Accurate Die & Mfg. Corp.

National Labor Relations Board - Board Decisions

May 15, 1979

242 N.L.R.B. 280 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accurate Die & Manufacturing Corp. and Local 247,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousernen and Helpers of America. Case
7-CA-14551
May 15, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
ANI) PENEI.LO
On February 16, 1979, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended remedy and Order,' as modi-
fied herein.
Amended Remedy
Following issuance of the Administrative Law
Judge's Decision, the Board held that discharged
strikers should be treated the same as any other dis-
charged employees with respect to backpay, and that
their backpay should be computed from the date of
discharge rather than from the date that reinstate-
ment is requested. See Abilities and Goodwill, Inc., 241
NLRB 27 (1979), Members Penello and Murphy dis-
senting. Here, as the day-shift employees were walk-
ing out on the morning of October 26, 1977, Respon-
dent's secretary and part owner, Edward Markarian,
told them that if they did not return to work or if they
did walk out, they would all be fired. Instead of re-
turning to work, they left and began picketing. That
afternoon Respondent's president and part owner,
Ernest Hovizi, told striking employees that if they did
not return to work immediately they were fired. None
of them returned, and the late-shift employees joined
the strike instead of reporting to work. In these cir-
cumstances, we conclude that the strikers were effec-
tively discharged on October 26, 1977. Accordingly,
The Remedy is amended to provide that the discharg-
I We correct the Administrative Law Judge's inadvertent references to
Rudy Thomas as having been recalled, rather than employee Larry Gerald,
by substituting the name Gerald for Thomas wherever it appears in sec. Ill,
B, par. Is, and in sec. V, fn. 15, of his Decision.
ees receive backpay from October 26, 1977, until the
date they are offered reinstatement.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Accurate Die & Manufacturing Corp., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
I. Insert the following as paragraph 2(a):
"(a) Offer Aaron Toland, Timothy Ginn, Rudy
Thomas, Dale Bailey, Larry Gerald, James Jefferson,
Robert Williams, Kenneth Williams, and James Pe-
terson immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously
enjoyed, and make them whole for any loss of earn-
ings, with interest, which they may have suffered by
reason to our discrimination against them, in the
manner set forth in the section of the Board's Deci-
sion and Order entitled 'Amended Remedy.'"
2. Substitute the attached notice for that of the
Administrative Law Judge.
2 For the reasons stated in Member Murphy's and Member Penello's dis-
senting opinion in Abilies and Goode.ill, Inc.. supra, Member Murphy
would, contrary to her colleagues, compute backpay from December 12,
1977, when an unconditional offer to return to work was made by the strik-
ers.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local
247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by dis-
charging any employee who engages in any ac-
tivity in support of said Union, or any other
union, or in any other manner discriminating
against them in regard to their hire or tenure of
employment or any terms or conditions of em-
ployment.
WE WILL NOl refuse to bargain collectively
with the aforesaid Union as exclusive bargaining
representative of all of our full-time and regular
part-time production and maintenance employ-
242 NLRB No. 46
280
ACCURATE DIE & MANUFACTURING CORP.
ees employed by us at our Detroit, Michigan,
facility excluding all office clerical employees,
professional employees, confidential employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights to self-organization; to form,
join, or assist the aforesaid Union or any other
organization; to bargain collectively through
representatives of their own choosing; and to en-
gage in other concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any or all such ac-
tivities except to the extent that such right may
be affected by an agreement, requiring member-
ship in a labor organization as a condition of
employment, as authorized by the National La-
bor Relations Act.
WE WILL offer Aaron Toland, Timothy Ginn,
Rudy Thomas, Dale Bailey, Larry Gerald, James
Jefferson, Robert Williams, Kenneth Williams,
and James Peterson immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE
WILL make them whole for any loss of earnings,
with interest, which they may have suffered by
reason of our discrimination against them.
WE WILL, upon request, meet and bargain col-
lectively with Local 247, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive bar-
gaining representative of our employees in the
above-described unit, concerning rates of pay,
wages, hours of employment and other terms
and conditions of employment and, if an under-
standing is reached, WE WILL embody such un-
derstanding in a signed agreement.
All our employees are free to become, remain, or
refrain from becoming or remaining members of the
aforesaid Union or any other labor organization.
ACCURATE DIE & MANUFACTURING CORP.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
case was heard at Detroit, Michigan, upon the complaint of
the General Counsel issued December 16, 1977, which com-
plaint was based on an original charge filed on October 28,
1977, by Local 247, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
herein called the Union or the Charging Party, and an
amended charge filed by the Union on December 7, 1977.
The complaint alleges, in substance, that Accurate Die &
Manufacturing Corp., hereinafter called Respondent or the
Company, has violated and is violating Section 8(a)(5) of'
the National Labor Relations Act, as amended, herein
called the Act, by refusing to bargain with the Union as the
recognized majority representative of Respondent's em-
ployees and Section 8(a)(3) and (1) of the Act by discharg-
ing and otherwise discriminating with regard to the tenure
of employment of Respondent's employees and by interfer-
ing with, restraining, and coercing Respondent's employees'
exercise of their Section 7 rights. Respondent. while admit-
ting the jurisdictional allegations of the complaint, denies
the commission of any unfair labor practices. Respondent
contends that the Union was not and is not the majority
representative of its employees, that it did not discharge
any of its employees or interfere in any way with the tenure
of their employment, and did not interfere with any of the
employees' Section 7 rights.
Upon the entire record and after consideration of the
brief filed by counsel for Respondent,' and upon my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONI)ENT
Respondent, a Michigan corporation which maintains its
office and place of business in the city of Detroit, Michigan,
is engaged in the painting of automotive stamping parts and
related products. During the year ending December 31.
1976, a representative period, Respondent performed ser-
vices of a value in excess of $70,000, of which services of a
value in excess of $50,000 were performed for a company
located in the State of Michigan, which annually, in the
course and conduct of its operations. purchased and caused
to be shipped to its Detroit, Michigan, facility, directly
from points located outside the State of Michigan, products
of a value in excess of $50,000.
It is admitted, and I find, that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. The Issues
This case arises from the Union's organizational drive of
Respondent's employees within a 2-day period, a demand
for recognition on the second day, an alleged refusal to
recognize by Respondent followed by a strike of the em-
ployees, and the alleged discriminatory discharge and re-
fusal by Respondent to reinstate the strikers upon their of-
fer to return to work made on the striker's behalf by the
Union.
I Counsel for the General Counsel did not file a bnef although requested
to do so inasmuch as he waived oral argument at the hearing.
281
I)I ('ISI()NS () N\ II()NAI I AB\I()R RII..A IIONS B()ARI)
Respondent's ditlnse to tlhe conipllinl ;llIegtions con-
sists of tllhree hasic conilclttions: I ) ithe I Ilion did not e.ljos
ni;aorit\ status at tilhe lime thlie demand fotr rcovnition 1is \
mlade bs, tile In'ion 2) Rcspondenl did iltl dliIchaige tile
emplhoxees: iand (3) Respondent could not einstale tlhe
strikers (with some exceptillns) because the strike resulted
in such a loss of business lthai there w as no loner work for
tile inLFividuals who joited tile strike or tor nlonC else.
. It, t} i N
In October 1977 Respondent, In its business of pailting
automlOtise sanmping parts. eployed I1) nonsuperis0ir5
emploes. '1 he working ow neis of Responlden t t lhat time
were, and still are, Idward Markarian, secretar and Irnest
lhvii. president. In addition. ,a supervisor on the daN shift
was homas Kalustin, also known to tile employees is
"I K."
Sometime in earls, () October 1977: daN-shift eploee
Robert W illiams was working beside Marka;r-ian when the
two began to discuss unionism. Williams asked Mlarkarilan
why tfle emploNees in the shop did not haVe a uniol. Mali--
karian replied to the effect that Respondent could not af-
Ifrd a union, and that if one was brought in Respolndenl
"... might as well close the place." tie furtilher sltated that if
Williams wanted a union, he would have to get a job at
Ford. (eidentl referring to the Ford Motor (Company) .
On October 20 after some of the day-shift employees had
overstayed their coffeebreak, a notice was posted b Re-
spondent to the effect that during the coffeebreak employ-
ees were not permitted to leave tire building. It w ould seem
that the employees left the building to have their coffee
because they desired to get away from the paint fumes.
Upon reading the notice. the emploNees talked an;ong
themselves and agreed that there was a need to unioniize
They chose employees Robert Williams and l.arrs Gerald
to make contact with the Union. Although the record re-
veals some conflict between the testimonies of Williams and
Gerald as to how the contact with the tinion was first
made, they mutually agreed in their testimonies that Ed-
ward J. Kantzler, vice president construction business man-
ager of the Union. appeared outside the door of Respon-
dent's premises shortly alfter the noon break on October 25
and was met by Robert Williams. Kantzler gave member-
ship applications and checkoff authorization cards to W\il-
liams as well as instructions as to the filling out of the sine.
After giving to Williams enough of the cards and authoriza-
tion slips to be signed by all of Respondent's emploees,
Kantzler left the premises.
Williams returned inside the plant with the cards, which
he laid on a worktable under his jacket. Evidently, Kalustin
saw him do this, came over to the table, lifted the jacket.
looked at the cards, and then turned around and left. but
only after Williams grabbed the cards from Kalustin and
put them back in the jacket with the other cards. Williams
then placed all of the cards and his jacket in his locker.'
Thereafter, during the breaks, lunch break, and after
work at the home of one of the employees (all of whom
2Unless otherwise specified. all dates herein are in 1977.
3 The record does not reveal what Kalustin did thereafter with regard to
his recentl) acquired knowledge of the cards.
seem to lixc in the immlediate neighborhood). Williams dis-
tributed the cards. A number of them were signed at the
time, and some of them were returned to Williams. Somie of
the cards were rtetained hb tlhe elploces who signed them
anid returnedl hci tile next da, . October 26.
I lie follow ing mnl-lnilg. (October 26. Kantzlcr returned to
I;Respodcnl's prelitse at approiiXilltelk I) i i.,. together
N ilh a ssi;te.l .John Koandra. Kantzler approachCed
Kallstinl and asked himl who was the hoss. Kalustin pointed
oullt Markaurian. Kaizler thereuponl approached Mlarkarian
;tid told hii that lie. Kaintler, "represented Ils people."
Mlarkaria;n l e Kantler to Respondent's office in the .icill-
its of the wni rkiniu area.
After the t wo were in the offtlice, Kantler gave larkariant
his business card and again told him that he represenited
Mlirkariln's people. When Mlarkarian asked whetlier
Kaitzler represented all or sonic 0't the emploxees, KantZler
stated "all of' them." Markarian then told Kantzler "we
don't need a ulniotn" or "'we do01'l want a union." Markarian
denied that he had the authioritv to talk to Kaintzler about
the nion or union matters and inilrmed Kantzler that the
president of Respondent was rnest Ilovizi. Markarian in-
formed Kantzler that [Hovizi was not in at the time but
would be returning in approximately I hour. Kantzler
thereupon intornlet Markarian he would return at apprloxi-
matelI 1 1:3(1 a.m. on that date. Kantzler then left the prem-
ises with his associate.
WVhile Kantzler was in Respondent's office with MIarka-
rian. his associate, Kolandra, collected signed cards from a
number of the emploees. lowever. at the moment that
Kantzler made his demand flr recognition upon Markarian
at approximately 10 a m. on the mornirig of October 26,
Kantzler did not have in his possession. nor were there in
the possession of the UInion anN union designation cards.
Nor did Kantzler possess anll knowledge otf how mans
cards had been signed. Ilowecer. b the time Kantzler left
the premises with his assoctole John Kolandra, the latter
had collected some o the cards. Nevertheless, the record is
insutticientlI precise to determine that alt the time a major-
ity of signed designatio n cards had been collected by
Kolandra.
Shortly after Kantzler and Kolandra left with the prom-
ise to return in I hour. Respondent's president. Hovizi, re-
turned to the premises. Although informed by Markarian as
to what had occurred and that Kantzler would return at
approximatel 1 1:30 an.m., Ftovizi stated that he could not
wait fir Kantzler because he had a delivcery to make to the
airport to meet a scheduled tlight with finished material on
the (lomlpans' truck. Accordingly, Flovizi left the premises
before the appointed time of Kantzler's return.
When Kantzlcr returned with his associate at approxi-
miatel' 1 1:25 on that day., he again spoke to Markarian who
infornied him that Hovizi had returned but had then left.
At that time Kantzler again asked Markarian to recognize
the Union as Respondent's employees' bargaining repre-
sentative. Again Markarian stated that Respondent did not
need and did not want a union. When Kantzler answered
that Markarian did not leave him very much room, Marka-
rian told Kantzler to see Respondent's lawyer.
Following some futher discussion. Kantzler, not having
received either consent or encouragement from Markarian,
he left the office and went into the working area of the
282
283
plant. A\llhough there is son111C c01ntl'tll as to Ihe e\xla
vords used b Kalllcr, there is no1 doubt that he signaled
to the emplobees uiilh his arms aind inflOrmed them that
the' had to decide uhat the! u alited to do. 1he motion he
made with his arms x;as calculated to dilrect the CeIIployees
out of the shop. Alter soime consultation amiong thellselxes
the emplo ees stated that the waillted thie L nion. Kant/ler
stated. "ell co)me on." lie then talked olt wkith the em-
ployees lllouiig him. [loweer. before the men alked
out Markarian came out of the oflice and stated to the eml-
ployees that ift' they did not return to work or it'f le, did
walk out. they would all he fired. It was after thls that the
entployees decided to ftiollow Kantler out Olnt tile street.'
All of the day-shit employees uxalked out with Kantzler.
When the: arrived outside the shop. Kanitzler distributed
picket signs' which the men used to picket the entrance to
Respondent's facilit.
Shortlv after the picketing began. Iloxiii returned in the
truck. looked at the men picketing. anlId wenIt inside. Ap-
proximately I hour later he came out and spoke to Kantzler
and told the latter he could not do this. lie then turned It
the picketing employees and stated "if' oU gus don'lt get
back in there }ou are fired." le then walked back inside.'
L)uring the afternoon and c ening of October 2'(. Mhen
the late-shift employees came to uork. they sasw the picket
signs. Although there ere some attempts hb them to enlter
the plant. they did not enter. Instead. the joined the picket
line. Although some of them had not signed cards or check-
off authorizations before that inme. they did so that a;telr-
noon. Accordingly b the een ing of' October 26. 9 out of
Respondent's 10() emploees had signed either one or both
types of cards distributed b the L nion through \Willialns
or through other union officials. The onl) employee who
did not either sign a card or strike iwas Iienr Tolis. who
did not testift.
On October 27 one of' the emploees on the picket line,
Aaron T'oland, asked loIvizi when they ere going to he
paid. Hlovizi answered that as soon as the accountant made
out the checks the men uould be paid. Shortly thereafter
the firm accountant, who is also a stockholder of the firm
although he performs his uork for Respondent aua', from
the premises. arrived. 'The checks were then distributed.
Each man was given two checks. One check. which uas for
the week beftore the week of' te strike. was the usual check
for the amount given each employee according to the hours
he worked times the rate of his wages. Ihe second check.
dated October 26. hich as for the short eek hich
ended the da5 the strike cotiimenced. had inscribed thereon
the word "tinal" in capital letters. Although IJo,izi did not
pass out all of the checks personall those empl!ees to
whom he did pass out these linlal checks ere told that the
were fired bh lloxiti. lousever. as noted, all of the checks
for the short week ending October 26. had inscribed thereon
the word "final."
I All el the toregoing is trom credited porirons ,I the Iestlln llle Rhert
Wilihamsi, tdw ard J. Kantzler. Ja mes S. Jleron. anid i .arrs (icradi Al-
though Markarian related slightls different ersio, of the arliou ll o nersa
lions and hai occurred when the mel decided to Illle Kaniler out t the
shop, the alrlulons were n extllensle eniugh I) effectivl co lroxert the
teslimonles the others,
'I he record does nt reveal he content ot the signl
:rom credited testimonies ' ils inrd Kalniler
Inl order o Ilndulice Iii to talk o lnll I egardllg possl-
ble liecoglnlltion and bargallllng. Kalltller behgan t tlloU
llox/li abouIt s tile latter made dcliecrics i Respondent's
trLick. I)urinIg the ca;rl p;irt of( No embelrr . vthliln 2 xeks
ittrl tilhe strik h1d begil Kantiler xx as thuits enagedi in
lblorig i ill \hi sli edl ii Iloi st(pend ls truck aind asked
Knitlcl to pull up beside han . lie a sked Kantiler iseh the
lltter t is tfollo\xlg i him. Kantzler ansx ereld that it as lis
intention to picket xhierexcr lioxilzl , as making t delixer.
\tlter Somle disculssion aid a fter Kantiler explained that all
hie x,ns scking xs a t1or l ovii to sit do\ n and i lk lo izi.
ho had irst statedl that ththre as nolthilg to tlk about,
cildenltl ch inged his mind and told Kantiler. comle oln.
\ill hbun oui a beer."'' Kantzler accepted lox\11i's init ion.
anlld ile to \'ent ililto a nealrh hrll.
After the were seatled Ilo \ii stated he did not need a
tinion. hbut thatle h h1;ad ithing Iag lnst tile lii1. and tl hat
lie hd been at leatousters tmember himnself at one time. lle
further told Kantzler that Respondent hd 'just come ut
oft' bankruptcy." indl that Respondent xis xA ithout funds
ilnd it' the pressure continued lie xtiuld sell te material in
thle shop and close it doxti. ilo i/i eclared that lie jst
xsantcd to get out xshat he put into the buildingl aft'ter xrhich
hie \,oulld be finisied. Kantler replied t the etlecl that if
this \ ,is \\ hat Ioeizi's intenllton , as (e tietl tinishilg the
work and closing dovn). Kanliler ould not harass him
ains more. his ended the con\ersation.' In connectionl
thereithl. ilo\iLi. in estitfing, stlated that Rsprtidentit ust
could no
t
;affird al nioll it that time.
()n No\elmber 29 the ilion. oxer the s niatur c of Kant,-
ler's assistant. sent to Respondent and to each of the eni-
plo,ees notice that the picketing had ceased and that the
eniplo\ees ere directed to return to ork ininediatelv. O()
)ecember 7 thc Im nn again sent Respondent a notice. h,
letter signedc hb Kiiinler, which stated that the letter co)lsti-
tuted a notice of th' e Ilioll's utllColditioril ofler on behalf
of all empliees co ered h the representatiotn denlatd of
the L nion to retulrn to Xwork. Ihereafter. Respondent re-
calledl epletes \;irton l'ln111i. )ale Bailey. and Rudy
I'holias ,it a date hr dlites not estahlished b! the rtecord.
None lof the other eliploecs xxho x eit o strike a e\ hbeen
recalled.
Respondent. at that limle it recalled the three ahboe-
nantied enplo ees. e iently, had no olher emplo,ees except
lolis. members )of the Nlarkarian fnaiil. members oft the
1oxi7i timi.. and the individuals whho were emplo!ed Ias
supervisors. Respondent. through its to oticers. eplailmed
that there Vas no work for the others. but that it has not
retfu'sed to recall them. D)espite Hlo\ii's protestations to
Kantzler. Responden hs nol gone out o' husiness.
('. h [ llijon ' i W hl.oi .Sl iams
,As noted aboxe. at the end of the da;! or eening of ()Octo-
hber 26 the niotn hd both designation cards and deduction
authorizations fromn 9 emplo! ees itout of' Respondent's I(t
eraplo ees. These etilllx ees re Aaron Iolandl. imloth
(;in l;lames Peterson Rud I'honias. l)ale 1. Ba;ilex. Lar-
- r edlited t rrICS m lilCe o K Ailt c: l- 11 l tt I/0 I
VVI RAII11· 1)[1, \1,osstI U IL R KIsS CORPr
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ry Gerald. James Jefferson, Robert Williams, and Kenneth
Williams. As noted, the 10th employee. Henry Tolis. evi-
dently did not sign a card. All of these union designation
cards and checkoff authorizations were signed and dated
either October 25 or October 26 and were in the hands of
either Kantzler or other union officials by the end of the
day on October 26.
Although the cards of Toland and Ginn, which desig-
nated the Union as their bargaining representative and re-
quested union membership are unsigned, each of these em-
ployees had also signed, on October 26, a checkoff
authorization and had given the same to the Union. In ad-
ditional, both Toland and Ginn testified that each had filled
out the unsigned cards, had dated them the same date. and
had merely overlooked placing their signatures on the
cards. The designation cards of Rudy Thomas. Larry Ger-
ald, and James Jefferson, although signed by those three
employees, are undated. However, each of these employees
testified without contradiction that the cards were made out
and given to the Union on the same date that their dated
checkoff authorizations were executed and given to the
Union. In the cases of Thomas and Gerald it was October
25, and in the case of Jefferson it was October 26.
It has long been established that the failure of an em-
ployee to sign a designation card delivered to the Union,
where the employee testifies that he has intended to desig-
nate the union as of the date or time that the card was given
to the Union, is immaterial, and the card may be counted in
computing the Union's majority status or lack thereof. Un-
der the circumstances here, the absence of the signatures or
the dates on the respective cards heretofore mentioned does
not invalidate the designation of the Union as the bargain-
ing representative of the employees named.,
Accordingly, I find and conclude that as of the end of the
day on October 26, 1977, the Union enjoyed majority status
among Respondent's employees, having received authoriza-
tions from 9 out of 10 of Respondent's employees and,
therefore, has been from that date the majority representa-
tive of Respodent's employees of the purposes defined in
the Act.
D. Discussion and Concluding Findings
Having determined that the Union is a majority repre-
sentative of the employees in Respondent's shop, I further
find and conclude that the appropriate unit represented by
the Union, as set forth above, is all full-time production and
maintenance employees and regular part-time production
and maintenance employees employed by Respondent at its
facility location in Detroit, Michigan, but excluding all of-
fice clerical employees, professional employees, confidential
employees, guards, and supervisors as defined in the Act.
As noted above, Respondent contends that inasmuch as
the Union, at the time it made its demand through business
manager Kantzler upon Edward Markarian on October 26,
did not enjoy majority status inasmuch as the designation
cards and/or the deduction authorization cards had not
been delivered to a union representative and were not in the
Union's hands as of that time. However. as the record
sI. Taitel and Son. 119 NLRB 910. 912 (957).
shows. by the end of that day, October 26, the Union did
enjoy majority status.
Respondent further contends in connection therewith
that Kantzler, at the time, made no attempt to evidence the
Union's majority status by a show of cards or by presenting
any other matter upon which Respondent could determine
whether the Union represented a majority. In fact, argues
Respondent, at no time during the entire course of events
did any union representative make any attempt to verify
the Union's claim that it was, in fact, the majority repre-
sentative of Respondent's employees in the unit heretofore
found appropriate. Therefore, reasons Respondent, in ac-
cordance with court precedent" and in light of the foregoing
facts, Respondent was and is under no obligation to recog-
nize or bargain with the Union because the Union is not the
majority representative of its employees, and the Union has
not taken the necessary steps to prove its majority claim.
However, Respondent's contention in the foregoing re-
gard is not well taken. When the Union finally attained its
majority status on October 26 all but one of Respondent's
employees had, in fact, joined the strike. In view of this,
Respondent would still have had the right (even though the
Union, in fact, attained majority), to refuse to recognize the
Union and to do nothing until the Union proved its major-
ity through a Board conducted election. Respondent could
have refused an offer of proof of majority through the
signed designation cards, had the Union made such an of'
fer. In this respect, Respondent's contention is legally cor-
rect.
While the thrust of the cases upon which Respondent
relies'" is that an employer who has not engaged in an un-
fair labor practice impairing the electoral process does not
commit an unfair labor practice in violation of Section
8(a)(5) of the Act merely because he refuses to accept any
proof of majority status other than the results of a Board-
conducted election." the converse of the foregoing principle
is that an employer who does commit unfair labor practices
impairing the electoral process may not sit back and await
the results of such process and thereby preclude the finding
of a violation of Section 8(a)(5) of the Act.'2
In the case at bar, immediately after Kantzler had made
his first demand for recognition on October 25 Markarian
threatened the employees with discharge if they walked out.
On October 27 when Hovizi distributed the paychecks to
the employees on the picket line he told the employees that
they were discharged. Further proof of this is the fact that
the checks were marked "final," despite Respondent's pres-
ent claim that the employees were not discharged."
Thus, the employees were discharged for engaging in a
lawful strike in support of the Union's recognitional de-
mands. for by the time of the discharges the Union had
9 Citing Linden Lumber Division, Summer & Co. v. ,.L.R.B. 419 U.S. 301
(19741: N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969).
O Supra.
u Supra.
N L.R.B. v. Gissel Packing Co. supra. at 595. 601.
bI do not give credence to Respondent's claim that the checks were
marked "final" in error by Respondent's bookkeeper. The bookkeeper was a
stockholder in Respondent's closely held, small corporate enterprise. More-
over, Hovizi. Respondent's president. who saw the checks both before and
during distribution, did nothing to correct the alleged error. Nor do I credit
Ho izi's version of what he told the employees as he gave them the checks.
284
ACCURATE DIE & MANUFACTURING CORP.
gained majority status. I conclude, therefore, that the dis-
charges were unlawful, discriminatory, and in violation of
Section 8(aX3) and (I) of the Act, and that such discharges
go to the very heart of the Act.
One last segment of Respondent's contention remains for
disposition. Respondent maintains that the Union made
only one demand for recognition which did not continue,
and that Respondent therefore cannot be ordered to bar-
gain with the Union. Even assuming that under all the facts
here presented the demand was not a continuing one, it was
renewed in the early part of November 1977 when Kantzler
and Hovizi discussed the union matter in a bar over glasses
of beer. To hold that Hovizi did not know by Kantzler's
actions in following his truck and by then discussing the
matter in the bar that Kantzler was demanding recognition
for the Union would be the height of naivete.
Accordingly, I find and conclude that whatever protec-
tion would have been afforded Respondent upon the
Union's continued or renewed demand for recognition un-
der the cases relied upon by Respondent was forfeited by
Respondent when it discriminatorily discharged the same 9
out of 10 employees who designated the Union as their
bargaining representative for supporting the Union's recog-
nitional efforts. Therefore, Respondent's refusal to recog-
nize and to bargain with the Union, even if not unlawful
before the discharges, became such thereafter under the
very precedents cited by Respondent. Accordingly. the re-
fusal constituted a violation of Section 8(a)(5) and (I) of the
Act.
Moreover, the strike, if not an unfair labor practice strike
at its outset, was converted into an unfair labor practice
strike upon the discriminatory discharge of the strikers and
the unlawful refusal to bargain.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of Re-
spondent herein described in section 1, 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
It having been found that Respondent herein has vio-
lated the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It having been found that Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily discharging
Aaron Toland, Timothy Ginn, Rudy Thomas, Dale Bailey,
Larry Gerald, James Jefferson, Robert Williams, Kenneth
Williams, and James Peterson, it will be ordered that each
of them be reinstated to their former or equivalent posi-
tions, if they so desire, and that Respondent make them
whole by paying to each of them a sum of money equal to
that which each would have earned but for the discrimina-
tion visited upon them by Respondent. Backpay shall be
computed with interest thereon in the manner described in
F. W. Woolworth Company, 90 NLRB 289 (1950) and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).'' It having
been found that the foregoing employees were unfair labor
practice strikers and that Local Union 247, the Union
herein, made an unconditional offer to return to work on
December 7, 1977, on behalf of the above-named employ-
ees, backpay shall be computed from that day in accord-
ance with the above-cited cases.'"
It having been found, as set forth above, that Respondent
has engaged in violation of Section 8(a)(5) and (1) of the
Act and has unlawfully failed and refused to recognize and
bargain with the Union, it will be ordered that Respondent
cease and desist therefrom and bargain with the Union at
reasonable times at the request of the said Union concern-
ing rates of pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and the
entire record in this case. I make the following:
CONCLUSIONS OF LAW
I. Respondent 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 meaning
of Section 2(5) of the Act.
3. By discharging its employees for supporting the
Union, Respondent has discriminated against them and has
therefore engaged in unfair labor practices within the
meaning of Section 8(a(l) and (3) of the Act.
4. By failing and refusing to bargain in good faith with
the Union as a representative of all full-time production
and maintenance employees and regular part-time produc-
tion and maintenance employees employed by Respondent
at its facility located in Detroit, Michigan, but excluding all
office clerical employees, professional employees, confiden-
tial employees, guards, and supervisors as defined in the
Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (I) 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.
On the basis of the foregoing findings of fact and conclu-
sions of law, and upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following:
ORDER'6
The Respondent, Accurate Die & Manufacturing Corp.,
Detroit, Michigan, its officers, agents, successors, and as-
signs, shall:
4
See, generally, Iis Plumbing d Heating Co, 138 NLRB 716 (1962).
to Although the record establishes that Aaron Toland, Dale Bailey, and
Rudy Thomas have been recalled by Respondent, there is no record showing
of the date or dales thereof, whether they are entitled to backpay, or whether
their reinstatements were to their former or substantially equivalent posi-
tions.
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations or the National Labor Relations Board, the findings.
conclusions and recommended Order herein shall, as provided by Sec.
102.48 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.
285
I)( ISIO()NS OF NAII()NAI. LABOR REI.ATIONS BOARD
1. ('ease and desist from:
(a) Discouraging membership of its employees in l.ocal
247, International Brotherhood of Teamsters. Chauffeurs.
Warehousemen and Helpers of America. or any other labor
organization, by discharging said employees because of
their support of and activities on behalf of the said Union
or in any other manner discriminating against them in re-
gard to their hire, tenure of employment, or any term or
condition of employment.
(b) Refusing to bargain collectively with I.ocal 247, In-
ternational Brotherhood of' Teamsters, Chauffeurs. Ware-
housemen and Helpers of America. as the exclusive repre-
sentative of a11l of' Respondent's fill-tinle production and
maintenance employees and regular part-timrne production
and maintenance employees employed by Respondent at its
facilit located in Detroit. Michigan, excluding all office
clerical employees. professional employees, confidential em-
ployees. guards. and supervisors its defined in the Act. with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of emplon mlent.
(c) In any other manner interfering with. restraining, or
coercing employees in the exercise of' their rigllts uiar;lal-
teed them in Section 7 of' the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of' em-
ploynment, as authorized in Section 8(a)(3) of the National
l.abor Relations Act, as amended.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Aaron I o-
land, Timothy Giinn, Rudy Thonas, I)ale Bailes I.arr\?
Gerald, James Jefferson, Robert W'illiams, Kenneth Wil-
liams, and Jalies Peterson to their former or substanitiallk
equivalent positions, without prejudice to their seniority or
other rights and privileges enjoyed, and make them whole
for any loss of earnings which they may have suffered by
reason of the discrimination against them, in the manner set
forth in the section of this Decision entitled "The Remedy."
(h) Upon request. bargain collectively with ocal 247,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. as the exclusive repre-
sentative of the employees in the appropriate Union named
above and embody any understanding reached in a signed
collective-bargaining agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records. timecards.
personnel records and reports, and all other records neces-
sary and pertinent to compute the amount of hackpay due
in accordance with the section of this ecision entitled
"The Remedy."
(d) Post at its plant in Detroit., Michigan. copies of the
attached notice marked "Appendix."' Copies of said no-
tice, to be furnished by the Regional Director for Region 7,
after being duly signed by authorized representative of Re-
spondent. shall be posted bh Respondent immediately upon
receipt thereof, and he maintained by it for 6(1 consecutive
cdays thereafter. in conspicuous places, including all places
where notices to employees are customaril? posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defliced, or covered by any other
material.
(el Notify the Regional Director for Region 7, in writing.
within 20 days froitm the dale of the ()rder, what steps have
been taken to comply herewith.
7 In the c\ent hat his ()rder is cnircd h a judgmcnt ola t nIlted Slalcs
(Court i Appealls. the rd i the nice reading "Plsted h urder of the
NatIl a: l Ilahor Rel:ations Boa;lrd shall read ''-lsted Pursualnt Io a Judgment
f1 the tlil ted St;ltes (' tlr l ot Appcals Inilrcing an order ot the Natlin.al
I.ahor Rlatins Hlard "
286