Colecraft Mfg. Co.

National Labor Relations Board - Board Decisions

Apr 19, 1968

170 N.L.R.B. 1680 (N.L.R.B. 1968)

1680' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Colecraft Mfg. Co ., and Textile Workers Union
of America , AFL-CIO. Case 3-CA-2792
April 19, 1968
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On January 9, 1967, the National Labor Rela-
tions Board issued its Decision and Order in the
above-entitled proceeding,' adopting the Trial Ex-
aminer's Decision where it was held that Respon-
dent at various times in 1965 had engaged in and
was engaging in the following unfair labor prac-
tices:
1. Respondent interfered with, restrained, and
coerced employees in violation of Section 8(a)(1)
of the Act by a number of statements and actions:
(a) On September 1 and about a week later,
Ronald Stepnick, a foreman, threatened employees
with a loss of benefits should Colecraft be or-
ganized.
(b) Early in September, Wallace L. Kowalewski,
a top official of Respondent,2 interrogated em-
ployee George Wendling as to whether he intended
to call in a union organizer.
(c) At or about the same time in September,
Stepnick asked employee Robert Youngers if he
had communicated with anyone from the Union
and threatened a closedown of the plant should or-
ganizational efforts be successful.
(d) At or about the same date in September,
Cole, another leading official of Respondent, told
employee Arthur Makowski he would close the
plant rather than have the Union tell him how to
run it.
(e) About November 3, during a workbreak,
Stepnick, who heard employee Gerald Walter ask
employee David Fox where he could get a union
card, stated that "union" was a dirty word and told
them not to discuss unions around the shop.
(f) On November 4 or 5, employee Joe Wozniak
told another employee-with the intention of being
heard by Stepnick-that a union was "really
needed" at Colecraft. Stepnick thereupon said that
the plant would close down before a union would
be permitted.
162 NLRB 680
' Respondent is a family company managed by Wallace K Kowalewski
and three sons-Norman Cole, Richard, and Wallace L (Wally)
Kowalewski
' On the morning of November 5, when the Union made its demand for
recognition , it submitted 29 valid cards to Respondent
385F2d998(CA 2)
Pursuant to the provisions of Section 3(b) of the National Labor Rela-
(g) On November 5, Wozniak and another em-
ployee overheard a conversation betweenrStepnick
and Serwinowski, another foreman, wherein the
former remarked that the Union had a majority and
said with a threatening gesture, "You know what's
going to happen-to them." On the same day, Step-
nick ratified an employee's statement that em-
ployees involved with a union would be discharged.
(h) On November 8, Cole took or purported to
take pictures of picketing employees.
2. On and after November 5, by refusing to bar-
gain with the Union, which was the majority
representative of the 52 employees in the unit,'
Respondent violated Section 8(a)(5) of the Act.
3. Respondent's discharge of employee Donald
Ostrowski at the end of the working day on-
November 5, pursuant to an abrupt change in its
hitherto lenient policy with respect to tardiness and
absenteeism, was a direct result of the Union's
recognition request and was in violation of Section
8(a)(3) and (1) of the Act. The strike, which com-
menced on November 9, was caused solely by the
discharge and was therefore an unfair labor prac-
tice strike.
4. By its overall conduct, Respondent rendered
impossible the holding of a coercion-free election.
Following the issuance of the Board's decision,
the United States Court, of Appeals for-the Second
Circuit received Respondent's petition to set aside
and the Board's cross-petition to enforce the
Board's Order. The court on November 22 and
December 11, 1967, respectively, entered an
opinion' and decree setting aside the requirement
that Respondent bargain with the Union and en-
forcing the Order in all other respects. The court
remanded the case for the reasons given below.
The Boards has considered the issues raised by
the court's remand order ,andmakes the following
findings:
The court affirmed all of the 8( a)(1) findings
listed above except those in 1(f) and (g). The court
also agreed with the Board that the records fully
supported the Board's finding that Respondent's
change in policy respecting punishment for absen-
teeism and tardiness, and Ostrowski's discharge
pursuant to that change, were "designed to and had
the effect of discouraging membership in the union
in violation of [Section] 8(a)(1)."' The court
further agreed with the Board that the strike, which
I
tions Act , as amended , the Board has delegated its powers in connection
with this case to a three -member panel
' The court finds especially significant Cole's statement to union
representatives on the day of the discharge that he knew he could not fire
for union activity but could do so for absenteeism and tardiness.
' However , the court found there was insufficient evidence to warrant a
finding that the discharge of Ostrowski also violated Section 8(a)(3) of the
Act
170 NLRB No. 180
COLECRAFT MFG. CO.
was initiated because of Ostrowski 's discharge, was
an unfair labor practice strike and that the strikers
were therefore entitled to reinstatement.
Finally, the court held, contrary to the Board,
that the Union 's insistence on the inclusion of six
co-op students in the unit for which it claimed
recognition constituted a substantial variance from
the unit found appropriate by the Board and con-
sequently "mitigated " Respondent 's duty to bargain
with the Union.
Although the court set aside the Board 's 8(a)(5)
finding, it nevertheless declared that bargaining
remedies may be granted "when the employer's un-
fair labor practices have destroyed the atmosphere
necessary for a fair representation election."8 The
court therefore decided to remand the case so that
the Board might determine whether or not the
8(a)(1) violations sustained by the court "were suf-
ficiently serious to prevent holding a proper elec-
tion and justify - issuing a bargaining order." The
court in this connection cited its own Flomatic deci-
sion9 in which it suggested that bargaining orders
are appropriate in situations " involving such serious
violations as discriminatory discharges or clear
threats of retaliation."
In the instant case, there occurred both catego-
ries of Respondent 's conduct which were strongly
opposed to the organizing efforts of the employees.
Thus, there were clear threats of retaliation when
Respondent warned there would be a loss of
benefits and a closedown of the plant in punish-
" NLRB v Raver Togs , Inc., 382 F 2d 198 (C A 2).
' N L.R B v Flo,nat,c Corporation , 347 F,2d 74 (C.A 2)
1681
ment for successful organizational efforts. As noted
above, these threats were climaxed and their im-
pact on the employees heightened by an actual
reprisal, namely, the discharge of Ostrowski, which
as the court found, "was designed to and had the
effect of discouraging membership in the union in
violation of ... 8(a)(1)."
We find that the foregoing violations demon-
strate the intensity of Respondent's hostility toward
its employees' unionization and were sufficiently
serious to prevent holding a coercion-free election
and to justify a bargaining order. We shall therefore
order Respondent to bargain with the Union to
remedy its-violations of Section 8(a)(1) of the Act.
However, in view of the court's finding that there
was no past unlawful refusal to bargain, we shall
not require Respondent to cease and desist from
such conduct.
Accordingly, we affirm the Board's adoption of
the Trial Examiner's Recommended Order and
notice as modified in the Board's Decision and
Order of January 9, 1967, except for the deletion of
paragraph 1(a) of the Recommended -Order and
the relettering of the subsequent subsections of that
paragraph. -
ORDER
Upon the entire record , the National Labor Rela-
tions Board reaffirms its Order and notice of Janua-
ry 7, 1967, as modified above.
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