Applicators, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1962

136 N.L.R.B. 1017 (N.L.R.B. 1962)

APPLICATORS, INC. 1017
Applicators, Inc. and Sheet Metal Workers International Asso-
ciation ,- Local Union 566, AFL-CIO. Case No. 7-CA-3378.
April 13, 196.
DECISION AND ORDER
- On January 24, 1962, Trial Examiner C. W. Whittemore 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 Intermediate
Report attached hereto. Thereafter , the Respondent filed exceptions
to the Intermediate Report together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act , the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers , Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed . The Board has considered the Inter-
mediate Report , the exceptions and brief , and the entire record in this
case, and hereby adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner.
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, Applicators,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Threatening employees with reprisals if Local 458, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind., or any other labor organization, is desig-
nated as their bargaining representative.
(b) Promising benefits to employees if they vote against union
representation.
(c) Prohibiting, by rule or otherwise, lawful union activiites on
company property during employees' nonworking time.
(d) In any like or related manner interfering with, restraining,
or coercing their employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Sheet
Metal Workers International Association, Local Union 566, AFL-
CIO, or Local 458, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Ind., or any other
136 NLRB No. 90.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 protec-
tion, or to refrain from any or all such activities, except to the extent
that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized by 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) Rescind the company rule posted since May 1961, which pro-
hibits employees' union activity on company property during non-
working time, or, in lieu thereof, revise such rule to make it clear on
the face thereof that said rule will not be interpreted, applied, or en-
forced to prohibit or interfere with lawful union activities on com-
pany premises during nonworking time.
(b) Post at its plant in Southfield, Michigan, copies of the notice
attached hereto marked "Appendix." 1 Copies of said notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent 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. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NoncE 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 threaten our employees with reprisals if Local
458, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind., or any other labor or-
ganization, is designated their bargaining representative.
WE WILL NOT promise benefits to our employees if they vote
against union representation.
APPLICATORS, INC. 1019
WE WILL NOT prohibit, by rule or otherwise, lawful union
activities on company property during our employees' nonwork-
ing time.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
Sheet Metal Workers International Association, Local Union
566, AFL-CIO, or Local 458, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Ind., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Sec-
tion 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
APPLICATORS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Industrial Building, 232 West Grand River, Detroit, Michigan,
Telephone Number, Woodward 2-3830, if they have any questions
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge and amended charge in the above-entitled case having been filed re-
spectively on October 2 and 26, 1961, a complaint and notice of hearing thereon
having been issued and served on November 1, 1961, by the General Counsel of
the National Labor Relations Board, and an answer having been filed by the above-
named Respondent on November 9, 1961, a hearing involving allegations of unfair
labor practices in violation of Section &(a)-(1) of the National Labor Relations Act,
as amended, was held in Detroit, Michigan, on December 11, 1961, before the duly
designated Trial Examiner.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
have been received from General Counsel and the Respondent.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Applicators, Inc., is a Michigan corporation, with principal office and place of
business in Southfield, Michigan, where it is engaged in the manufacture, sale, and
distribution of aluminum siding.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the year preceding issuance of the complaint then Respondent sold and
shipped directly from its plant to points outside the State of Michigan finished prod-
ucts valued at more than $50,000. During the same period it purchased and caused
to be delivered to its plant from points outside the State of Michigan goods and
materials valued at more than $ 50,000.
The complaint alleges, the answer admits , and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Sheet Metal Workers International Association , Local Union 566, AFL-CIO, and
Local 458, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Ind., are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
On June 15 , 1961, employees Samuel Kelly and Ward Washington filed. with the
Board a petition seeking decertification of the Sheet Metal Workers , the incumbent
bargaining representative of the Respondent 's production and maintenance em-
ployees. On July 20 a consent-election agreement was entered into between the
Employer and various interested labor organizations . An election , scheduled to be
held on October 4 , was postponed upon the filing of the original charge in this case.
Shortly after the decertification petition was filed employees Washington and
Kelly obtained authorization cards from the Teamsters and solicited other employees
to sign them.
The chief events in issue occurred during a period of several weeks ' following com-
mencement of the organizational campaign on behalf of the Teamsters.
In substance , the complaint alleges that certain management representatives un-
lawfully interrogated employees as to their union desires , threatened reprisals if
employees assisted the Teamsters , and made promises of benefit if they voted for
"no union" at the scheduled election.
B. Facts and conclusions
Credible evidence establishes the following facts which , in the opinion of the Trial
Examiner , fully support General Counsel 's contention of unlawful interference, re-
straint, and coercion:
(1) Since May 1961, the Respondent has caused to be posted in the plant at all
times a list of company rules regarding conduct of employees. These rules include
the prohibition of "conducting union activities or business on company time or
property." [Emphasis supplied.] Violation of this rule , following three "warning
slips," is cause for discharge . The Respondent offered no convincing evidence as
to why it was necessary to prohibit union activities on "company property." Absent
some reasonable explanation, the Board and courts have long held that an employer
may not lawfully prohibit such activities on "company property " on the employee's
own time.'
(2) A few days after Samuel Kelly signed the decertification petition and began
passing out Teamster cards, Plant Manager Ben Siegal told him that if the Teamsters
"got in" he would have to cut off one shift of the "paint line" employees.
(3) Early in August , when Siegal called employee John Austin into his office to
receive his paycheck , Siegal told Andy Legris,2 in Austin's presence , that if the
"Teamsters came in he would have to ultimately lay off some men."
(4) During the material period Siegal also told Roosevelt Holloway, the sheet
Metal Workers steward at the plant , that "if the Teamsters were to get in they
would have to lay some of the men off." 3
'See Republ%c Aviation Corporation v N L R 13, 324 U S 793
2 The record does not disclose whether Legris was a rank-and-file employee or a super-
visor It Is undisputed , however , that the remark was made in Austin's presence, after
this employee had been called into the office by Siegal The latter , questioned about this
incident, said he did not recall it Since this threat of possible layoff is similar to the
statement previous made to Kelly, the Trial Examiner does not credit Siegal's denial that
be made the remark to Kelly
'The Trial Examiner does not credit Siegal's denial.
APPLICATORS, INC. 1021
(5) Around the first of August Siegal told a group of employees, including
Holloway and Eddy Anderson, that "if we got a new union in there that he would
have to either move the plant or close it down." 4
(6) Late in September and shortly before the election scheduled for the produc-
tion and maintenance employees, the Respondent posted upon its bulletin board for
the latter group of employees, the following letter to its "applicators," who do not
work in the plant, but apply the aluminum siding to buildings away from the
plant. The letter was posted a few days after the "applicator" group had voted
at a Board election against any labor organization as their bargaining representative.
It was also mailed directly to each of the "applicators." Since it was mailed directly
to each of the employees to whom it was addressed, and because the Respondent
offered no substantial reason for posting it also on the bulletin board for the atten-
tion of employees who were not concerned, the Trial Examiner agrees with General
Counsel that such posting was designed to, and would have the reasonable effect,
of implying that if the production employees would likewise vote, in their forth-
coming election, against any labor organization, they would receive benefits. The
letter:
On behalf of Alsar, I want to thank you for the vote of confidence given us
at the recent N.L.R.B. election. It was good to know that you felt that
Alsar had been fair to you over the many years of association.
We do not take this expression of your faith in us as a sign that things
are to be left the way they are. As a matter of fact, ALSAR now feels an
even greater obligation to its applicators.
THEREFORE, ALSAR PROMISES TO DO EVERYTHING POSSIBLE
TO GET MORE ALUMINUM AND STONE JOBS TO KEEP YOU
WORKING FULL TIME.
We believe this is our most important duty to you.
Further, Alsar will continue its program to make all possible improvements,
to eliminate lost time due to office delays, special bent material, checking out
and permit pickups.
Alsar will review the 30" special bent rates with you, and try to establish
the most fair and popular rate possible.
Alsar will investigate a vacation pay program for possible submittal with
the 1962 rates
Alsar will begin a thorough investigation of a pension plan. If feasible, it
will be part of the 1963 program.
This is our forward looking program to keep Alsar as the best place in the
country for applicators.5
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 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 disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the Trial Examiner makes the following:
4 The Trial Examiner does not credit Siegal's denial that lie made the quoted remark.
He admitted the group meeting and admitted making critical remarks about the Teamsters,
claiming that what he "referred to" he had "seen in the newspapers "
i The record contains evidence of numerous other incidents which, in the opinion of
the Trial Examiner, fail to meet the standards of restraint and coercion For example,
telling an employee that he did not seem happy, or another that his "outside activities"
seemed to be interfering with his work, falls short of an express or implied threat There
is evidence that a supervisor told an employee that Siegal had told him to "write up"
employees for things they did "wrong " Such matters might have relevance to establish
a discriminatory motive in a discharge case, but no allegation of discrimination Is in the
complaint
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Sheet Metal Works International Association , Local Union 5.66, AFL-CIO;
and International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , Ind., are labor organizations within the meaning of Section 2(5)
of the Act.
2. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Town & Country Manufacturing Company, Inc., and Town &
Country Sales Company , Inc. and General Drivers , Chauffeurs
and Helpers Local Union No . 886. Cases Nos. 16-CA-1305 and
16-CA-1307. April 13, 1962
DECISION AND ORDER
On May 3, 1960, Trial Examiner Paul Bisgyer issued his Inter-
mediate 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 Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in other unfair labor practices and recommended dismissal of the
complaint as to them. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations to the extent that they are consistent with our
decision herein.
1. We find, as did the Trial Examiner, that the Respondent violated
Section 8 (a) (1) of the Act by threatening employees with discontinu-
ance of operations or with discharge or other reprisals because of their
activities on behalf of the Union; by promising employees wage in-
creases and other benefits if they voted against the Union; by interro-
gating employees concerning the identity of supporters of the Union;
and by requiring employees to sign individual work agreements with
Respondent under threats of withholding work.'
3 The Respondent concedes that if engaged in these violations of the Act and has, there-
fore; filed no exceptions to the Trial Examiner 's findings In this connection.
136 NLRB No. 111.