it ended with the same answer namely decertification The statement by J Hall and others that employees had to approach them concerning decertification because they could not ap proach employees was simply a clumsy and transparent ruse The thrust of the statements and actions by compa ny officials on this occasion was to convey the idea to employees that getting rid of the Union could preserve employee jobs H Hall had said as much to Beringer the previous day Such a promise of benefit for rejecting the Union, as well as J Hall s statement and Beringer s state ment to employees relaying J Hall s threat are viola tions of Section 8(a)(1) of the Act Respondent then phoned the company lawyer obtained the details about how to go about decertification and called a meeting the following day in which it disseminated this information in writing not only to those who had asked for it but to everyone in the bargaining unit Respondent was plainly HALL INDUSTRIES 791 campaigning for decertification before any petition was on file Since the Respondent actively stimulated the de certification effort and did so in the context of serious unfair labor practices, its conduct in this regard is also a violation of Section 8(a)(1) of the Act and the decertifi cation petition which resulted from its effort is void ab initio Placke Toyota, 215 NLRB 395 (1974), Texaco Inc, 264 NLRB 1132 (1982), Alexander Linn Hospital Assn, 288 NLRB 103 (1988) 11 (e) By telling Beringer that he had recordings of state ments made by Beringer during negotiations and that he would play them back for him some day, H Hall created the impression that the union activities of employees were the subject of company surveillance and thus vio lated Section 8(a)(1) of the Act (f) Quality Control Supervisor King spoke by tele phone with laid off employee Baxter when the latter called the plant to inform the Company of a change of address and to inquire about his prospects for recall When King told Baxter that we have to get the Union out It's causing a lot of trouble, and the Halls would close the doors eventually if the question of the Union was not resolved, the Respondent violated Section 8(a)(1) of the Act These statements were made between the date of the filing of the decertification petition and the date of the election If the petition were to remain viable, these remarks would constitute objectionable con duct warranting the setting aside of the October 29, 1987 election What the Respondent added to this evidence at the hearing was plainly afterthought There is little doubt that the Company was losing business but it is also clear from the record that even in the face of a decline in orders it was also farming out bargaining unit work, thus aggravating the impact of economic conditions on its employees Beringer was admittedly an excellent em ployee in fact he had trained his replacement to run the machines that he had been running before his discharge However, when it came to applying the seniority provi sions of the contract in selecting an employee for layoff, Beringer was released under a claim of seniority while others, with fewer years of service, were retained One such employee was transferred from the Barrett Machine Shop to the East Carson Street plant to take up the slack These contradictions in the Respondents stated position must also be viewed in conjunction with the timing of the discharge, which coincided with H Hall s irritation with the IAM's Labor Day activities but not with any concrete discernible event which had occurred at the plant These factors indicate clearly that the expla nation proffered at the hearing for this action was wholly pretextual and that Beringer was fired for the reasons H Hall said he was-it was now Beringer s turn to suffer for his union activities In light of these consid erations, I conclude that Joseph Beringer was discharged by the Respondent for union activities in violation of Section 8(a)(1) and (3) of the Act B The Discharge of Joseph Beringer Joseph Beringer was a longtime employee of the Re spondent He was recognized as the Union s strongest adherent in the plant He was discharged abruptly on September 8 after being told a few weeks earlier that his job tenure was secure While Beringer was actually told he was being laid off, the layoff was of indefinite dura tion and, to all intents and purposes, was a discharge The record in this case contains the best possible evi dence supporting the contention that Beringer was fired for union activities-the company president told him so During a final interview between Beringer and H Hall, the latter fulminated about the IAM s extravagance in entering a float from California in the Pittsburgh Labor Day parade He then told Beringer You wanted to belong to the Union You supported the union Here s what you get for belonging to the union It s your turn This is a categorical statement that Beringer s discharge was discnminatonly motivated H Hall went on to talk about Beringer s union activity 10 or 20 years earlier while still rankled Despite the fact that many years had elapsed since Beringer had supplied employees with beer as they walked a picket line, H Hall never forgot and he never forgave Direct evidence of a discriminatory dis charge is rare in Board proceedings but it should not be ignored on that account 11 The Respondent s activity in this case far exceeded mere ministerial acts such as furnishing inquirers with the phone number of the local Board office However even ministerial acts which smooth the path to decertification constitute unfair labor practices where as here they are performed in the context of other unfair labor practices D & H Mfg Co 239 NLRB 393 (1978) C The Offer of Positions to Baxter and Beringer In late January 1988, the Respondent contacted both Bennger and Baxter to offer them part time positions in the plant as laborers at a wage of $7 per hour Both de clined Since these offers did not even remotely approxi mate the earnings which they enjoyed at the time of their respective layoffs they cannot in any sense be deemed offers of reinstatement There was no provision in the union contract for such wage rates and the Com pany's attempt to establish such wages by offers to Ber inger and Baxter constitutes direct bargaining with unit personnel to establish such a rate in derogation of its duty to bargain with the Union The fact that the contract between the parties had ex pired and that extensions had also been terminated does not detract from the Respondent's obligation to negotiate changes or additions in wages with the bargaining agent Respondents counsel stated at the hearing that the Com pany will continue to recognize the Union , notwithstand ing the vote at the decertification election , until the ob jections to that election have been resolved A few weeks before negotiating with Beringer and Baxter it had met with union representatives and engaged in a brief and unsuccessful effort to reach a contract The same ob ligation extended to the setting of wage rates for part time laborers Ace Galvanizing 217 NLRB 144 (1975) Caravelle Boat Co , 227 NLRB 1355 (1977) Stone Boat Yard, 264 NLRB 981 (1982) Respondent's defense to this allegation in the consoli dated complaint is that part time laborers are outside the scope of the bargaining unit , so an obligation to bargain did not exist with respect to these positions The conten 792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion is without merit The positions offered to Bennger and Baxter involved the performance of bargaining unit work at the East Carson Street plant They would be working alongside other employees who were admittedly doing bargaining unit work The contract definition of the bargaining unit, included also in the definition in the Respondents latest offer to the Union, included all employees in the bargaining unit It did not differentiate between full time and part time employees That defini tion went on to define the bargaining unit [as] consist ing of all working foremen, tool and die makers, machin ists, machinist helpers apprentices, specialists production workers laborers, and helpers (emphasis added) This definition plainly included the jobs offered to Bennger and Baxter since all laborers does not mean just all full time laborers Having failed to negotiate with the Union concerning the offers made directly to these indi viduals, the Respondent here violated Section 8(a)(1) and (5) of the Act D Termination of Dues Checkoff and Pension Contributions The duty to negotiate with a union after the expiration of a contract includes a duty to retain intact the wages, hours and terms and conditions which exist at the end of the contract until changes have been either agreed on or have been offered to the Union and bargained to im passe This duty includes a duty to continue making pay ments to fringe benefit funds The duty to bargain also includes a duty to check off and remit union dues so long as there is a contractual basis for doing so Bethle hem Steel Corp 136 NLRB 1500 (1962), Hassett Mainte nance Corp 260 NLRB 1211 (1982) In the present case, the contract was still in effect through a series of exten sions until December 27, 1987, so the Respondents duty to deduct and remit union dues did not expire until that time The duty to make payments to fringe benefit funds still continues, unless and until the Respondent can dem onstrate that the Union has agreed to discontinue those payments that it has bargained in good faith to impasse concerning an alternative to making such payments, or that the Union has waived such bargaining By failing to deduct dues between November 1 and December 27 1987 from the paychecks of employees who had filed dues deduction authorizations and by fail ing to remit such dues to the Union the Respondent here violated Section 8(a)(1) and (5) of the Act By fail ing to make pension fund payments after November 1, 1987, the Respondent also violated Section 8(a)(1) and (5) of the Act The Respondents duty to tender such payments to the trustee is in no way to be affected by the correspondence contained in the record from the trustee Nor does the fact that the Respondents last offer to the Union provides employees with an option to con tine to be covered by the IAM pension plan or by the Respondents profit sharing plan affect the Respondent s statutory obligation Even assuming that this proposal had been bargained to impasse by the parties, there is no evidence that any employee covered by the IAM plan has ever opted out of it so there is no basis for the Re spondent to discontinue payments due and owing on behalf of any of them On the foregoing findings of fact and on the entire record considered as a whole, I make the following CONCLUSIONS OF LAW 1 Hall Industries, Inc is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act 2 International Association of Machinists and Aero space Workers, Local Lodge No 52, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 All working foremen, tool and die makers machin ists, machinists helpers apprentices specialists produc tion workers laborers and helpers employed by the Re spondent at its two Pittsburgh Pennsylvania, plants, ex cluding office clerical employees, guards, professional employees, and supervisors as defined in the Act consti tute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act 4 At all times material here the Union has been the exclusive collective bargaining representative of all of the employees in the unit found appropriate in Conclu sion of Law 3 for the purpose of collective bargaining within the meaning of Section 9(b) of the Act 5 By directly negotiating the wages and terms and conditions of employment with members of the aforesaid bargaining unit by failing to deduct union dues from em ployees who had filed with the Respondent dues deduc tion authorizations and by failing to remit dues so de ducted to the Union, and by failing to remit to the IAM National Pension Fund payments which were due and owing on behalf of members of the aforesaid bargaining unit, the Respondent has violated Section 8(a)(5) of the Act 6 By discharging Joseph Bennger because of his mem bership in and activities on behalf of the Union, the Re spondent has violated Section 8(a)(3) of the Act 7 By the acts and conduct set forth above in Conclu sions of Law 4 and 5, by threatening employees with plant closure for continuing to support the Union by creating in the minds of employees the impression that their union activities were subject to company surveil lance and by sponsoring and encouraging the filing of a decertification petition, the Respondent violated Section 8(a)(1) of the Act 8 The decertification petition filed in Case 6-RD-1026 is null and void and of no legal force and effect 9 The aforesaid unfair labor practices have a close, in timate, and substantial effect on the free flow of com merce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has committed cer tarn unfair labor practices I will recommend that it be required to cease and desist and to take other affirmative actions designed to effectuate the purposes and policies of the Act Because the violations of the Act found herein are repeated, pervasive, and serious, I will recom mend to the Board a so called broad 8(a)(1) remedy de signed to suppress any and all violations of that section HALL INDUSTRIES 793 of the Act Hickmott Foods, 242 NLRB 1357 (1979) I will recommend that the Respondent be required to offer full and immediate reinstatement to Joseph Beringer to his former or substantially equivalent position, without prejudice to his seniority or to other benefits, and that he be made whole for any loss of pay or benefits which he may have suffered by reason of the discrimination found in this case, in accordance with the formula set forth in the Woolworth case,12 and with interest computed at the short term Federal rate used to compute interest on un derpayment and overpayments of Federal income taxes under the Tax Reform Act of 1986 New Horizons for the Retarded, 283 NLRB 1173 (1987) I will also recommend that the Respondent be required to remit to the Union all dues which it should have deducted and which were due and owing between November 1 and December 27, 1987, with interest as calculated I will also recommend that the Respondent be required to remit to the IAM Nation a] Pension Fund all pension fund payments due and owing under the terms of its expired contract with the Union Interest on said payments will be computed at the compliance stage of these proceedings Merryweather Op tical Co, 240 NLRB 1213 (1979) I will also recommend the posting of the usual notice advising employees of their rights and of the results of this case On these findings of fact and conclusions of law and on the entire record I issue the following recommend edis ORDER The Respondent, Hall Industries Inc, Pittsburgh Pennsylvania, its officers, supervisors, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively in good faith with Association of Machinists and Aerospace Workers, Local Lodge No 52 AFL-CIO the exclusive collective bar gaining representative of all of its working tool and die makers, machinists, machinists helpers, apprentices, pro duction workers, laborers and helpers, employed at its two Pittsburgh, Pennsylvania plants, exclusive of office clerical employees guards, professional employees and supervisors as defined in the Act (b) Bypassing the Union and negotiating directly with employees concerning wages hours, and terms and con ditions of employment (c) Failing and refusing to remit to the Union dues which are due and owing under terms of existing collec tive bargaining agreements and extensions (d) Failing and refusing to remit to trustees of fringe benefit funds periodic payments which are due and owing on behalf of bargaining unit employees (e) Threatening employees with plant closure for con tinuing to support the Union (f) Creating in the minds of employees the impression that their union activities are subject to company surveil lance (g) Sponsoring and encouraging the filing of a decerti fication petition (h) Discouraging membership in or activities on behalf of International Association of Machinists and Aerospace Workers, Local Lodge Number 52, AFL-CIO, or any other labor organization by discharging or laying off employees or otherwise discriminating against them in their hire or tenure (i) By any other means or in any other manner inter fering with, restraining, or coercing employees in the ex ercise of rights guaranteed to them by Section 7 of the Act 2 Take the following affirmative action neccessary to effectuate the policies of the Act (a) Offer to Joseph Beringer full and immediate rein statement to his former or substantially equivalent em ployment, without prejudice to his seniority or to other rights which he previously enjoyed, and make him whole for any loss of pay or benefits which he may have suffered by reason of the discrimination found herein, in the manner described above in the remedy section (b) Remit to the Union all dues which are due and owing in the manner described above in the remedy sec tion (c) Remit to the IAM National Pension Fund all pen sion fund payments which are due and owing in the manner described above in the remedy section (d) Post at the Respondents Pittsburgh, Pennsylvania plants copies of the attached notice marked Appen dix 14 Copies of the notice on forms provided by the Regional Director for Region 6, after being signed by the Respondents authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus tomarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered de faced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER ORDERED that the representation peti tion filed in Case 6-RD-1026 be dismissed 12 F W Woolworth Co 90 NLRB 289 (1950) is If no exceptions are filed as provided by Sec 102 46 of the Boards 14 If this Order is enforced by a judgment of a United States court of Rules and Regulations the findings conclusions and recommended appeals the words in the notice reading Posted by Order of the Nation Order shall as provided in Sec 102 48 of the Rules be adopted by the al Labor Relations Board shall read Posted Pursuant to a Judgment of Board and all objections to them shall be deemed waived for all pur the United States Court of Appeals Enforcing an Order of the National poses Labor Relations Board