Kaynar Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 5, 1967

162 N.L.R.B. 626 (N.L.R.B. 1967)

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL No. 41, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO , AND TO ALL EMPLOYEES OF BUFFALO MOTEL
CORPORATION , EDWARD J. FUHRMANN & CO., INC. AND INDUSTRIAL POWER AND
LIGHTING CORP.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT engage in or induce or encourage individuals employed by
Industrial Power and Lighting Corporation , or any other person engaged in
commerce or in an industry affecting commerce , to engage in strikes or refus-
als in the course of their employment to use, manufacture , process, transport,
or otherwise handle or work on any goods , articles, materials , or commodities,
or to perform any services , where an object thereof is to force or require Buf-
falo Motel Corporation , or any other employer or person , to cease doing busi-
ness with New York Telephone Company.
WE WILL NOT threaten , coerce, or restrain Buffalo Motel Corporation, Ed-
ward J . Fuhrmann & Co., Inc., or any other person engaged in commerce or in
an industry affecting commerce , where an object is to force or require Buffalo
Motel Corporation , or any other employer or person , to cease doing business
with New York Telephone Company.
LOCAL No. 41, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
If members have any questions concerning this notice or compliance with its
provisions, they may communicate directly with the Board 's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue , Buffalo, New York 14202, Tele-
phone 842-3112.
Greer Stop Nut Company, a Division of Kaynar Manufacturing
Co., Inc. and Teamsters, Chauffeurs , Helpers and Taxicab
Drivers, Local Union No. 327 , affiliated with International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America. Case 26-CA-2368. January 5, 1967
DECISION AND ORDER
On September 26, 1966, Trial Examiner George A. Downing issued
his Decision 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 Trial
Examiner's Decision. The Trial Examiner also found that the
Respondent had not engaged in other unfair labor practices alleged
in the complaint and recommended dismissal of that portion of the
complaint. Thereafter, the Respondent filed exceptions to the Deci-
sion and a supporting brief.
162 NLRB No. 47.
GREER STOP NUT CO. 627
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 [Members Fanning, Brown, 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 brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete paragraph 1(b) and substitute the following:
["(b) In any like or related manner interfering with the efforts
of Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union
No. 327, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, to negotiate for
our employees as their exclusive bargaining agent."
[2. Delete paragraph 2 of the notice attached to the Trial Exam-
iner's Decision, and substitute the following therefcr :
[WE WILL NOT in any like or related manner interfere with
the efforts of Teamsters, Chauffeurs, Helpers and Taxicab Driv-
ers, Local Union No. 327, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, to negotiate for our employees as their exclusive bar-
gaining agent.]
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act was
heard before Trial Examiner George A . Downing at Nashville, Tennessee, on
July 21, 1966 , pursuant to due notice. The complaint , which was issued on May 19,
1966 , and amended on July 8, on a charge dated March 29, 1966 , alleged in
substance that Respondent engaged in unfair labor practices proscribed by Sec-
tion 8 ( a)(5) and ( 1) of the Act (a ) by refusing to sign on and after April 22,
1966 , a written agreement which had been negotiated and agreed upon between
Respondent and Union , and (b ) by refusing to meet and bargain with the Union
at all times on and after April 30 , for the reason that certain charges were pend-
ing before the Board . Respondent answered denying the unfair labor practices as
alleged.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS ; THE LABOR ORGANIZATION INVOLVED
I conclude and find on facts alleged in the complaint and admitted by answer
that Respondent Company, a California corporation with a plant at Smyrna,
Tennessee , where it is engaged in the manufacture , sale, and distribution of metal
nuts, is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act ( through direct extrastate sales and shipments of products valued in excess
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of $50,000), and that the Charging Union is a labor organization within the
meaning of Section 2(5) of the Act.
If. THE UNFAIR LABOR PRACTICES
A. Introduction and issues
The Charging Union was certified in September 1965, in Case 26-RC-2437.
Negotiations began in December and ended on April 26, 1966, with the Union
contending that an agreement had been reached which Respondent refused to
sign . In the meantime a strike ensued which lasted from February 14 to April 23
and which resulted in a complaint proceeding against the, Union on Respondent's
charge of strike misconduct in Case 26-CB-311, in which Trial Examiner Thomas
A. Ricci issued his Decision on July 8. Other charges were filed by the Union
and the Respondent, respectively, in Cases 26-CA-2322-1-2 and 26-CB-321, which
involved counterclaims of refusal to bargain about the removal of certain machin-
ery and about the reinstatement of strikers. Those charges were dismissed by the
Regional Director for investigation and no appeal was taken. The dismissal of the
Union's charge constituted in effect (as the General Counsel conceded at the
hearing herein) an upholding of Respondent's position that the strike was an
economic, rather than an unfair labor practice strike.
The present proceeding, Case 26-CA-2368, is all that remains of the extended
controversies between the parties, and the issues herein, extremely narrow, are
whether Respondent refused to bargain in the two respects alleged in the complaint.
B.' The alleged refusal to sign an agreement
Negotiations began on December 8, with the Union submitting its proposal, and
on December 23, Respondent submitted its counterproposal. At subsequent meet-
ings other proposals and counterproposals were exchanged, but all were in the
form of amendments to specific articles which had been previously offered. None
of the written proposals contained a provision as to the duration of a contract and
none of Respondent's proposals contained a provision for a checkoff of union dues.
There was not in existence on April 22 or 26 any integrated document which
purported to contain the agreement which the Union claimed had been reached
and which it demanded that Respondent sign . It is the position of the General
Counsel and the Union, however, that the agreement was embodied in a series of
some seven documents listed in the margin below 1 and that it could easily have
been assembled for signature into a single instrument which would contain Respond-
ent's final proposals, on which the Union announced its capitulation on April 22
and again on April 26.
Respondent contends, however, that no agreement had in fact been reached on
two open issues, i.e., the duration of the contract and the checkoff of union dues.
Determination of this point is dispositive of the present allegation of the complaint,
for I find from examination and comparison of tthe documentary evidence that
the assembling from it of a complete contract was both feasible and simple. I find
further, however, for the reasons set forth below that the General Counsel failed
to prove by a preponderance of the evidence that final agreement had in fact been
reached for I find that the issues of duration'and checkoff were still open ones.
On the point of duration, both Business Representative William Ellis and Busi-
ness Agent Frank Reed for the Union relied strongly on the language of the docu-
ments themselves, contending that agreement on a 1-year term was apparent from
them. More specifically, both assigned the letter of Respondent's Attorney Charles
H. White, dated January 26 (General Counsel's Exhibit 12) as reflecting that agree-
ment. Asserting that that letter "does speak for itself," Ellis undertook to spell
out from it his understanding of the agreement in the following answer:
Mr. White wrote this letter and says, "I explained to you the Company's pro-
posal only on a one-year contract" and on down here further he says they
may be interested in a two or three-year contract because it may be more
economical, but their proposal was for one year.
I General Counsel's Exhibit 2-Respondent's original proposal submitted on December 23 ;
General Counsel's Exhibit 6-Respondent's amended proposal to Articles III, IV, V, XII
and to Schedule A, Wage Rates; General Counsel's Exhibits 7 and 8-revised Article III,
Hours, Overtime, etc : General Counsel's Exhibit 9-revised Article IT, Seniority ; General
Counsel's Exhibit 10-revised Articles IV, Vacations,. VI, Grievances, and VIII, Insurance;
and General Counsel's Exhibit 11-Attorney white's letter of February 28 containing cer-
tain counterproposals on wages and insurance col erage
GREER STOP NUT CO. 629
Reed in turn assigned the same letter as containing "a complete understanding"'
for a 1-year contract.
White's letter does not support their interpretation, as is readily apparent from,
the full pertinent portion thereof here quoted:
At our last session I explained to you that the company's proposal of a one-
year contract was based upon the belief that for an initial contract, a one
year period might be desirable for both parties inasmuch as it would permit
within a year period, renegotiation of any aspects or clauses of the contract
that were proving to be unsatisfactory or unworkable. However, I also pointed
out that Greer Stop Nut Company would be interested in receiving your
wage proposals for a two year contract and a three year contract. It might
be economically more feasible for the company to negotiate a two or three
year contract than a one year contract if the contract provisions were satis-
factory and the wage demands were acceptable. At the bargaining session on
Friday, January 14, 1966, you stated that the union was at present demanding
a 35 cent per hour wage increase but indicated to me that this was a "trading
offer" and it might be reduced. I would appreciate your preparing for our
next bargaining session a firm demand for wage increases or wage demands
for a one, two and three year contract.
The Union later submitted a schedule of wage demands on the basis requested,
though the schedule was not offered in evidence. On February 28, White wrote
Don Vestal, president of the Union, informing him that Respondent could not
accept this wage proposal and submitting in turn certain counterproposals concern-
ing both wages and employee insurance. White testified that it was Vestal who
submitted the Union's proposals on the requested .1-, 2-, and- 3-year basis, that
it was Vestal who was negotiating for the Union at the time, and that it was with
Vestal with whom he discussed certain alternatives with respect to 1- and 2-year
terms. Vestal did not testify.2
The testimony is undisputed that in the April 22 meeting Ellis announced that
the Union would accept and was ready to sign the Company's proposal as agreed
upon. Preliminarily the U.S. Conciliation Commissioner had met separately with
representatives of the respective parties and had verified, on White's inquiries, that
the Union had dropped certain demands (such as retroactivity of a wage increase)
and was accepting Respondent's last proposal on others. Much of the discussions,
irrelevant here, had to do with a strike settlement and the reinstatement rights
of strikers.
White testified that he raised with the Commissioner in the private meeting and
later with Ellis in the open meeting the point that agreement had not been reached
as to the duration of the contract. Ellis' testimony contained no specific reference
to the point, though at one point in his testimony he denied that he indicated to
White orally that a 1-year contract would be satisfactory to him.
The testimony of Reed and White concerning the April 26 meeting contained
no specific reference to the point of duration though White testified that he com-
mented on the fact that the contract was not complete.
Turning now to the checkoff issue, though there was some conflict in the testi-
mony of Ellis and White as to the exact content of the discussion on April 22,
they agreed that the matter was discussed and that White promised to try to work
something out concerning it. Ellis admitted that the matter was never closed and
that he understood that White might incorporate any agreement on the point in
a letter amending the contract.
The testimony of Reed and White is in conflict as to whether ,the subject of
checkoff was mentioned in the April 26 meeting.3 Reed denied flatly inquiring of
White about the checkoff provision, whereas White testified that Reed made
repeated inquiries about the checkoff and that in each instance White countered
with an inquiry about the status of returning strikers. Though White at one point
9 Some lack of continuity was evident in the presentation of the Tlnion's version of the
negotiations. Vestal dirt not testify concerning the crucial point of duration, and though
Reed was present with Ellis in the April 22 meeting. Raod's testimony was directed specifi-
cally to the final meeting on April 26, which Ellis did not attend.
3 In the meantime Ellis had submitted to the employees his version of the alleged agree-
ment with the Company, informing them the contract was for 1 year and that there would
be no checkoff. Reed referred to the employee ratification when the meeting opened on the
26th, and again there was considerable discussion of the reinstatement of strikers, ir-
relevant to the present issue.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered to discuss the checkoff, Reed replied that he was prepared only to discuss
the signing of the contract.
To the extent that the conflicts between the testimony of Ellis and White and
of Reed and White, respectively, concern matters which are material to the issues
herein , I credit White's testimony. Not only were the claims of Ellis and Reed
not supported by the documents on which they relied, but the General Counsel
did not call Vestal in denial of White's testimony concerning their own negotia-
tions on duration. And as to checkoff, since Ellis admittedly considered the issue
to be an open one on April 22, it was reasonably to be expected that the matter
would be mentioned at the April 26 meeting, as White testified. Furthermore,
assuming, as the Union claimed, that complete agreement had been reached, it
is difficult to understand why the Union did not present a document for signature,
for Ellis testified that he could have put the entire agreement together in 5 minutes
or less.
I therefore conclude and find, as previously stated, that the General Counsel
failed to prove by a preponderance of the evidence that final agreement had been
reached on the issues of duration and checkoff and I shall therefore recommend
dismissal of the present allegation.
C. The refusal to bargain pending a determination of charges
On April 30 White wrote Reed acknowledging receipt of letters of April 28 in
which Reed stated that the employees would return to work unconditionally on
May 2 and proposed a meeting for May 3 for the purpose of signing the contract.
White repeated the contention, orally made on April 26, that the Union was refus-
ing to bargain by attempting to leave up to the Board the resolution of the status
of the returning strikers, and enclosed a copy of a charge against the Union under
Section 8(b) (3) which he filed that day. White concluded his letter with the follow-
ing paragraph:
In view of the filing of this charge, together with the pendency of the charge
of violation of Section 8(a)(5) of the Act which the Union has filed against
the Company, Greer Stop Nut Company does not believe that a meeting on
Tuesday is in order at this time, pending a determination by the Memphis
office of the Board of the relative merits of the respective charges filed by
both parties.
Respondent's defense to that refusal is stated in its brief as follows:
Inasmuch as the charge, filed by the respondent, in Case No. 26-CB-321 was
dismissed by the Regional Director of the Twenty-Sixth Region on May 31,
1966, and no further request being made by the Union to bargain since that
date, it would appear that the General Counsel has completely failed to estab-
lish any refusal to bargain on the part of the respondent to bargain with the
Union as alleged.
It is well settled that the filing of unfair labor practice charges or pending Board
proceedings do not relieve an employer of his obligation to bargain with a union,
and his refusal to do so on that ground or until the proceedings have been disposed
of or are withdrawn are plainly indicative of bad-faith bargaining on his part. Kit
Manufacturing Company, Inc., 142 NLRB 957, 971 and cases there cited; Heider
Manufacturing Company, 91 NLRB 1185, 1190. And, of course, the fact that the
Regional Director dismissed the Union's charge afforded no defense to the presently
charged refusal to bargain. Vanette Hosiery Mills, 114 NLRB 1107, 1126.
I therefore conclude and find that by refusing to meet with the Union on and
after April 304 because of the pendency of charges before the Board, Respondent
refused to bargain within the meaning of Section 8(a)(5) of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees at Respondent 's Smyrna, Tennes-
see, plant, including the truckdriver , but excluding office clerical employees , profes-
4 White expressed as a witness his willingness now to bargain with the Union, but added
that he had not been asked to do so That testimony ignores the request which the Union
made on April 28 and the rejection of that request.
GREER STOP NUT CO. 631
sional employees , guards, and supervisors as defined in the Act, constitute an
appropriate unit for the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
2. At all times on and after September 9, 1965, the Union has been and now is
the exclusive representative of all the employees in said unit for the purposes of
collective bargaining with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
3. By refusing to bargain with the Union at all times on and after April 30, 1966,
as found in section C, supra, Respondent engaged in unfair labor practices pro-
scribed by Section 8(a)(5) and ( 1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
5. Respondent did not refuse to bargain by refusing to sign a contract on
April 22 and 26, 1966.
THE REMEDY
Having found that Respondent engaged in unfair labor practices as aforesaid, I
shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action , of the type which is conventionally ordered in such cases as provided
in the Recommended Order below and which I find necessary to remedy and to
remove the effects of the unfair labor practices and to effectuate the policies of the
Act. Because of the limited scope of Respondent 's unfair labor practices , I shall
not recommend a broad cease -and-desist order herein.
Upon the foregoing findings of fact and conclusions of law and the entire record
and pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Greer Stop Nut Company, a Division of Kaynar Manufacturing Company, incor-
porated , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with the Union as the collective-bargaining representa-
tive of the employees in the appropriate unit found herein.
(b) In any like or similar manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist
Teamsters, Chauffeurs, Helpers and Taxi Cab Drivers Local No. 327, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action:
(a) Upon request, bargain collectively with said Local Union No. 327 as the
exclusive representative of the employees in the appropriate unit found herein with
respect to rates of pay, wages, hours of work, and other terms and conditions of
employment, and embody in a signed agreement any understanding reached.
(b) Post in its offices and plant at Smyrna, Tennessee, copies of the attached
notice marked "Appendix." 5 Copies of the said notice, to be furnished by the
Regional Director for Region 26, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter in conspicuous places where
notices to employees are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in writing, within 20 days from
the receipt of this Decision what steps Respondent has taken to comply herewith.6
In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice If the Boaid's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the words
"a Decree of the United States Court of Appeals Enforcing an Order" for the words "a
Decision and Order "
° In the event that this Recomended Order is adopted by the Board, this provision
shall be modified to rend "Notify the Regional Director for Region 26, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges
that Respondent refused to bargain by refusing to sign a contract on April 22 and
26, 1966.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain with Teamsters, Chauffeurs, Helpers and
Taxi Cab Drivers Local Union No. 327, affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, as
the collective -bargaining representative of the employees in the appropriate
unit as found in the Trial Examiner's Decision.
WE WILL NOT in any like or similar manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization , to form,
join, or assist said Local Union No. 327, or any other labor organization, to
bargain collectively through representatives of their own choosing or to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive bargaining representative of all employees in the
following unit with respect to rates of pay, wages, hours of employment, and
other conditions of employment , and if an understanding is reached , embody
such understanding in a signed agreement . The bargaining unit is:
All production and maintenance employees at our Smyrna, Tennessee, plant
including the truckdriver, but excluding all office clerical employees, profes-
sional employees , guards, and supervisors as defined in the Act.
All our employees are free to become, remain , or refrain from becoming or
remaining members of said Local Union No. 327, or any other labor organization.
GREER STOP NUT COMPANY, A DIVISION OF
KAYNAR MANUFACTURING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
If employees have any question concerning this notice, or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele-
phone 534-3161.
Channel Master Corporation and Local Union No . 445, Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America . Cases 3-C 4-2440 and t',42. Janu-
ary 5, 1967
DECISION AND ORDER
On July 14, 1966, Trial Examiner John H. Eadie issued his Deci-
sion 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 Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondent had not
162 NLRB No. 59.