Kane Co.

National Labor Relations Board - Board Decisions

Jan 17, 1964

145 N.L.R.B. 1068 (N.L.R.B. 1964)

1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT, by claims to possessing certain information or otherwise,
cause or try to cause you to believe or fear that we are watching or having others
watch and inform us about your union membership or activity.
WE WILL NOT ask any employee about his or any other employees' union
activity in order to or with the effect of putting him or any of you in fear of
freely exercising your rights under the National Labor Relations Act
WE WILL NOT in any other manner interfere with, restrain , or coerce you
in the exercise of the right to self-organization , to form labor organizations,
to join or assist United Industrial Workers of America, Ind., Amalgamated
Local 286, or any other labor organization , to bargain collectively through
representatives of your own choosing , and to engage in any other concerted
activities for the purpose of collective bargaining or mutual aid or protection,
or to refrain from any or all such activities ( except insofar as this right could be
affected by any possible future contract, if made in accordance with law, re-
quiring membership in a labor organization as a condition of the job).
WE WILL offer Bruce Landers and Robert Ford immediate and full rein-
statement to their former positions , or, if unavailable , to substantially equiv-
alent positions , without prejudice to their seniority or other rights and privileges.
WE WILL make whole Bruce Landers, Robert Ford, Emmett Ingram, and
John Mance for their loss in pay sustained because of the reduction in their
workweek on January 28, 1963, and make whole Bruce Landers and Robert
Ford for their loss in pay resulting from their discharge on February 6, 1963,
in each instance with interest at 6 percent a year.
All our employees are free to join or not to join, without fear of discrimination
or other reprisal, United Industrial Workers of America, Ind., Amalgamated Local
286, or any other labor organization (except as this right may be affected by any
lawful contract conditioning employment on union membership).
DALE INDUSTRIES , INC., WYOMING
SERVICE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-If any employee above named , who is to be offered reinstatement , should
now be serving in the Armed Forces of the United States, then we will notify him of
his right to full reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Any employees having a question concerning the meaning of the above notice
or concerning compliance with its requirements may inquire by mail, telephone,
or in person at the Board's Regional Office , 500 Book Building, 1249 Washington
Boulevard , Detroit, Michigan , Telephone No. 226-3230.
Myca Products Division of the Kane Company and International
Union , United Automobile , Aerospace and Agricultural Imple-
ment Workers of America, AFL -CIO. Case No. 8-CA-3248.
January 17, 1964
DECISION AND ORDER
Upon the filing of a charge on August 8, 1963, by International
Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, herein called the Union, the Gen-
eral Counsel of the National Labor Relations Board, by the Regional
Director for the Eighth Region, issued a complaint on September 4,
1963, and an amendment thereto on September 19, 1963, alleging that
145 NLRB No. 111.
MYCA PRODUCTS DIVISION OF THE KANE COMPANY 1069
Myca Products Division of The Kane Company, herein called the
Respondent, had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) and (5) and Section
2(6) and (7) of the Act. Thereafter, the Respondent filed an answer,
admitting certain jurisdictional and factual allegations, but denying
the commission of any unfair labor practices.
On September 30, 1963, all parties to this proceeding filed with the
Board a stipulation of facts and a joint motion, executed on Septem-
ber 26, 1963, requesting that this case be transferred directly to the
Board for the issuance of findings of fact, conclusions of law, and a
Decision and Order. The parties waived their rights to a hearing
before a Trial Examiner, the making of findings of fact and conclu-
sions of law by a Trial Examiner, and the issuance of a Trial Exam-
iner's Decision. The parties agreed that the formal documents in this
case and in Case No. 8-RC-4902 shall constitute the entire record in
the case.
On October 2, 1963, the Board issued an Order approving the stipu-
lation and transferring the case to the Board. Thereafter, briefs were
filed by the Respondent and the General Counsel.
Upon the basis of the stipulation of facts, the briefs and the entire
record in the case, the Board 1 makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation with its principal office and
place of business at Oak Harbor, Ohio, is engaged in the manufac-
ture and sale of cove strips, stair treads, and other extruded rubber
products. During the 12 months immediately preceding July 1, 1963,
the Respondent shipped goods valued in excess of $50,000 from its
Oak Harbor plant to points outside the State of Ohio.
We find that the Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section
2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on October 31, 1962, among
1 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman McCulloch and Members Fanning and Brown].
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's production and maintenance employees, under the
direction and supervision of the Regional Director. The results of
the election showed that there were approximately 44 eligible voters
and that, of the 43 valid votes cast, 24 were for the Union and 19
against the Union. The Respondent filed timely objections to the
conduct of the election, asserting that the Union and its adherents had
engaged in conduct which prevented a free and uncoercecl choice by
employees who voted in the election. Thereafter, the Regional Di-
rector investigated the objections and issued a report on objections
in which he recommended that a hearing be held on the Respondent's
objections Nos. 1 and 2 to resolve substantial factual issues. Such
hearing was ordered by the Board on January 3, 1963, and was held
on February 4, 5, and 8, 1963, before Hearing Officer Roger W. Gou-
beaux. On March 21, 1963, the Hearing Officer issued a report and
recommendations on objections to election, finding that the Respond-
ent's objections were not supported by substantial evidence and were,
therefore, without merit. He recommended to the Board that they
be overruled and that the Union be certified as the exclusive bargain-
ing representative of the Respondent's employees. Thereafter, the
Respondent filed exceptions to the Hearing Officer's report, which
were duly considered by the Board, together with the Respondent's
motion to reopen the hearing on objections for the purpose of adduc-
ing additional evidence relating to postelection conduct on the part
of the Union and the Union's alleged loss of majority status. The
Board found no merit in the Respondent's exceptions and motion, and
issued its Decision and Certification of Representatives on June 12,
1963.2
With respect to the unfair labor practices, the complaint alleges,
inter alia, that on and after June 21, 1963, which was subsequent to
the Board's certification of the Union, the Respondent unlawfully (a)
refused to meet with the Union to negotiate and discuss matters relat-
ing to wages, hours, and other conditions of employment; and (b)
unilaterally granted employees wage increases and increased hospital-
medical insurance benefits. The Respondent concedes the foregoing
facts, but contends that its conduct was not unlawful on the ground
that the Union's certification is invalid, asserting the same objections
to the certification of the Union as were advanced before the Board
in Case No. 8-RC-4902. Thus, in this complaint proceeding, the Re-
spondent seeks to relitigate its objections to the election and motion to
reopen the hearing on objections which were duly considered by the
Board after prolonged litigation in the representation proceeding. In
the absence of newly discovered evidence, and none is here alleged, the
Board, in the interest of finality of adjudication, has consistently re-
2 Case No. 8-RC-4902 ( not published in NLRB volumes).
MYCA PRODUCTS DIVISION OF THE KANE COMPANY 1071
fused to reconsider, in a subsequent unfair labor practice proceeding
alleging a refusal to bargain, matters which have been disposed of in
a prior related representation case.' As we perceive no warrant on
this record to depart from the foregoing principle, we reaffirm the
validity of the Board's Decision and Certification of Representative
issued on June 12, 1963.
Since we have found that the Union was validly certified on June 12,
1963, as the exclusive bargaining representative of the Respondent's
production and maintenance employees, and in view of the Respond-
ent's admission that it thereafter refused to meet with the Union for
purposes of collective bargaining and unilaterally granted employees
increased wages and hospital-medical insurance benefits, it is clear, and
we find, that the Respondent violated Section 8 (a) (5) and (1) of
the Act.'
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, oc-
curring in connection with its operations as described 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 dis-
putes burdening and obstructing the free flow of commerce.
V. TIIE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act. Accord-
ingly, we shall order the Respondent to bargain collectively with the
Union in the appropriate unit designated herein, and, if an under-
standing is reached, embody such understanding in a signed agreement.
With respect to the unlawful unilateral action taken by the Respond-
ent, it is the Board's customary policy to direct an employer to restore
the status quo where the unilateral conduct is to the detriment of the
employees. Such an order prevents the wrongdoer from enjoying the
fruits of his unfair labor practices and gaining an undue advantage at
the bargaining table. Here, it is not certain whether the overall effect
of the unilateral changes has been to the detriment of the employees ;
the record shows that only five employees were granted a change in
wage rates and the change in the hospital-medical insurance plan re-
quires employees to pay part of the cost for a period of time. The
Union, as the bargaining representative of all the employees, is in a
better position than the Board to make such a determination. Conse-
8 The Mountain States Telephone and Telegraph Company, 136 NLRB 1612, 1614-1615;
O.K. Van and Storage , Inc., 127 NLRB 1537, 1540.
4 Accordingly, we deny the Respondent's motion to dismiss the complaint.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quently, we shall condition our revocation and restoration order upon
the wishes of the employees, as expressed through their collective-
bargaining representative.'
CONCLUSIONS or LAW
1. International Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, AFL-CIO, is a labor organiza-
tion as defined in Section 2 (5) of the Act.
2. All production and maintenance employees at the Respondent's
Oak Harbor, Ohio, plant, excluding foremen, plant manager, superin-
tendents, office clerical employees, professional employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
3. The above-named labor organization was certified by the Board
on June 12, 1963, as the exclusive representative of all employees in
the aforesaid appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
4. By refusing on and after June 21, 1963, to meet with the above-
named labor organization for purposes of collective bargaining, and
by unilaterally changing wage rates and hospital-medical benefits on
about July 8, 1963, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (5) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Myca Products
Division of The Kane Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile, Aerospace and Agricultural Implement Workers
of America, AFL-CIO, as the exclusive representative of all employ-
ees in the following appropriate unit :
All production and maintenance employees at the Respondent's
Oak Harbor, Ohio, plant, excluding foremen, plant manager,
superintendents, office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
s Herman Sausage Co ., Inc., 122 NLRB 168, 172-173 , enfd . 275 F. 2d 229 (CA. 5)
Blades Manufacturing Corporation , 144 NLRB 561.
MYCA PRODUCTS DIVISION OF THE KANE COMPANY 1073
(b) Taking unilateral action with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment
without prior consultation and negotiation with the Union, the ex-
clusive bargaining representative.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form, join, or assist any labor organization, to bargain collectively
through representatives of their own choosing and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to.refrain from any and all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of all employees in the appropriate unit de-
scribed above, with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement.
(b) Revoke the changes in wage rates and the hospital-medical
insurance benefits unlawfully placed in effect on or about July 8, 1963,
and revert to those terms and conditions of employment which existed
prior thereto, if the Union, as the exclusive representative of the
employees, so desires.
(c) Post at its place of business in Oak Harbor, Ohio, copies of the
attached notice marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Eighth Region, shall,
after being signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
734-070-64-vol. 145-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with International
Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit described below.
WE WILL NOT make unilateral changes with respect to rates of
pay, wages, hours of employment, and other terms and conditions
of employment without prior consultation and negotiation with
the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right to
self -organization , to form, join, or assist any labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL bargain collectively, upon request, with the Union as
the exclusive representative of all our employees in the bargaining
unit described below with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, and,
if an understanding is reached, embody such understanding in a
signed agreement.
WE WILL, upon request from the Union, revoke the changes in
wage rates and hospital-medical insurance benefits unlawfully
placed in effect on about July 8, 1963, and revert to those terms and
conditions of employment which existed prior thereto.
The bargaining unit is:
All production and maintenance employees at the Coam-
pany's Oak Harbor, Ohio, plant, excluding foremen, plant
manager, superintendents, office clerical employees, profes-
sional employees, guards, and supervisors as defined in the
Act.
MYCA PRODnCTS DIVISION OF THE DANE COMPANY,
Employer.
Dated---------------- By-------------------------------------
,Representative ) ( Title)
CONTINENTAL MOTORS, INC. 1075
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio,
Telephone No. Main 1-4465, if they have any question concerning this
notice or compliance with its provisions.
Continental Motors, Inc. and Local 259, United Automobile,
Aerospace and Agricultural Implement Workers of America,
AFL-CIO. Case No. 2-CA-9204. January 17, 196.41
DECISION AND ORDER
On August 21, 1963, Trial Examiner Sidney -S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Respondent, the General Counsel, and the Charging Party
filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
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 entire
record in this case, including the Intermediate report, the exceptions
and briefs, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations, with the following additions and
modifications :
1. We adopt the Trial Examiner's findings that the Respondent
violated Section 8(a) (1) of the Act by the following conduct of its
supervisors and agents: (a) Philip Bonacorsa, president., unlawfully
interrogated and threatened employee Mays on March 15, 1963, and
made remarks to employee Nienstedt on March 28 containing promises
of benefit designed to coerce the striking employees to return to
work; (b) Schreibman, sales manager, unlawfully interrogated eni
ployees Falke and Nienstedt, and threatened Nienstedt, on March 15;
145 NLRB No. 107.