Colfax Industries

National Labor Relations Board - Board Decisions

Oct 4, 1961

133 N.L.R.B. 722 (N.L.R.B. 1961)

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization as a condition of employment , as authorized in Sec-
tion 8 ( a) (3) of the Act.
WE WILL bargain collectively , upon request, with the above -named Union, as
the exclusive representative of all our employees described below with respect
to rates of pay, hours of employment , and other conditions of employment, and,
if any understanding is reached , embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees at our Camden , New Jersey,
plant, exclusive of all office clerical employees , executives , and supervisors
as defined in the Act.
WE WILL make our employees listed below whole for any loss of pay suffered
as a result of the discrimination against-them.
Maximino Delgado Gomez Manuel Rodriguez
Juan Delgado Gomez Juan Rodriguez
Hilario Flores Juan Rodriguez Cardona
Pablo Flores Teodoro Martin Gonzalez
Rafael Cebollero Alejandro Valderrania Toledo
Eustaquio Delgado Gomez
All our employees are free to become , remain , or refrain from becoming or re-
maining members of Local 676 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , Independent , or any other labor organization,
except to the extent that such right may be affected by any agreement requiring
membership' in a labor organization as a condition of employment , as authorized
in Section 8(a) (3) of the Act.
- ART • METALCRAFT PLATING CO., INC.,
I 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.
Colfax Industries and International Ladies' Garment Workers
Union , AFL-CIO
Colfax Industries and International Ladies' Garment Workers
Union, AFL-CIO.' Cases -Nos. 22-CA-245 and 22-CA-311. Octo-
ber 4, 1961
SUPPLEMENTAL DECISION AND ORDER
On March 31; 1960, the Board issued its Decision and-Order-in this
case,' finding that the Respondent 2 h'ad'violated Section 3 (a) (1,), '(3),
(4), and (5)o'fthe National Labor Relations Act, by threats of closing
its plant and promises of economic benefits conditioned upon renun-
ciation of the Union, discriminatorily discontinuing its manufacturing
operations, discharging a presumed union leader, conditioning the
reemployment of strikers upon,the withdrawal of unfair labor prac-
tice charges, and by refusing to bargain with the Union which repre-
sented the majority of its employees in an appropriate unit.
1 126 NLRB 1396.
2 In view of a stipulation of the parties that the corporate name of the Respondent in
these cases was changed on May 8, 1961 , from Bonnie Lass Knitting Mills, Inc , to Colfax
Industries , the formal documents in these cases , including the Order , as modified herein,
are amended ,to reflect the new name of Respondent.
133 NLRB No. 80.
COLFAX INDUSTRIES 723
To remedy the unfair labor practices found, the Board, inter alia,
ordered Respondent, which claimed that its operations had undergone
a change, to bargain upon request with the Charging Union if and
when it resumes manufacturing operations, and to make whole the
employees discriminated against for any loss of pay suffered by reason
of the discrimination against them by payment to them of a sum of
money equal to the amount he or she would normally have earned as
wages from the date of the discrimination against them until each
secures substantially equivalent employment with other employers.
Thereafter, on April 14, 1960, the Respondent filed a motion for
reconsideration of the Decision and Order and requested oral argu-
ment on its motion.' On the.same day, the Union filed a motion to
amend the aforesaid order so as to require immediate bargaining by
Respondent, alleging as grounds for its motion that Respondent does
presently have in its employ at its Clifton, New Jersey, plant employ-
ees engaged in the performance of work within the contemplation of
the unit involved, and that its alleged change in operations still entails
a portion of its regular manufacturing operations, though on a reduced.
scale.
On May 27, 1960, the Board issued an order remanding the case to
the Regional Director for a further hearing to receive additional evi-
dence on the nature and scope of the operations presently conducted
at Respondent's plant in Clifton, New Jersey. The order also directed
that determination of Respondent's motion be deferred until the
further proceedings were concluded.
On September 2, 1960, after conclusion of the supplemental hearing
herein, but prior to issuance of the Supplemental Intermediate Report,
Respondent moved the Board to reopen the supplemental hearing
and to designate another Trial Examiner, alleging that the Trial
Examiner herein manifested an arbitrary disposition and bias toward
the Respondent and, more specifically, that he excluded evidence which
tended to show that Respondent was a jobber rather than a manufac-
turer and that specific and. significant changes in its operations had
been effected.4
On September 16,1960, the Trial Examiner issued his Supplemental
Intermediate Report, finding that Respondent's present operations
'Respondent ' s request for oral argument is hereby denied since the record , exceptions,
and briefs , in our opinion , adequately set forth the issues and the positions of the parties
Inasmuch as Respondent 's motion for reconsideration contains nothing not previously
considered by the Board , it is hereby denied
4 Upon a careful scrutiny of the entire record in this case , we find no merit in Re-
spondent 's allegations of bias and prejudice on the part of the Trial Examiner.
In the conduct of a hearing the question of, whether certain lines of inquiry or the
responses of witnesses should be curtailed rests in the sound discretion of the Trial
Examiner. We find no abuse of that discretion in this case since the exclusions of which
Respondent complains related either to matters which had previously been thoroughly
explored or to matters beyond the scope of this inquiry . or otherwise irrelevant. Cf
American Life and Accident Insurance Company of Kentucky , 123 NLRB 529 . In these
circumstances , Respondent 's motion to reopen the record is hereby denied.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still entail a substantial portion of its regular manufacturing opera-
tions as they were performed prior to the discriminatory shutdown;
that Respondent has in its employ workers engaged in work within
the contemplation of the collective-bargaining unit previously found
appropriate; and that the Respondent presently employs about 30
persons engaged in production, maintenance, shipping, and receiving
work. The Trial Examiner recommended that the Board grant the
Union's motion to amend the Board Order of March 31, 1960, as set
forth in the copy of the Supplemental Intermediate Report attached
hereto. Thereafter exceptions were filed by the Respondent and the
Union filed a brief.
The Board has reviewed the rulings of the Trial Examiner made at
the supplemental hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the Supplemental Intermediate Report, the exceptions, the brief, and
the entire supplemental record, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner. We shall
accordingly modify our original Order and Appendix A thereto.
ORDER
IT IS HEREBY ORDERED that the aforesaid Order and Appendix A be,
and they hereby are, amended as follows :
1. By striking paragraph 2(a) of the Order in its entirety and sub-
stituting therefor the following language :
(a) Upon request, bargain collectively with International Ladies'
Garment Workers' Union, AFL-CIO, as the exclusive representative
of all employees in the aforesaid appropriate unit, and, if an under-
standing is reached, embody such understanding in a signed agreement.
2. By striking the first paragraph of the notice in Appendix A in
its entirety and substituting therefor the following language :
WE WILL, upon request, 'bargain collectively with International
Ladies' Garment Workers Union, AFL-CIO, as the exclusive
representative of all our employees in the unit described below,
with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and, if an understanding is
reached, embody it in a signed agreement. The bargaining
unit is : -
All production, maintenance, and shipping and receiving
employees employed at our Clifton, New Jersey, plant, but
excluding office clerical employees, salesmen, guards, watch-
men, professional employees, foremen, and supervisors as de-
fined in the Act.
MEMBERS RODGERS and LEEDOM took no part in the consideration of
the above Supplemental Decision and Order.
COLFAX INDUSTRIES 725
SUPPLEMENTAL INTERMEDIATE REPORT
On March 31, 1960; the National Labor Relations Board issued its Decision and
Order in the above-entitled proceeding. On May 27, 1960, the Board issued an
order remanding the proceeding for further hearing, directing that the hearing be
reopened before C. W. Whittemore, the duly designated Trial Examiner-
for the purpose of receiving additional evidence on the nature and scope of the
operations presently conducted at Respondent's plant in Clifton, New Jersey,
and on whether its alleged change in operations still entails a portion of Re-
spondent's regular manufacturing operations as alleged in the ILGWU motion
to amend the aforesaid Order;
The Board's order further directed that, "unless the parties waive their rights thereto,"
the said Trial Examiner prepare and serve upon the parties a Supplemental Inter-
mediate Report containing findings of fact, conclusions of law, and recommendations.
Pursuant to the Board order the hearing was reopened, and was held in Newark,
New Jersey, on August 8 and 9, 1960. - The parties were represented by the same
counsel as at the original hearing, and were afforded full opportunity to present
evidence within the limitations of the Board order, and to file briefs. A brief has
been received from the Charging Union. No brief has been received from the
Respondent. - -
Upon the evidence thus adduced, from his observation of the witnesses, and be-
cause the parties did not waive their right to the issuance of a Supplemental Inter-
mediate Report, the Trial Examiner makes the following:.
FINDINGS OF FACT
The principal question for resolution here is whether the Respondent's "alleged
change in operations still entails a portion of Respondent's regular manufacturing
operations as alleged in the ILGWU motion," filed with the Board. In substance,
the ILGWU motion referred to claimed that: (1) the Respondent has in its employ
workers engaged in work within the "contemplation" of the collective-bargaining
unit found appropriate; 1 (2) the Respondent's present operations still entail a por-
tion of the regular manufacturing operations; and (3) the Respondent presently
employs between 30 and 40 persons engaged in production, maintenance, and ship-
ping and receiving work-categories covered by the bargaining unit found
appropriate.
Competent evidence adduced from and through President Atkind of the Respond-
ent shows that of some 11 different production, processing, and'shipping operations
performed before the strike of 1958, and which reasonably may be embraced within
the general term of "manufacturing," -8 of them are still being' performed. The
three operations not performed at the Clifton plant now-or at the time of the
reopened hearing-are knitting, looping, and seaming.
The following summary of the comparative number of employees in categories
now and before the strike is drawn from Atkind's testimony:
Classification Before the
strike-
Now-
Button sewers - --'----- 2 2-----------------------------------------------------
Labelers --------------------------------------------------=-----------
1 a
------- --Examiners and menders-------------------------------------------------- 2 4-
Folders and boxers----------------------------------------------------------
3 6
Pressers---------------------------------------------------------------------
2 3
Sorters----------------------------------------------------------------------
2 2
Miscellaneous---------------------------------------------------------------
2 2
Shippers---------------------------------------------------------------------
.2 5
Each of the above-named operations is now performed, as before the strike.
Documentary evidence establishes that while the total number of employees has
been reduced, the Respondent itself has consistently reported to the New Jersey
Division of Employment Security that the nature of its business has not changed
from a period before the strike up to the present time. In each of its quarterly
reports to this agency, since September 1958, it answered in the negative the question:
1 The appropriate unit found by the Board: All production, maintenance , and shipping
and receiving employees at the Clifton plant , excluding office clerical employees , salesmen,
guards, watchmen, professional employees, foremen , and supervisors as defined in the Act.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within the last three months : Have you changed from one kind of business
to another in New Jersey , or has your principal product or service changed in
New Jersey , or have you opened up any new locations in New Jersey?
That President Atkind himself considers the nature of his business to be that of
"production," or manufacturing, is further established by the fact that on his payroll
current at the time of the hearing he noted, as a code identifying categories into
which specific individuals fell:
A=non-prod B=prod O=officers
That at no time since before the strike has there been a complete cessation of
work at the plant, but that on the contrary there has been a gradual increase in the
number of employees , is established by the following compilation drawn from the
same quarterly reports referred to in the paragraph next but one above:
Number of covered workers employed during pay periods ending nearest the 15th
of each month
For quarter ended- 1st month 2d month 3d month
Sept. 30,1958------------------------------------------------- 104 78 34
Dec. 31, 1958-------------------------------------------------- 42 38 36
Mar. 31, 1959-------------------------------------------------- 11 14 21
June 30, 1959-------------------------------------------------- 20 25 30
Sept. 30,1959------------------------------------------------- 27 31 28
Dec. 31, 1959-------------------------------------------------- 35 39 37
Mar. 31,1960-------------------------------------- 41 42 41
June 30, 1960 -------------------------------------------------- 43 42 43
Finally , President Atkind conceded that there are no present job descriptions at
the plant which did not exist before the strike.
Conclusions
On the basis of the foregoing findings of fact the Trial Examiner concludes and
finds that the Respondent's present operations still entail a substantial portion of
its regular manufacturing operations as they were performed prior to the strike,
and, further, that: (1 ) the Respondent has in its employ workers engaged in work
within the contemplation of the collective -bargaining unit found appropriate and
(2) the Respondent presently employs about 30 persons engaged in production,
maintenance , and shipping and receiving work.
[Recommendations omitted from publication.]
Frank Sullivan and Company and Local Union No. 950 , Brother-
hood of Painters, AFL-CIO. Case No. 13-CA-3817. October 4,
1961
DECISION AND ORDER
On April 17, 1961, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter the Charging Party and the General Counsel filed excep-
tions and supporting briefs. The Respondent filed exceptions 1 and
a brief in support of the Intermediate Report.
1 The Respondent excepted to the receipt by the Trial Examiner of certain evidence as
"background." See footnote 9 of the Intermediate Report. As we have made no finding
based upon this evidence , we find , apart from other considerations , that this exception
lacks merit.
133 NLRB No. 77.