Chromalloy American Corp.

National Labor Relations Board - Board Decisions

Dec 3, 1969

179 N.L.R.B. 842 (N.L.R.B. 1969)

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ACR :Electronics of St . Louis, a Division of
Chromalloy American Corporation and Teamsters,
Local Union No. 688, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and
District No. 9, International Association of
Machinists and Aerospace Workers, AFL-CIO,
Party in Interest. Case 14-CA-4915
December 3, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 4, 1969, Trial Examiner Marion C.
Ladwig issued, his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the Party in Interest
filed exceptions to the Trial Examiner's Decision
and supporting briefs, and the General Counsel filed
cross-exceptions and a supporting brief.
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 made by the
Trial Examiner 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, the briefs, and
the entire record in this 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 hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, ACR Electronics of St.
Louis, A Division of Chromalloy American
Corporation, St. Louis, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This case was
tried at St. Louis, Missouri, on April 14-15, 1969,'
pursuant to a charge filed on November 26 by Teamsters
Local Union No. 688, herein called the Teamsters, against
the Respondent , ACR Electronics of St . Louis, a Division
of Chromalloy American Corporation , herein called the
Company, and pursuant to a complaint issued on January
17 and amended on March 28.2 The primary issues are (a)
the date the Company granted recognition to District 9,
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Machinists , and (b)
whether the Company 's recognition of, and negotiation of
a contract with , the Machinists constituted illegal support
of a minority union , in violation of Section 8(a)(2) and (1)
of the National Labor Relations Act, as amended
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Company,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE UNIONS
INVOLVED
The Company, ACR Electronics of St. Louis, is an
operating division of Chromalloy American Corporation,
a Missouri corporation which annually receives at its
Missouri plants goods and materials valued in excess of
$50,000 directly from outside the State. In its St. Louis
plant, the Company is engaged in the manufacture of
radio transceivers used in rescue operations, and related
products. The Company admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the
Teamsters and Machinists each is a labor organization
within the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Date of Recognition
1. Documentary evidence
On November 12, Company Attorney Robert B Vining
wrote Machinists Business Representative Fred
Speckmann, acknowledging his claim that the Machinists
represented a majority of the Company's production and
maintenance employees, and suggesting that St. Louis
University Professor John E. Dunsford conduct a card
check and certify the results On November 15, Attorney
Vining wrote Professor Dunsford a letter, notifying him of
his selection to make the card check. The letter (with
copies to Representatives Speckman and James M
Bagwell) concluded: "I shall appreciate your forwarding
to me certification of the results of this card check when
you have completed it " (Emphasis supplied.)
On Monday morning, November 18, Professor
Dunsford made the card check in Bagwell's presence, and
thereafter dictated a letter to the company attorney and
the Machinists representatives, stating his conclusion that
the union "is representative of a majority (29 of 46) of the
employees in the bargaining unit." The letter was typed
and mailed the next day, November 19.
On Monday afternoon, November 18, Teamsters
representatives went to the plant and passed out
'All dates are in the period from November 1968 to April 1969
'In the amended complaint, this case was consolidated with Case
14-CA-5024, in which a charge was filed on February 27 All references to
the latter case were stricken after the charging party failed to appear as a
witness
179 NLRB No. 146
ACR ELECTRONICS OF ST. LOUIS 843
organizational leaflets , with authorization cards attached,
to employees as they were leaving work. Several
Teamsters cards were signed in the plant before working
time the next morning . A management official of the
Company admitted at the trial that about noon on
November 19, he learned from some of the bargaining
unit employees that Teamsters leaflets had been handed
out. On November 20, the Teamsters wrote the Company
a letter, claiming a showing of interest and requesting
"that no other organization shall be recognized by the
Company until such time as an election can be held." The
letter was received 2 days later , on November 22. (The
evidence does not reveal whether the letter was received in
the morning mail pickup, between 8:15 and 8:45, before
the Company's November 22 recognition letter was
written, or whether it was received in the afternoon mail
pickup.)
On November 21, Machinists Representative Bagwell
mailed letters to the employees who had signed Machinists
cards, announcing that "We received . . . recognition on
November 20" (not November 18, the date of the card
check, but 2 days later , presumably when Bagwell received
Professor Dunsford's November 19 letter). The letter
lauded the Machinists, and opposed "a truck drivers'
union" coming into the picture and dividing the
employees.
On Friday, November 22, Company Attorney Vining
wrote Machinists Representative Speckmann a letter
which began:
I have received a letter from Professor Dunsford
dated November 19, 1968, certifying that District 9,
International Association of Machinists and Aerospace
Workers does represent a majority of the production
and maintenance employees at the above Company.
Therefore, in view of this finding and certification, the
Company does recognize District 9, IAMAW as the
bargaining agent for its employees in such unit.
[Emphasis supplied.]
Thus, on the face of the letter, the Company stated that in
view of the November 19 finding and certification, the
Company "does" (present tense) recognize the Machinists.
There was no reference in the letter to "confirming" a
purported earlier recognition on November 18 or 20.
2. Testimony of Attorney as Witness for Client
Before taking the stand as the Company's sole witness,
Attorney Vining (who represented the Company at the
trial) stated that "our position ... is that an agreement
was reached between the employer and the Machinists
Union, that recognition would be granted upon a card
check conducted by . . . Professor Dunsford, and that his
finding of a majority . . . would result in recognition and
that he did so find on November 18 [and] as a result of
that finding of his . . . recognition occurred on that date."
After taking the stand, Attorney Vining testified (upon
questioning by cocounsel):
A. . . . Mr. Speckmann called me on at least two
occasions and possibly three in which he asked for
recognition of the Machinists Union for the employees
at ACR in St. Louis.
Q. What was your response to these demands?
A. I informed Mr. Speckmann . . . that the company
would not recognize on simple telephone conversation
or simply because he wrote it but only upon a
certification of a neutral, of a card check ... meaning,
of course, if the neutral person . did find that a
majority of the employees in the unit were represented
by the Machinists Union as disclosed by the cards
submitted to him, then recognition occurs. [Emphasis
supplied.]
Speckmann was not called as a witness.
Attorney Vining further testified that on the morning of
Friday, November 22, after being out of town 2 days, he
received a telephone call from the Machinists. He talked,
in turn, to Representatives Bagwell and Kermit Burrows,
and possibly also to Representative Speckmann, and one
of them (he did not know which) "requested that I write a
letter confirming the fact that recognition had occurred."
(Emphasis supplied.) He then dictated the letter, between
about 9:15 and 9:45 that Friday morning. The letter was
mailed later that day.
3. Contentions and concluding findings
In the Company's brief, Attorney Vining contends that
"there was an agreement reached with the Machinists'
Union whereby recognition would occur upon a finding by
Professor Dunsford that a majority . . had signed
Machinists' authorization cards" and that "Professor
Dunsford made such a finding on November 18, and as a
result of this finding, recognition occurred on that date.
The letter of November 22, was simply a confirmation of
an already determined fact." (Emphasis supplied ) The
brief does not mention Bagwell's November 21 letter,
claiming recognition 2 days after the November 18 card
check Neither does the brief quote the attorney's
November 22 recognition letter, which stated that in view
of the November 19 finding and certification, the
Company "does" recognize the Machinists -- without
mentioning any "confirmation" of an earlier recognition
Deferring to Attorney Vining's status as a respected
member of the legal profession, serving in the role of
"officer of the court," I credit his testimony about making
an oral statement to Machinists Representative
Speckmann (one or more times) before the card check,
that the Company would recognize the Machinists "only
upon a certification of a neutral." However, Attorney
Vining's interpretation of the statement in his testimony
("meaning, of course, if the neutral person ... did find . .
. a majority . then recognition occurs") obviously was
not shared at the time by Machinists, which announced on
November 21 that it had received recognition on
November 20 (2 days after the card check). I likewise
credit Attorney Vining's testimony that on Friday
morning, November 22, Representative Bagwell or
Burrows or Speckmann requested him to "write a letter
confirming the fact that recognition had occurred."
(Representative Bagwell, who was in the courtroom at the
time Attorney Vining was testifying, had testified
concerning other matters when called earlier as a witness
for the General Counsel. He was not recalled to testify
whether he was the representative who made the request,
or to offer any explanation for the conflict between his
November 21 letter claiming recognition on November 20
and the position taken by Attorney Vining at the trial that
recognition had occurred on November 18 ) Nevertheless,
despite the request, Attorney Vining's November 22
recognition letter did not specifically "confirm" an earlier
recognition.
As ably argued in the General Counsel's brief, Attorney
Vining's November 12 and 15 letters (written before the
card check) both called for a certification of the results,
and his November 22 letter (written 4 days after the card
check, acknowledging receipt of Professor Dunsford's
November 19 certification) specifically stated that in view
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this finding "and certification," the Company does
recognize the Machinists. This documentary evidence, and
the Machinists' claim at the time that recognition
occurred 2 days after the November 18 card check, show
that the Company had no verbal or written agreement
with the Machinists to recognize it immediately upon the
completion of a favorable card check
Relying particularly on the wording of the Company's
recognition letter, I find contrary to the Company's
present position that recognition was extended to the
Machinists in that letter on November 22, and not on an
earlier date.
In the negotiations which ensued, the Company and the
Machinists reached an agreement on February 25 The
2-year contract, finally signed on March 25, was made
effective February I. The parties stipulated at the trial
that the unit recognized in the agreement (all production
and maintenance employees, excluding office clerical
employees, watchmen, guards, salesmen, professional
employees, and supervisors as defined in the Act) is an
appropriate bargaining unit. The parties further stipulated
that there were 57 employees in the recognized bargaining
unit on November 22 (and that there were 53 in the unit
on November 18, and 57 on November 20).
B. Alleged Illegal Support
I Loss of majority
On November 18, the Machinists represented a
majority of 35 (Allen, Ballard , Barks, Barnett , Beard,
Beem , Bell, Blackburn , Boehner , Bohanan , Borders,
Brewner , Cannon, Cloninger, Cotton , Coulson, Dixon,
Eads, Green , Haynes, Hill, Holtshouser , Johnson, Jones,
Lloyd, Penny, Preslar , Sitzes, Slimak , Taylor, Turpen,
Tustanowski , Vaughn , Washington, and Welsh ) of the 53
employees in the recognized bargaining unit.
Before November 22, when the Company extended
recognition , 16 employees (Beard , Beem, Blackburn,
Cannon , Cotton , Coulson, Dixon , Eads, Green , Johnson,
Sitzes, Slimak , Turpen , Tustanowski, Vaughn, and
Washington ) among the 35 who had signed Machinists
cards , had also signed Teamsters cards. Under
well-established principles , Allied Supermarkets. Inc.,
169 NLRB No. 135 , the Machinists cards signed by
these 16 employees may not , after their duplication, be
counted toward the Machinists' representative status.
Thus, by November 22, the Machinists had lost its
majority status - representing a minority of 19 of the
57 employees then in the recognized bargaining unit.
(All except 2, Johnson and Washington , among the 16
employees who signed cards for both unions had signed
the Teamsters cards before November 20. Thus, even if
the Company had extended recognition on that date,
the Machinists would still have represented a minority
of 21 in the unit of 57 .) By November 20, a total of 20
employees (the above-named 16 , plus Dailey, Gary,
Randell, and Stamps) had signed Teamsters cards.
2. Contentions and concluding findings
If the Company had recognized the Machinists at the
time of the card check on November 18 -- before any
organizational activities began on behalf of the Teamsters
the voluntary recognition would have been valid.
The question is whether the granting of recognition 4
days later on November 22 --- when a rival union was
actively engaged in organizing the employees, and after
the Machinists had lost its majority status was still
valid
The Company contends that having agreed to submit
the Machinists' claim of majority to a card check, it was
required to honor the results and recognize the
Machinists, even if the union actually lost its majority in
the meantime. Citing Snow & Sons, 134 NLRB 709, enfd
308 F 2d 687 (C.A 9), it contends that it would have been
a clear violation of Section 8(a)(5) if it had refused to
bargain with the Machinists and insisted on an election.
The employer in Snow & Sons was found to have
entertained no reasonable doubt of the union's majority
status, and to have unlawfully refused to bargain, when it
withheld recognition after the union's majority status had
been established by a card check. But there, voluntary
recognition was refused on the same day as the card
check, when the union was in fact the majority
representative That case did not involve the granting or
denying of voluntary recognition during organizing drives
by rival unions, after the union seeking recognition on the
basis of a card check had lost its majority
It is clear that the grant of exclusive recognition to a
minority union violates the Act without regard to the
parties' good or bad faith International Ladies' Garment
Workers' Union, AFL-CIO (Bernhard-Altmann Texas
Corp.), 366 U.S 738. The Machinists was a minority
union on November 22 when recognition was granted I
therefore find that the Company's recognition of the
Machinists on that date constituted illegal support to a
minority union, in violation of Section 8(a)(2), and
interferred with the organizational rights of its employees
in violation of Section 8(a)(I) of the Act.
As held by the Board in the above-cited Allied
Supermarkets case, 169 NLRB No. 135 at p 2, its
holding in Keller Plastics Eastern, Inc , 157 NLRB 583,
"that a validly recognized union is entitled to continuing
representative status for a reasonable period of time
during which it may negotiate a contract notwithstanding
the fact that it may have lost majority status during this
interim period was, of course, based upon a valid
recognition in the first place." There having been no valid
recognition of the Machinists, I agree with the General
Counsel that the Company's subsequent bargaining with
the Machinists and entering into a collective-bargaining
agreement with it further violated Section 8(a)(2) and (1)
of the Act. In view of these findings , it is unnecessary to
rule on whether there was a "question concerning
representation" when recognition and bargaining occurred.
CONCLUSIONS OF LAW
By recognizing the Machinists at a time when it was a
minority union and by thereafter negotiating a collective
bargaining agreement with it, the Company engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(2) and (1) and Section 2(6) and
(7) of the Act
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , I shall recommend that it
be ordered to cease and desist from such conduct and
from any like or related invasion of its employees ' Section
7 rights, and to take certain affirmative action , which I
find necessary to remedy and to remove the effect of the
unfair labor practices and to effectuate the policies of the
Act
ACR ELECTRONICS OF ST. LOUIS
In order to dissipate the effect of Respondent's illegal
support of the Machinists, I shall recommend that the
Respondent be ordered to withdraw and withhold
recognition from that union and to cease giving effect to
its collective-bargaining agreement with the union, and to
any renewal or extension of the agreement, until such time
as the Machinists shall have been certified by the Board
as the exclusive representative of the employees. Nothing
herein shall, however, be construed to require the
Respondent to vary or abandon any existing terms or
conditions of employment.
Accordingly, on the basis of the foregoing findings and
conclusions, and on the entire record, I recommend
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Respondent, ACR Electronics of St Louis, a Division
of Chromalloy American Corporation, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Assisting or contributing support to District 9,
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other union, by recognizing
or entering into a collective-bargaining agreement with
such union as the exclusive bargaining representative of its
production and maintenance employees at a time when the
union has not been designated by a majority of the
employees as their exclusive bargaining representative.
(b) Giving effect to its February I, 1969, agreement
with the Machinists Union or to any renewal, extension,
modification, or supplement thereof, unless and until the
union has been duly certified by the National Labor
Relations Board as the exclusive representative of the
employees.
(c) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the
Machinists Union as the exclusive bargaining
representative of its production and maintenance
employees unless and until the union has been duly
certified by the National Labor Relations Board as the
exclusive representative of the employees.
'In the event that this Recommended Order is adopted by the Board, the
words "This Notice is Posted by Order" shall be substituted for the words
"Pursuant to 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, there shall be added after the words "An
Agency of the United States Government " the words "as Enforced by the
United States Court of Appeals "
845
(b) Post at its St Louis, Missouri, plant copies of the
attached notice marked "Appendix "} Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.'
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 11, in writing , within 10 days from the date of this Order, what
steps the 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 an
Agency of the United States Government
WE WILL NOT unlawfully assist the Machinists
Union, or any other union, by recognizing and
negotiating an agreement with it, at a time when it does
not represent a majority of our employees
WE WILL NOT give effect to our February I, 1969,
agreement with the Machinists Union, or to any other
agreement with it, unless it wins an election and is
certified by the NLRB.
WE WILL NOT in any related manner interfere with
our employees' organizational rights.
ACR ELECTRONICS OF
ST. LOUIS, A DIVISION OF
CHROMALLOY AMERICAN
CORPORATION
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.
Any questions concerning this Notice may be directed
to the Board's Regional Office, 1040 Boatmen's Bank
Building, 314 North Broadway, St. Louis, Missouri,
63102, Telephone 314-622-4165