Bendix Corp.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 986 (N.L.R.B. 1967)

986 DECISIONS OF NATIONAL
Automation and Measurement Division, the
Bendix Corporation and International
Union of Electrical , Radio and Machine
Workers , AFL-CIO. Case 9-CA-4053
June 23, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On March 16, 1967, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
memorandum in opposition.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and
memorandum, and the entire record in the case, and
hereby adopts the findings, conclusions, and
recommendations 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
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Automation and
Measurement Division, The Bendix Corporation,
Dayton, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order. i
i The telephone number for Region 9, appearing at the bottom
of the notice attached to the Trial Examiner's Decision, is
amended to read Telephone 684-3627 '
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This proceeding
heard by me, at Dayton, Ohio, on March 7, 1967, with all
parties present, involves a complaint' which alleges that
The Sheffield Corporation2 (herein called Respondent or
Company), violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended (herein called the Act),
by unilaterally announcing and effectuating changes in
wages, hours, and working conditions of employees in an
appropriate unit, without prior notice to or consultation
165 NLRB No. 132
LABOR RELATIONS BOARD
with International Union of Electrical , Radio and Machine
Workers, AFL-CIO (herein called the Union ), which had
been certified on June 16 , as the collective -bargaining
representative of the employees in said unit. At the
hearing Respondent admitted that it unilaterally
announced and effectuated the changes in the wages,
hours, and working conditions of the employees involved,
and stated that its defense to the allegations of the
complaint was that it regarded the Union 's certification by
the Board to be invalid ; that it desired to test that
certification in the courts by refusing to bargain with the
Union ; and that its actions were in good faith and without
any intention of violating the Act. Thereupon the General
Counsel moved for summary judgment , which motion was
granted . Pursuant thereto, and upon the record as
aforesaid , I now make the following:
FINDINGS OF FACTS
A. The Unfair Labor Practices Alleged
1. Background
Pursuant to a representation petition filed by the Union
(Case 9-RC-5858), and after proceedings covering a
period of approximately 2 years, the Regional Director for
Region 9 issued his Fifth Supplemental Decision, and on
June 16 certified the Union as the exclusive collective-
bargaining representative of the employees in a unit fopnd
appropriate .' Respondent ' s request for review of the
aforesaid Supplemental Decision was denied by the Board
on July 22.
On September 14, a complaint issued against
Respondent which charged that since August 8,
Respondent refused and continues to refuse the Union's
request that it bargain with it . The Board, finding the
Union' s certification in all respects valid , and that the
Respondent 's refusal to bargain with the Union on request
constituted an unfair labor practice within the meaning of
Section 8(a)(5) and (1) of the Act, granted the General
Counsel's motion for summary judgment , and ordered that
Respondent , upon request , bargain collectively with the
Union as the exclusive representative of all employees in
the appropriate unit , and embody in a signed agreement
any understanding reached.5
2. The current facts
Respondent admits that on September 16, it announced
to the employees in the unit involved, that effective
I Issued December 30, upon a charge filed September 26, and
amended November 17 All dates herein are 1966 unless
otherwise indicated
2 The complaint names the employer as "The Sheffield
Corporation " At the hearing the caption was amended to reflect
the change in the name of Respondent as indicated in the caption
a No issue of commerce , labor organization , or appropriate unit
is presented All these issues were resolved by the Board in The
Sheffield Corporation , 163 NLRB 180, hereafter referred to in
greater detail
4 The unit so found appropriate is "All production and
maintenance employees of the Respondent at its Dayton, Ohio,
plant including clericals and follow-up clerks but excluding all
management personnel , office clericals , technical employees with
diverse interests , sales employees , co-op students , field service
department employees, professional employees , guards, and
supervisors as defined in the Act."
5 The findings in the riyo paragraphs above are based on the
Board's findings and conclusions set forth in its Decision and
Order in The Sheffield Corporation , 163 NLRB 180
AUTOMATION DIV., BENDIX CORP.
October 4, increases in their wage rates, pension
provisions , and profit -sharing rights would become
effective , and on the last-mentioned date such changes
were put into effect. Respondent also admits that such
changes were announced and made effective unilaterally,
and without prior notice to or consultation with the Union.6
Concluding Findings
Section 8(a)(5) of the Act imposes upon an employer the
duty to bargain collectively with the majority
representative of its employees , and this exacts "the
negative duty to treat with no other ." Medo Photo Supply
Corporation v. N.L.R .B., 321 U . S. 678 , 684. This duty is
breached when the employer without notice to or
bargaining with the majority representative unilaterally
changes the wages , hours, or terms and conditions of
employment . May Department Stores dlbla Famous-Barr
Company v. N.L.R.B., 326 U.S. 376; N.L.R.B. v. Benne
Katz, etc., d/b/a Williamsburg Steel Products Co., 369
U.S.736. Such action is in practical effect, bargaining with
the employees individually , in derogation of the status of
the majority representative, to whom the duty to bargain is
owed. May Department Stores v. N.L.R.B., supra; N.L.R.B.
v. Katz, supra . That Respondent may have regarded its
action as required by business considerations , or that it
was merely seeking in good faith to contest in the courts
the correctness of the unit determinations in the
representation proceeding -the only defense which
Respondent sought to make in the instant proceeding-is
immaterial . N.L.R.B. v. Katz, supra , makes it clear that an
employer violates Section 8(a)(5) of the Act if he makes
unilateral changes in working conditions , without first
bargaining to an impasse with the majority representative,
regardless of his motive in effectuating such changes.
As Respondent admits that it effectuated changes in the
wages and working conditions of employees in the unit
without first bargaining with the Union as the majority
representative of such employees , it thereby violated
Section 8 (a)(5) and ( 1) of the Act. I so find and conclude.
Upon the foregoing findings of fact , I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is 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. All production and maintenance employees of
Respondent at its Dayton , Ohio, plant , including plant
clericals and follow-up clerks but excluding all
management personnel , office clericals , technical
employees with diverse interests , sales employees, co-op
students , field service department employees,
professional employees , guards, and supervisors as
defined in the Act , constitutes a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times since June 16, the Union has been the
duly certified and exclusive collective-bargaining
representative of the employees in the aforesaid
987
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By unilaterally effecting changes in the wages, hours,
and terms and conditions of employment of employees in
the aforesaid appropriate unit , without prior notice to or
consultation with the Union as the exclusive collective-
bargaining representative of the employees in said unit,
Respondent refused to bargain with the Union and thereby
engaged in and is engaging in unfair labor practices
proscribed by Section 8(a)(5) and (1) of the Act.
6. By the aforesaid refusal to bargain , Respondent has
interfered with , restrained , and coerced , and is interfering
with, restraining, and coercing employees in the exercise
of the rights guaranteed to them by Section 7 of the Act,
and has thereby engaged in and is engaging in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices proscribed by Section 8(a)(5) and (1) of the
Act, it will be recommended that it be required to cease
and desist therefrom and take certain affirmative action
designed and found necessary to effectuate the policies of
the Act. Because of the nature and character of the
violation so found , it will be recommended that
Respondent be required to cease and desist from in any
manner interfering with, restraining , or coercing its
employees in the exercise of rights guaranteed them by
Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended , it is recommended that Automation and
Measurement Division , The Bendix Corporation (formerly
known as The Sheffield Corporation), its officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages , hours of employment , or other terms and
conditions of employment with International Union of
Electrical , Radio and Machine Workers, AFL-CIO, as the
exclusive representative of its employees in the following
appropriate unit:
All production and maintenance employees at
Respondent's Dayton, Ohio, plant , including plant
clericals and follow-up clerks, but excluding all
management personnel , office clericals, technical
employees with diverse interests , sales employees, co-op
students , field service department employees,
professional employees , guards, and supervisors as
defined in the Act.
(b) Unilaterally instituting changes in wages, rates of
pay, hours of employment, or other terms and conditions
of employment of its employees in the aforementioned
appropriate unit , without first notifying the
aforementioned Union, and upon request bargaining with
said Union regarding such changes.
6 The findings in the foregoing paragraph are based on the
admissions in Respondent 's answer, and by its counsel at the
hearing.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form, join, or assist any labor organization,
to bargain collectively through representatives of their
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent permitted by Section 8(a)(3) of said
Act.
2. Take the following affirmative action found
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative
of the employees in the above-described appropriate unit
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in
a written signed agreement.
(b) Upon request of the above-named Union, rescind all,
or any specific provision that said Union may request, of
the changes in working conditions which Respondent
announced on or about September 16, and effectuated on
or about October 4, but nothing herein shall be construed
as requiring Respondent to revoke any such changes,
except at the request of said Union.
(c) Post at its plant in Dayton, Ohio, copies of the
attached notice marked "Appendix."7 Copies of said
notice, to be furnished by the Regional Director for
Region 9, after being duly signed by its authorized
representative, shall be posted by it 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.
Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.8
7 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL, on request, recognize and bargain with
International Union of Electrical, Radio and Machine
Workers, AFL-CIO, which has been certified by the
Board as the exclusive collective-bargaining
representative of our employees in an appropriate
unit composed of:
All production and maintenance employees at
our Dayton, Ohio, plant , including plant clericals
and follow-up clerks, but excluding all
management personnel, office clericals,
technical employees with diverse interests, sales
employees, co-op students, field service
department employees, professional employees,
guards, and supervisors as defined in the Act;
and if an understanding is reached embody such
understanding in a written signed agreement.
WE WILL, on request of the above-named Union,
rescind and withdraw all or any part of the changes
made in the working conditions of the employees in
the aforesaid unit, pursuant to our announcement
made on or about September 16, 1966, and which
became effective on or about October 4, 1966. We
understand that nothing in the Trial Examiner's
Recommended Order requires us to rescind any of
the aforementioned changes except to the extent that
the Union may request such changes.
WE WILL NOT change the wages, hours, or working
conditions of our employees in the aforesaid unit,
without first giving the aforesaid Union notice of such
proposed changes and an opportunity to bargain with
us regarding such changes.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the excerise of
their right to self-organization , to form any labor
organization , to join or assist International Union of
Electrical, Radio and Machine Workers, AFL-CIO,
or any other Union, to bargain through
representatives of your own choice, 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, except to the extent permitted by Section
8(a)(3) of the Act.
AUTOMATION AND
MEASUREMENT DIVISION,
THE BENDIX CORPORATION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office, Room 2407
Federal Office Building , 550 Main Street, Cincinnati,
Ohio, Telephone 526-5760.