DeTray Plating Works, Inc

National Labor Relations Board - Board Decisions

Dec 8, 1965

155 N.L.R.B. 1353 (N.L.R.B. 1965)

DETRAY PLATING WORKS, INC. 1353
similar industries 23 We shall therefore direct an election in this unit
here. We shall exclude restaurant orderlies from the unit since they
do not work with unit employees, their work is distinctive, they do not
have common supervision, and they are in a separate department.
Restaurant orderlies would appropriately belong in a unit of restau-
rant employees.
Accordingly, we find that the following units of employees of the
Employer at its downtown Detroit, Michigan, department store,
excluding from each unit all other employees and supervisors as defined
in the Act, are appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
1. In Case No. 7-RC-6692: All passenger elevator operators,
freight elevator operators, and maids and orderlies in the housekeep-
ing department, excluding restaurant orderlies.
2. In Case No. 7-RC-6731: All electricians and electrician trainees,
licensed and unlicensed, and elevator repairmen in the electrical engi-
neering department, excluding small machinery repairmen.
3. In Case No. 7-RC-6749: All licensed refrigeration equipment
operators and mechanics, trainees for said license, licensed boiler opera:
tors, duct cleaners and oilers, and the heavy machinery repairmen in
department 5060, excluding all employees in department 5040.
4. In Case No. 7-RC-6750: All painters and painter trainees in
the painting department, and spray painters in the display department.
5. In Case No. 7-RC-6751: All carpenters and carpenter trainees
in the carpentry department.
[Text of Direction of Elections omitted from publication.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Direction of Elections.
a' See Arnold Constable Corporation, 150 NLRB 788, footnote 11.
DeTray Plating Works, Inc. and ]Des Moines Associate Workers
Union No. 5, International Mailers Union . Case No. 18-CA-
1975. December 8,1965
DECISION AND ORDER
On September 21, 1965, Trial Examiner William W. Kapell issued
his Decision herein, finding that Respondent had engaged in and was
engaging in certain unfair labor practices alleged in the complaint
155 NLRB No. 129.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the. Decision and
a supporting brief and the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision,' the exceptions and briefs, and the entire record
in this case-, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
i The Trial Examiner's Decision contains minor inadvertent or typographical errors
which do not affect our ultimate findings.
The Trial Examiner found that employees on the still line were plating - lawnmower
wheels an October 19 , 1964. It appears from the record that the employees were plating
lawnmower parts. The parts were not further identified.
In recounting charges for services performed by Respondent , the Trial Examiner quoted
$2,973 as the charge in January 196 5 on the barrel line. This figure is corrected to read
$2,763.
TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Case No. 18-CA-1975, a proceeding under Section 10 (b)- of the National Labor
Relations Act, as amended, herein called the Act, was heard before Trial Examiner
William A. Kapell in Des Moines, Iowa, on March 23 and 24, 1965,1 pursuant to
due notice . A complaint 2 issued by the Regional Director for Region 18 of the
National Labor Relations Board , hereinafter called the Board, alleges that Respond-
ent engaged in unfair labor practices in violation of Section 8(a) (1) and ( 3) of the
Act by coercively interrogating its employees concerning their union activities and
threatening the discharge of employees responsible for union activities ; by laying off
employees Marjorie Spiker and Mary Konrad because of their union activities; and
by thereafter discharging employee Mary Konrad following her reinstatement
because of her union activities. General Counsel asserts Board jurisdiction over
Respondent by virtue of its relationship to and operations with DeTray Plating
Works, Inc. of Independence , Missouri, hereinafter referred to as Missouri Plating.
Respondent in its answer questions the Board 's jurisdiction , claiming that it operates
as a separate business entity, completely apart from Missouri Plating; and also
denies the commission of any unfair labor practice , asserting that employees Spiker
and Konrad were laid off because of a reduced workload, and that Konrad volun-
tarily quit her job after being recalled following her layoff. At the hearing and in
its brief, Respondent claimed that the Board is also estopped from hearing the case
because the violations alleged herein were previously settled pursuant to an agree-
ment between it and the Union, and the charges upon which they were based were
withdrawn with the approval of the Regional Director. At the hearing all parties
were afforded full opportunity to examine and cross-examine witnesses and to sub-
l All dates hereinafter refer to the year 1964 unless otherwise noted.
2 Based on a charge filed on December 21 by Des Moines Associate Workers Union No. 5,
International Mailers Union, hereinafter referred to as the Union , against DeTray Plating
Works, Inc., of Des Moines , Iowa, hereinafter referred to as Respondent.
DaTRAY PLATING WORKS, -INC. 1355
mit briefs. General Counsel and Respondent submitted briefs which have been
duly considered. Upon the entire record 3 in the case and from my observation of
the witnesses, I make the following: -
FINDINGS OF FACT 4
1. JURISDICTIONAL FINDINGS
Respondent is, and at all times material herein has been, a corporation duly orga-
nized and existing under the laws of the State of Iowa, maintaining its office and
place of business in Des Moines, Iowa, where since August 1963 it has been engaged
in the business of copper, nickel, chromium, black oxide, cadmium, zinc, and gold
under the laws of the State of Missouri, maintains its principal office and place of
business in Independence, Missouri, where for the past 35 years it has been engaged
in the business of copper, nickel, chromium, black oxide, cadmium, zinc, and gold
electroplating. During the year ending March 1 the total sales of Missouri Plating
amounted to $211,082.97, of which $90,688.14 was made to Rupert Die Casting
Company of Kansas City, Missouri, whose sales during 1964 to points outside
Missouri amounted to $3,500,000.
In support of General Counsel's position that Respondent and Missouri Plating
constitute a single employer for purposes of establishing Board jurisdiction over
Respondent, the record shows, and I find, the following:
A. The ownership and control of each corporation
The officers of each corporation are Robert M. DeTray, Sr., president, hereinafter
referred to as DeTray, Senior; Robert M. DeTray, Jr., vice president; and Mrs.
Robert M. DeTray, Sr., -secretary-treasurer; and they also constitute the board of
directors of each corporation. The DeTrays, Senior, own all the stock of Missouri
Plating of which DeTray, Senior, is also the manager. DeTray, Senior, and his wife,
as joint tenants, own I share of the 130 outstanding shares of Respondent, and
William Barrett (manager of Respondent) owns the remaining one-thirtieth of a
share.
B. The integrated operations of both corporations
Respondent's clerical work, consisting of preparing its payroll, paychecks, time-
cards, taxes, and insurance, is performed at the offices of Missouri Plating by an
employee of that corporation. Some of the receipts for services rendered by
Respondent are paid directly to Missouri Plating. Both corporations keep separate
books of record and bank accounts and DeTray, Senior, signs the checks for both
corporations. Respondent's purchases of materials and supplies are placed by Bar-
rett either directly with the supplier or indirectly by requesting Missouri Plating to
place its orders. DeTray, Senior, spends most of his time at Missouri Plating but
makes periodic visits to Respondent, about once a month, and frequently communi-
cates by telephone with Respondent.
Although Respondent does only zinc plating, its letterheads, identical with that of
Missouri Plating except for telephone number and address, state that it specializes
in electroplating of nickel, copper, chromium, black oxide, cadmium, zinc, and gold.
Requests for quotations for plating work other than zinc received by Respondent
are forwarded to Missouri Plating for appropriate action. The purpose of indicat-
ing the non-zmc-plating work appearing on its letterhead was to advertise and build
up the business of Missouri Plating. For competitive pricing reasons, Respondent's
terminal in Des Moines, Iowa, is occasionally used to receive work to be shipped to
Missouri Plating for processing and then later to receive the finished product for
delivery to Iowa customers of Missouri Plating; the shipping charges, however, are
paid by Missouri Plating.
"General Counsel's unopposed motion (in his brief) to correct the record for inaccura-
cies as therein indicated is hereby granted . In addition , the record is also corrected by
changing "Court" to "record" at p. 113, line 19. At the hearing General Counsel's un-
opposed motion to amend paragraph 4, line 5 of the complaint by substituting "$90.000"
in lieu of "$100.000," was granted.
I Respondent submitted proposed findings of fact and conclusions of law in its brief
To the extent that these proposed findings and conclusions are inconsistent with the deter-
minations made herein they are rejected ; to the extent they are consistent, they are
accepted.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The control of -the labor-relations . of both corporations
Although Respondent claimed that Manager Barrett handled its labor relations,
the record shows that Respondent's agreement with the Union for a consent election
was signed on its behalf by DeTray, Senior; that when service of the charge filed
herein was made on Barrett, he wrote to the Board's Regional Office requesting a
delay in answering it until DeTray, Senior, returned from an out-of-State visit; and
that when the Union's proposed collective-bargaining contract was presented to
Barrett, Respondent's counsel advised the Regional Office of the Board by letter that
it would have to be-referred to DeTray, Senior, because he had the sole authority to
act for Respondent.5
Conclusions ..
In determining separate business entities to be a single employer for purposes of
establishing Board jurisdiction; the Supreme Court in Radio and Television Broad-
cast Technicians, Local Union 1264 etc., et al. v. Broadcast Service of Mobile, Inc.,
380 U.S. 255, 256, recently stated: "The controlling criteria, set out and elaborated
in Board decisions, are interrelations of operations, common management, central-
ized control of labor relations and common ownership." On the foregoing facts it
appears there is common ownership and financial control of both corporations; there
is interrelation of clerical functions; Missouri Plating uses Respondent's terminal for
certain shipping purposes; both corporations are engaged in related and partly iden-
tical operations; and DeTray, Senior, exercises ultimate control of both corporations,
including their labor relations policies. I accordingly find that Respondent and
Missouri Plating constitute a single integrated employer for jurisdictional, purposes.
See -also Sakrete of Northern California, Inc., 137 NLRB 1220; Wenatchee Thrifty
Drugs, Inc., 151 NLRB 752; Chicago Theatrical Protective Union Local No. 2,
E. (Midwest News Reel Theatres, Inc. ), 151 NLRB 857. -
Inasmuch as Missouri Plating performs services valued in excess of $90,000 dur-
ing the year ending March 1 for Rupert Die Casting Company whose-interstate
business during 1964 greatly exceeded $50,009, I find, contrary to the contention of
Respondent, that, at all times material herein, its operations met the Board's juris-
dictional standards, and that it would effectuate the policies- of the Act to assert
jurisdiction. See Siemons Mailing Service, 122 NLRB 81, where the Board held
that it will best effectuate the policies of the Act if jurisdiction is asserted over all
nonretail enterprises which have an outflow or inflow across State lines of at least
$50,000, whether such outflow or inflow be regarded as direct or indirect; and that
for the purpose of applying this standard, indirect outflow refers to sales of goods
or services to users meeting any of the Board's jurisdictional standards except the
indirect outflow or indirect inflow standard.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all times material herein the Union was a
labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's plating work is done on two production lines called the "still" and
"barrel" lines. On the still line articles to be plated are racked (hooked) on bars
(trees), which are then picked up by an overhead hoist and moved manually
through chemical solutions, following which the articles are placed on wooden
horses to dry, and then placed in containers for delivery. On the barrel line the
plating is done by shoveling small articles into a barrel (36 inches long with a 30-inch
diameter), which is then fastened to an overhead hoist and manually pushed through
a series of tanks containing plating chemicals. The contents of the barrel are then
dried in buckets in a centrifugal machine prior to being-placed in shipping containers
for delivery. Barrel-line work is priced by the pound or by the thousand pieces,
whereas still-line work is priced higher by the piece. Although the operations of
both lines are considered arduous manual work, women were employed only to
operate the still line, a somewhat lighter operation than the barrel line. In August
Respondent hired Marjorie Spiker and Mary Konrad to work on the still line.
5 The Union's president also testified that when he presented Barrett with a proposed
collective-bargaining contract, Barrett stated that he had no authority to deal with it, and
that it should be forwarded to DeTray, Senior.
; _w == A X _PP1NG- -O:RKS; Ir C. _ 1357
_k1#rgeesident= ofiTm'oii at -all ties=