Briggs Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 6, 1944

58 N.L.R.B. 72 (N.L.R.B. 1944)

In the Matter of BRIGGS MANUFAOTVRING COMPANY and AMALGAMATED
PLANT PROTECTION LOCAL UNION No. 114, UAW-CIO
Case No. 7-C-1198.-Decided September 6,1944
Mr. Fredrick P. Mett, for the Board.
Beaumont, Smith & Harris, by Mr. Percy J. Donovan, of Detroit,
Mich., for the respondent.
Messrs. Maurice Sugar and H. L. Smokier, by Mr. H. L.- Smokier,
for the Union.
Mr. Marvin C. Wahl, of counsel to the Board-.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on August 4,1943, by Amalgam-
ated Plant Protection Local Union No. 114, UAW-CIO, herein called
the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Seventh Region (Detroit,
.Michigan), issued its complaint, dated August 5, 1943, against Briggs
Manufacturing Company, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and
(5) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the'Act. Copies of the complaint accom-
panied by Notice of Hearing were duly served upon the respondent
and the Union;
With respect to the unfair labor practices the complaint alleged in
substance (1) that all the plant-protection employees engaged by the
respondent at its seven Detroit plants, including Sunday relief chiefs
but excluding the head chief, the head chief's aides, the chiefs on the
first, second, and third shifts at each plant, and the confidential clerks,
constitute a unit appropriate for the purposes of collective bargaining;
(2) that a majority of the employees in the aforesaid appropriate unit
designated the Union as their representative for the purposes of col-
lective bargaining at an election conducted by the Board on May'20
58 N. L. R. B, No. 14.
72
BRIGGS MANUFACTURING COMPANY 73
and 21, 1943; (3) that on June 1, 1943, the Board certified the Union
as the exclusive representative of all employees in said unit for the
purposes of collective bargaining; (4) that at-all times since June 1,
1943, the Union has been the exclusive representative of all employees
in said unit; (5) that at all times after June 1, 1943, the respondent,
upon request, has refused and still refuses to recognize and bargain
with the Union; and (6) that by such refusal, the-respondent has inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act, and that such acts con-
stitute unfair labor practices affecting commerce within the meaning
of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act.
On August 13, 1943, the respondent filed an answer and motion
to dismiss, denying the appropriateness of the unit and the commis-
sion of any unfair labor practices, admitting its refusal to bargain
and the proceedings of the Board leading to the Union's certification
and moving that the complaint be dismissed. For the reasons here-
inafter stated, the motion to dismiss the complaint is denied.
Pursuant to notice, a hearing was held on October 11, 1943, at De-
troit, Michigan, before Gustaf BP Erickson, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent,
and the Union were represented by counsel. All parties participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. For the purpose of expediting-the hearing all
parties agreed to waive the issuance by the Trial Examiner of an
Intermediate Report and the issuance by the Board of proposed find-
ings of fact, proposed conclusions of law and proposed order, and
stipulated that the record shall consist of the stipulation, the plead-
ings, the transcript of testimony taken at the hearing, and the entire,
record in the representation case.
Pursuant to notice, oral argument, in which the respondent and the
Union participated, was held before the Board at Washington, D. C.,
on November 23, 1943. The respondent also filed a brief in support
of its position. - On May 8, and June 1, 1944, the parties supplemented
the record by executing stipulations which are made a part of the
record 'herein.
The respondent contends that the Board is precluded from proceed-
ing in this case because of the limitations imposed upon the Board's
use of its funds.' In support of its position, the respondent contends
1 See the Act making appropriations for the Department of Labor, the Federal Security
Agency, and the related Independent Agencies for the fiscal years 1944 and 1945. Public
Law 135, 78th Cong, 1st Sess , Public Law 373, 78th Cong, 2nd Sess. The pertinent
provision in the current Appropriation-Act states -
No part of the funds appropriated in this title shall be used in any way in connec-
tion with a complaint case arising over an agreement, or a renewal thereof, between
management and labor which has been in existence for three months or longer without
complaint being filed . .
'74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the charge in this case was filed more than 3 months after its
execution of an agreement with the International Union and with the
-representatives of the production and maintenance employees at the
plants here involved and known as Locals 742 and 212 of United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
-herein called Local 742 and 212, respectively; and that these agree-
ments provided, among other things, that plant-protection employees
would not be accepted as members. The agreement; with Local 212
was to expire on November 13, 1943; and that with Local 742, on
November 16, 1943. Each agreement contained a clause that it was
to-remain in effect until the foregoing dates "and from year to year
thereafter, unless (30) days prior to [the respective terminal date]
proposed amendments shall be submitted by either the Company or
the Union."
The stipulation of May 8, 1944, shows that on October 13, 1943, Local
:212 mailed written notice to the respondent of its desire to negotiate
certain amendments; that pursuant to said notice the parties com-
menced negotiations for a new written agreement and meanwhile
orally agreed to_extend the 1942 agreement on a day-to-day basis; that
in December 1943, a dispute arose because of the respondent's refusal
to adhere to the maintenance of membership clause contained in the
1942 agreement; that this dispute, together with other disputes arising
out of the, negotiations, were certified to the National War Labor
Board which on February 1, 1944, directed the parties to extend the
agreement of November 13, 1942, until all issues in dispute have been
settled; that the parties thereupon orally agreed to continue under
the terms of the 1942 agreement. With respect to Local 742, the stipu-
lation shows that prior to November 16, 1943, Local 742 duly gave writ-
ten notice to the respondent of its desire to negotiate amendments to
the agreement of November 16, 1942; that pursuant to such negotia-
tions the parties, on December 30, 1943, executed a new agreement,
subject to the ratification by the membership of Local 742; and that, on
January 19, 1944, Local 742 notified the respondent in writing that the
membership had refused to ratify the provision wherein Local 742
agreed to exclude from membership plant-protection employees. The
stipulation also shows that on March 17 and April 14, 1944, the Union
again requested the respondent to bargain and that the respondent
,refused both requests.
It thus appears that Locals 212 and 742 gave the proper notice prior
to the respective terminal date of the 1942 agreements so that the
.automatic renewal clauses contained therein never became operative,
and the agreements expired by their terms on Novmbr 13 and 16, 1943,
BRIGGS -MANUFACTURING COMPANY 75
respectively.2 The agreement of the respondent and Local 212 to ex-
tend the, 1942 agreement, first on a day-to-day basis and later pursuant
to the directive of the National War Labor Board, was an oral agree-
ment or oral renewal of the prior written agreement. The limitation
upon the Board's use of its funds contained in the Appropriations Act
applies only to complaint cases arising over written agreement or
written renewals of said agreements.3 The new agreement between
the respondent ahd Local 742 was executed subject to the express
condition that it be ratified by the membership of Local 742. Since
this condition was not fulfilled, no written agreement came into being.
There being no written agreement in existence, no question arises with
respect to the limitations imposed by the Appropriations Act. We
conclude that, both with respect to Local 212 and Local 742, the
Appropriations Act is not a bar to the instant proceeding.
The board has considered the brief submitted by the respondent,,
and, insofar as the contentions therein are inconsistent with the find-
ings of fact, conclusions of law, and order set forth below, finds them
to be without merit.
Upon the entire record in the case and upon the-respondent's brief
and oral argument, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Briggs Manufacturing Company' is a Michigan corporation which
owns and operates seven plants in the Detroit, Michigan, area, known
as the Mack Plant, the Eight-Mile Plant, the Hamtramck Plant, the
Connor Plant, the Outer Drive Plant, the Vernor Plant, and the
Meldrum Plant, at which it is engaged in the manufacture of war
materials. In the course and conduct of the operation of these plants,
a large percentage of the raw materials used is purchased and shipped
to the respondent from points outside the State of Michigan, and a
substantial portion of the finished products manufactured by the
respondent is transported to purchasers outside the State of Michigan.
The respondent does not dispute that it is engaged in commerce
within the meaning of the Act.
H. THE ORGANIZATION INVOLVED
Amalgamated Plant Protection Local No. 114, UAW-CIO is a
labor organization which admits to membership employees of the
respondent.
2 See Matter of Mill B, Inc , 40 N L R B 346.
8 See Opinion of Comptroller General of the United States. dated August 24, 1944,
B-43670.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit and representation by the Union of a
majority therein
On April 23, 1943, the Board issued a Decision and Direction of
Election,4 finding among other things that all plant protection em-
ployees engaged at the seven Detroit plants, including the Sunday
relief chiefs, but excluding the head chief, the head chief's aides, the
chiefs on the first, second, and third shifts at each plant, and the
confidential clerks, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
On May 20 and 21, 1943, an election was held pursuant to said
Direction of Election. On June 1, 1943, the Board certified the Union
as the representative of the employees in the unit heretofore men-
tioned, for the purposes of collective bargaining.
The respondent contends that the complaint should be dismissed
because militarized plant protection employees do not constitute an
appropriate unit for the purposes of collective bargaining and be-
cause the Union had agreed not to solicit or accept for membership.
plant protection employees. The same position was maintained by
the respondent in the representation proceeding. The only additional
evidence introduced at the hearing before the Trial Examiner in the
instant case consists of two telegraphic communications received by
the respondent from the United States Army, Colonel A. M. Krech,.
District Commander. The first communication, dated June 22, 1943,
states:
An emergency is declared to exist at your plant on this 21st day
of June, 1943. The property at your plant is vital to the success-
ful prosecution of the War. Much of it belongs to the United
States. The members of the Auxiliary Military Police at your
plant have been charged by the War Department with the pro-
tection of the premises and of the property thereon. The War
Department relies on them to perform this mission. These men
are prepared for any emergency and will perform their duties
with the same fidelity as those in the Military Service with whom
they are associated. A commissioned officer of the Army of the
United States is now in command of the Auxiliary Military
Police at your plant.
The text of the second communication, dated July 8, 1943, is as
follows :
The emergency declared by telegraphic order, by the Com-
manding Officer, District No. 1, Sixth Service Command, on June
4 Matter of Briggs Mani factoring Company , 49 N L. R B. 57.
BRIGGS MANUFACTURING COMPANY 77
21st, 1943, is terminated as of July 6, 1943, in Wayne County,
State of Michigan.
The personnel of your plant guard force, who are members of
the Auxiliary Military Police, U. S. Army, are released from
the command of the Plant Guard Training Officer assigned to
your plant and are returned to your normal operating control.
We considered the respondent's contentions in the representation
proceeding 5 and found them to be without merit. There is nothing
in this record to lead us to a different conclusion.
We find, in accordance with our previous determination, that all
plant protection employees employed at the respondent's Mack Plant,
Eight-Mile Plant, Hamtramck Plant, Vernor Plant, Connor Plant,
Outer Drive Plant, and Meldrum Plant, including the Sunday relief
chiefs, but excluding the head chief, the head chief's aides, the chiefs on
the first, second, and third shifts at each plant, and the confidential
clerks, constitute, and at all times material herein constituted, a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act. We further find that; on and at all
times after June 1, 1943, the Union was the duly designated bargain-
ing representative of a majority of the employees in the aforesaid
appropriate unit, and that, pursuant to the provisions of Section 9
(a) of the Act, the Union was on June 1, 1943, and at all times
thereafter has been, and is now, the exclusive representative of all
employees in the aforesaid unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employment, and
other conditions of employment.
B. The refusal to bargain
In its answer-to the Board's complaint the respondent admits the
allegation that at all times since June 1, 1943, it has refused the
Union's request to bargain. The stipulation of May 8, 1944, shows
that the respondent failed to answer the Union's request of March
17, 1944, for a meeting "to iron out some difficulties"; and that in a
letter dated April 19, 1944, the respondent refused to Union's-re-
quest for recognition and a bargaining conference.
We find that the respondent, on or about June 1, 1943, March 17,
and April 19, 1944, and at all times thereafter, has refused to bargain
collectively with, the Union as the exclusive representative of its
employees in an appropriate unit and has thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
149 N. L. R. B. 57.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed in Section I, above, have a close, intimate, and substantial
relation 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.
V. THE REMEDY
Having found that the respondent has engaged in and is engaging
in unfair labor practices, we will order it to cease and desist there-
from, and to take certain affirmative action designed to effectuate the
policies of the Act. We have found that the respondent has refused
to bargain collectively with the Union as the exclusive representative
of the employees in an appropriate unit. We shall, therefore, order
that the respondent, upon request, bargain collectively with the
Union.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Plant Protection Local No. 114, UAW-CIO is a
labor organization, within the meaning of Section 2 (5) of the Act.
2. All plant protection employees of the respondent engaged at the
respondent's Mack Plant, Eight-Mile Plant, Hamtramck Plant, Ver-
nor Plant, Connor Plant, Outer Drive Plant, and Meldrum Plant,
including the Sunday relief chiefs, but excluding the head chief, the
head chief's aides, the chiefs on the first, second, and third shifts at
each plant, and the confidential clerks, constitute a unit appropriate
for the purposes of collective bargaining, within the meaning of
Section 9 (b)• of the Act.
3. Amalgamated Plant Protection Local No. 114, UAW-CIO was
on July 1, 1943, and at all times - thereafter has been the exclusive
representative of all employees in the aforesaid unit for the purposes
of collective bargaining, within the meaning of Section 9 (a) of
the Act.
4. By refusing on about June 1, 1943, March 17, and April 19, 1944,
and at all times thereafter, to bargain collectively with the Amalga-
mated Plant Protection Local No. 114, UAW-CIO as the exclusive
representative of all its employees in the aforesaid appropriate unit,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (5) of the Act.
BRIGGS MANUFACTURING COMPANY 739
5. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law and the entire record in the case , and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent , Briggs Manufacturing Com-
pany, Detroit, Michigan , and its officers , agents , successors , and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Plant Pro-
tection Local No. 114, UAW - CIO as the exclusive representative of
all its plant protection employees engaged at the respondent's Mack
"Plant, Eight-Mile Plant, Hamtramck Plant, Vernor Plant, Connor
Plant, Outer Drive Plant, and Meldrum Plant, including the Sunday
relief chiefs , but excluding the head chief , the head chief's aides, the
chiefs on the first, second, and third shifts at each plant, and the
confidential clerks ;
(b) Engaging in any like or related acts , or conduct interfering
with, restraining , or coercing its employees in the exercise of the right
to self-organization , to form labor organizations , to join or assist
Amalgamated Plant Protection Local No. 114, UAW-CIO or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities, for
the purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with Amalgamated Plant
Protection Local 114, UAW-CIO as the exclusive representative of
all its plant protection employees engaged at the respondent's Mack
Plant, Eight-Mile Plant, Hamtramck Plant, Vernor Plant, Connor
Plant, Outer Drive Plant, and Meldrum Plant, including the Sunday
relief chiefs, but excluding the head chief, the head chief's aides, the
chiefs on the first, second, and third shifts at each plant, and the con-
fidential clerks , in respect to rates of pay, wages , hours of employment,
and other conditions of employment;
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post immediately in conspicuous places at each of the Detroit,
Michigan, plants above specified, and-maintain for a period of at least
sixty (60) consecutive days from. the date of posting, notices to its
employees stating : (1) that the respondent will not engage in the con-
duct from which it is ordered to cease and desist in paragraphs 1 (a)
and (b) of this Order, and (2) that the respondent will take the affir-
mative action set forth in paragraph 2 (a) of this Order ;
(c) Notify the Regional Director for the Seventh Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. GERARD D. REILLY, dissenting :
I disagree with the holding in the instant case for the reasons stated
in my dissenting opinion in the Federal Motor Trucks Company case s
I believe that the principle of estopple is applicable because of the
Union's prior contract covering production and maintenance work-
ers, in which the Union agreed that it would not solicit or accept for
membership plant protection employees, inter alia.
6 54 N. L. R. B. 984.