B. F. Goodrich Co.

National Labor Relations Board - Board Decisions

Oct 31, 1975

221 N.L.R.B. 288 (N.L.R.B. 1975)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. F. Goodrich General Products Company, a
Division of the B. F. Goodrich Company and
International Chemical Workers Union and its
Local 343, AFL-CIO-CLC. Case 9-CA-8909
October 31, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On June 24, 1975, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
exceptions and a supporting brief and a brief in
answer to Respondent's exceptions.
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, findings,
conclusions , and recommendations of the Admims-
trative Law Judge as modified herein.
1. As fully described in his Decision, the Admin-
istrative Law Judge, in finding that Respondent
violated Section 8(a)(3) and (1) of the Act by
discharging all its cafeteria employees and violated
Section 8(a)(5) by subcontracting out its cafeteria
operations in September 1974, relied on certain prior
conduct of Respondent as evidencing its antiunion
motivation. In this regard, the Administrative Law
Judge found that on May 3, 1974, during a meeting
held with the cafeteria employees some 5 days prior
to the election herein, Respondent, through Sullivan
and Massi , its personnel director and industrial
relations manager , respectively, informed these em-
ployees that they were to receive benefits which they
had not previously enjoyed; impliedly promised
them additional benefits if they would give Respon-
dent a year without the Umon; and threatened the
loss of such benefits and, indeed, the closing of the
cafeteria operations, in the event they selected the
Union as their collective-bargaining representative.
He further found that on May 7, during the course of
individual discussions held with each of the cafeteria
1 With respect to Massi's remarks of May 7, the Administrative Law
Judge completely credited the testimony of three employees . In this regard,
however, the Administrative Law Judge, apparently by inadvertence , failed
to cite all the pertinent portions of the testimony of Cuzzens , one of the
three, which clearly show that Massi , inter aha, specifically repeated his
earlier threat made on May 3 to close down or to subcontract out the
cafeteria operations Thus, the relevant portions of Cuzzens ' testimony
appear in the record as follows:
He [Masai ] said that Akron [Respondent's corporate headquarters ]
was appalled with the conditions down here and he was going to try to
221 NLRB No. 55
employees, Massi reiterated the remarks previously
made by him and Sullivan at the May 3 meeting.'
The above conduct was specifically alleged in the
complaint to be violative of Section 8(a)(1). Howev-
er, the Administrative Law Judge, despite the finding
that such conduct interfered with the employees'
exercise of their Section 7 rights, concluded that no
finding of a violation could be based thereon
inasmuch as such conduct fell outside the 6-month
limitation period imposed by Section 10(b) of the
Act.
The General Counsel, although urging that the
Administrative Law Judge properly relied on such
conduct to establish Respondent's motivation for its
subsequent actions, specifically excepts to the Ad-
ministrative Law Judge's failure to find a violation of
Section 8(a)(1) based on Massi's remarks of May 7
on the ground that this conduct occurred within the
10(b) period. While we agree with the Administrative
Law Judge's conclusion that Respondent's conduct
of May 3 and 7 may properly be relied on to shed
light on its subsequent actions,2 we also find merit in
the General Counsel's exception.
Thus, an examination of the formal papers in this
proceeding, which were received into evidence at the
hearing without objection, discloses that the charge
herein was filed with the Board on October 29, 1974,
and that Respondent was served with a copy of the
charge on November 6, 1974, as evidenced by a
return receipt card bearing that date . It is therefore
clear that Massi's conduct on May 7 in fact occurred
within the 10(b) period and, inasmuch as we agree
with the Administrative Law Judge's conclusion that
such statements interfered with the employees' rights,
we find that Respondent thereby violated Section
8(a)(1) of the Act. Accordingly, we shall modify the
Administrative Law Judge's recommended Order to
conform herewith.
2. We agree with the Administrative Law Judge's
conclusions that Respondent, by discharging its
cafeteria employees and subcontracting out its
cafeteria operation in September 1974, violated
Section 8(a)(3), (5), and (1) for the following reasons:
The record discloses that for the 28 years preceding
the events herein Respondent had maintained an in-
plant cafeteria through contractual arrangements,
most recently with Mary Pape and, prior to that time,
with the latter's mother. Throughout this period
do something about it, and would we give them a year without joining
this union, would we give Goodrich a year, you know, to see what they
could work out f o r us ... .
Oh, yes, he did tell us the same thing he did before, that we could
lose the benefits and things if we got the union in there , because they
didn't want it in They could close the place down, or contract out or
whatever.. .
2 Local Lodge No 1424, International Association of Machinists [Bryan
Manufacturing Co] v NL.R B., 362 U S 411 (1960)
B. F. GOODRICH GENERAL PRODUCTS CO. 289
Respondent considered the cafeteria workers to be
employees of the Papes rather than of itself.
However, following the filing of a representation
petition by the Union in early 1974, the Board
determined that the cafeteria workers in fact were
employees of Respondent.3 Subsequently, during the
week immediately prior to the election, Respondent
engaged in the above-described conduct. Following a
Board-conducted election on May 8, the Union was
certified as the representative of the cafeteria
employees.
Shortly thereafter, Respondent, without any notifi-
cation to the Union, arranged for three catering
service companies to inspect its cafeteria operations
so that, according to Sullivan's testimony, they could
"give us their opinion of the operation and perhaps a
proposal as to how they might operate the thing,
should we eventually happen to go in that direction."
It is undisputed that Respondent was not charged by
any of the catering service companies for their
services.
Commencing on June 12, Respondent and the
Union held four negotiation sessions, none of which
lasted longer than 1 hour.4 At the outset of the June
12 session, the Union presented its initial demands.
Respondent, however, did not at that time, nor at
any other time during this session or the ensuing
sessions , present an offer to the Union or make a
counterproposal to the Union's demands. Shortly
thereafter; in response to an inquiry by a union
representative concerning the activities of the cater-
ing companies on Respondent's premises, Sullivan,
as he had during the May 3 meeting with the
employees, took the position that Respondent "is not
in the food business and we don't feel we want to get
involved in handling such an operation and are not
at all interested in running the cafeteria." Although
there followed some discussion concerning contract
terms, the session concluded with Sullivan restating
the above position, and advising the Union that
Respondent could make no commitments as to what
would happen in the future and that Respondent
would notify it of any information received from the
catering services.
At the outset of the bargaining session held on July
23, Sullivan stated that Respondent was continuing
to review the possibility of subcontracting out its
cafeteria operation and that it "was at the point
3 In his Decision and Direction of Election issued on April 4, 1974, in
Case 9-RC-10467, the Acting Regional Director for Region 9 concluded
that Mary Pape was a supervisor of Respondent , rather than an
independent contractor , and that, therefore , the cafeteria workers were in
fact Respondent 's employees. In so concluding he relied on his findings,
inter alia, that Pape was salaried , that Respondent required all cafeteria
workers hired by Pape to be examined and approved by its medical
department ; that the working capital , inventory, and profits of the cafeteria
were the exclusive property of Respondent ; that the expenses of the
where we are seriously considering doing so."
Sullivan, however, added that "we have a couple of
more matters to look into before we make a final
decision," and asked the union representatives what
alternatives they might suggest. The Union then
proposed that the present arrangements with Pape
could be continued. To that proposal, Sullivan
responded that "we still feel that it is best for us all
that we don't try to run the cafeteria," and that "[t]he
NLRB rules that we were joint employers, but we
didn't and still don't think we were." Thereafter,
during the discussion concerning the terms and
conditions of employment for the cafeteria workers,
Sullivan twice advised the Union that such matters
would have to be negotiated with the catering
company.
At the bargaining session held on July 31, Gottsch-
alk, acting as Respondent's principal spokesman due
to Sullivan's hospitalization, asked the Union wheth-
er it had any alternatives to subcontracting which it
would like to discuss. One of the union representa-
tives responded that the Union might file unfair
labor practice charges. Gottschalk then informed the
Union that Respondent would be proceeding to
make arrangements with a catering company to
assume the cafeteria operations and stressed that the
latter would negotiate a contract with the Union. The
session concluded with the Union asserting its
position that it wanted to negotiate a contract with
Respondent and not its subcontractor.
At the outset of the final meeting held on
September 9, Sullivan informed the Union that
Respondent had executed a contract with Macke
Company, one of the companies which it had
contacted soon after the Union's certification, and
that the latter would be assuming the management of
the cafeteria effective September 16, and would be
negotiating with the Union over a collective-bargain-
ing agreement. The, Union then requested a copy of
the contract between Respondent and Macke Com-
pany which, however, Respondent refused to pro-
vide. Sullivan and Gottschalk then reiterated Re-
spondent's positions that it was not, and did not
desire to be, in the "food business," and that the
cafeteria workers were not its employees. The session
concluded with Sullivan advising the Union that he
would be waiting to hear from it so that he could
contact Macke Company to arrange for negotiations.
cafeteria , including payroll and workmen 's compensation contributions,
were paid out of an account bearing Respondent 's name , that Respondent
audited the financial books of the cafeteria ; and that Respondent retained
control over the hours of cafeteria operation , menus, and prices. By
telegraphic order dated April 25, 1974, the Board denied Respondent's
request for review of the Acting Regional Director's decision.
4 At the hearing, minutes of the bargaining sessions , which had been
prepared by Respondent, were received into evidence . This evidence was
supplemented by the testimony of various witnesses.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly thereafter, the cafeteria employees were
removed from Respondent's payroll, and in effect
transferred to Macke Company. Ultimately the
Union, apparently under protest, signed an agree-
ment with Macke.
In light of the above facts, we agree with the
Administrative Law Judge's conclusions that Re-
spondent discharged its cafeteria employees because
they had voted for the Union and that the bargaining
which followed the Union's certification was nothing
more than a "charade." Thus, that Respondent
manifested a great degree of animus towards the
Union is amply illustrated by its preelection conduct
through which it clearly conveyed to its employees
that the cafeteria operation could be continued as it
had in the past if they would give Respondent a year
without the Union, but that a union victory might
mean the closing of that operation. Consistent with
that threat, Respondent, almost immediately after
the Union's certification, arranged with various
catering companies to inspect its cafeteria operation
and to make proposals concerning that operation,
services for which Respondent was not charged and
from which the inference is clear that Respondent
had already begun the process of divesting itself of
any role as the employer of the cafeteria employees.
That Respondent's subsequent efforts at the
bargaining table were little more than an attempt to
create an appearance of good-faith bargaining is also
clear . Thus, Respondent's previously demonstrated
animus towards the Union in itself casts serious
doubt as to the genuineness of the bargaining here.5
However, in reaching our conclusions herein we do
not rely solely on Respondent's prior animus, for it is
apparent that throughout the bargaining sessions
Respondent was motivated by a desire to rid itself of
the cafeteria employees and their selected representa-
tive. Thus, from the very outset of negotiations and
continuing throughout the remaining meetings,
Respondent consistently repeated the refrain that it
did not want to get involved in the cafeteria
operation and, in total disregard of the Board's
determination in the prior representation case, that it
did not consider the cafeteria workers as its employ-
ees.
Furthermore, we find that, in the totality of the
circumstances here, Respondent in fact merely
engaged in sham bargaining. Thus, while the record
discloses that some discussion concerning contract
terms occurred during the negotiation sessions,
Respondent at no time made any counterproposals
to the Union's initial demands. With' respect to the
alternative to subcontracting - suggested by the
Union, Respondent, despite a 28-year history of
maintaining the cafeteria operation, summarily
rejected this proposal, again asserting that it was not
in the "food business" and expressing only in the
most general terms a position that the Union's wage
demands would make the cafeteria operation uneco-
nomical. However, with regard to the latter, when the
Union requested information concerning the fman-
cial arrangements between Respondent and Macke
Company, information which was necessarily rele-
vant to any meaningful discussion of the relative
costs between subcontracting and maintaining the
cafeteria operation as it had been, Respondent flatly
denied the requests Finally, in finding that Respon-
dent engaged in sham bargaining, it is apparent that
Respondent, in implementing its earlier threat, had
made a firm decision to subcontract out its cafeteria
operation at least as early as July 23, the date of the
second negotiation session between the parties. Thus,
as noted above, during the discussion of contract
terms at that session, Respondent twice asserted that
such items would have to be' negotiated with the
catering company. While perhaps this stated position
does not demonstrate that Respondent had selected a
particular catering service at that time, it surely
reveals that Respondent had by then in fact made a
firm decision to subcontract and belies Respondent's
contention that no final decision to, subcontract out
the cafeteria operations was made until September.
Based on the foregoing, we find that Respondent's
discharge of its cafeteria employees was based on
antiunion considerations and that its conduct herein
evidences a -total rejection of the principles of
collective bargaining. Accordingly, we conclude, as
did the Administrative Law Judge, that Respondent
has thereby violated Section 8(a)(3), (5), and (1) of
the Act.
5 Cf. Longhorn Machine Works, Incorporated 205 NLRB 685 at fn. 1
(1973); Town & Country Manufacturing Company, Inc., and Town & Country
Sales Company, Inc, 136 NLRB 1022, 1026 (1962).
6 The General Counsel, inter aha, has also excepted to the Administra-
tive Law Judge's failure to find that Respondent, as alleged in the
complaint , violated Sec . (a)(5) by its refusal to furnish this information upon
the request of the Union and to his failure to provide a remedy therefor. We
find merit in these exceptions . Thus, as noted above , Respondent flatly
refused to furnish such information during the September 9 bargaining
session. The record further discloses that the Union, by letter dated
September 17, again requested such information. While Respondent
subsequently submitted a copy of its agreement with Macke Company to
the Union, it is undisputed that the financial details of the agreement had
been deleted by Respondent
It is well established that a duly designated collective-bargaining
representative is entitled , upon request, to such information as may be
relevant and necessary to the proper performance of its statutory duties and
that an employer's refusal to furnish such information, except in unusual
circumstances not present herein, constitutes a violation of Sec. 8 (a)(5).
N.L RB. V. Acme Industrial Co., 385 U.S 432, 435-436 (1967). In the
instant case, it is clear that the information requested by the Union was
both relevant and necessary to enable the Union to engage in meaningful
bargaining concerning the subcontracting out of the cafeteria operation and
that, therefore , Respondent's refusal to furnish such information was
violative of Sec. 8(a)(5). Accordingly, we shall modify the Administrative
Law Judge 's recommended Order in this respect.
B F GOODRICH GENERAL PRODUCTS CO.
3. The Administrative Law Judge, in providing a
remedy for Respondent's violations of Sec. 8(a)(3),
(5), and (1), inter alia, recommended that Respon-
dent be prohibited from subcontracting out its
cafeteria operations for a period of 1 year. We
specifically do not adopt this portion of his recom-
mended remedy.
Thus, in cases such as this, involving the unlawful
subcontracting or discontinuance of a portion of an
employer's business, the Board traditionally has
required the employer to reestablish those opera-
tions, but, recognizing the right of an employer to
operate its business in any manner it deems desira-
ble, absent unlawful reasons, the Board has not
precluded such an employer, once it has fulfilled its
statutory obligation to bargain in good faith, from
subcontracting its work in the future based on
legitimate business reasons.? No reason exists here
which warrants a departure from the remedy the
Board has customarily applied in cases of this kind.
We, therefore, shall additionally modify the Admin-
istrative Law Judge's recommended Order in this
regard.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
B. F. Goodrich General Products Company, a
Division of the B. F. Goodrich Company, Marietta,
Ohio, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Interna-
tional Chemical Workers Union and its Local 343,
AFL-CIO-CLC, as the exclusive representative of
the employees in the following appropriate unit:
All cafeteria employees employed by the Employ-
er at its cafeteria located in its manufacturing
plant at Marietta, Ohio, excluding all office
clerical employees, professional employees, all
other employees, all guards and supervisors as
defined in the Act.
(b) Refusing to furnish the above-named labor
organization information concerning the financial
arrangements between Respondent and Macke
Company relating to the subcontracting of Respon-
dent's cafeteria operations at its Marietta, Ohio,
plant.
(c) Discouraging membership in the above-named
or any other labor organization of its employees by
discharging employees because of their membership,
7 See, e g., Parkiane Hosiery Co, Inc. and Mervyn Roberts d/b/a Parkiane
Hosiery, 203 NLRB 597, 620 (1973); Town & Country Manufacturing
291
support, or activities on behalf of the above-named
or any other labor organization.
(d) Directly or indirectly promising its employees
benefits, or threatening its employees with loss of
benefits, including the threat to subcontract out or
discontinue its cafeteria operations, in order to
induce its employees to abandon their support of the
above-named or any other labor organization.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist the
above-named labor organization, or any other labor
organization, to bargain through representatives of
their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Cancel its existing contracting arrangement
with Macke Company with respect to the cafeteria
operation at Respondent's Marietta, Ohio, plant.
(b) Reestablish the former cafeteria operation at
Respondent's Marietta, Ohio, plant.
(c) Offer the 11 employees previously employed by
Respondent at the above-mentioned cafeteria imme-
diate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges. Make whole
all of the above employees for any loss of earnings
they may have suffered by reason of the discrimina-
tion against them by payment to each of the sum of
money each would have earned during this period,
less net earnings, if any, to be computed in
accordance with the formula set forth in F W.
Woolworth Company, 90 NLRB 289 (1950), together
with interest thereon at the rate of 6 percent per
annum as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
(d) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all the employees in the appropriate
unit set forth above in respect to rates of pay, wages,
hours of employment, or other terms and conditions
of employment, and embody any understanding
reached in a signed agreement. Further, upon
request, furnish the above-named labor organization
information concerning the financial arrangements
between Respondent and Macke Company with
respect to the subcontracting out of the cafeteria
operation.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
Company, Inc, supra See also N L R B v Preston Feed Corporation, 309
F 2d 346, 352 (CA 4, 1962)
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
(f) Post at its plant in Marietta, Ohio, copies of the
attached notice marked "Appendix."8 Copies of said
notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respon-
dent's representatives, shall be posted by the Respon-
dent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges unfair
labor practices not specifically found herein.
8 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 Labor 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 discourage membership in
International Chemical Workers Union and its
Local 343, AFL-CIO-CLC, or any other labor
organization of our employees, by discharging
any of our employees because of their member-
ship, support, or activities on behalf of the above-
named or any other labor organization.
WE WILL NOT directly or indirectly promise our
employees benefits, or threaten our employees
with loss of benefits, including the threat to
subcontract out or discontinue our cafeteria
operation, in order to induce them to abandon
their support of the above-named or any other
labor organization.
WE WILL NOT refuse to bargain collectively with
the above-named labor organization as the
exclusive representative of our employees in the
following appropriate unit:
All cafeteria employees employed by the
Employer at its cafeteria located in its
manufacturing plant at Marietta, Ohio,
excluding all office clerical employees, pro-
fessional employees, all other employees, all
guards and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organize, to form,
join, or assist the above-named or any other labor
organization, to bargain through representatives
of their own choosing, and to engage in other
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL cancel our existing contracting
arrangement with Macke Company with respect
to the cafeteria operation at our Marietta, Ohio,
plant.
WE WILL reestablish our former cafeteria
operation at our Marietta, Ohio, plant.
WE WILL offer the 11 employees previously
employed by us at the above-mentioned cafeteria
immediate and full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority and other rights and
privileges, and WE WILL make them whole for any
loss of earnings they may have suffered by reason
of our discrimination against them.
WE WILL, upon request, bargain collectively
with the above-named labor organization as the
exclusive representative of our employees in the
aforementioned appropriate unit with respect to
rates of pay, wages, hours of employment, or
other terms and conditions of employment, and
embody any understanding reached in a signed
agreement.
WE WILL, upon request, furnish the above-
named labor organization information concern-
ing the financial arrangements between us and
Macke Company relating to the subcontracting of
our cafeteria operation at our Marietta, Ohio,
plant.
B. F. GOODRICH
GENERAL PRODUCTS
COMPANY, A DIVISION OF
THE B. F. GOODRICH
COMPANY
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held at Marietta, Ohio, on May 8,
1975, on complaint of the General Counsel against B. F.
Goodrich General Products Company, a Division of the B.
B. F. GOODRICH GENERAL PRODUCTS CO. 293-
F. Goodrich Company, herein called the Respondent or
the Company. The charge was filed on October 29, 1974,
by International Chemical Workers Union and its Local
343, AFL-CIO-CLC, herein called the Union, and the
complaint issued on March 20, 1975. The issue of the case
is whether by contracting out the work of its cafeteria
employees after they had chosen to be represented in
collective bargaining by the Union, in effect discharging all
of them, the Respondent violated Section 8(a)(3) and (5) of
the Act. Briefs were filed by the General Counsel and the
Respondent. ,
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
In its Marietta, Ohio, plant the Respondent manufac-
tures and sells plastic products. During the past 12 months,
a representative period, it had direct inflow of goods in
interstate commerce at this location valued in excess of
$50,000, all purchased and received from but-of-state
sources . I find that the Respondent is engaged in
commerce within the meaning of the Act.
intended to give the color of legality to an,,illegal
determination always fixed with finality the day after the
employees voted in favor of the Union.
At the hearing the Respondent advanced, a number of
defenses, some directly and some obliquely., For the most
part its witnesses - all personnel and industrial relations
officials - articulated the defense in terms of what they
told first the employees directly, and then the union agents,
at the time of the events. Among, the defenses are the
contentions that Respondent does not know ,how to run a
cafeteria and therefore had no choice but to discontinue
any such business in its own name; that it,did discuss its
contracting away intention with the Union, as Board law
requires; and that it was only after exhaustive bargaining
on the subject that it acted. There is also the suggested
argument that if Jack Sullivan, the Company's,personnel
director, 5 days before the election,, gave the employees
very valuable fringe benefits, - some-ever} retroactively -
which they had, never enjoyed before, as good reasons why
they should oblige the , Company and vote against the
Union, it was the Board itself that was responsible for,his
conduct by virtue of its holding that, the cafeteria
employees were in fact employees of the Respondent
corporation.
II. THE LABOR ORGANIZATIONS INVOLVED
I find that International Chemical Workers Union and
its Local 343, AFL-CIO-CLC, are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Case in Brief
Since shortly after establishment of its Marietta plant in
1947, the 500 or so production and maintenance employees
there have been represented by the Union - Local 343 -
under successive collective-bargaining contracts.. The
employees working in the plant cafeteria, which has also
been in operation there all these years, were never, until the
events giving rise to this case, engaged in collective
bargaining. In early 1974, they too joined the Union, which
then filed a representation election petition with the Board
(Case 9-RC-10467). The election was held on May 8, the
Union won, and it was certified as exclusive agent of the
then - 11 cafeteria employees on May 16. Management
agents met with union representatives on June 12, July 23,
and July 31, 1974; much of the talking was devoted to the
Company's announced resolve to contract away the entire
cafeteria operation and the Union's objection to such a
move. On September 9, the Respondent signed a contract
with Macke, an independent employer, to take over the
cafeteria business, and on September 9 the Union was
informed of the completed transaction. Shortly thereafter
the employees involved became employees of Macke, and
remain so today.
r The complaint alleges that the Respondent removed
these employees from its payroll, in retaliation for choosing
to be represented by the Union - in violation of Section
8(a)(3) of the Act, and, that whatever talking it carried on
with the Union in June and July was no more than a sham,
A. Proof of Antiunion Motivation '
On May 3, 5 days before the Board-conducted election;
Sullivan called the 11 cafeteria employees to a meeting,
during working hours, and read a prepared statement to
them. In the, representation case the . Company had
contended it was not ,their, employer,, the Regional
Director's decision in the case found otherwise, and, on
appeal, the Board had, on May 1, also found against the
Company. Sullivan-told the employees of this decision of
the Board, and then advised them that as of that day all I1
of them were receiving the full benefits - always enjoyed
by the larger number of production and maintenance
employees in the plant - of the Company's pension
program (retroactive to their, initial employment in the
corporation), hospitalization insurance, life insurance, and
sick and accident benefits. These were all benefits which
the employees had-never before enjoyed and among the
particular-improvements in their conditions of employment
which they sought to obtain via the collective-bargaining
route.
Sullivan said more that day. He also told the employees
they should vote against the - Union in the imminent
election, they stood to lose all these benefits if they did
otherwise, indeed could lose their jobs, and that, there was
more the Company's main office in Akron could-do-for the
employees - but always without the Union in the picture.
There is only a partial conflict in the testimony between
three ladies - cooks and sandwich makers - who were
present, and Sullivan, and the disagreement is more a
matter of nuance than substance. Neither Roger, Great-
house, the assistant personnel manager, nor .Anthony
Massi, the industrial relations manager, who stood, next to
Sullivan that day, gave any testimony about what he said. I
do not credit Sullivan where he disagrees,, if disagreement it
can be called, with the ladies' testimony.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donna - Williamson : "There were several things brought
up, one I remember is they did ask-us to wait one year
before we decided to go into the union, he said in one year
time things would be straightened up, if we wanted to go
into the union after- the year,- that union would accept us
again." "He also said, that we should consider voting, that
all of our benefits that we had just received could be
jeopardized, They=may be taken away or we-may not have
them, or even our jobs could be taken."
Maysle Cuzzens: " . . . [H ]e told us that we were to get
these benefits , and that he knew that we [were] thinking
about joining a union and we should think very carefully
about this because they didn't'want the union-in there .. .
he said , that he thought that grownup people could talk
and settle things without some outside interference to, help.
And he said these` benefits -had been given to us and they
could be taken away but they didn't want that union in
there. And' Mr. Massi agreed with that ... Mr. Massi also
said we should'think carefully about this' union, that they
might `close it, down, they didn't have to run that place., He
said B . F.- Goodrich is not in the food business ...." "
He didn't tell you that if the union was voted in that they
would, have, to- negotiate with, the union for those benefits?
A. No." -
Opal Slider: " ... [H]e said that we should think the
matter over before we decided the union, because we could
lose all of our benefits." In cross-examination of the
witness counsel for the Respondent showed that in her
earlier investigation affidavit there appeared the following
statements: "All I remember is that Sullivan announced
that we were considered-employees'of the B: F. Goodrich
by the labor board and that because of that we were going
to receive , the same benefits as the other'employees." On
redirect it was then established that the affidavit continued
immediately after the foregoing quotation with the follow-
ing words : "-I think it,was at this time Mr. -Sullivan asked
the employees to give Goodrich another year so they, could
straighten this out." Slider's transcript testimony also
contains the following: "Did he [Sullivan] according to
your present recollection say anything else? A.- Well, what I
said, give it serious thought before- we signed -the union,
because we-could-lose our, benefits."
,,Massi -testified but contradicted none of -the ' foregoing.
About this meeting Sullivan testified only that-he told the
employees all the benefits he was giving them would be
subject to negotiations in the event they should vote for the
Union., He otherwise did not deny one word of the
women's testimony : Asked had he told -them they should
give the Company a year's time to satisfy their•demands, he
three times said he could not remember. His, earlier
affidavit reads: -"I -did, prior to the election - ask -the
employees to give Goodrich another year and not to vote
for the union." As a witness in this case Sullivan cannot be
credited. - - ° -
- Four, days, later, the afternoon of the. day before the
balloting; Massi was back in the cafeteria and had each
woman come into a room where he could talk to her alone.
From the testimony of Williamson: "Mr. Massi told us that
we should take very serious consider all points [sic]. He
said -please give us one year toystraighten things out. Said
after a year's time we could still go back into the union if
we wanted to. He also said that Akron had no idea the
cafeteria was in the condition that, it was °in:'' "Well besides
telling us to consider what- we were, doing, and not to vote
for the union, he asked me if I would consider it ... .
Cuzzens: "He said that Akron -was appalled with the
conditions down here and he was going to try to do
something about it, and would we give them a year without
joining this union, would we give Goodrich a year, you-
know, to see what they could work out for us." ". . [H ]e
did tell us the same thing he did before, that we could lose
the benefits and things if we got the union in there, because
they didn't want it in." Slider: "Well, Mr. -Massi'said That
he wasn't aware of the working conditions in Marietta; that
Akron wasn't aware of the working. conditions in Marietta,
of our benefits and all and he said to give him a year to
work things out and not vote for the union. And see what
they could work out for us."
Called as a witness after these women, Massi's only
reference to the interviews he had with everyone of the 1, 1,
cafeteria employees was that his purpose in talking to them
was so, they could have the opportunity to ask him any
questions they wished. , I credit the three employees
completely. -
I find that by granting to the employees pension benefits,
hospitalization and life insurance, and sick and accident
benefits, all of which they had never previously enjoyed,
the Respondent restrained and coerced them in their
statutory rights freely to engage in concerted ' activities.
N.L.R.B. v. Exchange Parts, 375 U.S. 405 (1-964).-There is
no merit in the contention that the National -- Labor
Relations Board forced this action upon the Respondent
by finding the cafeteria workers worked for the Respon-
dent. If the Company had been underpaying these women
in violation of the Fair Labor Standards Act, that is one
thing; this case has nothing to do with that. There is,no law
which- dictates that an employer must give "all employees
not represented by a union the precise benefits enjoyed by
others covered by a,collective-bargaining contract. What is
more important here,- however„ is the - unquestionable
evidence that Sullivan's real purpose in giving these
benefits was to, wean the employees away, from their
proumon resolve. He told them that clearly enough by
saying they could lose them if they disagreed with his
concurrent requests that they vote against the Union. -
It is of no moment that in a technical sense there can be
no formal conclusion that by this bribery and threat the
Respondent, committed unfair labor practices in, violation
of Section 8(a)(1) of the statute; Section 10(b) precludes
that precise finding now. But the evidence nevertheless
remains proof positive of the Respondent's determination
to avoid dealing with any union with .respect to these I 1
employees. Sullivan's announced intention may have been
voiced more than 6 months before the filing of the charge,
but it was articulated very shortly before he fired, all the
women after their prounion vote. There is no limitation
upon evidence of motivation, and here the indication of
illegal purpose could not have been more timely related to
the critical conduct in question. As the Court said in
Exchange Parts: "The danger inherent, in, well--timed
increases in benefits is the suggestion of a fist inside the
velvet glove." The Respondent followed the gift with the
B. F. GOODRICH GENERAL PRODUCTS `CO.
expressly promised retaliation . And Massi's repeated
threats to each employee individually only a few days later
made even clearer the Respondent 's preparation to see that
the employees paid a price for any votes in favor of the
Union.
B. Violations of Section 8(a)(3)
The Respondent 's purpose in•contracting the cafeteria
operation to Macke was so that the women would cease
being ; employees of the Respondent . Whether-this action
be called a discharge , a layoff, a transfer , or anything else,
all it amounted to in the statutory sense is that the
Respondent discriminated against them in their employ-
ment relationship with Goodrich . It is too late a day in
history to play around with words when people 's jobs are
involved. No more could an employer defend against a
violation of Section 8(a)(3) of the statute on the grounds
that it simultaneously found comparable employment for
the dischargee with some other employer , union or
nonunion.
The reason why the Respondent contracted with Macke
to take over the cafeteria was because the employees had
voted in favor of the Union , had ignored management's
request that they not do so, indeed had flouted the direct
threats that this is exactly what would happen to them if
they persisted in deciding for themselves whether or not to
be represented by a labor organization . No clearer
violation of the statute could be shown. I find that bringing
about the transfer of these employees to Macke's employ,
the Respondent discharged all 11 of them in violation of
Section 8(a)(3).
In a sense the defense is comparable to a frequent
contention in Board proceedings that the employees were
released for just cause , and not because of an illegal
purpose . The Respondent made its pitch on this score
directly to the union agents during the three meetings after
the certification issued - that it was not in the food
business, that it did not have the required expertise to
operate a cafeteria , etc., and that these were the reasons
why it had no choice but to remove the employees from its
payroll . Spoken to the union agents at the ostensible
negotiations , these assertions were not true , and repeated
after the hearing in defense of this complaint , they remain
unconvincing. The Respondent had operated this cafeteria
- without change in method , as Sullivan admitted at the
hearing - since 1947. There was no reason why it could
not continue to do so exactly as it had always done. The
only thing that changed was that the union appeared on
the scene. But there is no real need to infer anything, for
Sullivan's affidavit confirms the testimony of the employ-
ees and proves literally not only that the Respondent could
operate a cafeteria but also that it wanted to continue it -
if only the employees would vote against the Union . This is
the absolute import of Sullivan's statement to the employ-
ees assembled, repeated by Massi to each woman separate-
ly, that if they would give the Company a year everything
would be fine, and they could keep the benefits.
N. THE REMEDY
295
As in every unfair labor practice case, the remedial order
must start with an injunction that the Respondent not
repeat the exact offense found to have. been committed.
Here it was the act of illegally discharging employees by
contracting away their jobs , and that is what the Respon-
dent for sure must not do again.
Of course the talking that went on between company
representatives and union agents after the certification was
a "charade," as -the General Counsel describes it.. Before
management first met with union agents after the certifica-
tion, on June 12, the Company already had representatives
of three separate catering companies looking over its
premises' and studying the cafeteria operations. When a
union man asked what they were doing there the answer
was so that all three could give the Respondent ideas about
how the Company- itself might run the cafeteria . Speaking
of the July 23 meeting with the Union , Sullivan said at the
hearing the thought of contracting with-, anyone - had not
even entered his mind then . "...Not at that time did we
have any intention to do so." He said it was not until after
he returned from the hospital in mid-August that the
Company asked any other company "if you got any offers
to make us ." But Donald Gottschalk , another company
representative, testified after Sullivan that at the July 31
meeting there was complaint by the union agents about
"our comment that we were evaluating outside vending
possibilities."
No amount of discussion about an illegal program
already planned could conceivably rise to the level of
good-faith bargaining as the concept is embodied in the
statute . Nothing could be clearer than that the Respondent
had no intention to honor the Union 's certification, and
therefore violated Section 8(a)(5) of the Act . That the
outright unlawful discharge of all the employees in the
bargaining unit for the literal purpose of avoiding any duty
to bargain with their selected representative is a total
rejection of the statutory duty to bargain is a matter of
pure logic , regardless of how the case be reported.
What is important here is that injection of this cumula-
tive, technical fording of illegality not be used to becloud
the essential import of the necessary remedial order. An
employer found to have illegally discharged an employee
after advancing an unconvincing defense of incompetence,
may not thereafter discuss the asserted incompetence at
length with his union and proceed to discharge him again
with impunity . In the same sense the Respondent here may
not again tomorrow discuss with the Union its resolve to
contract away these jobs and then go ahead and repeat the
same offense against the statute . A finding that it was
remiss in not adequately discussing the matter would
suggest that more talking is all that is now required . Not so.
At the same time, an employer's right to dismiss an
employee for cause - any cause, so long as it is the true
cause - can never be denied him, and this applies no less
to an employee who has suffered past illegal discrimina-
tion . Similarly, an employer has the right to make changes
in its business methods - even contracting away the
operations of a cafeteria - so long as its purpose is not an
illegal one, even if in the past it used the technique to
disguise an unlawful objective.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here the Respondent must now totally restore the 11
women to their jobs, and make them whole for any losses
they may have suffered because of the changeover, but it
must also bargain with the Union on request because of the
outstanding certification . To assure effective compliance
with the logical remedial . order, in the special circum-
stances of this case , the Respondent must be ordered in no
event to contract away the jobs of these women for a 12-
month period beginning the day it starts compliance with
this Decision and Order. I view , this as a reasonable
balancing between the, necessity for effectuating substan-
tial remedy of the unfair labor practices committed, and
the Employer's counterpart right to run its business as it
sees fit . Moreover, the 1-year concept is peculiarly
appropriate here because it -was initially proposed by the
Respondent 's officials themselves when they asked for 1
more year from the employees^for the purpose of satisfying
the economic demands of the employees , without a union.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
Respondent described in section I, above, have a close,
intimate; and substantial relationship ' to, trade, traffic, and
commerce among the several States and 'tend , to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. By discharging, all 11 of 'its cafeteria employees on
September 9, 1974, the Respondent has engaged in and is
engaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
2. By refusing to bargain with the Union on May 16,
1974, and thereafter, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within -the meaning of Section 2(6) "and (7) of the
Act. 'UPON COMMERCE
The activities of the . Respondent set out in section III,
above, occurring in connection with the operations of the
[Recommended Order omitted from publication.]