K. Wm. Beach Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1971

192 N.L.R.B. 203 (N.L.R.B. 1971)

K. WM. BEACH MFG. CO., INC.
K. Wm. Beach Mfg, Co ., Inc. and District Lodge 82,
International Association of Machinists and Aero-
space Workers, AFL-CIO. Case 9-CA-599$
July 22, 1971
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On June 4, 1971, Trial Examiner William J. Brown
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 . Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting 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.
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 Respondent 's exceptions
and brief, and the entire record in the case,' and
hereby adopts the findings, conclusions, and recom-
mendations .of the Trial Examiner?
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, K. Wm. Beach Mfg. Co., Inc.,
Springfield, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
i Respondent's request for oral agreement is demed, as in our opinion
the record submitted , including the Respondent's brief, adequately presents
the issues and positions of the parties.
2 As found by the Trial Examiner, on Friday, December 4, the Union
represented a majority of Respondent's employees and requested
recognition from Respondent ; on Monday, December 7, Respondent
discharged all its employees, its production manager commenting that "he's
closing the place down on account of the union." Several days later
Respondent hired an entire new work force . We have no difficulty
concluding that Respondent 's lightning and totally unlawful response to its
employees' union activities will not quickly be forgotten by them, and that
a bargaining order is justified and required under any or all of the tests of
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969). We adopt the Trial
Examiner 's conclusion in this regard.
TRIAL EXAMINER'S DECISION
203
WILLum J. BROWN, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter referred to as the "Act," came on to
be heard at Springfield, Ohio, on March 24 and 25, 1971.
The original charge of unfair labor practices was filed
December 21, 1970,' by the above-indicated Charging
Party, hereinafter sometimes referred to as the Union; the
complaint herein was issued February 3, 1971, by the
General Counsel of the National Labor Relations Board
acting through the Board's Regional Director for Region 9.
It alleged, in addition to jurisdictional matter, that the
above-captioned Respondent, hereinafter sometimes re-
ferred to as the Company, engaged in unfair labor practices
within the scope of Section 8(axl), (3), and (5) of the Act.
The Company's duly-filed answer admits the jurisdictional
allegations of the complaint and the status of the Union as
a labor organization; it denies the commission of unfair
labor practices.
At the hearing the parties appeared and participated as
noted above with full opportunity to present evidence and
argument on the issues. Subsequent. to, the close of the
hearing briefs were received from the General Counsel and
the Company and have been fully considered. On the entire
record2 herein and on the basis of my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The pleadings and evidence establish and I find that the
Company, a corporation organized and existing under and
by virtue of the laws of the State of Ohio, is engaged at
Springfield, Ohio, in the manufacture of gaskets and
electrical insulation. During the 12-month period preceding
issuance of the complaint herein, admittedly a representa-
tive period, the Company shipped from its Springfield plant
directly to points outside the State of Ohio, products valued
in excess of $50,000, while receiving at said plant goods and
materials valued in excess of $50,000 and shipped directly
from points outside the State of Ohio. I find, as the
Company concedes, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish and I find that the
Union is a labor organization within the purview of Section
2(5) of the Act. -
i Dates hereinafter, unless otherwise noted , relate to the calendar year
1970.
2 The transcript is corrected.
192 NLRB No. 47
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
This case concerns events occurring in the course of a
1970 campaign of production and maintenance employees 3
of the Company to secure 'representation by the Union,
earlier efforts in this connection, 4 apparently having proved
unsuccessful.
The= Company's manufacturing operations have been at
all material times carried on by a workforce of some 21
employees, mostly females. K. William-Beach, president of
the Company, appears to be in direct and intimate control
of operations with Robert Rapp, production manager-and
an -admitted supervisor, in direct charge of manufacturing.
Bret `and Bill Beach,'-sons; of-K. William Beach, are vice
presidentsW in charge of production and sales, respectively,
and Roger-Webb is the Company's office manager.
On December;3-in=the afternoon, the Company posted a
notice (G. C. Exh. -11) announcing the suspension of regular
bonus "payments- due to customer pressure for lower prices
on Company products. Employee Woneda Knight appar-
ently had received from a source in the Company office,
advance word of the discontinuance -of the bonus and had
contacted the Union- on December 2. On December 3, 156
employees in the unit signed cards authorizing the Union to
either petition for a Board representation election or 'to
demand recognition by the Company. The signatories
plainly constituted a majority in any conceivably appropri-
ate unit. - -
On December 4, Union Business Representative Clell
Boggs, to whom the authorization cards had been delivered
by employees, wrote the Company advising it of the
Union's selection by a majority of production and
maintenance employees as their collective-bargaining
representative, offering to submit the proof of employee
designation of the Union to a neutral third person such as a
clergyman or a Federal conciliator, and requesting
collective bargaining. The Union letter, sent by certified
mail,7 was returned unopened because of a Company
policy and instructions to' the post office authorities. The
Company received a post office notice that certified mail
had been received and that the addressee (i.e., the
Company) should call at the window. The Company
apparently did not call at the window, instead offering in
evidence as Respondent's Exhibit 4, P.O. -Form 3907,
apparently available in violation of postal instructions
contained thereon.
Boggs also testified that on December 4 he telephoned
the Company at its listed telephone number, asked to speak
to "Mr. Beach" and when a male voice identified the
speaker as "Mr. Beach," Boggs, according to his account,
claimed to represent a majority of employees, requested
3 The appropriateness of the production and maintenance employee
unit (with the usual exclusions , viz, office clericals, professionals, guards,
and supervisors as defined in the, Act) is established not only by the
presumption of appropriateness, Appliance Supply Company, 127- NLRB
319, but also by Board direction of May 1, 1959, (G. C. Eilh. 2).
4 See G. C. Exh. 2 indicative of a 1959 organizational campaign.
5 Company President Beach's testimony indicates that the bonus was
generally paid monthly between the 1st and 15th based on the preceding
month's earnings.
6 This figure includes employee, Inez Hoover absent on sick leave in the
period October 15 until January 6, 1971. A 16th authorization card was
signed December 5 by employee Theodore Patten.
recognition as representative of the employees and offered
to submit proof of majority status to a third party
whereupon the voice of "Mr.- Beach" said either "No" or
"Good Bye" and hung up. President Beach testified that he
did not arrive at the plant on that day until noon and
denied ever speaking on the telephone to Boggs. Vice
Presidents Bret and Bill denied speaking on the telephone
to Boggs on the day in question. I credit Boggs' testimony
and find that he on the day in question, December 4, spoke
to either President Beach or Vice President Bret or Bill
Beach and demanded recognition after claiming to
represent a majority of Company employees."
On Monday, December 7, employees reported for work
at their regular scheduled time, 8 a.m., for full-time
production and maintenance workers. Office Manager
Webb received a telephone call from-President Beach-about
8:30 a.m. directing him to go to the production area and tell
employees=to shut off their machines and go home;,Beach
gave no reason, for this instruction. Webb notified Rapp
immediately and the latter complied with the instructions.
Francis Martin; the setup -man in the shop, testified-that in
relaying Beach's instructions to - him, Rapp stated that
Beach was shutting 'the plant down onn account of the
Union. I conclude from the= evidence relating to the
shutdown that it was, as appears from uncontradicted
testimony of employees Kathryn Mills, Knight, and
Eugenia Mills, not - only that there was a volume of
important uncompleted work in process but that Pro-
duction Manager Rapp 9 was as shown by his owntestiniony;
completely uninformed of the shutdown until after the start
of the morning shift on December 7. Within 2 days the
Company commenced the hiring of a completely, new
production and maintenance, staff. I conclude. that the
decision to shut down operations, terminate the entire
employee complement in the plant, and resume with a new
workforce was in fact subsequent to and motivated by the
Union's telephone call of December 4.
I find and conclude on the basis of ' all' the evidence and
particularly my conviction that Boggs' testimony is entitled
to credit and that of 'Beach, is not so entitled,, that the
Union, possessed of authorization cards from a substantial
majority of employees, in the appropriate unit,' properly
demanded recognition; and that the demand was answered
by a discriminatory shutdown and the discharge of all unit
employees, the Company conduct in this regard constitut-
ing unfair labor practices defined in Section 8(a)(1), (3), and
(5) of the Act.
T This letter is postmarked as of December 3, apparently due to a
missetting of the Pitney-Bowes meter.
a Boggs filed a representation petition respecting the unit here involved
on December 9; it states that recognition was requested on December 4
and resulted in no reply. 1
8 Rapp had been in the Company's employ for 23 years, 12 years as
production manager ; it is inconceivable to me that the replacement of the
entire workforce would not ,have been discussed with him ' if it were a
decision made as a result of bona fide business , considerations. I do not
credit the testimony of President, Beach, ' which is, incidentally,
uncorroborated by Bret or Bill Beach,' that the decision to terminate the
workforce was reached at stockholders ' meetings on November-12 and 27.
'K. WM. BEACH MFG. CO., INC.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, there found to' constitute unfair labor 'practices,
occurring.in connection with the-business operations of the
Company as set forth in section 1, 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 such commerce
and the free flow thereof.
THE REMEDY
In view of the findings above set forth to the effect that
the Company has . engaged in unfair labor practices
affecting commerce it will be recommended that it be
required to cease and desist therefrom and, in view of the
findings of massive discriminatory discharge, from any
unfair labor practices. N.L.R.B. v. Entwistle Mfg. Co., Inc.,
120 F.2d 532, (C.A. 4). It will also be recommended that the
Company be required to take such affirmative action as
appears necessary-and appropriate to effectuate the policies
of the Act, including recognition of the Union as exclusive
representative of employees in the unit here involved,
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, and
reinstatement : of the employees discriminatorily terminated
on December 7 with backpay and. interest computed in
accordance with the remedial policies set forth in F. W.
Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the purview
of Section 2(5) of the Act.
3. All production and maintenance employees of the
Company, excluding office clerical and professional
employees, guards, and supervisors constitute a unit
appropriate for collective bargaining.
4. By refusing from and after December 4 to recognize
and bargain collectively with the Union as exclusive
representative of employees in the aforesaid appropriate
unit the Company has engaged in unfair labor practices
within the scope of Section 8(a)(5) and (1) of the Act.
5. By discharging all production and maintenance
employees on December 7 in reprisal for their selection of
the Union as collective-bargaining representative the
Company has engaged in unfair labor practices within the
scope of Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102A8 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
205
Upon the foregoing findings 'of fact, conclusions , of law,
and the entire record, and pursuant to `Section 10(c) of the
Act, I hereby issue the following recommended:10 , `
ORDERS
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in the' Union or any other
labor organization of its employees by discharging or
otherwise discriminating against them with respect to hire,
tenure, or any term or condition of employment, except as
may be required under an agreement lawfully entered into
pursuant to the proviso clause of Section 8(a)(3) of the Act.
(b) Refusing to bargain collectively with the Union as
exclusive representative of employees`in the unit aforemen-
tioned.
(c) In any manner interfering with, restraining, or
coercing employees in the exercise of their rights under the
Act.
2. Take the foll owing affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) On request bargain collectively with the Union as
exclusive representative of employees in the aforesaid unit
with respect to rates of pay, wages, hours of work, and other
terms and conditions of employment and embody in a
written and signed memorandum of agreement any
understanding reached as a result of such bargaining.
(b) Offer employees discharged on December 7Y1
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make
them whole for loss of earnings in the manner set forth in
the section above entitled "The Remedy."
(c) Preserve and upon request make available to the
Board or its agents for examination and copying all payroll
records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and give effect to the backpay
requirements hereof.
(d) Post at its Springfield, Ohio, plant copies of the
attached notice marked "Appendix." 12 Copies of said
notice on forms provided by the Regional Director for
Region 9, after being duly signed by an authorized
representative of Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
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.
(e) Notify the Regional Director for Region 9, in writing,
11 This shall include employee Inez Hoover, on sick leave on, December7.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within 20 ,days, from the ,date, of receipt of th is Decision,
what steps Respondent has taken to comply herewith.13
33 In theevent'that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 9, in writing , within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To. EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:'
WE ' - VILL NOT discourage membership in District
Lodge 82, international Association of Machinists and
Aerospace Workers, AFL-CIO, or any ' other -labor
organization of our employees by discharging or
otherwise discriminating against' them respecting hire,
tenure, or any term or condition of employment in
violation of the National Labor Relations Act, as
mended.a
WE WILL NOT refuse to bargain collectively with the
aforesaid labor organization as exclusive bargaining
representative of employees in the appropriate unit, viz:
All production and maintenance employees,
excluding all office clerical employees, guards,
and supervisors as, defined in the National Labor
Relations Act.
WE WILL on request bargain with the aforesaid
Union for said,unit.
WE war. offer, immediate and full reinstatement to
their former or substantially equivalent positions to all
'employees discharged on December 7, 1970'and ' we will
make them whole for loss'. of 'pay' resulting `from
our discrimination against them.
WE WILL NOT in any manner interfere with, restrain,
or coerce employees in the exercise of their rights under
the National Labor Relations Act, as amended.
Dated By
K. WM. BEACH MFG. Co.,
INC.
(Employer),,
(Representative) , (Title)
This is an official notice and must not ,be defaced by
anyone
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 questions concerning this Notice,or compliance with
,its provisions,, ' may be directed to the Board's. Office,
Federal _ Office Building, Room 2407, 550 Main Street,
Cincinnati, Ohio 45202, Telephone 513-684-3686.