B. F. Goodrich Co.Download PDFNational Labor Relations Board - Board DecisionsOct 31, 1975221 N.L.R.B. 288 (N.L.R.B. 1975) Copy Citation 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. F. Goodrich General Products Company, a Division of the B. F. Goodrich Company and International Chemical Workers Union and its Local 343, AFL-CIO-CLC. Case 9-CA-8909 October 31, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On June 24, 1975, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions and a supporting brief and a brief in answer to Respondent's 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, conclusions , and recommendations of the Admims- trative Law Judge as modified herein. 1. As fully described in his Decision, the Admin- istrative Law Judge, in finding that Respondent violated Section 8(a)(3) and (1) of the Act by discharging all its cafeteria employees and violated Section 8(a)(5) by subcontracting out its cafeteria operations in September 1974, relied on certain prior conduct of Respondent as evidencing its antiunion motivation. In this regard, the Administrative Law Judge found that on May 3, 1974, during a meeting held with the cafeteria employees some 5 days prior to the election herein, Respondent, through Sullivan and Massi , its personnel director and industrial relations manager , respectively, informed these em- ployees that they were to receive benefits which they had not previously enjoyed; impliedly promised them additional benefits if they would give Respon- dent a year without the Umon; and threatened the loss of such benefits and, indeed, the closing of the cafeteria operations, in the event they selected the Union as their collective-bargaining representative. He further found that on May 7, during the course of individual discussions held with each of the cafeteria 1 With respect to Massi's remarks of May 7, the Administrative Law Judge completely credited the testimony of three employees . In this regard, however, the Administrative Law Judge, apparently by inadvertence , failed to cite all the pertinent portions of the testimony of Cuzzens , one of the three, which clearly show that Massi , inter aha, specifically repeated his earlier threat made on May 3 to close down or to subcontract out the cafeteria operations Thus, the relevant portions of Cuzzens ' testimony appear in the record as follows: He [Masai ] said that Akron [Respondent's corporate headquarters ] was appalled with the conditions down here and he was going to try to 221 NLRB No. 55 employees, Massi reiterated the remarks previously made by him and Sullivan at the May 3 meeting.' The above conduct was specifically alleged in the complaint to be violative of Section 8(a)(1). Howev- er, the Administrative Law Judge, despite the finding that such conduct interfered with the employees' exercise of their Section 7 rights, concluded that no finding of a violation could be based thereon inasmuch as such conduct fell outside the 6-month limitation period imposed by Section 10(b) of the Act. The General Counsel, although urging that the Administrative Law Judge properly relied on such conduct to establish Respondent's motivation for its subsequent actions, specifically excepts to the Ad- ministrative Law Judge's failure to find a violation of Section 8(a)(1) based on Massi's remarks of May 7 on the ground that this conduct occurred within the 10(b) period. While we agree with the Administrative Law Judge's conclusion that Respondent's conduct of May 3 and 7 may properly be relied on to shed light on its subsequent actions,2 we also find merit in the General Counsel's exception. Thus, an examination of the formal papers in this proceeding, which were received into evidence at the hearing without objection, discloses that the charge herein was filed with the Board on October 29, 1974, and that Respondent was served with a copy of the charge on November 6, 1974, as evidenced by a return receipt card bearing that date . It is therefore clear that Massi's conduct on May 7 in fact occurred within the 10(b) period and, inasmuch as we agree with the Administrative Law Judge's conclusion that such statements interfered with the employees' rights, we find that Respondent thereby violated Section 8(a)(1) of the Act. Accordingly, we shall modify the Administrative Law Judge's recommended Order to conform herewith. 2. We agree with the Administrative Law Judge's conclusions that Respondent, by discharging its cafeteria employees and subcontracting out its cafeteria operation in September 1974, violated Section 8(a)(3), (5), and (1) for the following reasons: The record discloses that for the 28 years preceding the events herein Respondent had maintained an in- plant cafeteria through contractual arrangements, most recently with Mary Pape and, prior to that time, with the latter's mother. Throughout this period do something about it, and would we give them a year without joining this union, would we give Goodrich a year, you know, to see what they could work out f o r us ... . Oh, yes, he did tell us the same thing he did before, that we could lose the benefits and things if we got the union in there , because they didn't want it in They could close the place down, or contract out or whatever.. . 2 Local Lodge No 1424, International Association of Machinists [Bryan Manufacturing Co] v NL.R B., 362 U S 411 (1960) B. F. GOODRICH GENERAL PRODUCTS CO. 289 Respondent considered the cafeteria workers to be employees of the Papes rather than of itself. However, following the filing of a representation petition by the Union in early 1974, the Board determined that the cafeteria workers in fact were employees of Respondent.3 Subsequently, during the week immediately prior to the election, Respondent engaged in the above-described conduct. Following a Board-conducted election on May 8, the Union was certified as the representative of the cafeteria employees. Shortly thereafter, Respondent, without any notifi- cation to the Union, arranged for three catering service companies to inspect its cafeteria operations so that, according to Sullivan's testimony, they could "give us their opinion of the operation and perhaps a proposal as to how they might operate the thing, should we eventually happen to go in that direction." It is undisputed that Respondent was not charged by any of the catering service companies for their services. Commencing on June 12, Respondent and the Union held four negotiation sessions, none of which lasted longer than 1 hour.4 At the outset of the June 12 session, the Union presented its initial demands. Respondent, however, did not at that time, nor at any other time during this session or the ensuing sessions , present an offer to the Union or make a counterproposal to the Union's demands. Shortly thereafter; in response to an inquiry by a union representative concerning the activities of the cater- ing companies on Respondent's premises, Sullivan, as he had during the May 3 meeting with the employees, took the position that Respondent "is not in the food business and we don't feel we want to get involved in handling such an operation and are not at all interested in running the cafeteria." Although there followed some discussion concerning contract terms, the session concluded with Sullivan restating the above position, and advising the Union that Respondent could make no commitments as to what would happen in the future and that Respondent would notify it of any information received from the catering services. At the outset of the bargaining session held on July 23, Sullivan stated that Respondent was continuing to review the possibility of subcontracting out its cafeteria operation and that it "was at the point 3 In his Decision and Direction of Election issued on April 4, 1974, in Case 9-RC-10467, the Acting Regional Director for Region 9 concluded that Mary Pape was a supervisor of Respondent , rather than an independent contractor , and that, therefore , the cafeteria workers were in fact Respondent 's employees. In so concluding he relied on his findings, inter alia, that Pape was salaried , that Respondent required all cafeteria workers hired by Pape to be examined and approved by its medical department ; that the working capital , inventory, and profits of the cafeteria were the exclusive property of Respondent ; that the expenses of the where we are seriously considering doing so." Sullivan, however, added that "we have a couple of more matters to look into before we make a final decision," and asked the union representatives what alternatives they might suggest. The Union then proposed that the present arrangements with Pape could be continued. To that proposal, Sullivan responded that "we still feel that it is best for us all that we don't try to run the cafeteria," and that "[t]he NLRB rules that we were joint employers, but we didn't and still don't think we were." Thereafter, during the discussion concerning the terms and conditions of employment for the cafeteria workers, Sullivan twice advised the Union that such matters would have to be negotiated with the catering company. At the bargaining session held on July 31, Gottsch- alk, acting as Respondent's principal spokesman due to Sullivan's hospitalization, asked the Union wheth- er it had any alternatives to subcontracting which it would like to discuss. One of the union representa- tives responded that the Union might file unfair labor practice charges. Gottschalk then informed the Union that Respondent would be proceeding to make arrangements with a catering company to assume the cafeteria operations and stressed that the latter would negotiate a contract with the Union. The session concluded with the Union asserting its position that it wanted to negotiate a contract with Respondent and not its subcontractor. At the outset of the final meeting held on September 9, Sullivan informed the Union that Respondent had executed a contract with Macke Company, one of the companies which it had contacted soon after the Union's certification, and that the latter would be assuming the management of the cafeteria effective September 16, and would be negotiating with the Union over a collective-bargain- ing agreement. The, Union then requested a copy of the contract between Respondent and Macke Com- pany which, however, Respondent refused to pro- vide. Sullivan and Gottschalk then reiterated Re- spondent's positions that it was not, and did not desire to be, in the "food business," and that the cafeteria workers were not its employees. The session concluded with Sullivan advising the Union that he would be waiting to hear from it so that he could contact Macke Company to arrange for negotiations. cafeteria , including payroll and workmen 's compensation contributions, were paid out of an account bearing Respondent 's name , that Respondent audited the financial books of the cafeteria ; and that Respondent retained control over the hours of cafeteria operation , menus, and prices. By telegraphic order dated April 25, 1974, the Board denied Respondent's request for review of the Acting Regional Director's decision. 4 At the hearing, minutes of the bargaining sessions , which had been prepared by Respondent, were received into evidence . This evidence was supplemented by the testimony of various witnesses. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly thereafter, the cafeteria employees were removed from Respondent's payroll, and in effect transferred to Macke Company. Ultimately the Union, apparently under protest, signed an agree- ment with Macke. In light of the above facts, we agree with the Administrative Law Judge's conclusions that Re- spondent discharged its cafeteria employees because they had voted for the Union and that the bargaining which followed the Union's certification was nothing more than a "charade." Thus, that Respondent manifested a great degree of animus towards the Union is amply illustrated by its preelection conduct through which it clearly conveyed to its employees that the cafeteria operation could be continued as it had in the past if they would give Respondent a year without the Union, but that a union victory might mean the closing of that operation. Consistent with that threat, Respondent, almost immediately after the Union's certification, arranged with various catering companies to inspect its cafeteria operation and to make proposals concerning that operation, services for which Respondent was not charged and from which the inference is clear that Respondent had already begun the process of divesting itself of any role as the employer of the cafeteria employees. That Respondent's subsequent efforts at the bargaining table were little more than an attempt to create an appearance of good-faith bargaining is also clear . Thus, Respondent's previously demonstrated animus towards the Union in itself casts serious doubt as to the genuineness of the bargaining here.5 However, in reaching our conclusions herein we do not rely solely on Respondent's prior animus, for it is apparent that throughout the bargaining sessions Respondent was motivated by a desire to rid itself of the cafeteria employees and their selected representa- tive. Thus, from the very outset of negotiations and continuing throughout the remaining meetings, Respondent consistently repeated the refrain that it did not want to get involved in the cafeteria operation and, in total disregard of the Board's determination in the prior representation case, that it did not consider the cafeteria workers as its employ- ees. Furthermore, we find that, in the totality of the circumstances here, Respondent in fact merely engaged in sham bargaining. Thus, while the record discloses that some discussion concerning contract terms occurred during the negotiation sessions, Respondent at no time made any counterproposals to the Union's initial demands. With' respect to the alternative to subcontracting - suggested by the Union, Respondent, despite a 28-year history of maintaining the cafeteria operation, summarily rejected this proposal, again asserting that it was not in the "food business" and expressing only in the most general terms a position that the Union's wage demands would make the cafeteria operation uneco- nomical. However, with regard to the latter, when the Union requested information concerning the fman- cial arrangements between Respondent and Macke Company, information which was necessarily rele- vant to any meaningful discussion of the relative costs between subcontracting and maintaining the cafeteria operation as it had been, Respondent flatly denied the requests Finally, in finding that Respon- dent engaged in sham bargaining, it is apparent that Respondent, in implementing its earlier threat, had made a firm decision to subcontract out its cafeteria operation at least as early as July 23, the date of the second negotiation session between the parties. Thus, as noted above, during the discussion of contract terms at that session, Respondent twice asserted that such items would have to be' negotiated with the catering company. While perhaps this stated position does not demonstrate that Respondent had selected a particular catering service at that time, it surely reveals that Respondent had by then in fact made a firm decision to subcontract and belies Respondent's contention that no final decision to, subcontract out the cafeteria operations was made until September. Based on the foregoing, we find that Respondent's discharge of its cafeteria employees was based on antiunion considerations and that its conduct herein evidences a -total rejection of the principles of collective bargaining. Accordingly, we conclude, as did the Administrative Law Judge, that Respondent has thereby violated Section 8(a)(3), (5), and (1) of the Act. 5 Cf. Longhorn Machine Works, Incorporated 205 NLRB 685 at fn. 1 (1973); Town & Country Manufacturing Company, Inc., and Town & Country Sales Company, Inc, 136 NLRB 1022, 1026 (1962). 6 The General Counsel, inter aha, has also excepted to the Administra- tive Law Judge's failure to find that Respondent, as alleged in the complaint , violated Sec . (a)(5) by its refusal to furnish this information upon the request of the Union and to his failure to provide a remedy therefor. We find merit in these exceptions . Thus, as noted above , Respondent flatly refused to furnish such information during the September 9 bargaining session. The record further discloses that the Union, by letter dated September 17, again requested such information. While Respondent subsequently submitted a copy of its agreement with Macke Company to the Union, it is undisputed that the financial details of the agreement had been deleted by Respondent It is well established that a duly designated collective-bargaining representative is entitled , upon request, to such information as may be relevant and necessary to the proper performance of its statutory duties and that an employer's refusal to furnish such information, except in unusual circumstances not present herein, constitutes a violation of Sec. 8 (a)(5). N.L RB. V. Acme Industrial Co., 385 U.S 432, 435-436 (1967). In the instant case, it is clear that the information requested by the Union was both relevant and necessary to enable the Union to engage in meaningful bargaining concerning the subcontracting out of the cafeteria operation and that, therefore , Respondent's refusal to furnish such information was violative of Sec. 8(a)(5). Accordingly, we shall modify the Administrative Law Judge 's recommended Order in this respect. B F GOODRICH GENERAL PRODUCTS CO. 3. The Administrative Law Judge, in providing a remedy for Respondent's violations of Sec. 8(a)(3), (5), and (1), inter alia, recommended that Respon- dent be prohibited from subcontracting out its cafeteria operations for a period of 1 year. We specifically do not adopt this portion of his recom- mended remedy. Thus, in cases such as this, involving the unlawful subcontracting or discontinuance of a portion of an employer's business, the Board traditionally has required the employer to reestablish those opera- tions, but, recognizing the right of an employer to operate its business in any manner it deems desira- ble, absent unlawful reasons, the Board has not precluded such an employer, once it has fulfilled its statutory obligation to bargain in good faith, from subcontracting its work in the future based on legitimate business reasons.? No reason exists here which warrants a departure from the remedy the Board has customarily applied in cases of this kind. We, therefore, shall additionally modify the Admin- istrative Law Judge's recommended Order in this regard. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, B. F. Goodrich General Products Company, a Division of the B. F. Goodrich Company, Marietta, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Interna- tional Chemical Workers Union and its Local 343, AFL-CIO-CLC, as the exclusive representative of the employees in the following appropriate unit: All cafeteria employees employed by the Employ- er at its cafeteria located in its manufacturing plant at Marietta, Ohio, excluding all office clerical employees, professional employees, all other employees, all guards and supervisors as defined in the Act. (b) Refusing to furnish the above-named labor organization information concerning the financial arrangements between Respondent and Macke Company relating to the subcontracting of Respon- dent's cafeteria operations at its Marietta, Ohio, plant. (c) Discouraging membership in the above-named or any other labor organization of its employees by discharging employees because of their membership, 7 See, e g., Parkiane Hosiery Co, Inc. and Mervyn Roberts d/b/a Parkiane Hosiery, 203 NLRB 597, 620 (1973); Town & Country Manufacturing 291 support, or activities on behalf of the above-named or any other labor organization. (d) Directly or indirectly promising its employees benefits, or threatening its employees with loss of benefits, including the threat to subcontract out or discontinue its cafeteria operations, in order to induce its employees to abandon their support of the above-named or any other labor organization. (e) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Cancel its existing contracting arrangement with Macke Company with respect to the cafeteria operation at Respondent's Marietta, Ohio, plant. (b) Reestablish the former cafeteria operation at Respondent's Marietta, Ohio, plant. (c) Offer the 11 employees previously employed by Respondent at the above-mentioned cafeteria imme- diate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. Make whole all of the above employees for any loss of earnings they may have suffered by reason of the discrimina- tion against them by payment to each of the sum of money each would have earned during this period, less net earnings, if any, to be computed in accordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950), together with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (d) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of all the employees in the appropriate unit set forth above in respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and embody any understanding reached in a signed agreement. Further, upon request, furnish the above-named labor organization information concerning the financial arrangements between Respondent and Macke Company with respect to the subcontracting out of the cafeteria operation. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, Company, Inc, supra See also N L R B v Preston Feed Corporation, 309 F 2d 346, 352 (CA 4, 1962) 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its plant in Marietta, Ohio, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respon- dent's representatives, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. 8 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 International Chemical Workers Union and its Local 343, AFL-CIO-CLC, or any other labor organization of our employees, by discharging any of our employees because of their member- ship, support, or activities on behalf of the above- named or any other labor organization. WE WILL NOT directly or indirectly promise our employees benefits, or threaten our employees with loss of benefits, including the threat to subcontract out or discontinue our cafeteria operation, in order to induce them to abandon their support of the above-named or any other labor organization. WE WILL NOT refuse to bargain collectively with the above-named labor organization as the exclusive representative of our employees in the following appropriate unit: All cafeteria employees employed by the Employer at its cafeteria located in its manufacturing plant at Marietta, Ohio, excluding all office clerical employees, pro- fessional employees, all other employees, all guards and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organize, to form, join, or assist the above-named or any other labor organization, to bargain through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL cancel our existing contracting arrangement with Macke Company with respect to the cafeteria operation at our Marietta, Ohio, plant. WE WILL reestablish our former cafeteria operation at our Marietta, Ohio, plant. WE WILL offer the 11 employees previously employed by us at the above-mentioned cafeteria immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights and privileges, and WE WILL make them whole for any loss of earnings they may have suffered by reason of our discrimination against them. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive representative of our employees in the aforementioned appropriate unit with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and embody any understanding reached in a signed agreement. WE WILL, upon request, furnish the above- named labor organization information concern- ing the financial arrangements between us and Macke Company relating to the subcontracting of our cafeteria operation at our Marietta, Ohio, plant. B. F. GOODRICH GENERAL PRODUCTS COMPANY, A DIVISION OF THE B. F. GOODRICH COMPANY DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held at Marietta, Ohio, on May 8, 1975, on complaint of the General Counsel against B. F. Goodrich General Products Company, a Division of the B. B. F. GOODRICH GENERAL PRODUCTS CO. 293- F. Goodrich Company, herein called the Respondent or the Company. The charge was filed on October 29, 1974, by International Chemical Workers Union and its Local 343, AFL-CIO-CLC, herein called the Union, and the complaint issued on March 20, 1975. The issue of the case is whether by contracting out the work of its cafeteria employees after they had chosen to be represented in collective bargaining by the Union, in effect discharging all of them, the Respondent violated Section 8(a)(3) and (5) of the Act. Briefs were filed by the General Counsel and the Respondent. , Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT In its Marietta, Ohio, plant the Respondent manufac- tures and sells plastic products. During the past 12 months, a representative period, it had direct inflow of goods in interstate commerce at this location valued in excess of $50,000, all purchased and received from but-of-state sources . I find that the Respondent is engaged in commerce within the meaning of the Act. intended to give the color of legality to an,,illegal determination always fixed with finality the day after the employees voted in favor of the Union. At the hearing the Respondent advanced, a number of defenses, some directly and some obliquely., For the most part its witnesses - all personnel and industrial relations officials - articulated the defense in terms of what they told first the employees directly, and then the union agents, at the time of the events. Among, the defenses are the contentions that Respondent does not know ,how to run a cafeteria and therefore had no choice but to discontinue any such business in its own name; that it,did discuss its contracting away intention with the Union, as Board law requires; and that it was only after exhaustive bargaining on the subject that it acted. There is also the suggested argument that if Jack Sullivan, the Company's,personnel director, 5 days before the election,, gave the employees very valuable fringe benefits, - some-ever} retroactively - which they had, never enjoyed before, as good reasons why they should oblige the , Company and vote against the Union, it was the Board itself that was responsible for,his conduct by virtue of its holding that, the cafeteria employees were in fact employees of the Respondent corporation. II. THE LABOR ORGANIZATIONS INVOLVED I find that International Chemical Workers Union and its Local 343, AFL-CIO-CLC, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Case in Brief Since shortly after establishment of its Marietta plant in 1947, the 500 or so production and maintenance employees there have been represented by the Union - Local 343 - under successive collective-bargaining contracts.. The employees working in the plant cafeteria, which has also been in operation there all these years, were never, until the events giving rise to this case, engaged in collective bargaining. In early 1974, they too joined the Union, which then filed a representation election petition with the Board (Case 9-RC-10467). The election was held on May 8, the Union won, and it was certified as exclusive agent of the then - 11 cafeteria employees on May 16. Management agents met with union representatives on June 12, July 23, and July 31, 1974; much of the talking was devoted to the Company's announced resolve to contract away the entire cafeteria operation and the Union's objection to such a move. On September 9, the Respondent signed a contract with Macke, an independent employer, to take over the cafeteria business, and on September 9 the Union was informed of the completed transaction. Shortly thereafter the employees involved became employees of Macke, and remain so today. r The complaint alleges that the Respondent removed these employees from its payroll, in retaliation for choosing to be represented by the Union - in violation of Section 8(a)(3) of the Act, and, that whatever talking it carried on with the Union in June and July was no more than a sham, A. Proof of Antiunion Motivation ' On May 3, 5 days before the Board-conducted election; Sullivan called the 11 cafeteria employees to a meeting, during working hours, and read a prepared statement to them. In the, representation case the . Company had contended it was not ,their, employer,, the Regional Director's decision in the case found otherwise, and, on appeal, the Board had, on May 1, also found against the Company. Sullivan-told the employees of this decision of the Board, and then advised them that as of that day all I1 of them were receiving the full benefits - always enjoyed by the larger number of production and maintenance employees in the plant - of the Company's pension program (retroactive to their, initial employment in the corporation), hospitalization insurance, life insurance, and sick and accident benefits. These were all benefits which the employees had-never before enjoyed and among the particular-improvements in their conditions of employment which they sought to obtain via the collective-bargaining route. Sullivan said more that day. He also told the employees they should vote against the - Union in the imminent election, they stood to lose all these benefits if they did otherwise, indeed could lose their jobs, and that, there was more the Company's main office in Akron could-do-for the employees - but always without the Union in the picture. There is only a partial conflict in the testimony between three ladies - cooks and sandwich makers - who were present, and Sullivan, and the disagreement is more a matter of nuance than substance. Neither Roger, Great- house, the assistant personnel manager, nor .Anthony Massi, the industrial relations manager, who stood, next to Sullivan that day, gave any testimony about what he said. I do not credit Sullivan where he disagrees,, if disagreement it can be called, with the ladies' testimony. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Donna - Williamson : "There were several things brought up, one I remember is they did ask-us to wait one year before we decided to go into the union, he said in one year time things would be straightened up, if we wanted to go into the union after- the year,- that union would accept us again." "He also said, that we should consider voting, that all of our benefits that we had just received could be jeopardized, They=may be taken away or we-may not have them, or even our jobs could be taken." Maysle Cuzzens: " . . . [H ]e told us that we were to get these benefits , and that he knew that we [were] thinking about joining a union and we should think very carefully about this because they didn't'want the union-in there .. . he said , that he thought that grownup people could talk and settle things without some outside interference to, help. And he said these` benefits -had been given to us and they could be taken away but they didn't want that union in there. And' Mr. Massi agreed with that ... Mr. Massi also said we should'think carefully about this' union, that they might `close it, down, they didn't have to run that place., He said B . F.- Goodrich is not in the food business ...." " He didn't tell you that if the union was voted in that they would, have, to- negotiate with, the union for those benefits? A. No." - Opal Slider: " ... [H]e said that we should think the matter over before we decided the union, because we could lose all of our benefits." In cross-examination of the witness counsel for the Respondent showed that in her earlier investigation affidavit there appeared the following statements: "All I remember is that Sullivan announced that we were considered-employees'of the B: F. Goodrich by the labor board and that because of that we were going to receive , the same benefits as the other'employees." On redirect it was then established that the affidavit continued immediately after the foregoing quotation with the follow- ing words : "-I think it,was at this time Mr. -Sullivan asked the employees to give Goodrich another year so they, could straighten this out." Slider's transcript testimony also contains the following: "Did he [Sullivan] according to your present recollection say anything else? A.- Well, what I said, give it serious thought before- we signed -the union, because we-could-lose our, benefits." ,,Massi -testified but contradicted none of -the ' foregoing. About this meeting Sullivan testified only that-he told the employees all the benefits he was giving them would be subject to negotiations in the event they should vote for the Union., He otherwise did not deny one word of the women's testimony : Asked had he told -them they should give the Company a year's time to satisfy their•demands, he three times said he could not remember. His, earlier affidavit reads: -"I -did, prior to the election - ask -the employees to give Goodrich another year and not to vote for the union." As a witness in this case Sullivan cannot be credited. - - ° - - Four, days, later, the afternoon of the. day before the balloting; Massi was back in the cafeteria and had each woman come into a room where he could talk to her alone. From the testimony of Williamson: "Mr. Massi told us that we should take very serious consider all points [sic]. He said -please give us one year toystraighten things out. Said after a year's time we could still go back into the union if we wanted to. He also said that Akron had no idea the cafeteria was in the condition that, it was °in:'' "Well besides telling us to consider what- we were, doing, and not to vote for the union, he asked me if I would consider it ... . Cuzzens: "He said that Akron -was appalled with the conditions down here and he was going to try to do something about it, and would we give them a year without joining this union, would we give Goodrich a year, you- know, to see what they could work out for us." ". . [H ]e did tell us the same thing he did before, that we could lose the benefits and things if we got the union in there, because they didn't want it in." Slider: "Well, Mr. -Massi'said That he wasn't aware of the working conditions in Marietta; that Akron wasn't aware of the working. conditions in Marietta, of our benefits and all and he said to give him a year to work things out and not vote for the union. And see what they could work out for us." Called as a witness after these women, Massi's only reference to the interviews he had with everyone of the 1, 1, cafeteria employees was that his purpose in talking to them was so, they could have the opportunity to ask him any questions they wished. , I credit the three employees completely. - I find that by granting to the employees pension benefits, hospitalization and life insurance, and sick and accident benefits, all of which they had never previously enjoyed, the Respondent restrained and coerced them in their statutory rights freely to engage in concerted ' activities. N.L.R.B. v. Exchange Parts, 375 U.S. 405 (1-964).-There is no merit in the contention that the National -- Labor Relations Board forced this action upon the Respondent by finding the cafeteria workers worked for the Respon- dent. If the Company had been underpaying these women in violation of the Fair Labor Standards Act, that is one thing; this case has nothing to do with that. There is,no law which- dictates that an employer must give "all employees not represented by a union the precise benefits enjoyed by others covered by a,collective-bargaining contract. What is more important here,- however„ is the - unquestionable evidence that Sullivan's real purpose in giving these benefits was to, wean the employees away, from their proumon resolve. He told them that clearly enough by saying they could lose them if they disagreed with his concurrent requests that they vote against the Union. - It is of no moment that in a technical sense there can be no formal conclusion that by this bribery and threat the Respondent, committed unfair labor practices in, violation of Section 8(a)(1) of the statute; Section 10(b) precludes that precise finding now. But the evidence nevertheless remains proof positive of the Respondent's determination to avoid dealing with any union with .respect to these I 1 employees. Sullivan's announced intention may have been voiced more than 6 months before the filing of the charge, but it was articulated very shortly before he fired, all the women after their prounion vote. There is no limitation upon evidence of motivation, and here the indication of illegal purpose could not have been more timely related to the critical conduct in question. As the Court said in Exchange Parts: "The danger inherent, in, well--timed increases in benefits is the suggestion of a fist inside the velvet glove." The Respondent followed the gift with the B. F. GOODRICH GENERAL PRODUCTS `CO. expressly promised retaliation . And Massi's repeated threats to each employee individually only a few days later made even clearer the Respondent 's preparation to see that the employees paid a price for any votes in favor of the Union. B. Violations of Section 8(a)(3) The Respondent 's purpose in•contracting the cafeteria operation to Macke was so that the women would cease being ; employees of the Respondent . Whether-this action be called a discharge , a layoff, a transfer , or anything else, all it amounted to in the statutory sense is that the Respondent discriminated against them in their employ- ment relationship with Goodrich . It is too late a day in history to play around with words when people 's jobs are involved. No more could an employer defend against a violation of Section 8(a)(3) of the statute on the grounds that it simultaneously found comparable employment for the dischargee with some other employer , union or nonunion. The reason why the Respondent contracted with Macke to take over the cafeteria was because the employees had voted in favor of the Union , had ignored management's request that they not do so, indeed had flouted the direct threats that this is exactly what would happen to them if they persisted in deciding for themselves whether or not to be represented by a labor organization . No clearer violation of the statute could be shown. I find that bringing about the transfer of these employees to Macke's employ, the Respondent discharged all 11 of them in violation of Section 8(a)(3). In a sense the defense is comparable to a frequent contention in Board proceedings that the employees were released for just cause , and not because of an illegal purpose . The Respondent made its pitch on this score directly to the union agents during the three meetings after the certification issued - that it was not in the food business, that it did not have the required expertise to operate a cafeteria , etc., and that these were the reasons why it had no choice but to remove the employees from its payroll . Spoken to the union agents at the ostensible negotiations , these assertions were not true , and repeated after the hearing in defense of this complaint , they remain unconvincing. The Respondent had operated this cafeteria - without change in method , as Sullivan admitted at the hearing - since 1947. There was no reason why it could not continue to do so exactly as it had always done. The only thing that changed was that the union appeared on the scene. But there is no real need to infer anything, for Sullivan's affidavit confirms the testimony of the employ- ees and proves literally not only that the Respondent could operate a cafeteria but also that it wanted to continue it - if only the employees would vote against the Union . This is the absolute import of Sullivan's statement to the employ- ees assembled, repeated by Massi to each woman separate- ly, that if they would give the Company a year everything would be fine, and they could keep the benefits. N. THE REMEDY 295 As in every unfair labor practice case, the remedial order must start with an injunction that the Respondent not repeat the exact offense found to have. been committed. Here it was the act of illegally discharging employees by contracting away their jobs , and that is what the Respon- dent for sure must not do again. Of course the talking that went on between company representatives and union agents after the certification was a "charade," as -the General Counsel describes it.. Before management first met with union agents after the certifica- tion, on June 12, the Company already had representatives of three separate catering companies looking over its premises' and studying the cafeteria operations. When a union man asked what they were doing there the answer was so that all three could give the Respondent ideas about how the Company- itself might run the cafeteria . Speaking of the July 23 meeting with the Union , Sullivan said at the hearing the thought of contracting with-, anyone - had not even entered his mind then . "...Not at that time did we have any intention to do so." He said it was not until after he returned from the hospital in mid-August that the Company asked any other company "if you got any offers to make us ." But Donald Gottschalk , another company representative, testified after Sullivan that at the July 31 meeting there was complaint by the union agents about "our comment that we were evaluating outside vending possibilities." No amount of discussion about an illegal program already planned could conceivably rise to the level of good-faith bargaining as the concept is embodied in the statute . Nothing could be clearer than that the Respondent had no intention to honor the Union 's certification, and therefore violated Section 8(a)(5) of the Act . That the outright unlawful discharge of all the employees in the bargaining unit for the literal purpose of avoiding any duty to bargain with their selected representative is a total rejection of the statutory duty to bargain is a matter of pure logic , regardless of how the case be reported. What is important here is that injection of this cumula- tive, technical fording of illegality not be used to becloud the essential import of the necessary remedial order. An employer found to have illegally discharged an employee after advancing an unconvincing defense of incompetence, may not thereafter discuss the asserted incompetence at length with his union and proceed to discharge him again with impunity . In the same sense the Respondent here may not again tomorrow discuss with the Union its resolve to contract away these jobs and then go ahead and repeat the same offense against the statute . A finding that it was remiss in not adequately discussing the matter would suggest that more talking is all that is now required . Not so. At the same time, an employer's right to dismiss an employee for cause - any cause, so long as it is the true cause - can never be denied him, and this applies no less to an employee who has suffered past illegal discrimina- tion . Similarly, an employer has the right to make changes in its business methods - even contracting away the operations of a cafeteria - so long as its purpose is not an illegal one, even if in the past it used the technique to disguise an unlawful objective. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Here the Respondent must now totally restore the 11 women to their jobs, and make them whole for any losses they may have suffered because of the changeover, but it must also bargain with the Union on request because of the outstanding certification . To assure effective compliance with the logical remedial . order, in the special circum- stances of this case , the Respondent must be ordered in no event to contract away the jobs of these women for a 12- month period beginning the day it starts compliance with this Decision and Order. I view , this as a reasonable balancing between the, necessity for effectuating substan- tial remedy of the unfair labor practices committed, and the Employer's counterpart right to run its business as it sees fit . Moreover, the 1-year concept is peculiarly appropriate here because it -was initially proposed by the Respondent 's officials themselves when they asked for 1 more year from the employees^for the purpose of satisfying the economic demands of the employees , without a union. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES Respondent 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. CONCLUSIONS OF LAW 1. By discharging, all 11 of 'its cafeteria employees on September 9, 1974, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 2. By refusing to bargain with the Union on May 16, 1974, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within -the meaning of Section 2(6) "and (7) of the Act. 'UPON COMMERCE The activities of the . Respondent set out in section III, above, occurring in connection with the operations of the [Recommended Order omitted from publication.] Copy with citationCopy as parenthetical citation