Weltronic Co.

National Labor Relations Board - Board Decisions

Oct 21, 1968

173 N.L.R.B. 235 (N.L.R.B. 1968)

WELTRONIC COMPANY
Weltronic Company and Local No . 155, International
Union , United Automobile , Aerospace and
Agricultural Implement Workers of America
(UAW). Case 7-CA-6107
October 21, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On April 3, 1968, Trial Examiner John H. Eadie
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision, and
a supporting brief An answering brief was filed by
the Charging Party in response to these exceptions.
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 exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the modifications indicated
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
herein, and hereby orders that Respondent, Weltronic
Company, Southfield, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as so
modified
1. Delete paragraph 2(b) of the Trial Examiner's
Recommended Order and substitute therefor the
following:
"(b) Give employees who previously performed
plant central work at the Eight Mile Plant an
opportunity to continue to perform such work, _
pending bargaining."
2. Delete the sixth indented paragraph of the
173 NLRB No. 40
235
appendix entitled "Notice to All Employees," and
substitute the following-
WE SHALL give employees who previously per-
formed plant central work at the Eight Mile Plant
an opportunity to continue to perform such work
pending bargaining.
1 Like the Trial Examiner, we believe that a return to the status quo,
so far as is practicable , is an essential part of the remedial order in this
case In adopting the Trial Examiner 's Recommended Order, we
construe the requirement that the collective- bargaining agreement be
applied retroactively to the plant central work as an effort to restore
conditions as they would have been had Respondent not moved the
work without bargaining , whether the collective-bargaining agreement
continues to be applied to the plant central work will depend, in all
likelihood, on the outcome of the bargaining which we order, i.e , the
disposition of the work and the workforce in question As part of the
return to the status quo, we shall specifically provide that, pending the
outcome of the bargaining , the Employer give to employees at Eight
Mile who had previously performed the plant central work the
opportunity to continue to perform it
We have decided to make one additional modification in the Trial
Examiner 's Recommended Order Although, as the Trial Examiner
found, it is clear that Respondent failed to satisfy its statutory
obligation to bargain with the Union about the move of the plant
central work , and its effect on employees , the record reveals that space
is cramped at the old Eight Mile Plant, and at least in part, Respondent
was motivated by economic considerations in making the move . In view
of the fact that the work was moved only 3 miles away , we do not
believe that physical return of the plant central work to Eight Mile in
advance of the good -faith bargaining here directed is essential . See Unit
Drop Forge Division Eaton Yale & Towne, Inc., 171 NLRB No 73
Accordingly, we give Respondent the option of not moving the physical
performance of the work back to Eight Mile while it bargains , so long as
it complies with all other aspects of the remedial order
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN H EADIE,Trial Examiner. This proceeding was held
before me in Detroit, Michigan, on December 11, 1967, on the
complaint of the General Counsel and the answer of Weltronic
Company, herein called the Respondent.' The issue litigated
was whether the Respondent violated Section 8(a)(1) and (5)
of the Act After the conclusion of the hearing the General
Counsel and the Respondent filed briefs with the Trial
Examiner
Upon the entire record in the case, and from my observa-
tion of the witnesses, I make the following-
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation, has its principal
office and place of business at 19500 West Eight Mile Road in
the City of Southfield, Michigan, herein called the Eight Mile
Plant. Since on or about April 1, 1967, the Respondent has
maintained and operated a second plant at 20905 Telegraph
Road, Southfield, Michigan, designated as its Plant Central
Division and herein called the Telegraph Plant. The Re-
spondent is engaged in the manufacture, sale and distribution
1 The charge was filed on May 29, 1967 The complaint issued on
October 12, 1967.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of resistance welding controls, plant central equipment and
related products
During the year ending December 31, 1966, the Re-
spondent manufactured, sold and distributed at its Eight Mile
Plant products valued in excess of $500,000, of which
products valued in excess of $200,000, were shipped from said
plant directly to points located outside of the State of
Michigan.
The complaint alleges, the Respondent answer admits, and
the Trial Examiner finds that the Respondent is engaged in
commerce within the meaning of the Act
II. THE LABOR ORGANIZATION INVOLVED
Local No . 155, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America
(UAW), AFL-CIO, herein called the Union , is a labor
organization which admits to membership employees of the
Respondent
III. THE UNFAIR LABOR PRACTICES
The Respondent and the Union have been parties to a
collective-bargaining agreement since 1947 The relevant por-
tions of the contract dated September 1, 1964, are as follows
ARTICLE I
Recognition
Section 1. (a) The Company agrees to bargain with the
Union as the exclusive bargaining agency for its employees
at its plant located at 19500 West Eight Mile Road,
Southfield Michigan with the exception of office em-
ployees, watchmen, foremen, confidential employees and
experimental engineers.
(b) In the event the Company discontinues its opera-
tions at the present site and moves to another location in
the Detroit Metropolitan Area, seniority employees who
can and are willing to accept work at the new location will
be transferred to such a new location with all their seniority
prevailing rates of pay and the prevailing contract with the
AFL-CIO-UAW and Local 155
Section 2 The Company will negotiate at all times
necessary in the manner provided herein, with the chosen
accredited representative of its employees for the purpose
of determining any disputes which may arise as to wages,
rates, working conditions, discriminations or dismissals, and
will adjust any grievances which may now exist or may arise
in the future
Section 4 The Union agrees that the Management of the
Company has the right to manage the affairs of the
business, to control its properties, and equipment, and to
direct the working forces of the Company in accordance
with and subject to the terms of this Agreement. Said
functions of Management include the right to hire, dis-
charge or discipline for just cause, to establish new jobs and
discontinue jobs, maintain discipline and efficiency of
employees, to determine the types of products to be
manufactured, the location of plants, plan scheduling of
production, methods, processes, and means of manu-
facturing
ARTICLE IV
Seniority
Section 9. In the event of a reduction in the work force,
the following procedure shall be observed
First Probationary employees shall be laid off and no
overtime will be worked as long as employees with seniority
are laid off, except in case of emergency by mutual
agreement
Second Seniority employees will be laid off in ac-
cordance with their seniority standing, provided the senior
employees are capable of meeting the normal standard of
efficiency for the job they claim within a period not to
exceed three (3) working days
Third: When a further decrease of employees is neces-
sary, no layoff shall occur if it is possible for all regular
employees to work thirty-two (32) hours per week. The
thirty-two (32) hour week shall not continue after four (4)
weeks in any calendar year unless agreeed to by the
Company and the Shop Committee. When an increase in
force is necessary, the above procedure shall be reversed.
Section 11 When new jobs are created or vacancies
occur, the oldest employees in point of service shall be
given preference in filling such new job or vacancy so far as
consistent with the ability of the employee to perform the
services required All new jobs will be posted forty-eight
(48) hours before such vacancy shall be filled
Since about 1960 the Respondent developed and manu-
factured plant central equipment. Prior to April 1, 1967, such
equipment was manufactured in six plants owned or leased by
the Respondent or its subsidiary or affiliated companies at
Southfield (Eight Mile), Oak Park, Detroit, Bay City and Clare,
Michigan, and at Windsor, Ontario, Canada
Since about May, 1965, some plant central work was
carried on at the Eight Mile Plant This consisted of welding
and assembly of cabinets, spray painting, and wiring and
electronic assembly work. The wiring and electronic assembly
work was performed for the most part by employees Pluma
French and Helen Lobine Other employees at times also
performed this work
On or about April 1, 1967, without any prior notice to the
Union, the Respondent moved the plant central wiring and
electronic assembly work from the Eight Mile Plant to its new
Telegraph Plant, located approximately 3 miles from the Eight
Mile Plant.2 French continued on plant central equipment
work for about 2 weeks after the move, finishing up work
which had been assigned to her. She asked Robert Chinavare,3
her supervisor, and William Wood, general manager of the
Respondent's plant central division, to be transferred to the
Telegraph Plant They refused her request, telling her that she
was "in a union shop" and that they did not know what they
were "going to do " When she offered to call the Union to find
2 It appears that at or about this same time the Respondent moved
work to the Telegraph Plant from the other five plants where
components of plant central equipment previously had been manufac-
tured
3 Chinavare testified that he is "plant manager of plant central
division of Weltronic "
WELTRONIC COMPANY
out if she could be transferred, they again refused her
request 4
The move of the plant central work from the Eight Mile
Plant to the Telegraph Plant did not result in the layoff of any
employees However, during September and October of 1966
14 employees had been laid off at the Eight Mile Plant The
Respondent did not transfer any production employees from
the Eight Mile Plant to the Telegraph Plant and did not recall
any of the employees who had been laid off for work at the
Telegraph Plant The Respondent hired five new employees
prior to the hearing herein for the Telegraph Plant at rates
considerably less than those specified in its contract with the
Union.
On April 14, 1967, the Union, under the terms of its
contract with the Respondent, filed a grievance as follows.
The employees of Wcltronic Co 19500 W Eight Mile
road feel that said Company made a definite breach of
contract by taking away from its employees the Plant
Central job This job originated at Weltronic Co. 19500 W.
8 mile rd and here it should stay We feel that the Plant
Central job would not only give our people who are now
working steadier employment, but it would also enable the
employees who are laid off to come back to work
The parties met to discuss the grievance on or about April
23 The Union was represented by Marie Skierski, recording
secretary of the Union, and by its shop committee John
Anderson, in charge of the Respondent's public relations,
stated that it was not possible to transfer employees or recall
the laid off employees for work at the Telegraph Plant because
the Respondent was paying wages at the Eight Mile Plant
which it considered to be excessive for competitive reasons. He
also stated that the space available at the Eight Mile Plant for
work on plant central equipment was not sufficient When the
parties were unable to resolve the grievance, Skierski requested
arbitration The Respondent at first agreed to but later refused
arbitration At Skierski's request, the Respondent's position
was put in writing by letter to Skierski, dated April 26, 1967,
as follows
You have requested that we negotiate and arbitrate the
question of whether we have the right to establish a Plant
Central Division at 20905 Telegraph Road, Southfield,
Michigan, without transferring the employees who worked
on Plant Central at 19500 West Eight Mile Road, South-
field, Michigan to a new location.
Our contract does not provide for negotiation or arbitration
of any management rights matters and it does provide that
we retain all management rights, including the determina-
tion of the location of plants The contract does not
provide for transferring any employees to a new location
unless we discontinue operations at 19500 West Eight Mile
Road, Southfield, Michigan
For the above reasons, we decline to negotiate or arbitrate
the question referred to in paragraph one hereof.
The Union filed another grievance dated May 5, 1967, as
follows-
The Company has violated Article I, Section 1 b of
present agreement by refusing to transfer the seniority
4 French testified credibly to the above Neither Chmavare nor
Wood denied that French asked to be transferred Chinavare denied that
he mentioned the Union when French asked to be transferred Wood
testified that he had no recollection of a conversation with French on
the subject
237
employees with this work Article I, Section 2 by refusing
to negotiate the moving of this work They have also
violated Section 4 by refusing to recall the laid off Seniority
Employees.
The Respondent refused to meet on this grievance or to discuss
the matter further.
Contrary to the Respondent's contention, I find that the
Union by agreeing to the management rights clause in the
contract did not waive its right to bargain with respect to the
relocation of unit work Any waiver of statutory rights by a
union must be clear and unequivocal. Such is not the case here,
especially in view of article I, section 1(b) of the contract.
Further, the Respondent contends that lack of space at the
Eight Mile Plant and the economic necessity of getting all plant
central work, excepting cabinet work, under one roof
prompted the moving of such work to its new plant. The
evidence indicates that the Respondent was motivated by
additional considerations. The testimony of French and
Skierski shows that the reason the Respondent refused to
transfer unit employees to the Telegraph Plant was in order to
hire nonunion employees at rates far less than those called for
in the contract. However, assuming arguendo that the Re-
spondent was motivated by economic reasons alone, it still was
obligated to negotiate with the Union concerning the transfer
of unit work.
Accordingly, I find that the Respondent by transferring
unit work from its Eight Mile Plant to its Telegraph Plant,
without first notifying the Union of its intention to do so or
giving it an opportunity to bargain thereon, violated Section
8(a)(5) and (1) of the Act It is also found that the
Respondent engaged in additional violations of Section 8(a)(5)
of the Act by treating the plant central work as no longer being
covered by the contract, by unilaterally changing the terms
and conditions of employment by paying employees at rates
less than those provided for in its contract with the Union, and
by refusing to negotiate with the Union the transfer of unit
employees to or the recalling of laid off employees for work at
the Telegraph Plant.
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 Respondent's opera-
tions described in section I, above, have a close, intimate and
substantial relationship to trade, traffic and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce
V THE REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, it will be recommended that it
cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act
It would be futile to attempt to remedy the violation if the
Respondent's transfer of unit work to its Telegraph Plant was
permitted to stand. No genuine bargaining over a decision to
transfer work could be conducted where that decision has
already been made and implemented. Therefore, it will be
recommended that the Respondent be ordered to restore the
status quo ante by returning the plant central work previously
performed by its employees at its Eight Mile Plant and
fulfilling its statutory obligation to bargain.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, it appears that the Respondent's unlawful action
caused the loss of employment to at least some of its laid off
employees Under the circumstances, it will be recommended
that the Respondent be ordered to apply the terms of its
collective-bargaining agreement with the Union to the plant
central work retroactively to the date of the transfer of such
work to the Telegraph Plant, and to recall the laid off
employees who were affected by the Respondent' s unilateral
action, pursuant to the seniority and recall provisions of said
contract, making them whole for any loss of earnings suffered
as a result of the Respondent's unlawful conduct. Backpay
shall be based upon the earnings which they normally would
have received from the date that the unit work was transferred
to the Telegraph Plant to the date of the Respondent's offer of
reinstatement, less any net interim earnings , and shall be
computed on a quarterly basis in the manner set forth in F W
Woolworth Company, 90 NLRB 289, together with interest on
such sums, such interest to be computed in accordance with
the formula prescribed by the Board in Isis Plumbing &
Heating Co, 138 NLRB 716
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following-
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
2 All employees at the Respondent's plant located at
19500 West Eight Mile Road, Southfield, Michigan, with the
exception of office employees, watchmen, foremen, confi-
dential employees and experimental engineers, constitute a
unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
3 The Union has been at all times material herein the
exclusive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act
4 The Respondent has engaged in conduct violative of
Section 8(a)(5) and (1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case, I
recommend that the Respondent, its officers, agents, succes-
sors and assigns , shall be ordered to
1 Cease and desist from refusing to bargain collectively
with the Union as the exclusive bargaining representative of
the Respondent's employees in the appropriate unit with
respect to wages, hours, and other terms and conditions of
employment, unilaterally transferring unit work to other
locations or otherwise changing the wages, hours, and other
terms and conditions of employment of unit employees
without prior bargaining with the Union or any other union
they may select as their representative, unilaterally treating the
plant central work as no longer being covered by its collective-
bargaining agreement with the Union, and refusing to negotiate
with the Union the transfer of unit employees to or the
recalling of laid off employees for work at the Telegraph Plant
2. Take the following affirmative action which I find will
effectuate the policies of the Act.
(a) Bargain collectively with the Union as the exclusive
bargaining representative of the Respondent's employees in the
appropriate unit with respect to wages, hours, and other terms
and conditions of employment.
(b) Return the plant central work which was previously
performed by unit employees to its Eight Mile Plant
(c) Apply the terms of the collective-bargaining agreement
to the plant central work retroactively to the date of the
transfer of such work, including recall of laid off employees
pursuant to the seniority and recall provisions of said contract,
as well as payment of backpay to the employees affected in
the manner set forth in the section above entitled "The
Remedy."
(d) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for examination
and copying all records necessary for the determination of the
amount of backpay due under these recommendations
(e) Post at its store in Southfield, Michigan copies of the
notice attached hereto and marked Appendix. 5 Copies of
said notice, on forms provided by the Regional Director for
Region 7, after being duly signed by the Respondent or its
authorized representatives, shall be posted by Respondent
immediately upon receipt thereof and 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 to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of the receipt of this Decision,
what steps it has taken to comply herewith 6
5 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 Recommendations of a Trial Examiner " in the notice In the
further event that the Board 's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order " shall be substituted for the
words " a Decision and Order "
6 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director , in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
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 Relations Act, as
amended, we hereby notify our employees that
WE WILL NOT refuse to bargain collectively with Local
No. 155, International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
(UAW), AFL-CIO, as the exclusive representative of all
employees in the following unit:
All employees at our plant located at 19500 West Eight
Mile Road, Southfield, Michigan, with the exception of
WELTRONIC COMPANY 239
office employees, watchmen, foremen, confidential em-
ployees and experimental engineers
WE WILL NOT unilaterally transfer unit work to other
locations or otherwise change the wages, hours, and other
terms and conditions of employment without prior bargain-
ing with the above-named Union
WE WILL NOT unilaterally treat the plant central work
as no longer being subject to the provisions of our
collective-bargaining agreement with the above-named
Union
WE WILL NOT refuse to negotiate with the above union
the transfer of unit employees to or the recalling of laid off
employees for work at our plant located at 20905 Tele-
graph Road, Southfield, Michigan
WE WILL bargain collectively with the above union as
the exclusive bargaining representative of our employees in
the apps opriate unit with respect to wages, hours, and other
terms and conditions of employment
WE WILL return the plant central work to our Eight
Mile Road Plant which was previously performed by
employees represented by the above-named Union
WE WILL apply the terms of our collective-bargaining
agreement with the above Union to the plant central work
retroactively to the date of transfer of such work, including
recall of laid off employees pursuant to the seniority and
recall provisions of said contract, as well as any backpay
suffered by the employees affected as a result of our
bypassing the above-named exclusive bargaining representa-
tive and of our unilateral action
WELTRONIC COMPANY
(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 di-
rectly with the Board's Regional Office, 500 Book Building,
1249 Washington Boulevard, Detroit, Michigan 48226 (Tel
No 226-3244)