Burrell Metal Products Corp.

National Labor Relations Board - Board Decisions

Dec 4, 1961

134 N.L.R.B. 921 (N.L.R.B. 1961)

BURRELL METAL PRODUCTS CORP. 921
WE WILL NOT discourage membership in Oil , Chemical and Atomic Workers
International Union , AFL-CIO, or in any other labor organization , by discharg-
ing, laying off, refusing to reinstate , or otherwise discriminating against em-
ployees because of their union or concerted activities.
WE WILL offer to Gordon Maack immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to his seniority
or other rights and privileges , and make him whole for any loss of earnings he
may have suffered as a result of his being laid off and refused reinstatement.
WE WILL NOT threaten employees with reprisals in employment or promise
or offer them inducements or benefits in connection with their union or con-
certed activities.
Ws WILL NOT by any of the foregoing , or by any like or related conduct,
interfere with, restrain , or coerce employees in the exercise of their right to
self-organization , to form , join , or assist labor organizations , to bargain collec-
tively, and to engage in concerted activities for their mutual aid or protection,
or to refrain from any or all such activities.
WE WILL NOT interfere with the efforts of Oil, Chemical and Atomic Workers
International Union, AFL-CIO , to represent our employees or seek to become
such representative . All our employees are free to become or remain members
of this Union , or any other labor organization , or to refrain thereform.
SUPERIOR GRAPHITE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Burrell Metal Products Corp. and District Lodge 76, Inter-
national Association of Machinists , AFL-CIO. Case No. 3-CA-
1570. December 4, 1961
DECISION AND ORDER
On September 13, 1961, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He further found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. Thereafter the
General Counsel filed exceptions to the Intermediate Report and a
supporting memorandum.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
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 Intermedi-
ate Report, the exceptions and memorandum, and the entire record in
134 NLRB No. 97.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Burrell Metal
Products Corp., Franklinville, New York, its officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Threatening employees with discharge or other economic loss
or reprisal for reasons of union membership or activities.
(b) Interrogating employees concerning union membership and
activities in a manner constituting interference, restraint, or coercion
within the meaning of Section 8 (a) (1) of the Act.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its South Main Street plant in Franklinville, New York,
copies of the notice attached hereto marked "Appendix." 2 Copies of
said notice, to be furnished by the Regional Director for the Third
Region, shall, after being duly signed by the Respondents' representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
1 In recommending dismissal of that portion of the complaint which alleges violations of
Section 8 ( a) (2) of the Act , the Trial Examiner concluded ( 1) that a so-called grievance
committee was not a labor organization within the meaning of Section 2(5) of the Act,
and (2 ) that there was no basis for finding that the Respondent sponsored , supported, or
otherwise interfered with the administration of this employee group. The General Counsel
filed exceptions as to both points. The record fully supports the Trial Examiner 's findings
and conclusions with respect to (2), namely , that on March 22, 1961, a meeting was
arranged between Respondent and a group of striking employees ; that this meeting con-
cerned itself primarily with a discussion of the strikers ' grievances ; that in the dis-
cussion of the possible formation of a "grievance committee " the Respondent made no
concessions , promises , or threats ; and that the Respondent was not affording recognition
to this group, or bargaining with them , as the representative of its employees . Accord-
ingly, even if we were to assume that the "grievance committee" Is a labor organization as
defined in Section 2(5) of the Act, as we find nothing in the record which constitutes a
violation of Section 8(a) (2) of the Act, we shall dismiss the allegations of the complaint
which relate thereto
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
BURRELL METAL PRODUCTS CORP. 923
(b) Notify the Regional Director for the Third Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations of Section 8 (a) (2) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT threaten our employees with discharges or other
economic loss or reprisals for reasons of union membership and
activities.
WE WILL NOT interrogate our employees concerning union mem-
bership and activities in a manner constituting interference, re-
straint, or coercion within the meaning of Section 8(a) (1) of
the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form, join, or assist District Lodge 76, Inter-
national Association of Machinists, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities.
All of our employees are free to remain, or to refrain from becom-
ing or remaining, members of District Lodge 76, International Asso-
ciation of Machinists, AFL-CIO, or any other labor organization.
BURRELL METAL PRODUCTS CORP.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein, as amended, alleges that the Company has violated Section
8(a) (2) of the National Labor Relations Act, as amended, 73 Stat. 519, by pro-
moting and interfering with the administration of the grievance committee in that it
participated in an employees' meeting and suggested formation of the grievance com-
mittee, with knowledge of District 76's organizational activities permitted the griev-
ance committee to conduct a meeting on company property, permitted the grievance
committee to interrogate employees, and accorded disparate treatment to District 76;
and Section 8(a)(1) of the Act by said alleged acts and by interrogating employees
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning their union activities and sympathies, threatening reprisals, and negotiat-
ing with employees concerning terms and conditions of employment when it had
knowledge of District 76's organizational activities.
Without admitting various allegations relating to commerce, existence of labor
organizations, and agency, the answer, as amended, admits that various employees
stated grievances at a meeting with the Company, but denies that the Company com-
mitted any unfair labor practices as alleged. A hearing was held before Lloyd
Buchanan, the duly designated Trial Examiner, at Olean, New York, on July 11 and
12, 1961.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a New York corporation, with
principal place of business at Franklinville, New York, is engaged in the fabrication
and assembly of metal office equipment and furniture; and that during the year
preceding issuance of the complaint herein it manufactured, sold, and shipped, from
its place of business in interstate commerce directly to points outside the State of
New York, finished products valued at more than $100,000. I find that the Company
is engaged in commerce within the meaning of the Act.
From the evidence adduced, which is clear and uncontradicted and need not here
be detailed, I find that District 76 is a labor organization within the meaning of
the Act.
Despite the allegation concerning a meeting of the grievance committee, thus
referred to on March 22, 1961, the General Counsel's position at the hearing was that
the committee which was at that time proposed, and whose formation was mentioned
or discussed on that date, is the only grievance committee before us. Since that
committee was not thereafter actually formed, we cannot find that it was a labor
organization within the meaning of the Act.
As for the group of employees who met with the Company on March 22, the clear
disclaimer at the hearing that it was the grievance committee referred to supersedes
any contrary impression which the complaint may have suggested. We need there-
fore not determine whether that group was a labor organization or an ad hoc group
which undertook to state various grievances to the Company.' Without favoring me
with argument or brief, the General Counsel stated at the hearing that he relies on
Philamon Laboratories, Inc 2 I can but guess that his reference was to the finding in
that case concerning two committees as labor organizations; but the authority cited
is not in point since we have just seen that the General Counsel in the instant case
limited himself to one committee, and that one only in posse.
H. THE UNFAIR LABOR PRACTICES
A. Supervisors
Bishop, a foreman, assigns and checks the work of 10 or 11 employees on the
night shift; he has done similarly with respect to 15 or 20 when he worked on the '
day shift. He also sets up machines and transfers men from job to job as needed.
When an employee in Bishop's department was disciplined, that was done by Sullivan,
the plant superintendent, not by Bishop. It was stipulated also that through Bishop
management expresses or conveys terms of overtime, promotion, termination, and
related decisions concerning personnel. This does not indicate that Bishop is a super-
visor within the meaning of the Act although, unlike the rank-and-file employees, he
(and Tingue, infra) is a salaried employee and does not punch a timeclock. But with
10 or 11 under him on the night crew, even if Sullivan occasionally worked late or
frequently returned for a time in the evening, it does not appear that anyone other
than Bishop actively directs those rank-and-file employees. Bishop's duties and status
were similar when he was foreman on the day shift. If his supervision and authority
are limited so that as foreman he is merely a strawboss and not a supervisor within
the meaning of the Act, he is the Company's sole go-between and is recognized as
the conduit (a word which counsel employed and which the cases recognize) or
representative of responsible management. Thus when an employee wants to leave
the plant early, he asks Bishop; when working overtime, employees ask and receive
from Bishop permission to take a break. Here is an element of direct authority.
1 Cf Latex Industries, Incorporated. 132 NLRB 1, at footnote 3.
2131 NLRB 80.
BURRELL METAL PRODUCTS CORP . 925
Although he has no authority to hire or fire, Bishop is the one who told employee
Morris when the latter was fired. (Whether he can effectively recommend firing is
not clear.) Under these circumstances Bishop's words carry weight and he is the
Company's representative so that it is liable for his remarks to the employees whom
he thus directs .3 All of this is aside from any consideration which may be given to
the admission in the answer prior to amendment, that Bishop and Tingue are
supervisors within the meaning of the Act.
While, unlike Bishop, Tingue is not the Company's sole representative on the shift,
his being the day shift, it appears that there are 15 to 20 rank-and-file employees under
him and that his duties are similar to Bishop's. The men's contacts are with Tingue
and, through him, with management. Thus on one occasion, Reynolds asked Tingue
for permission to leave so that he could see a doctor, and received such permission.
Vis-a-vis the men under him, Tingue represented the Company, and was the conduit
through whom it expressed decisions. I find, as with Bishop, that the Company was
responsible for Tingue's remarks .4
B. The alleged violation of Section 8(a)(1)
Employee Jesse Townsend testified that on March 14 Bishop came up to him at
work, asked how he felt about a union, and continued with a threat that Townsend
would be fired if he had anything to do with it. According to former employee
Webber, in December 1960, he suggested to Bishop the formation of a union in the
plant; Bishop advised that he forget it, warning that if Webber started one or even
talked about a union, he would be fired. On March 13 and 14 Bishop again threat-
ened Webber with discharge in connection with union organizational activities. The
violation was no less such because it referred to activity on company property in the
absence of distinction between working and nonworking time. On March 15, Tingue
remarked that he knew that Webber had cards and warned that the latter was going to
get himself in trouble. Similarly on March 14 Bishop remarked to employees Pull-
man and Prosser that someone was signing men for the Union but that, after they had
signed, these would not be employed any more. (Pullman took this as a joke.) The
next day, Bishop told Pullman that the plant would have to close if a union came in,
and continued by asking whether Pullman had had any cards signed that evening.
Bishop denied generally and in the language of the complaint the interrogation and
threats attributed to him. Only concerning his conversation with Townsend on
March 14 did he make a specific denial as he testified that Townsend asked for his
opinion and he gave it. Bishop's reliability with respect to such denials can be
measured by his further denial that he had any knowledge before the employees
struck on March 22 that they were trying to organize. He thereafter admitted that
during the week ending March 11 he overheard employee Krotge speak of union
cards. This admission followed Bishop's denial that he had overheard Krotge, and
was elicited only after he had been shown a prior statement which he had executed.
His explanation on the stand that he had confused Krotge with another employee
does not alter the fact that he had earlier known of employees' organizational ac-
tivity. Tingue did not testify.
As to whether any of Bishop's remarks, specifically those to Pullman, were "inter-
preted" by the employee as Bishop's personal views rather than the Company's, the
employee's interpretation is not the test. The question is whether, regardless of an
individual's interpretation, the remarks have the tendency to interfere with lawful
concerted activities; and I find that Bishop's remarks do. Tnere is no evidence that
he offered these remarks as strictly his own and not those of the Company. The in-
stances here cited adequately support the allegations of violation of Section 8 (a) (1)
by interrogation and threats.
It was further alleged that Phillips, a director of the Company, discussed and
negotiated with the employees on March 22 with respect to terms and conditions of
employment, at a time when the Company was aware of the organizational activities
of District 76. That this limited attempt to terminate the strike tended to under-
mine the Union is not at all clear. As we shall see in connection with the alleged
violation of Section 8(a) (2), when Phillips spoke to the strikers about meeting with
Smith, the company president, there was no suggestion of any claim of majority
representation by District 76. As for discussion by Smith and McCutcheon, an-
other director, with the employees, this refers to the meeting on the afternoon of
March 22, which is alleged separately as a violation of Section 8(a) (2) and will be
considered in that connection.
3Florida Steel Corporation ( Tampa Forge and Iron Division ), 131 NLRB 1179 (re
Libby).
*Id. (re Audley McKenzie).
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged violation of Section 8(a) (2)
Apparently as the result of Phillips' suggestion that morning, 8 or 10 striking
employees met with Smith on the afternoon of March 22, at which time the employees
presented various grievances. The first allegation of violation in this connection is
that the Company suggested the formation of the grievance committee. But as
brought out by the General Counsel, one of the employees, not the Company, sug-
gested formation of the committee . Any suggestion by Smith that the committee
be composed of four rather than three members, and a jocular statement (obviously
so) in connection with observance of. employees at work are minimal and are men-
tioned here to indicate that they have not been "overlooked." In the language of
the answer, no action was taken and no promises made, Smith explaining that he
did not proceed further because of the telegram from District 76. No more im-
pressive is the testimony of other unlawful assistance to the grievance committee.
We can charitably dismiss these general claims without further comment.
While withdrawing other allegations, the General Counsel might well have included
that of disparate treatment of District 76 and the grievance committee, concerning
which no proof was submitted and no argument made.
A separate allegation of unlawful support is that the Company permitted the
grievance committee to meet and discuss terms and conditions of employment when
it had knowledge of District 76's organizational efforts. It was made clear at the
hearing that this meeting is the same as the one referred to supra, in Smith's office.
We have seen that at this meeting the striking employees merely presented grievances;
discussion was limited, and no conclusions or agreements were reached. As for the
Company's knowldge of organizational activities, this does not prevent the submission
and even the consideration of grievances. All of this is aside from Smith's testi-
mony, with a plausible explanation , that he did not know that the Machinists were
involved in the strike at all: the signs which he had seen referred to Webber's dis-
charge, and he thought that the Steelworkers, who had appeared on the scene in 1959,
had again entered the picture.
In this connection it must' be remembered that not until after the meeting had
been arranged and in fact after it had begun did the Company receive District 76's
telegram claiming majority and requesting bargaining; that union had not been un-
lawfully ignored in the arrangement for the meeting. We must rely on Smith's
testimony concerning receipt of the telegram from District 76. Certainly we could
not fix a time of receipt on the basis of the testimony that the telegram had been
prepared that morning, without proof of when it had actually been sent out or
delivered.
If only because there was repeated reference to them at the hearing, mention
should be made of the signs which the pickets carried from the commencement of the
strike on the morning of March 20. At first these were merely "On Strike" and
"Unfair" signs. Later that day, Mellott, the district organizer for District 76, brought
from Buffalo signs which bore the name of District 76 or the International Associa-
tion of Machinists, AFL-CIO. Protesting the discharge of an employee, and what-
ever the strikers' grievances , the signs carried on March 20 and on the 22d also,
including those which bore the imprimatur of District 76, characterized the Company
as unfair . But those signs bore no claim of majority representation ; nor does it
appear that the employees were striking for recognition of District 76 or any other
labor organization. (Were a finding necessary as to when signs which mentioned
the Machinists first appeared, we could note the testimony of several of the General
Counsel's witnesses , including Mellott, that the signs carried were made by the em-
ployees themselves except for those which were brought out by Mellott later on
March 20. On the other hand it was claimed that two signs from District 76 were
early brought to the picket line by Webber.) Nor does the original charge herein,
received by the Company before the meeting of March 22, cast any light on the
matter before us. That charge merely alleged a discriminatory discharge; it did not
claim representation rights for District 76.
There is no basis for finding that the Company sponsored, supported, or otherwise
interfered with the administration of the grievance committee .5
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section II, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
5 Cf. Signal Oil and Gas Company, 131 NLRB 1427.
NEW LAXTON COAL COMPANY 927
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found 'that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by interrogating and threatening employees
in connection with union activity, interfered with, restrained, and coerced its em-
ployees in violation of Section 8(a),(l) of the Act. I shall therefore recommend
that the Company cease and desist therefrom and from any like or related conduct.
For the reasons stated in the subsection entitled "The alleged vioaltion of Sec-
tion 8(a) (2)," I shall recommend that the complaint be dismissed insofar as it alleges
violation of that section of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. District Lodge 76, International Association of Machanists, AFL-CIO, is a, labor
organization within the meaning of Section 2(5) of the Act.
2. By interrogating and threatening employees in connection with union activity,
thereby interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteeed in Section 7 of the Act, the Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the
Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Company has not engaged in unfair labor practices within the meaning
of Section 8 (a) (2) of the Act.
[Recommendations omitted from publication.]
New Laxton Coal Company I and United Mine Workers of
America (Ind.), Petitioner. Case No. 10-RC-4667. December 4,
1961
SECOND SUPPLEMENTAL DECISION, ORDER, AND
THIRD DIRECTION OF ELECTION
On February 28, 1961, the Board issued a Supplemental Decision,
Order and Direction of Election herein Z finding appropriate the
following bargaining. unit : "All employees at the Employer's Clinch-
more, Tennessee, coal mine, excluding office clerical employees, engi-
neering and technical employees, professional employees, guards, fore-
men, and all supervisors as defined in the Act."
Thereafter, on March 30, 1961, the Board issued an Order Amend-
ing Decision and Direction of Election, postponing the directed elec-
tion herein pending disposition of unfair labor practice charges which
had been filed. On August 7, 1961, the Board issued a Second Direc-
tion of Election, based on advice from the Regional Director that the
unfair practice case had been closed on compliance with a settlement
agreement. On August 18, 1961, C & P Coal Company, herein re-
'The Employer's name, formerly C & P Coal Company, appears as amended in accord-
ance with our decision herein.
2130 NLRB 910.
134 NLRB No. 92.