Art Steel Co., Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1971

193 N.L.R.B. 94 (N.L.R.B. 1971)

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Art Steel Co., Inc . and District 65, Wholesale , Retail &
Office Processing Union and Truck Drivers Local
Union No . 807, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers
of America and Local 400 , Sheet Metal Workers
International Association, AFL-CIO. Cases
2-CA- 12327, 2-CA- 12331
September 10, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On July 21, 1971, Trial Examiner Max Rosenberg
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 and the Charging Party, Local 400, Sheet
Metal Workers International Association , AFL-CIO,
in Case 2-CA-12331, filed exceptions to the Decision
and supporting briefs, and the Charging Parties,
District 65 , Wholesale , Retail & Office Processing
Union and Truck Drivers Local Union No. 807,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, in Case
2-CA-12327, filed a brief in opposition to the
exceptions and brief of Local 400.
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 these cases 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 proceeding , and hereby
adopts the findings , conclusions, and recommenda-
tions 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, Art Steel Co., Inc., New York, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Trial Examiner: With all parties
represented, these cases were tried before me in New York,
New York, on June 2, 1971, on complaint of the General
Counsel of the National Labor Relations Board and an
answer filed thereto by Art Steel Co., Inc., herein called the
Respondent.' The issue presented by the pleadings raise the
question as to whether Respondent violated Section 8(a)(1)
of the National Labor Relations Act, as amended, by the
circulation of certain leaflets to its employees prior to the
conduct of a scheduled Board representation election.
Briefs have been received from the General Counsel and
Respondent, which have been duly considered.
Upon the entire record made in these proceedings, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with offices and
places of business in the City of New York, is engaged in
the manufacture, sale, and distribution of office equipment,
furniture, and related products. During the annual period
material to these proceedings, Respondent manufactured,
sold, and distributed products valued in excess of $500,000
of which products valued in excess of $50,000 were shipped
from its several places of business in New York directly to
points located outside of that State. The complaint alleges,
the answer admits, and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
District 65, Wholesale, Retail & Office Processing Union,
herein called District 65; Truck Drivers Local Union No.
807, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called Local
807; and Local 400, Sheet Metal Workers International
Association, AFL-CIO, herein called Local 400, are labor
organizations within Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by the following conduct: (a) On or about
October 29, 1970, and December 1, 1970, Respondent
distributed leaflets to the employees in which it offered and
promised to accord them improved medical, hospitaliza-
tion, and pension benefits if they refrained from becoming
or remaining members of District 65, Local 807, or Local
400, if-they withheld their assistance and support from
those labor organizations and if they abandoned their
membership in and activities on behalf of these unions, and
The complaint , which issued on May 14 , 1971, is based on a charge in
Case 2-CA-12327 filed and served on April 9, 1971, and a charge and
amended charge in Case 2-CA-12331 filed and served on April 14, 1971,
and April 26, 1971 , respectively
193 NLRB No. 19
ART STEEL CO., INC.
(b) On or about March 29, 1971, Respondent, by a leaflet
distributed to its employees, conducted a raffle whereby its
employees were offered the chance to win a free ]-week
vacation, conditioning participation in the raffle by any
employee upon his execution of a statement to the effect
that he did not wish to be represented for the purposes of
collective bargaining by the aforementioned labor organi-
zations and that he desired that the Unions return his
signed authorization card Respondent admits that it
circulated the foregoing documents to its work complement
on the dates alleged in the affirmative pleadings. However,
it takes the position that the leaflets were not statutorily
offensive. Alternatively, Respondent argues that, assuming
that its conduct interfered with, restrained, and coerced
employees in the exercise of rights guaranteed to them
under the Act, its action was legally privileged because
District 65, Local 807, and Local 400 made concurrent
promises and granted benefits similar to those which
Respondent proffered.
On August 24, 1970, District 65 and Local 807 filed a
joint petition with the Board in Case 2-RC-15473 seeking
an election among Respondent's employees, and, on
August 26, 1970, Local 807 petitioned for an election in
Case 2-RC-15450 Not to be outdone, the Respondent filed
an election petition on September 23, 1970, in Case
2-RD-756. The three petitions are pending before the
Board. No election has yet been conducted because of the
pendency of the instant charges.
On October 29, 1970, Respondent's industrial relations
department distributed a leaflet to its employees which
recited:
During the last few weeks you have undoubtedly been
overwhelmed by `pie in the sky' promises from all the
unions that are trying to overrun our shop and make it a
difficult place to do business
District 65 and Local 807 probably promise to give you
a `great' welfare plan. And Local 400 is claiming it has a
better one and if you stick with them they'll improve it.2
Well, we have examined all these so call `fantastic'
welfare plans. We don't think they are really good for
you at all.
So when the contract expires your Company is going to
put into effect it's own welfare plan for all the workers.
And what do we ask in return9 Do we ask that you pay
us dues, fines or assessments? No! All we expect is an
honest days work.
The Company's new welfare plan-and this is a
promise which we will not break-will be better than
anyone offered by District 65 and Local 807 and better
than the one you are getting now. However, this is for
the future. As for now, because of the chaotic state of
affairs and because we don't feel Local 400 has your
best interests at stake, we are not going to pay the
welfare contributions which Local 400 is demanding.
You will decide what is best for you.
THE MANAGEMENT
On December 1, 1970, Respondent circulated the
following flyer to the employees which contained a Spanish
translation and which read:
2 Although the record is not particularly illuminating, it would appear
that , at the times material to the filing of the petitions, Local 400
95
Dear Employee:
The contract with Local # 400 is tied up in Court.
Under that contract, your Company made contrib-
utions to the Union welfare and pension funds which
gave you hospitalization and surgical benefits and
retirement income.
At the request of District 65 and Teamsters Local 807,
we have stopped making payments to the Local #400
Union welfare funds. As a result, Local #400 will soon
formally advise you that you no longer can receive
benefits.
Your Company does not intend to let you lose all of
your medical or pension benefits.
When all the unions are rejected in the election, we will
provide you with a better Company Hospitalization and
pension plan than you have received in the past.
Protect your jobs. Your Company will serve you better
and more honorably when you vote NO UNION.
THE MANAGEMENT
On March 29, 1971, Respondent's president distributed a
raffle circular to the workers with an accompanying
Spanish translation. This document advised the employees
to
Sign this slip below and send to the Personnel
Department in the attached envelope. The slip will be
used for a drawing.
One name from each plant and the warehouse will be
picked for a free Easter week for two (2) in Puerto Rico
or the Dominican Republic including: Air Transporta-
tion, hotel accommodations, and full wages for the
week.
To Local 400/District 65/Local 807
I don't want your union and I want my union
authorization card back.
Signature
This slip will be used for the drawing.
The parties stipulated and I find that the foregoing raffle
slip was handed out to all employees. However, only 19
chose to participate in the drawing.
Even the most casual reading of the leaflets of October 29
and December 1 would convince the reader, as it does the
undersigned Trial Examiner, of their legal taint. Thus, the
October 29 document informed the employees that "when
the contract expires your Company is going to put into
effect it's own welfare plan for all the workers.... The
Company's new welfare plan-and this is a promise which
we will not break-will be better than anyone offered by
District 65 and Local 807 and better than the one you are
getting now." (Emphasis supplied). And, in the December I
leaflet, Respondent made its promise clear that "When all
the unions are rejected in the election, we will provide you
with a better Company Hospitalization and pension than
you have received in the plant." Finally, the raffle leaflet
which Respondent circularized on March 29, 1971, plainly
proffered a desired economic benefit but was available only
to those employees who publicly manifested their desire not
to be collectively represented by any of the labor
represented Respondent ' s employees and a collective agreement existed
between Respondent and Local 400 embodying a welfare plan.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations involved herein. When viewed against the
backdrop of a spirited organizational campaign and an
impending election, I am convinced and conclude that
Respondent's leaflets interfered with, restrained, and
coerced the employees in the exercise of rights guaranteed
them under Section 7 of the Act and thereby violated
Section 8(a)(1) of the Act.
I turn next to Respondent's defense that its conduct
should not be condemned because the contesting unions
engaged in parallel activities. The record shows and I find
that, on April 2, 1971, Respondent filed charges in Cases
2-CB-4962-1 and 2-CB-4962-2 alleging that District 65
and Local 807 had violated Section 8(b)(I)(A) of the Act by
restraining, coercing, intimidating, and physically assault-
ing its employees. By letter dated April 22, 1971, the Acting
Regional Director for Region 2 dismissed the charges. In
doing so, he noted that "Although not specifically alleged
in your charge, I have considered your contention that
District 65 has unlawfully granted certain medical benefits
to employees and find that this is not deemed to warrant
further proceedings in light of all the circumstances herein,
including your conduct in eliminating such medical
benefits and promising greater benefits if District 65 and
Local 807 and their rival union lost the election in the
pending representation case, and similar offers by the rival
union to furnish the benefits eliminated by you." Thereaf t-
er, Respondent appealed the Region's dismissal of its
charges to the General Counsel. On June 11, 1971, the
General Counsel upheld the Acting Regional Director's
determination.
I find no merit in the Respondent's defense for, as the
Board has emphatically announced in prior cases, the
Unions "alleged unfair labor practices, if established, do
not lessen the need for vindicating and protecting employee
rights under the Act, which the [Respondent has]
infringed,-much less justify the [Respondent's] violation
of these rights." 3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent set forth 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 commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Inasmuch as some of Respondent's employees apparently
speak and read only Spanish, I shall recommend that the
3 See Local No 1150, United Electrical, Radio & Machine Workers of
America, 84 NLRB 972, 979, United Furniture Workers of America, 81
NLRB 886, 888
4 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
notices required to be posted by Respondent pursuant to
the Recommended Order herein shall be printed in both
English and Spanish.
Upon the basis of the foregoing findings of fact and
conclusions and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. District 65, Local 807, and Local 400 are labor
organizations within the meaning of Section 2(5) of the Act.
3. By interfering with , restraining , and coercing em-
ployees in the exercise of their rights guaranteed in Section
7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the purview of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following recommend-
ed:
ORDER4
Respondent, Art Steel Co., Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Offering and promising employees improved medical,
hospitalization, and pension benefits to induce them to
refrain from becoming or remaining members of District
65, Local 807, Local 400, or any other labor organization,
and to refrain from giving any assistance or support to the
aforesaid unions and to induce them to abandon their
membership in and activities on their behalf.
(b) Conducting raffles among its employees in which they
are given the opportunity to win a free 1-week vacation,
where participation in such raffles is conditioned upon the
employees signing a statement that they do not wish to be
represented collectively by District 65, Local 807, or Local
400, and that they desired that the said labor organizations
return their signed authorization cards.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist the above-mentioned unions, or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining,
or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act.
findings, conclusions , recommendations , and recommended Order herein
shall, as provided in Section 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.
ART STEEL CO., INC. 97
(a) Post at its plants in New York, New York, copies of
the notice attached hereto and marked "Appendix."5
Copies of said notice, to be furnished by the Regional
Director for Region 2, shall, after being duly signed by a
representative of Respondent, be posted by Respondent in
both English and Spanish 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 by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 2, in writing,
what steps Respondent has taken to comply therewith.6
5 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"
6 In the event that the 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 2 , in writing , within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
our employees to refrain from giving any assistance or
support to the Unions and to make the employees give
up their membership in or activities on behalf of the
Unions.
WE WILL NOT hold raffles among our employees in
which they are given the chance to win a free 1-week
vacation, where participation in the raffles is condi-
tioned on their signing statements that they do not
desire to be represented by District 65, Local 807, or
Local 400, and that they want the Unions to return their
signed authorization cards.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor organiza-
tions, to join or assist the above-mentioned unions or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
All our employees are free to become or refrain from
becoming members of the above-named unions or any
other labor organization.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT offer or promise our employees
improved medical, hospitalization, and pension benefits
to induce them to refrain from becoming or remaining
members of District 65, Wholesale, Retail & Office
Processing Union; Truck Drivers Local Union No. 807;
or Local 400, Sheet Metal Workers International
Association, AFL-CIO or any other labor organization,
and we will not offer or promise those benefits to induce
ART STEEL CO., INC.
(Employer)
Dated By
(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, 36th
Floor, Federal Building, 26 Federal Plaza, New York, New
York 10007, Telephone 212-264-0300.