Die Supply Corp.

National Labor Relations Board - Board Decisions

Sep 27, 1966

160 N.L.R.B. 1326 (N.L.R.B. 1966)

1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of post-
ing, 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, 316
Federal Building, 110 South Fourth Stieet, Minneapolis, Minnesota 55401, Tele-
phone 334-2618.
Die Supply Corporation and United Steelworkers of America,
AFL-CIO. Case 1-CA-5031. September 27, 1966
DECISION AND ORDER
On June 6, 1966, Trial Examiner Leo F. Lightner issued his De-
cision 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 filed exceptions to the Trial
Exaniiner's Decision and a supporting brief, and the General Counsel
filed a 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 [Chairman McCulloch and Members Fanning and Jenkins].
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 Ex-
aminer's Decision, the exceptions, the briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner, as modified herein.
[The Board adopted the Trial Examiner 's Recommended Order
with the following modifications :
[1. Delete paragraph 1(b), and reletter those subject thereto
accordingly.
[2. Delete the second paragraph of the notice to all employees in its
entirety.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F Lightner in Providence,
Rhode Island, on November 17, 18, 19, and 30, 1965, on the complaint of General
Counsel, and the answer of Die Supply Corporation, herein called the Respondent.'
The complaint alleges violations of Sections 8(a)(5) and (1) and 2(6) and (7) of
the Labor Management Relations Act, 1947, as amended, 61 Stat 136, herein
called the Act. The parties waived oral argument and briefs filed by the General
1 The charge herein was filed on June 2, 1965 The complaint was issued on August 6,
1965.
160 NLRB No. 99.
DIE SUPPLY CORPORATION 1327
Counsel and Respondent have been carefully considered. During the hearing I
reserved rulings on several motions, including Respondent's motions to dismiss the
complaint. These motions are disposed of in accordance with findings and conclu-
sions herein set forth.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation, maintaining its principal office and place of
business at Cleveland, Ohio, and, at all times material, has been engaged at said
plant in the manufacture, sale, and distribution of die sets, drill jig bushings, special
die sets, and assorted machine shop jobbing and related products. At all times on
and after February 16, 1965, until and including May 19, 1965, Respondent main-
tained an office and place of. business at 1485 Elmwood Avenue, in the city of
Cranston, State of Rhode Island, herein referred to as the Cranston plant. At all times
on and after May 24, 1965, Respondent maintained an office and place of business
at 60 Centreville Road, city of Warwick, State of Rhode Island, herein referred to
as the Warwick plant.2 Respondent regularly purchases large quantities of raw mate-
rials, such as iron, steel, bearings, and machines used by it in the manufacture of
die sets, drill jig bushings, and special machine shop jobbing which is transported in
interstate commerce from and through various States of the United States other
than the State of Ohio, and sells and transports, in interstate commerce to States of
the United States other than the States of Ohio and Rhode Island, substantial quan-
tities of said products. During the 12 months preceding the issuance of the com-
plaint, on August 6, 1965, a representative period, Respondent shipped goods valued
in excess of $50,000 from its Cleveland, Cranston, and Warwick plants to points
outside of Ohio and Rhode Island, and purchased and received goods valued in
excess of $50,000 directly from points outside the States of Ohio and Rhode Island,
at its Cleveland, Cranston, and Warwick plants, during said period. The complaint
alleges, the answer admits, and I find that Respondent is engaged in commerce, and in
activities affecting commerce, within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of events
1. Issue
The principal issue raised by the complaint and answer and litigated at the hear-
ing is whether Respondent's failure and refusal to recognize and bargain collectively
with the Union, as the exclusive representative of its employees in an appropriate
unit, on and after May 24, 1965, constituted a violation of Section 8(a)(5) and
(1) of the Act. Respondent, by answer: denied the commission of any unfair labor
practice; denied that the Union, at all times since December 9, 1957, represented a
majority of the production and maintenance employees at the Cranston plant;
denied moving its plant from Cranston to Warwick, on or about May 19, 1965, a
distance of 4 miles, but acknowledged commencing a new operation in Warwick
on or about May 24, 1965, denied that a unit of production and maintenance
employees, as described in the complaint; is an appropriate unit; denied that the
Union was the representative of a majority of the employees in the unit described at
the Warwick plant; denied that on or about May 11 and 18, 1965, the Union
requested Respondent to bargain concerning the effects of the transfer of the
Cranston plant to the Warwick plant, on the employees and on the existing collective-
bargaining agreement; admitted that it failed and refused, on May 24, 1965, and
thereafter to bargain with the Union as the exclusive representative of all employ-
ees in the unit, but denied that Respondent transferred the Cranston plant to War-
wick; admitted that on or about May 24, 1965, Respondent advised the Union that
2 We are herein concerned only with the operation of the Cranston plant , and the subse-
quent operation of the Warwick plant.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it would not recognize the Union as the collective-bargaining agent for the produc-
tion and maintenance employees; denied that on the dates alleged, in May and June
1965, it bargained directly and individually with employees who were members of a
production and maintenance unit, conceining rates of pay and other conditions of
employment.
2. Supervisory personnel and agents
It is undisputed that: Lloyd Jones, vice president; James J. Lawrence, general
counsel and secretary-treasurer; Donald Gardner, general manager until June 30,
1965; Pat E. Stavalone, plant manager until July 31, 1965; and John Valatta, fore-
man until May 24, 1965; at all times material herein, were agents of the Respond-
ent and supervisors within the meaning of Section 2(11) of the Act.
3. Background
Except as noted, there is no dispute as to the background facts herein set forth.
Prior to February 16, 1965, at all times material herein, Standard Die Set Com-
pany, herein referred to as Standard, was a division of Harsco Corporation, herein
referred to as Harsco. Standard had its main office and plant at 1485 Elmwood
Avenue, Providence, Rhode Island, herein referred to as the Cranston plant.3 Stand-
ard's principal activity was the manufacturing and the assembly of die sets and
component parts, purchased from catalogues, and "special" die sets, described as
variations in the specifications of the catalogue die sets. In addition Standard manu-
factured drill jig bushings and accessories and engaged in an extensive amount of job
shop work, described as machine shop services, for as many as 100 other corporate
entities. Respondent was also engaged in the manufacture of die sets and drill jig
bushings and did special machine shop jobbing, at all times material herein. Respond-
ent had its principal manufacturing plant in Cleveland, Ohio?
On December 8, 1957, the Board, in Case 1-RC-5121, certified the Union as
collective-bargaining representative for the employees, located at Standard's Cranston
plant, in a production and maintenance unit, with appropriate exceptions. There-
after collective-bargaining agreements between Standard and the Union were entered
into, including an agreement which, by its terms, commenced April 6, 1962, and
terminated February 16, 1965.5 At the time of certification, there were approxi-
mately 110 employees in the unit, while the number appears to have been approxi-
mated 52, on Friday, February 12, 1965, when Harsco terminated its operation of
Standard.
On January 11, 1965, James J. Lawrence, Esquire, as nominee, entered into an
agreement to purchase the realty and personalty of Standard, with stated exclusions,
with consummation specified as 8 a.m., February 16, 1965. Among the "miscel-
laneous provisions" were the transfer of the trade name and unfilled customer orders
and an undertaking, by the seller, not to reenter competitive business for a stated
period in the States of Rhode Island 'and Pennsylvania, as well as the nonassump-
tion, by purchaser, of any collective-bargaining agreement of the seller.
Lawrence, who identified himself as having various capacities in connection with
the transaction, related that he acted on behalf of Leonard Kriser, as an individual,
in the purchase of the real estate, and for Leonard Kriser, as president of Industrial
Plants Corporation, herein referred to as IPC, in the purchase of the personalty, as
nominee and attorney for each .6 IPC, an Ohio corporation, was identified by Law-
rence as auctioneers who buy and liquidate the assets of plants.?
Lawrence, at all times material, was also attorney, secretary, director, and a
stockholder of Respondent. Lawrence asserted, in the latter part of January 1965,
3 Standard also had branches in Paoli, Pennsylvania, and Detroit, Michigan.
* It appears undisputed that on and since February 16, 1965, Respondent has had ware-
housing and distribution branches located at: Paoli, Pennsylvania; Detroit and Grand
Rapids, Michigan ; Chicago, Illinois, Dayton and Canton, Oluo ; In addition to the facility
in Rhode Island with which we are here concerned. Said facility being initially at Cran-
ston and later at Warwick.
5 Referred to in the record, and herein, as both the Harsco and the Standard agreement.
Article II contained union-security and checkoff provisions.
6 Lawrence described the personality as Including all machinery and equipment, inven-
tory, product line, patents, trademarks, and trade name.
7 However, as part of the transaction, IPC accepted an assignment of unfilled customer
orders, and assumed the responsibility of the assignor to fill said orders in a document
entitled "Assignment of Customers' Orders "
DIE SUPPLY CORPORATION 1329
as a result of his inquiry, he learned of Kriser's interest in selling the inventory,
product line, and certain machinery and equipment of Standard to Respondent and,
subsequently, of Respondent's interest in purchasing these assets, including unfilled
customers' orders .8
Subsequently, on February 16, 1965, all of these transactions were simultaneously
concluded.9
In the latter part of 1964, the Union advised Harsco of its desire to negotiate a
new collective-bargaining agreement. Thereafter, on January 12, 1965, Harsco
advised the Union that it had entered into an agreement to sell Standard to Law-
rence, effective February 16, 1965. The following day, January 13, 1965, a notice
reciting the sale and the fact that employment by Harsco would be terminated on
February 15, 1965, was posted on the Cranston plant bulletin board.
On January 18, 1965, Spitz, sub-district director of the Union, by letter, requested,
and subsequently obtained, a meeting with Lawrence.
B. The events of February 11, 1965, and the agreement
between Respondent and the Union
It is undisputed that Lawrence and Gardner 10 met with Spitz and John N.
Gould, a representative of the Union, in the Union's office, in Providence, Rhode
Island, on February 11, 1965. Subsequently a collective-bargaining agreement, effec-
tive commencing February 16, 1965, was executed. Some of the representations, or
assertions, which preceded the agreement are in dispute; however, the substantive
terms, other than the intent relative to termination are not in dispute.
Gould and Spitz credibly related that Lawrence identified himself as secretary of
Respondent, advised the union representatives that Respondent was assuming con-
trol of the Cranston operation," as of February 16, and that Gardner would con-
tinue to be in charge. Lawrence raised a question as to whether the Union, in fact,
represented the employees, asserting he was not antiunion, but did not wish to
prejudge the question of representation. Lawrence advised that the contemplated
operation would be a greatly reduced operation in terms of manpower, and that
he did not understand why the Union would be interested in representing so few
people.12 -
Gould acknowledged that Lawrence asserted that Respondent had its own prin-
cipal manufacturing source in Cleveland, that if they continued in business at the
present location or some other location in Rhode Island, it would be a very much
reduced operation with emphasis on assembly work, with some production work. It
is undisputed that the Union insisted on recognition, advising Lawrence that if
they could not reach agreement the Union would picket the plant. Thereupon the
conversation turned to .a consideration of the existing Harsco agreement, possible
modification, and its application to the contemplated operations.
Spitz credibly related that Lawrence asserted that he was uncertain as to a num-
ber of factors, that the new operation would in the main be -assembly work, but
would also encompass some' production work, including the completion of some of
the orders which they had inherited from Harsco. Lawrence expressed concern
about obtaining qualified people for this work and requested the Union's coopera-
tion in prevailing on the employees with needed skills to be available and present
for work on February 16. Spitz indicated a desire to cooperate but also asserted the
Union's desire to have the collective-bargaining agreement, which had been in effect,
assumed by Lawrence and his associates.
8 Lawrence acknowledged that prior to February 16, 1965, while, Respondent had dis-
tributors in Reading and Philadelphia, Pennsylvania, it had no manufacturing, ware-
housing, or distribution facility in the New England and eastern seaboard area
0 Included was a lease agreement for the Cranston plant premises between Kriser and
Respondent, as set forth infra
10 Gardner was vice president and general manager of Standard, at Cranston, and later
branch manager for Respondent, first at Cranston then at Warwick, until June 30, 1965
11 There was no mention of IPC, Kriser, or the lease of plant premises
12 It is undisputed that the Harsco operation, at its conclusion, encompassed 52 P & bI
employees. The record reflects that Respondent, on February 16, commenced operations
with 14 of these employees, and subsequently, prior to April 1965, recalled an additional
7 employees.
257-551-67-vol. 160-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There followed an examination of some of the conditions of the Harsco agree-
ment which required modification and clarification. Spitz related Lawrence asserted
the Respondent could not undertake the existing pension arrangement, and the
Union agreed to its deletion, subject to satisfactory arrangements with Harsco, rela-
tive to accrued benefits. The fact that departmental seniority would be inappropriate
for a reduced operation was considered, and the Union agreed to the substitution
of a provision tor plantwide seniority. On the matter of vacations and existing
Blue Cross and Blue Shield coverage, the relative responsibilities of Harsco and
Respondent, in terms of accrued earnings , for employees to be retained and the
assumption of the existing conditions by the Respondent was discussed. Lawrence
expressed concern, according to Spitz, that some employees, if given the vacation
pay they had already earned, by Harsco, might not continue their employment, in
view of Lawrence's uncertainty as to whether the operation would continue for a
period of months, a year, or permanently, while Lawrence recognized the need for
the skills of these employees.
Spitz related that, during the conversation, he inquired of Lawrence as to the
intent of the Respondent relative to the nature of the operation. Lawrence advised
that it was their intent to do most of the manufacturing at other locations, that
while some manufacturing would be performed at the Cranston plant, he was uncer-
tain whether they would remain at that plant or seek another location, that if they
sought -a new location it would be somewhere in the State of Rhode Island, but he
had no knowledge in this regard at that time. Lawrence asserted that in view of the
transfer of production there would undoubtedly be a sale of some of the machinery,
while other machinery would be retained for production purposes, that they would
need employees to crate machinery, clean machinery, and clean up the portions of
the building and plant which were not going to be utilized.ls
The meeting terminated by Lawrence asserting he was reassured as a result of
the conversation, that he would take the matters under consideration and would be
in touch with the union representatives in a short time.
Gould substantially corroborated Spitz. In addition, Gould asserted that it was
agreed that, on the substitution of plantwide seniority, it was understood that the
Union would ascertain that the individuals selected would be competent to perform
the work available.
Gould related that Lawrence stated that the operation would be substantially
reduced, "if, indeed, it did continue," at Cranston, or at some other location. Gould
related there was no discussion with Lawrence relative to the period of time the
agreement was to cover. Gould credibly related that the Union advised Lawrence
that when Respondent's plans became clearer, the parties would sit down and modify
the agreement and reach a specific term agreement.
Spitz related that Lawrence was uncertain if Respondent would remain at Cran-
ston , but this was its initial plan ; if they moved it would be to another Rhode Island
location. Spitz thereupon advised Lawrence in the event of a move the Union would
insist on the transfer of the collective-bargaining agreement to the new location.
Spitz credibly related that Lawrence asserted, in such event , further amendments
might be required, to which Spitz agreed.14
13 However, it is undisputed the auctioneers obtained and used their own employees for,
work connected with the auction of IPC property.
11 Lawrence acknowledged that at the time he entered into the agreement to purchase, as
nominee, he was aware of the existence of the collective-bargaining agreement between
Harsco and the Union, which expired on February 16.
Lawrence acknowledged that he did not notify the Union that he had purchased the
personalty for IPC. It is patent that the Union, based on the statements of Lawrence,
assumed on February 11, 1965, that the purchaser was the Respondent. Lawrence acknowl-
edged that he advised Spitz that he was acting for Respondent and was its secretary.
Lawrence acknowledged advising Spitz that they would have a reduced operation and
asserted that he estimated a need for approximately eight employees He denied expressing
concern about the need for employees who could perform a multiplicity of fobs, asserting
this is the responsibility of the individual's running the Company.
Lawrence acknowledged having explored his legal position, with his labor attorney,
Bernard J. Echlin, prior to the February 11 meeting, asserting "primarily, I discussed with
him what my position was going to be with regard to recognizing the Union." Lawrence
acknowledged that it was his intent not to recognize the Union. Lawrence acknowledged
that in answer to his inquiry, Spitz advised that the Union desired recognition and the
DIE SUPPLY CORPORATION 1331
The lease agreement between Kriser and Respondent provided for a 3-month
occupancy, commencing February 16, 1965, and also provided for an extension on
a month-to-month basis , in the event Kriser had not leased the premises and
Respondent desired to continue to lease. Obviously , on February 11, no determina-
tion as to the location of Respondent's operations of its branch in Rhode Island could
be considered more than tentative . - Spitz asserted that no reference to any lease of
the Cranston plant was mentioned, on February 11. I credit Spitz.
In the late afternoon of February 11, 1965, Spitz received a telephone call from
Echlin, who identified himself as labor attorney for Lawrence. Spitz credibly related
that Echlin asserted that Lawrence had advised Echlin that Respondent would be
willing to assume the Harsco agreement with the suggested amendments. The conver-
sation then covered the matters which Spitz and Lawrence had discussed, set forth
supra, , among other things . Spitz asserted that Echlin then raised the question of
wages, since the Harsco agreement had an incentive system, and it appeared that
Respondent was not equipped to set incentive rates. Echlin suggested, and Spitz
agreed, to the substitution of an hourly rate based on average straight time hourly
earnings for the 3-month period preceding February 16.15
Spitz advised Echlin that the grievance committee of three, who were also the
officers of the local, were entitled to top seniority . Echlin expressed concern as to
whether they had the requisite skills, to which Spitz responded they did. Spitz advised
Echlin that Gardner and the local committee were working up a list of the jobs that
would be required by Respondent on February 16, and a list of employees capable of
performing the work.
continuation of the Harsco agreement. Lawrence ' s assertion that he advised the union
representatives that Respondent had purchased "a small portion of the machinery" is not
credited . Lawrence acknowledged that, when he advised Spitz that he would not recognize
the Union and operate under the Harsco contract , Spitz responded that Lawrence would
force the Union to either call a strike or picket the plant.
There is no substantial dispute in the testimony of Lawrence , relative to the subject
matter of the Harsco contract provisions which the parties discussed , on February 11, and
the contemplated modifications . Lawrence asserted , however , he advised Spitz that they
were going to complete the work in process , move the operation to a different plant, and
that they intended to close the Cranston operation in approximately 90 days, and that the
operation was a "closedown operation ," and the Union so understood . These assertions
are not credited . Lawrence asserted that Spitz stated that the Union was not interested if
Respondent moved to a new plant and a smaller operation , but Respondent would have
to recognize the Union as long as it operated at Cranston . I find this assertion implausible.
Similarly , I do not credit the assertion of Gardner to the same effect Neither do I credit
Gardner ' s recitation that Spitz responded that, as long as Respondent operated at Cran-
ston, the Union would have to be recognized , whereupon Lawrence responded , "Well, if we
are talking about the duration of or the stay at Cranston , maybe we can work something
out." Gardner also asserted that at the conclusion of the conference , he (Gardner) asked
Spitz to reaffirm that recognition applied only to the Cranston plant, to which Spitz
agreed. I find these assertions of Gardner implausible.
Gardner, at variance with Lawrence , related that Lawrence asserted , "since the plant
would be operating on a reduced scale, and on a closeout schedule , only a few employees
would be required , and that these men would have to handle a multiplicity of jobs."
Gardner also asserted that Lawrence pointed out that the incentive system was imprac-
tical , as employees would be moving from one job to another . I do not credit the latter
statement . Gardner was patently in error in asserting , "a verbal agreement was reached
between Mr. Spitz and Mr Lawrence on these points."
While Gardner asserted he was not told by Harsco that the plant was sold to IPC, but
to Lawrence, he related that, on January 20, when he met with the union committee, at
the plant , he was aware that the purchaser intended to continue operating the business
I have found , supra, that Lawrence asserted he did not contact Kriser and Respondent,
as it prelude to this decision , until late January.
15 The assertion of Lawrence that the incentive system was discussed during his con-
ference with Spitz , is not credited . At variance with this assertion is the testimony of
Echlin. Echlin related that , in his conversation with Spitz , he called attention to the fact
that employees would not be working in a particular department, or on a particular job,
but would be assigned to whatever work was available , and, as a consequence , the incentive
plan was not appropriate and could not be applied ; that Respondent, instead, would pay
the employees average hourly earnings . It is patent that Echlin was not reiterating, in
this instance , subject matter covered by the Lawrence meeting with Spitz.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Echlin raised the question of the existing expiration clause, of the Harsco agree-
ment, stating that he understood that it would be amended. Spitz related that, in
view of Lawrence 's indefinite plans for the operation , he suggested , and Echlin
agreed, that the language state that the contract would remain in full force and effect
as long as there are operations going on in Cranston , that when the Company
obtained another location, if they did, in view of the indefiniteness of both Lawrence
and Echlin relative to their future program, they would be able to work out a con-
tinuity of relationship . Spitz asserted that Echlin responded that if they moved, there
might, be further need for modifying the collective -bargaining agreement, to which
Spitz asserted that he indicated to Echlin that they could work that out, just as they
were working out the modifications of the Harsco agreement . Spitz asserted , he told
Echlin that in view of the many indefinite aspects of the operation , that he was
required to address himself to the situation that then prevailed , and he agreed.
While Spitz understood the Union was to prepare the draft agreement, it is
undisputed that the draft was prepared and forwarded by Echlin, accepted by the
Union as drafted , and subsequently executed . Spitz further explained , relative to
termination , that he suggested to Echlin that if Respondent completely terminated
all of its operations the agreement would terminate , that if the operations continued
at another location the termination clause could reflect this . is Spitz asserted that
Echlin responded that because of the indefiniteness of the plans of the Company
the termination clause should provide for the contract terms continuing while the
operations were at Cranston , in the event of other developments the termination
clause could provide for that also.17
10 In a covering letter , forwarding the.draft agreement , on February 12, 1965, Echlin
stated , in part. "Finally , while the Company does not anticipate operating for more than
a short time , it seemed to me that you would want some provision to cover the possibility
of the unforeseen happening Therefore , I have included a provision that should operations
continue beyond June 1, 1965 , either party may terminate the agreement This, of course,
would allow the parties to work out whatever other arrangements they may desire "
17 Echlin did not dispute most of Spitz' recitation of the substance of their conversation
of February 11, having been present while Spitz testified He acknowledged advising Spitz
that Lawrence had stated that he would hire whatever number of employees Respondent
needed from the existing operation on the basis of Harsco seniority , that senior Harsco
employees who had the ability to do the work available would he employed on a plantwide
seniority rather than departmental seniority basis Echlin asserted he advised Spitz that
top seniority for union representatives might create a problem and Spitz responded that
this was not a factor . To the contrary , Gardner , who, with Stavalone and Valatta, pre-
pared the list of employees to he employed by Respondent , acknowledged that supersenior-
ity, for three grievance committee members and stewards was followed . To the extent
Echlin's testimony infers that Spitz indicated a waiver of the superseniority provisions,
and a hiring solely on the basis of actual plant seniority , it is patent that those entitled
to superseniority were retained I do not credit Echlin
Echlin asserted that he stated to Spitz that Lawrence ' had informed him that the
agreement was to cover only the operations of Respondent at its present location, and
that Spitz affirmed this fact I credit this statement only in the context , as the record
reveals, that Respondent 's future plans were at that time indefinite and uncertain. I do
not credit it as implying , as Respondent would now assert , that the parties agreed to a
limitation of recognition to Cranston only, as a "closedown operation " I do not credit
Echlin ' s assertion that he advised Spitz that Lawrence had stated that the operation in
Cranston would run for approximately 90 days and would certainly terminate sometime
on or before the first of June , in any event , or Echlin ' s assertion that Spitz confirmed
that this was his understanding of the duration of the Cranston operation.
Echlin acknowledged that when he initially discussed the matter of recognition of the
Union with Lawrence , it was in terms of Respondent 's responsibility Echlin acknowledged
that he did not review the transaction between Harsco and IPC with Lawrence, that
Kriser ' s name was first heard by him during the present proceedings , and that Echlin
did not examine any of the agreements relative to the transfer of title Echlin asserted
his understanding to be that Respondent was acquiring some assets of Harsco , that they
were going to complete the processing of orders pending at Cranston , thereafter perform
manufacturing at Cleveland , and have some sort of a branch somewhere in the east, that
Harsco was terminating their employees , and that Respondent would hire some of these
employees to fill their needs . This consultation was after Lawrence received Spitz ' demand
for recognition , set forth supra. Echlin did not recall Lawrence stating that they might
obtain a new location in Rhode Island , but did indicate Respondent would 'establish a
plant somewhere in the east. Echlin asserted there was no discussion of the complete
DIE SUPPLY CORPORATION 1333'
Subsequently , effective February 16, 1965, the parties entered into a supplemental)
collective-bargaining agreement providing inter alia. the continuance of the Harsco
(Standard ) agreement , with specified modifications ; retention , or employment, of
the former Harsco employees with "the greatest plant seniority with Standard and
who are qualified to perform the work available"; layoffs and recalls to be on the
basis of plant seniority, with the employees being credited for such purposes with
their Standard plant seniority dates. Article II, covering union security and check-
off, was not modified.18
The termination clause provides in toto-
8. Article XVII shall have no application. This agreement shall remain in
effect from the date hereof until such time as the Company terminates its
operations at the above Cranston plant, provided, however, that should the
Company continue its operations beyond June 1, 1965, this Agreement shall be
subject to termination by either party upon 30 days' advance written notice to
the other party.
C. Selection of employees; Cranston plant operation, February 11 to
May 19, 1965; auction of April 22, 1965
1. Selection of employees
It is undisputed that as a result of the meeting on February 11, Gardner, gen-
eral manager, and the local plant committee of the Union 19 were instructed to
prepare a list of 14 employees to be retained, based on the seniority provisions of
the Standard agreement, with the substitution of plantwide, as distinguished from
departmental , seniority.
termination of Respondent's operations in the east Echlin related that Respondent was
going to have some type of operation in the east different from Harsco's, with feu er
employees.
Asked if, in his conversation of February 11 with Spitz, Echlin discussed the June 1,
1965, termination (late, which appears In the supplemental collective-bargaining agree-
ment , Echlin responded that what lie discussed was the Cranston plant operation was
going to last about 90 days. Echlin then asserted, "after discussing the matter with him
(Spitz), it occurred to me that if we put into the agreement that the agreement would
remain in effect until the Cranston plant's operations were terminated, this might repre-
sent something of a problem from the Union's standpoint, because they had nothing other
than the Company's word that the operations would be terminated then , and that they
might possibly look upon this as being something that could tie them down for an indefi-
nite period of time. On the other hand, if we were to put in a specific date like May 15
or May 20, something of that sort, and for some reason or other the operations con-
tinued on for a period of time, a short period of time thereafter, they would then be
without a contract for the final days of the operation , so what I tried to do-was to
come up with a provision that would be completely satisfactory to all concerned and
that would protect the parties should the unforeseen happen So, the June 1 date, as I
understood it from Mr Lawrence was the outside period that this would run ; but then,
I added that should-should the unforeseen happen, that either party could terminate the
agreement upon 30-days' advance notice" Echlin then explained that what lie had in
mind was the running out of the orders (for manuf.ictuiing) which were in process at
the time of the takeover These assertions stand in sharp contrast with Echlin's repre-
sentation in the covering letter, forwarding the proposed agreement, footnote 17, that
Respondent did not anticipate "operating more than a short time."
While Lawrence asserted that in his conversation with Spitz, on February 11, lie advised
Spitz that the Respondent had made arrangements to stay on the premises for 90 days,
Echlin acknowledged that lie (Echlin) knew nothing about Respondent's lease arrange-
ments, with Kriser.
18 While a number of the provisions in the seniority sections were specifically eliminated,
including the second and third paragraphs of section 7 10 which provided superseuiority
for departmental stewards, the first paragraph was not eliminated. The first paragraph
of section 7 10 provides "The three local union Grievance Committee menibc.s ,is desig-
nated by the local union shall during their term of office have top seniority in the plant
for layoff and recall purposes only."
19 The union committee was identified as Rosario Chiodo, president of Local 5666,
Andrew DePalmo, financial secretary, and Peter Camilloni, recording secretary The
named individuals constituted the membership of the grievance committee, and had top
seniority for layoff and recall purposes, under section 7 10 of the Standard agreement
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gardner acknowledged that on February 11, 1965, after the conference with
Spitz and Gould, a list of the employees to be employed by Respondent, based on
plantwide seniority, was prepared by him, with the assistance of Stavalone, plant
manager, and Valatta, foreman. The list was then submitted to the plant committee
for approval and posted the following day 20 It appears undisputed that 9 union
officers and stewards were on the list of the 14 so retained.21 At the same time a
list showing the relative plantwide seniority of the 51 employees of Harsco was pre-
pared. It is undisputed that of those laid off on Friday, February 12, 1965, seven were
recalled by Respondent during the period of the operation of the Cranston plant 22
Gould asserted that all of the employees of Respondent in the P & M unit were
members of the Union and Respondent checked off the union dues and transmitted
them to the Union, covering the period of the Cranston plant operation, February 16
to May 19, 1965. Chiodo corroborated these assertions of Gould.
2. The Cranston operation of Respondent
Gardner described the Cranston plant, under Harsco, as the main office of the
Standard Die Set Division. Standard, at Cranston, manufactured catalogue die sets
and components and special die sets. Special die sets are a modification of a speci-
fication of a catalogue die set. Standard also manufactured the component parts
and accessories, stocked these items in inventory, and assembled parts or sets as
needed. Standard also manufactured drill jig bushings, both catalogue and special,
and diemaker accessory items. Standard also did contract machine work, otherwise
called job shop work, consisting of surface grinding, milling, cylindrical grinding,
and some job heat-treat work, for possibly as many as 100 different firms. Stavalone,
who was initially employed by Harsco on June 20, 1950, and was plant manager at
all times material herein, corroborated these assertions of Gardner.
Gardner related the work at Cranston, on and after February 16, 1965, as being:
to finish the work in process, primarily on catalogue items and specials, and compo-
nent parts; continue with the assembly of catalogue and special items for shipment;
and begin a general cleanup and packaging program. Gardner acknowledging the
retention of 14 employees initially, asserted another 6 or 7 were recalled primarily
for cleanup work. Gardner acknowledged that in the production of some orders,
inferentially inherited from Harsco, some of the IPC equipment was used. This was
obviously prior to the auction on April 22. Gardner acknowledged there was an amal-
gamation and consolidation of job functions, when Respondent operated Cranston,
which did not exist while Harsco was operating Cranston. Gardner also acknowl-
edged that, during the Cranston operation, the manufacturing of catalogue items on
new orders was transferred to Cleveland. Gardner acknowledged that what was
transferred to Cleveland was inventory parts, raw and semifinished, not machinery.
It appears undisputed that new orders received while Respondent operated Cran-
ston for catalogue items were processed and manufactured at Cleveland, while new
orders on special items were produced at Cranston, however, Cranston did fill
catalogue orders on items they had on hand, in inventory.
Stavalone corroborated Gardner in asserting they did some manufacturing of cata-
logue items at Cranston, explaining these items were in process and had to be closed
out Stavalone related that the heat-treating operation was discontinued at the time
of the auction, in April 1965 Thereafter essential heat treating was subcontracted
to other firms. Stavalone acknowledged they continued manufacture of special die
20At the bottom of the list the following notation appears "Eligible employees were
selected on seniority basis per Article VII of Contract dated April 6, 1962 If any eligible
employee does not report to work as scheduled on February 16, 1965, the next man on the
seniority list will become eligible for temporary work."
it Union officers and stewards were identified as Chiodo, DePalmo, Camilloni, Afodelane,
Zannella, Zompa, Maccarone. White, and lannone Others retained, solely on plantwide
seniority, coupled with ability to do the essential work, and the classification of each,
were : Siconio, assembler ; Shannon, drill bushing; Campano, torch cutter ; Capurso,
Blanchard, and Pannarallo, lathe operator
22 They are identified as : Spooner, Pasquale, Aureccbia, Pagano, LaPlante, Dlanfredo,
and Saccoccia.
DIE SUPPLY CORPORATION 1335
sets and components , drill jig bushings , did assembly of die sets and components,
from inventory, and did some job shop work.23
3. Auction of April 22, 1965
It is undisputed that the machinery and equipment belonging to IPC was dis-
posed of at auction on April 22, 1965. It is also undisputed that Respondent, at that
time, purchased some of the machinery which had been retained by IPC.
D. The alleged refusal to bargain
On April 9, 1965, Respondent leased a premises , herein referred to as the War-
wick plant , situated some 4 miles from the Cranston plant. In May 1965 Respond-
ent moved its office , machinery , equipment , inventory , and supplies from Cranston
to Warwick, and hired employees from the complement employed at Cranston,
without notice to the Union , under circumstances set forth infra.
N
1. The appropriate unit-Union 's majority status
The complaint alleges, the answer denies , and I find the following employees of
the Respondent constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All production and maintenance employees of Respondent at its Warwick,
Rhode Island, plant, excluding draftsmen , factory payroll clerks, timestudy
employees , guards, professional employees , office clerical employees, and
supervisors as defined in the Act.
It is undisputed that Stavalone selected the employees who reported for work on
May 24, 1965, when the Warwick plant commenced operations , and on May 26
and 27, as a result of conversations he had with a number of these employees dur-
ing the latter part of their employment at Cranston , in May. Of 11 employees ini-
tially hired at Warwick, 8 were among the 21 inferentially employed when Cranston
was closed on May 19, when the union-security and checkoff provisions of the
Standard agreement were still in effect.24 Subsequently , on June 23 , Brelsford, and
thereafter Izzo, both of whom were on the Standard seniority list, neither of whom
was employed by Respondent at Cranston , were recalled . It is thus patent that a
majority of the employees hired, or transferred , to Warwick , 8 of 11 were having
dues checked off and were known by Respondent to be union members in May
1965, when they were approached by Stavalone relative to employment.
2. Events immediately preceding the opening of Warwick-the Union's demand
for recognition-Respondent 's refusal to recognize
Chiodo, local president, credibly related that, in the latter part of April or first
week in May 1965, he inquired of Stavalone why Respondent had retained two
former Standard employees at the Warwick plant, who had not been recalled by
23 Stavalone first estimated the manufacture of catalogue die sets and components as
comprising 75 percent of the volume of work at Cranston , by Respondent . He later
described this work as a "down hill process ," acknowledging it was being closed out He
then estimated the manufacture of special die sets and components as comprising 25
percent of the total workload at Cranston by Respondent When his attention was called
to the fact that this left 0 percent for the assembly of die sets and components, from
inventory, he acknowledged that 50 percent of the work was assembly of both specials and
catalogue items. Under the circumstances , I am unable to place any reliance on these
estimates. Stavalone acknowledged that as the time of the auction approached they did
not have the equipment , at Cranston , to produce new orders and would send them to
Cleveland, except where the essential parts were on hand and in inventory, for assembly.
Stavalone then asserted that they were in fact doing more work on special items than
they were on catalogue items
140f the 14 retained by Respondent , on February 16, 1965 , including 9 union officers
and stewards , 2 of the stewards were retained at Warwick , Zompa and White , and 4 of
the 5 retained on plant seniority, Siconio, Shannon, Capurso, and Pannarallo Of the seven
recalled after February 16, 1965, two were retained, Spooner and LaPlante The other
three did not work for Respondent at Cranston, but were formerly employed by Standard,
and appear on the seniority list. Igliozzi , Pennacchini , and Ponte.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent at Cranston . Stavalone responded that Respondent had not hired the
two employees in question . Chiodo related that during the operation of Cranston
he was consulted when Standard employees were recalled , in the order of seniority.
Gould credibly related that he was advised by Chiodo that Respondent had
obtained a new location , at Warwick, and was starting to move equipment. On
May 11 , 1965, the Union, by letter, advised Lawrence that the Union had been
informed that Respondent had obtained new quarters and was in the process of
moving. The Union requested a meeting and negotiations relative to the move. On
May 18, 1965 , the Union , by telegram , advised Lawrence that it had been advised
that all of the employees of Respondent had been notified of layoff on May 19, and
that there had been no reply to the letter of May 11. The Union also requested the
Company to negotiate , and asserted that , absent a response , it would be compelled
to file unfair labor practice charges. Subsequently , on May 24, Lawrence and
Gardner met with Gould at the union office.
Gould credibly related that , at the meeting , he explained to Lawrence that the
Union had received reports that employees were being offered work at the new
location, out of the order of senority , that there had been no discussions at all
with the Union concerning the effect of the move on the employees , and that it
was the concern of the Union to protect the rights of the members . Gould asserted
that Lawrence responded that he did not believe Respondent had any further obli-
gation to bargain with the Union , that , as he interpreted the agreement of Febru-
ary 16, it was only intended to cover the time the plant operated at Cranston, and
this period had expired . When Gould disagreed and asserted that the Union had a
collective -bargaining relationship with Respondent , and Respondent was obligated
to bargain , Lawrence responded it was the Union 's business to protect the rights of
its members , and that Lawrence would proceed on the basis of his best judgment.
Gould also asserted that Lawrence did not state that he doubted the Union 's major-
ity, or that any employee had advised him that they no longer wished to be repre-
sented by the Union . Gould denied receiving any notice from Respondent that they
were required to vacate the premises , that they were terminating the operation of
the Cranston plant, and that either party ever sent or received a 30-day termination
notice, as provided in the February 16 agreement 25
3. Selection of Warwick employees
Gardner related that Vice President Lloyd Jones, from Cleveland, about March 1,
selected the machinery which would be required by Respondent , on basis of oper-
ating a branch , manufacturing special die sets and drill jig bushings and com-
ponent parts , and doing assembly work 26 It was Jones who authorized Gardner and
Stavalone to obtain the essential employees to staff the Warwick plant . Asked if
the Warwick jobs were a continuation of the jobs performed at Cranston , Gardner
responded , "They were the same jobs . The same type operations had to be per-
25 Lawrence 's version of this conversation is not substantially at variance with the reci-
tation of Gould Lawrence asserted that he advised Gould that when they made the
agreement on February 11, referring to the meeting of February 11, the agreement was
that Respondent would recognize the Union so long as the operation was at Cranston,
and that it was not to extend recognition to a new plant Lawrence asserted that he had
advised Gould, on February 11, that he was not going to prejudge the Union representing
employees at the new plant , and that as far as he was concerned , that was the agreement
they made . Lawrence asserted that, on May 24, he advised Gould that he did not feel that
the Union represented the employees , but he acknowledged that lie did not express his
views,in terms of a doubt that the Union represented a majority . Lawrence also denied
knowledge as to whether Respondent was in fact checking off dues of the employees at
Cranston and remitting them to the Union Lawrence acknowledged that no employee had
advised him that they no longer wished to be represented by the Union . To the extent the
testimony of Lawrence is at variance with that of Gould , I credit Gould.
Gardner ' s version of the events of May 24 were that Lawrence told Gould that he
understood that Could felt the Union had a right and obligation to negotiate for a con-
tract for Respondent ' s plant at Warwick , but that Lawrence was not of a similar under-
standing from the meeting of February 11. There was a discussion of a possible picket line
and resultant legal action , as related by Gould and Lawrence . Gardner then acknowledged
that Gould did call attention to Respondent ' s failure, in hiring at Warwick , to follow the
seniority provisions of the agreement . To the extent Gardner ' s testimony is at variance
with that of Gould , relative to this meeting. I credit Could
26 It is undisputed that , at times, assembly required some machine work on parts at
both plants.
DIE SUPPLY CORPORATION 1337
formed, but less of them and more than one job being accomplished per man."
Gardner then asserted that a man had to have wider diversification and wider skills.
It is undisputed that the machines at Warwick were the same machines used by
Respondent at Cranston.
It was Stavalone , plant manager , who selected the complement of employees for
Warwick. Stavalone differentiated between the selection of employees , on Febru-
ary 11, 1965 , for the Cranston operation , where seniority was followed , and the
selection of employees for Warwick where, according to Stavalone , versatility,
described as the ability to do three or four jobs , was followed.27
Stavalone asserted that he only hired six employees for Warwick prior to May 24.28
Stavalone acknowledged advising some of the employees that he was unable to
promise they would get the same amount of money, and advising Shannon that he
would get 3 or 4 cents an hour less 29 Stavalone , on the one hand , asserted he
never inquired of any of the employees interviewed for employment at Warwick
if they wanted the Union to represent them , or discussed the Union . On the other
hand, Stavalone acknowledged that when he talked to the prospective employees,
relative to their being hired at Warwick , he did advise them there would no longer
be a union in the plant . He acknowledged this occurred during the interviews he
conducted in the plant at Cranston while it was still operating.
4. Comparison of the nature of the Cranston and Warwick operations
Basically Respondent contends that the Warwick plant was an entirely different
operation from the Cranston plant. General Counsel disputes this assertion. To the
extent Respondent relies on the operation of Cranston by Harsco , as distinguished
from Respondent , I find no merit in the contention , since as explicated infra we
are not here concerned with successorship . Rather comparison is that of Respond-
ent's operation after voluntary recognition . Accordingly , the following comparison
relates to the operation of Cranston by Respondent , and the later operation of
Warwick.
It is undisputed that at the outset of Respondent 's operation at Cranston, on
February 16, 1965, and for an obscure and undefined period thereafter , it under-
took the manufacture and assembly , from inventory , of pending customer orders
for catalogue ( standard ) die sets, drill jig bushings , and component parts, at the
same time it was in the process of transferring to Cleveland the manufacture of
all catalogue or standard items. I find it reasonable to infer that prior to the auc-
tion of the IPC machinery, previously used for some of this manufacture, a sub-
stantial portion of this type of manufacture was completed.
Stavalone asserted that special die sets , drill jig bushings , and component parts,
described as variations in specifications from standard catalogue items, were manu-
factured at both plants . The assembly work, in some instances requiring some
machining of inventory parts, was the same at both plants Heating treating alone
was not transferred , and was subcontracted at Warwick . Stavalone related that at
both plants they did job contract work, but asserted that it was on a smaller scale
at Warwick.30
in Stavalone admitted there was on-the -job training at Warwick-, and a lack of versatility
by some of the selectees . I find it unnecessary to set forth this evidence at length I do
not credit Stavalone 's asserted basis of selection
This is an accurate statement in the sense that only six commenced work on May 24,
however, Stavalone admitted that prior to the closing of Cranston , he talked to Shannon
and Capurso , and inferentially others, about working at Warwick , advising them that he
would get in touch with them when needed It was Stavalone who explained that the
current was not connected to the machines , and they could only proceed with assembly
work on May 24 , while others were recalled and commenced work on May 26 and 27.
It is inferred , from the statements of Stavalone , that he either was given or assumed
authority to inaugurate lower wage rates.
"As an illustration , Stavalone related that grinding , at Warwick, was limited to the
capacity of a 42 -inch grinder , while at Cranston , prior to the auction, they had an 84-inch
grinder The use of the 84-inch grinder was discontinued in the middle of March, so it
could be cleaned up for the auction , Stavalone stated It is thus reasonable to infer that
this operation , at Cranston , after mid -March , was the same as that performed at-Warwick
Stavalone was self -contradictory in asserting they did no milling at Warwick, that it
was subcontracted out, and later that they did some milling on multislide die sets. He
acknowledged that Respondent had a Van Norman milling machine at both plants
While Gardner asserted that , after May 19 , Respondent discouraged job shop work, he
acknowledged it was continued "for old cuktomers."
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stavalone and Gardner acknowledged that back orders, received at Cranston prior
to May 19, 1965, were filled at Warwick.
It is undisputed that the same Standard Die Set catalogue was used for the pur-
pose of obtaining sales at both plants, the same product was sold, and the same
name continued to be used on both plants, bills, invoices, and telephone listings.
Respondent continued to purchase accessories from the same suppliers. Gardner
and Stavalone continued as general manager and plant manager, respectively, until
they resigned.
William Fitzwater, who succeeded Gardner as branch manager on July 1, 1965,
acknowledged the same distributors were used at both Warwick and Cranston, the
same salesmen serviced these distributors. The same inventory of component parts
is maintained, based, in part, on prior orders from the same customers. No new
equipment has been purchased.
E. Contentions of the parties and concluding findings
The nature of the Harsco operation, and its collective-bargaining relationship
with the Union, was received as background, no question of "successorship," as
that term has been defined in numerous Board decisions, is presented for resolution.
General Counsel asserts that Respondent, 'having voluntarily recognized the
Union and executed a contract, shaped to and incorporating the contemplated
changes to a branch operation as Cranston, and later at Warwick, is obligated to
bargain during the life of that contract, about the effects, in terms of "wages, hours,
and other conditions of employment," of the termination of operations at one plant
and transfer of those operations to another plant, approximately 4 miles distant.
General Counsel urges respondent is required to recognize and bargain with the
Union at the new plant when: Respondent continues substantially the same opera-
tions and functions performed at the original plant; it selected its labor force from
the same personnel; is is utilizing the same machines; initially, the same supervisors
were used; using the same method to engage in manufacture, assembly, and modi-
fication of dies and bushings; with no technilogical modifications requiring any capi-
tal investment to begin the Warwick operation; and no break in the continuity of
operation. General Counsel further urges that the bargaining obligation, covering
the unit employees at the Cranston plant continued when the unit work was trans-
ferred to Warwick, since Respondent had no reasonable or privileged basis for
refusing to recognize the Union at Warwick.
General Counsel urges that the future operations of what had been a competitive
enterprise, under prior ownership, was indefinite and uncertain, as expressed by
Lawrence, on February 11, 1965, prior to the actual commencement of operations
on February 16. I have found credible the recitation of Spitz that Lawrence advised
him that most of the manufacturing would be done at Cleveland, while some manu-
facturing would be performed at Cranston (later identified as assumed customer
orders and specials), that Lawrence was indefinite as to whether Respondent would
remain at Cranston or seek another location, which, in any event, would be some-
where in Rhode Island. I have found implausible and incredible Respondent's evi-
dence that the Union agreed, on February 11, 1965, that the extension of recog-
nition and adoption of the preexisting collective-bargaining agreement, as -modified,
was intended to apply only to the Cranston operation, the duration of which was
vague, indefinite, and dependent on experience obtained under a drastically modi-
fied and reduced operation. The evidence is undisputed that Respondent did not
express an intent to terminate the so-called branch office, in the New England area,
it was establishing when it commenced operations on February 16.31
It appears undisputed that seniority and vacation entitlement of the employees
Respondent retained were computed on the length of service established under the
prior Harsco agreement, except as modified, to plantwide seniority, by the
collective-bargaining agreement between Respondent and the Union. Not deleted,
or modified, was the provision of section 7.10 relative to supersemority in the mat-
ter of layoffs and recalls for the members of the grievance committee, who are also
the three union officers. Thus, the thrust of Respondent's contention that Harsco
terminated all of its employees, prior to the commencement of Respondent's opera-
tions, and that the employees retained were in fact new hires, must fall. I have
31 It is undisputed , that Lawrence did not apprise the Union, February 11, of the limita-
tions of the lease of the Cranston plant, if in fact such lease existed, or had been
negotiated, on that date. Neither does it appear that Echlin had knowledge of the lease
limitations , at that time.
DIE SUPPLY CORPORATION 1339
found undisputed the continuation of the union-security and checkoff provisions of
the Harsco agreement during the period of Respondent's operation of the Cranston
plant.32
Respondent would urge that the branch operation never became fully operative
until the opening of Warwick. To the contrary, it is clear from the record that the
use of the IPC's machinery was discontinued in sufficient time to permit a cleaning
up of that machinery for the auction of April 22. In at least some instances this
discontinuance occurred as early as March 1965, according to Stavalone. While it is
true that Respondent purchased some of the machinery from IPC at the auction, it
is as reasonable to infer that the unfilled customer orders for catalogue items were
completed prior to the auction, as it is to infer the contrary, absent evidence, which
must have been in the possession of Respondent, yet appears only in generalized
statements, without supporting documentation. It is undisputed that the manufacture
of special orders, variations of catalogue items, for die sets and drill jig bushings,
and component parts, was not modified at Warwick from what it had been at Cran-
ston. The distributorships, customers, products sold, machinery used, work assign-
ments, and supervisory personnel were, insofar as this record reveals, identical from
an indefinite period prior to the auction at Cranston to what they were subsequently
at Warwick, except for the departure of Gardner, at the end of June, and of Stava-
lone, at the end of July 1965.
There appears to be no dispute that the Union, by letter and telegram in May,
and at a subsequent conference with Lawrence on May 24, made a request for bar-
gaining, in an appropriate unit, which Lawrence summarily rejected. The alleged
good-faith doubt of Respondent of the Union's majority status is considered infra.
Absent any credible evidence that there was a meeting of the minds preceding the
reduction of the agreement to writing, effective February 16, Respondent's conten-
tion that it was the intent of the parties to confine the collective-bargaining agreement
to a "closedown" of Respondent's operations at Cranston, and relocation elsewhere,
must be rejected.33 In so finding, I am not unaware of the ambiguous language
contained in paragraph 8 of the agreement of February 16, to the effect that the
collective-bargaining agreement would remain in effect until the Company terminated
its operations at Cranston, with the proviso that if the Respondent continued opera-
tions (location unspecified) beyond June 1, 1965, the agreement was subject to
termination upon proper notice, in writing, 30 days in advance of such termination.
It is undisputed that no such termination notice was ever given. It is also undisputed
that no such termination of operations ever took place
Respondent urges that the Union was afforded an opportunity to bargain relative
to the impact upon the employees, at Cranston, on the closing of that operation, on
February 11, when Lawrence expressed an intent to close Cranston and relocate
elsewhere in the area. I have found such an intent was not expressed with finality,
but was mentioned as a possibility. In effect, Respondent urges that the Union
waived its right to further bargaining once the Cranston operation ceased. This
would place complete control of the existence of the collective-bargaining relation-
ship in the hands of the Employer. Respondent urges the application of the doc-
trine enunciated by the Board in Montgomery Ward & Co., Incorporated,34 in which
the Board has stated that it would not permit parties to avoid valid commitments or
contractual obligation. I find this case inapposite.
39 Respondent, in its brief, does not dispute the fact that the list of retainees, prepared
by Gardner and Stavalone, and accepted by the local union representatives, gave consid-
eration to supeiseniority, and resulted in the retention of the members of the grievance
committee and departmental stewards, even though superseniority for stewards was
deleted from the agreement.
° Respondent asserts that the decision to purchase the Cranston plant and convert it to
a branch operation, was dictated by a desire to gain a branch distribution outlet in the
east, as distinguished from the manufacturing facility While Respondent's lease of the
Cranston plant was for a period of 90 days, with an option for extension, these facts were
not related to the Union Not only does the evidence preclude the finding of an intent, on
the part of Respondent, to close Cranston, on February 11, more importantly such intent
was not communicated to the Union and thus could not be found to be the basis of a
meeting of the minds. Whether Lawrence as evasive deliberately, or merely needed time
to more carefully evaluate Respondent's ability to effectively operate at Cranston, or
elsewhere, is of no consequence.
Respondent errs, in its brief, in asserting that the Cranston lease was dated Febru-
ary 11. The lease recites the date of February 16.
84 Montgomery Ward & Co , Incorporated, 137 NLRB 346, 349, and footnote 7
1340 DECISIONS Or, NATIONAL LABOR RELATIONS BOARD
Respondent asserts I "mistakenly conceived" that Respondent had urged that the
Union "had agreed" not to represent the Warwick employees. Conceding that such
an agreement "would affront the policy of the Act," (as enunciated by Congress),
Respondent, nevertheless, urges the undertaking entered into, placed a burden on
the Union of "demonstrating in some manner that it had become the freely chosen
exclusive representative of the Warwick employee complement." How the Union
lost such right, except purportedly as a result of the agreement is unexplained. The
scheme of the Act, particularly Section 7, is that this right is vested in the employ-
ees, not in the collective-bargaining representative. While it has been held that in
collective bargaining the Union may waive a particular condition or conditions of
employment, or representation of a classification of -employees not in the unit, in
in an effort to arrive at an agreement, I find it repugnant to the Act to hold that
the Union can waive the basic right to representation of the unit. I find no merit
in this contention.
Respondent urges that Lawrence established a totally different operation at Cran-
ston from that formerally operated by Harsco, and was under no duty to grant
recognition to the Union, and that such recognition was extracted under the threat
of a picket line. The fact is Lawrence did extend such recognition and did enter into
a collective-bargaining agreement. His initial obligation to do so is, thus moot.
Respondent urges that the Union never claimed to represent a majority of the War-
wick employees, but premised its claim upon the interim Cranston agreement.
Respondent urges that the Cranston interim agreement is irrelevant to the question
of representation of Warwick, and that the Union should be put to the usual task of
demonstrating in some manner that it had become freely chosen exclusive repre-
sentative of the Warwick employee complement.35 I do not agree.
In the Brooks case,36 the Supreme Court stated that when an employer contends
that it is presented with evidence that his employees have deserted their certified
union he may not engage in self-help or judicial intervention. The employees may
submit their own grievance to the Board, or an employer may petition the Board
for relief. Meanwhile the employer must continue to bargain in good faith until the
Board has given some indication that his claim has merit. The Court noted- The
underlying purpose of this statute is industrial peace; to allow employers to rely
on employee's rights in refusing to bargain with the formally designated union is
not conductive to that end, it is inimical to it.
In the instant case there is no showing of employee disenchantment.37 Rather, the
evidence is that Stavalone bypassed employees with higher seniority, thus placing
the employees selected in competition with more senior employees who were not
selected for employment upon the opening of Warwick. At the same time Stavalone
announced to the employees that there would be no union in the Warwick plant.
The bulk of the employees so selected, it is undisputed, were members of the Union
and were having dues checked off, in accordance with the existing agreement at the
time of their selection. Respondent would, under these circumstances, allege a good-
faith doubt of the Union's majority. I find no merit in such a contention 38
General Counsel urges the application of the doctrine enunciated by the Board in
the Chemrock case 39 in which a successor continued an identical operation and
entered into a collective-bargaining agreement with the Union representing P & M
unit, but declined to extend the same recognition to the collective-bargaining repre-
sentative of the drivers. The successor offered the drivers employment on the basis
of each being a free agent at a rate below that set by the contract. Upon declina-
35 Respondent urges, in support, the holding of the Board in Montpomerif Ward & Co ,
Incorporated, 137 NLRB 418, where the union sought to extend an existing agreement to
new terminals ; and Briggs Indiana Corporation, 63 NLRB 1270, involving Board policy,
where a union agrees not to represent certain categories of employees "during the term
of collective bargaining agreement " I find these cases inapposite
36 Brooks v. N.L R B , 348 US 96, 103.
3T Cf. Mitchell Standard Corporation, 140 NLRB 496, 499-500
33 Respondent's reliance on The Randall Company, Division of Textron, Inc', 133 NLRB
289, 295 ; and The Juvenile Manufacturing Company. Inc , 117 NLRB 1513, 1531, I find
misplaced In the one case there was evidence of employee dissatisfaction and in the
other the authorizations were found not to have been voluntarily executed
Similarly I find no merit in Respondent's reliance on the holding in Tennsco Corp , 141
NLRB 296, 297-298, where the Board found absence of proof of successorship, no demand
for recognition and no evidence that the union in fact represented a majority.
30 Chemrock Corporation, 151 NLRB 1074.
DIE SUPPLY CORPORATION 1341
tion, by the drivers, and advice by the drivers that the, successor should contact the,
union representative, the successor should contact the union representative, the
successor hired other drivers. The Board found the drivers were employees of the
successor; that the drivers were an integral part of the employing enterprise and the
only substantial change was the transfer of ownership; that the individuals possessed
a substantial interest in the continuation of their existing employee status; and the
failure of the successor to bargain with the Union upon request, and its unilateral
change in wage rates offered the drivers, and its dealing individually with the driv-
ers, in each instance constituted separate violations of Section 8(a)(5) of the Act.
Unlike Chemrock there was no change in ownership herein, nor was there any
change in anything except the location of Respondent's operation, and the termina-
tion of senior employees. It appears undisputed that when Respondent required the
employees selected at Warwick to fill in application forms as new employees, the
Union to avoid any claim of abandonment of proffered jobs advised the employees
to comply with the Employer's request. There is not a scintilla of evidence that any
of the employees expressed dissatisfaction with the Union, sought to revoke the dues
checkoff then in effect, or engaged in any other conduct on which Respondent could
rely on as an indication of disenchantment of the employees with the Union.
In the Randolph Rubber case 40 upon a claim of good-faith doubt of a union's
majority the Board found:
It is settled that, where there is a substantial continuity in the identity of the
employing enterprise, the purchasing employer is bound to recognize and bar-
gain with the incumbent union. In this case, Respondent took over the plant,
machinery, and the entire work force of the Rubber Corporation, and continued
the same type of business activity-the manufacture of canvas shoes. While
Respondent introduced improved machines and techniques, made changes in
the managerial staff, used its own trademark, and acquired new customers,
these factors did not appreciably alter the basic similarity of Respondent's
operation to that of the Rubber Corporation. Upon the entire record, we find
a continuity in the employing enterprise which obligated the Respondent as
successor to Rubber Corporation to bargain with the Union as the incumbent
representative of the employees when it assumed control of the plant on
November 8, 1963.41
General Counsel urges that in essence Respondent 's argument is that its duty to
bargain continued only until it unilaterally determined to "close down " Cranston
and thereupon all of its obligations ceased to exist or have any effect in law. Gen-
eral Counsel urges that Respondent buttresses its argument that this "limited" recog-
nition was the Union 's quid pro quo for Respondent 's affording them recognition,
and that in return the Union would not attempt to "carry over" its certification as
representative of the employees at a then undetermined location, to be obtained at
an undetermined time, which the Union implied it would not organize, nor for
which it would request recognition. General Counsel aptly characterizes such a con-
tention as implausible. General Counsel urges that the executed agreement covering
recognition, checkoff, union security, and termination, coupled with the Union's
demand required a meeting and discussion in an honest attempt to reach agreement
under the provisions of Section 8(d) of the Act.42
General Counsel urges that as early as March 1965, the Warwick plant was
leased, thereafter modifications were undertaken, equipment transferred, managerial
decisions made concerning reduction of wage rates, hiring from the existing work
force was without regard to seniority, and all of these determinations were without
notice or advice to the Union, culminating in Respondent's termination of all employ-
ees, except those it had selected, without prior notice, on May 19, 1965. General
Counsel asserts that: Respondent's unwillingness to talk to the Union with regard
40 Randolph Rubber Company, Inc., 152 NLRB 496.
•41 Unlike ,the Randolph Rubber case there is no showing herein as to employee con-
fusion as to Respondent's policy toward Spanish-speaking and more elderly employees,
dissatisfaction with the Union's last agreement with the predecessor corporation, or with
an increase in union dues , or Respondent's uncertainty as to the identity of the Union's
spokesman, all of which the Board rejected as not establishing the Union's loss of
majority status, or creating any doubt in Respondent's mind as to the Union's continuing
representative status, in that case.
42 Citing: Bethlehem Steel Company (Shipbuildinq Division), 136 NLRB 1500, 1502-03.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to which employees would be transferred to Warwick ; Respondents unilateral deci-
sion that wages at the new plant would be substantially below those paid at the old
plant; that all employees at the new plant would be treated as "new employees"; and
Respondent 's refusal to provide the Union with any specific information regarding
the criteria to be used to determine which employees would be transferred were
designed to undermine the Union and deprive it of prestige of the employees it
represented 43 I so find . General Counsel omitted the further fact that Stavalone
assumed the right to advise the employees that Warwick would not be a union shop.
General Counsel urges that such conduct has been condemned as unlawful where
an employer . resorts to deception , fraud , or subterfuge . In California Footwear
Company, 114 NLRB 765 at 767-769, the Board said:
Under the circumstances the fact that there was an economic reason for re-
moval of the plant ceases to be controlling . We can see no real difference between
the case of an employer who decides to move his plant to run away from his
union rather than for economic reasons, and an employer , who, as here, moves
his plant for economic reasons but decides to utilize the move as an oppor-
tunity to get rid of the union , resorting to deceit and subterfuges including the
setting up of a false front in an effort to conceal the fact that he remains the
employer while he pretends to the union and his employees that he has ceased
production and has nothing to do with employment at the new location. That
the union cannot muster a majority at the new plant because the conduct has
achieved its desired end is no more material in finding and remedying a viola-
tion of the existing obligation to recognize and bargain with the union in the
latter situation than in the former. We cannot agree . . . for an employer to
embark on a course of conduct specifically designed to dissipate the majority
status of a collective-bargaining representative , simply because the context in
which he engages in such conduct is a removal of his plant to a new location
for economic reasons.
Moreover, viewing this case in the most favorable light possible to the
Respondents , it is one where the Union 's loss of majority is solely because of
conduct which in part is lawful ( an economic decision to move the plant) but
in part is unlawful in the subterfuges adopted to utilize the move as an oppor-
tunity to rid the Employer of the Union . In such circumstances the well-
established principle is that the burden is upon the, respondents to disentangle
the consequence of, their lawful conduct from the consequences of their unlaw-
ful conduct ; and hence to establish that the union 's loss of majority resulted
from their lawful conduct; failing this, the union's loss of majority must be
deemed to flow 'from their unlawful conduct.
*
The interpretation which our dissenting colleague places upon the Brown
case would in effect establish an inflexible rule that the removal of a plant for
economic reasons, no matter what the circumstances surrounding the move,
terminates any preexisting obligation to bargain with the employees ' repre-
sentative , which obligation is not revived unless that representative establishes
a new majority - at the new location . We cannot agree that such a result is
either required by the Act or is necessary in order to effectuate its policies,
We believe , rather, that effectuation of the policies of the Act requires that
the Board , in this type of case as in any other , not permit an employer to
profit by his own unlawful conduct; each case of this type must therefore be
decided on the basis of its own facts , including both the character of the
employer's conduct and the probabilities resulting from the surrounding physi-
cal circumstances . In view of these considerations, therefore , and on the basis
of the facts in this case, we find that, in the absence of affirmative evidence
that a majority of the Los Angeles employees would not have transferred to
Venice if the Respondents had fulfilled their obligations under the Act, it is
not unreasonable to believe they would have done so. We further find, in
agreement with the Trial Examiner , that the Union 's loss of majority was
directly attributable to the Respondents ' unfair labor practices , and that by
refusing to recognize and bargain with the Union at Venice, the Respondents
violated Section 8(a)(5).
dY Citing . Insulating Fabricators , Inc, Southern Division , 144 NLRB 1325, 1332 ; Texas
Coca-Cola Bottling Company, 146 NLRB 420, 429.
DIE SUPPLY CORPORATION 1343
General Counsel does not challenge Respondent's assertion that the determina-
tion to move was an economic decision, rather what is questioned is the failure
to advise the collective-bargaining representative to accomplish its demise by inten-
tional withholding of indispensable information and vital details. General Counsel
urges that when Respondent decided to give meaning and thrust to that decision
and such effected until work, employees, and conditions, it became a mandatory
subject for bargaining with the Union in its most fundamental sense, and Respond-
ent's acts in accomplishing its Union-less fait accompli on the May 19, 1965, in
contravention of this duty, was grossly unlawful 44 I concur.
General Counsel correctly urges that Respondent's alleged good-faith doubt is
predicated on selection of employees with less seniority, and the assumption that
these employees are aware that a reinstitution of the Union and selection of employ-
ees with more seniority might result in their loss of employment. Respondent would
thus seek to establish a consequent disinterest in the Union on the part of the
employees so selected. There is not a scintilla of evidence, in this record, which
would support a finding that any of the employees, if given a free choice, were
desirous of revoking the Union's authority. Stavalone, who advised the employees
there would be no union at Warwick, is the sole source of alleged employee state-
ments of disenchantment. No employees were produced by Respondent to support
these assertion, which are not credited.
Respondent's assertion of an alleged good-faith doubt of_ the Union's majority
status at Warwick must be rejected. General Counsel correctly contends that
Respondent was checking off dues for the employees in the unit, at Cranston, in
May 1965, when some 11 of the 21 so employed were selected by Respondent, by
individual bargaining with each employee, as the nucleus and substantial majority
of the P & M employees employed immediately thereafter at Warwick. Respondent
offered no evidence to refute the presumption and reasonable inference of continued
union authorization to represent. I have so found, supra.
General Counsel correctly urges that since the Cranston contract was still "in
effect" at the time Respondent refused to apply it to the employees, and unilaterally'
changed the wages and working conditions of its employees, the Respondent thereby
unlawfully refused to bargain with the Union, within the meaning of Section 8(d)
and (a)(5). California Footwear Company, supra, 770; C & S Industries, Inc.,
158 NLRB 454.
Accordingly, for the reasons set forth, I find, on'the credible 'evidence in the rec
ord as a whole, that: by withholding from the Union the information that Respond-
ent intended to close down the Cranston plant, when that decision was made by
leasing the Warwick plant, on April 9, 1965 by failing to notify the Union of its
intention to move a distance of 4 miles, to a new location, at Warwick; by failing
and refusing to bargain with the Union, upon the Union' s requests of May 11 and
18, concerning the effects of the transfer of the Cranston plant to Warwick on the
employees and upon the collective-bargaining agreement between the Respondent
and the Union, then in full force and effect, which has never been terminated, as
therein provided, thus remains in full force and effect; by bargaining directly and
individually with employees who were in the unit described on and prior to May 19,,
1965;' by unilaterally establishing rates of pay; wages, hours of employment, and
other conditions of employment at Warwick; by selection of employees out of the
order of seniority, without consultation with the Union; and by the refusal of
Respondent, on May 24, 1965, to recognize and bargain with the Union; were, in
each instance, a refusal to bargain and violative of Section 8(a)(5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR. LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring-in connec=
tion with Respondent's operations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and commerce among the several
States, and such of them as have been found to constitute unfair labor practices
tend to lead to labor disputes obstructing commerce and the free flow Of commerce.'
44 Citing: Royal Plating and Polishing Co., Inc., 148 NLRB 545, 549 (TXD 555-556).
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having 'found that Respondent has engaged in and is engaging in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the Act.
General Counsel urges the restoration of the status quo ante, insofar as the
employees' jobs, earnings, and security are concerned. In so urging General Counsel
asserts the need for such relief to offset the effects of Respondent's illegal acts upon
the Union's bargaining position, which undermine the confidence of the employees
in the Union as their representative, including the fact that the existing working con-
ditions at Warwick are based upon Respondent's unlawful selections and unilateral
imposition of working conditions.
On the matter of remedy, the Supreme Court has said:
... Congress could not catalogue all the devises and stratagems for circum-
venting the policies of the Act. Nor could it define the whole gamut of reme-
dies to effectuate these policies in an infinite variety of specific situations. Con-
gress met these difficulties by leaving the adaptation of means to end the
empiric process and administration. The exercise of the process was committed
to the Board. . . .
The Act does not create rights for individuals which must be vindicated
according to a rigid scheme of remedies. It entrusts to an expert agency the
maintenance and promotion of industrial peace. Phelps-Dodge Corp. v. N.L R.B,
313 U.S. 177, 194.
A comparable factual situation appears in the California Footwear case, supra.
In that case the Board found that the preexisting contract continued in effect after
the removal of the plant from Los Angeles to Venice, that the change in the situs
of operations did not remove the contract as a bar when the operations and physi-
cal equipment remained substantially the same, and a substantial percentage of the
employees at the old plant have transferred to the new, and the failure of a sub-
stantial number of employees to transfer were attributable to respondent's unfair
labor practices.* The Board held that the effectuation of the policies of the Act
require that conditions at the respondent's plant be restored as nearly as possible to
those which would have existed in the absence of respondent's unfair labor prac-
tices, the contract must therefore be deemed to have remained "in effect" until it
could lawfully be terminated in accordance with the requirements of Section 8(d).
The Board 'found the contract was still "in effect" at the time the respondent's
refused to apply it to the Venice employees, and unilaterally changed the wages
and working conditions of their employees. The Board held such conduct constituted
an unlawful refusal to bargain with the union, within the meaning of Section 8(d)
and (a) (5). Even though the Board found the closing of the Los Angeles plant was
not discriminatorily motivated, it found the failure to continue the employment of
the chief steward of the union at the new plant was discriminatorily motivated and
ordered the relief customarily granted in cases involving discrimination.
In Royal Plating, supra, the Board held that backpay orders are an appropriate
means of remedying an 8(a)(5) violation of the type involved herein, even where
such violations are unaccompanied by a discriminatory shutdown of operations. The
Board stated that the imposition of a backpay award is remedial rather than puni-
tive; therefore, the Board is not precluded from ordering the Respondent to make
the employees whole for loss of pay occasioned by Respondent's unfair labor prac-
tices. The Board stated:
In fashioning remedies the Board must bear in mind that the remedy should
"be adapted to the situation that calls for redress," with a view toward "restor-
ing the situation as nearly as possible, to that which would have obtained but
for [the unfair labor practice]." 45
45 Citing : Phelps Dodge Corp. v. N L.R B., supra See also • Garwin Corporation, 153
NLRB 664; H. W. Edson Bottling Company, 155 NLRB 714, Town and Country Manufac-
turing Company, Inc., 136 NLRB 1022; Adams Dairy, Inc, 137 NLRB 815 ; and The
Renton News Record, 136 NLRB 1294.
DIE SUPPLY CORPORATION 1345
It will be recommended that Respondent , upon request, bargain collectively with
United Steelworkers of America, AFL-CIO, as the exclusive representative of all
the employees in the unit herein found to be appropriate for the purpose of collec-
tive bargaining , including , but not limited to, the effects of the transfer of the Cran-
ston plant to Warwick on the employees employed at Cranston.
It is further recommended that Respondent be ordered to offer reinstatement to
their former or substantially equivalent jobs, to Rosario Chiodo, Andrew DePalmo,
and Peter Camilloni, members of the grievance committee , in accordance with sec-
tion 7.10 of the agreement , and such other employees formerly employed at the
Cranston plant who are entitled to reinstatement on the basis of plantwide senior-
ity and other rights and privileges , and make them whole for any loss of pay they
have suffered by reason of the discrimination against them from May 19, 1965, to
the date of their reinstatement , less the respective net earnings of each during said
period, dismissing , if necessary, other employees, transferred from Cranston or
hired thereafter. Make whole any employee, in the unit , transferred from Cran-
ston, or thereafter employed at Warwick, who suffered a reduction in earnings by
reason of Respondent 's unilateral modification of wage rates , in the manner herein
provided. Said backpay shall be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289. Interest on back-
pay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
It is further recommended that Respondent be ordered to create a preferential
hiring list containing the names of all employees laid off by it, on May 19, 1965,
not entitled to reinstatement on the basis of plantwide seniority, as set forth in the
paragraph immediately preceding , notify the Union, and each listed employee, of
the establishment of such list and contents thereof, and offer the individuals whose
names appear on the aforesaid list full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other rights and privi-
leges at such time as they normally would be recalled.
It is also recommended that the Respondent be ordered to make available to the
Board, upon request , payroll and other records to facilitate checking of the amount
of earnings due.
It is further recommended that Respondent be ordered .to cease and desist from
in any like or related manner infringing rights guaranteed to its employees by Sec-
tion 7 of the Act.
Upon the foregoing findings of fact and upon the entire record in the case, 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) ad (7) of the Act.
2. United Steelworkers of America is a labor organization wtihin the meaning of
Section 2 (5) of the Act.
3. All production and maintenance employees at the Respondent 's Warwick,
Rhode Island, plant , excluding draftsmen , factory payroll clerks, timestudy employ-
ees, guards , professional employees, office clerical employees , and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times material herein , and particularly on and since May 11, 1965,
United Steelworkers of America has been the exclusive representative of all the
employees in the aforesaid unit for the purpose of collective bargaining with respect
to rates of pay, wages , hours of employment , and other terms and conditions of
employment.
5. By failing and refusing on and after May 11, 18, and 24, 1965, to bargain col-
lectively with the aforesaid labor organization , to the extent found in section D,
supra, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
257-551-67-vol. 160-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record of the case, I recommend that the Respondent , Die Supply Cor-
poration , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with United Steelworkers of
America, AFL-CIO, as the exclusive representative of its employees in the follow-
ing appropriate unit:
All production and maintenance employees at Respondent 's Warwick, Rhode
Island , plant, excluding draftsmen , factory payroll clerks, timestudy employees,
guards, professional employees , office clerical employees , and supervisors as
defined in the Act.
(b) Discouraging membership in United Steelworkers of America , AFL-CIO, or
any other labor organization of their employees , by laying off or in any other man-
ner discriminating in regard to their hire and tenure of employment or any term or
condition of employment.
(c) Unilaterally changing wage rates or seniority rules in. order to undermine the
Union's authority and the right of the employees to bargain through a collective-
bargaining agent.
(d) Unilaterally transferring or discontinuing unit work, or otherwise unilaterally
changing the wages , hours, or other terms and conditions of employment of unit
employees without prior consultation and bargaining with the above -named labor
organization concerning the effects of such a decision and, relative to the same sub-
ject matter , bargaining individually with employees.
(e) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise ofthe right to self-organization , to form labor organiza-
tions, to join or assist the above -named or any other labor organization , to bargain
collectively through representatives of their own 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 such
right might be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act .of 1959.
2. Take the following affirmative action which it is found will effectuate the pol-
icies of the Act:
(a) Upon request, recognize and bargain collectively with United Steelworkers
of America, AFL-CIO, as the exclusive representative of all the employees in the
aforesaid appropriate unit, including , but not limited to , the effects of the transfer
of the Cranston plant' to Warwick on the employees employed at Cranston, and,
if an understanding is reached , embody such understanding in a signed agreement.
(b) Offer reinstatement to their former or substantially equivalent jobs as they
existed on May 19, 1965, at the Cranston plant, to Rosario Chiodo , Andrew De-
Palmo , and Peter Camilloni, and such other employees formerly employed at the
Cranston plant who are entitled to reinstatement on the basis of plantwide senior-
ity, coupled with ability to do the work , without prejudice to their seniority or other
rights and privileges , and make them whole for any loss of pay they may have suf-
fered by reason of the discrimination against them from May 19, 1965, to the date
of their reinstatement , less the respective net earnings of each and make each of
them whole for any loss of pay as provided in "The Remedy" herein . Make whole
any employee , in the unit, transferred from Cranston , or thereafter employed at
Warwick, who suffered a reduction in earnings by reason of Respondent 's unilateral
modification of wage rates , and as provided in "The Remedy" herein.
(c) Create a preferential hiring list containing the names of all employees laid'off
by it on or after May 19, 1965, and not reinstated, pursuant to the terms of the
recommendations herein, notify the Union, and each listed employee, of the estab-
lishment of such list and contents thereof, and offer the individuals whose name
appear on the aforesaid list full reinstatement to their former or substantially equiv-
alent positions , without prejudice to their seniority or other rights and privileges
at such time as they normally would be recalled.
(d) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Service
Act, as amended , after discharge from the Armed Forces.
DIE SUPPLY CORPORATION 1347
(e) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amounts of backpay due and the rights of reinstatement of the employees.
(f) Post at its Warwick, Rhode Island, plant, copies of the attached notice
marked "Appendix " 46 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 1, after being signed by Respondent's representative, shall be posted
by the Respondent and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including each of Respondent's bulletin boards. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(g) Notify the Regional Director for Region 1, in writing, within 20 days from
the receipt of this Recommended Order, what steps it has taken to comply herewith.47
"In the event 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 Exam-
iner" 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 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, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, recognize, and bargain collectively with United Steel-
workers of America, AFL-CIO, as the exclusive representative of the employ-
ees in the bargaining unit described below with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment, includ-
ing, but not limited to, the effects of the transfer of the Cranston plant to War-
wick on the employees employed at Cranston, and, if an understanding is
reached, WE WILL embody such understanding in a signed contract. The bar-
gaining unit is:
All production and maintenance employees at the Warwick, Rhode Island,
plant, excluding draftsmen, factory payroll clerks, timestudy employees,
guards, professional employees, office clerical employees, and supervisors
as defined in the Act.
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of our employees, by laying off
or in any other manner discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT unilaterally change wage rates or seniority rules in order
undermine the Union's authority and the right of employees to bargain through
a collective-bargaining agent.
WE WILL NOT unilaterally transfer or discontinue unit work, or otherwise
unilaterally change wages, hours, or other terms and conditions of employment
of unit employees without prior consultation and bargaining with the above-
named labor organization concerning the effects of such a decision, or, relative
to the same subject matter, bargain individually with employees.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any and
all such activities, except to the extent that such right might be effected by an
agreement requiring membership in a labor organization as a condition of
employment as authorized by Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to Rosario Chiodo, Andrew DePalmo, and Peter Camilloni,
and such other employees formerly employed at the Cranston plant who are
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled to reinstatement on the basis of plantwide seniority, coupled with abil-
ity to do the work, immediate and full reinstatement to their former or sub-
stantially equivalent position of each, without prejudice to their seniority or
other rights and privileges and make each whole for any loss of salary or pay
suffered as a result of the discrimination against them.
WE WILL make whole any employee in the unit, transferred from Cranston,
or thereafter employed at Warwick, who suffered a reduction in earnings by
reason of our unilateral modification of wage rates.
WE WILL create a preferential hiring list containing the names of all employ-
ees laid off by us on or after May 19, 1965, and not reinstated, pursuant to the
terms of the Recommended Order herein, notify the Union, and each listed
employee, of the establishment of such list and contents thereof and offer the
individuals whose names appear on the aforesaid list full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges at such time as they normally would be recalled.
All our employees are tree to become, to remain, or to refrain from becoming
or remaining, members of a labor organization of their own choosing.
DIE SUPPLY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-Notify the above-named employees, and others referred to by classifica-
tion if presently serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective Service Act and
Universal Military Training and Service Act, as amended after discharge from the
Armed Forces.
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, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetss 02108,
Telephone 223-3353.
Trailmobile Division , Pullman Incorporated and United Auto-
mobile , Aerospace and Agricultural Implement Workers
( UAW), International Union , AFL-CIO. Case 16-CA-2263.
September 27, 1966
DECISION AND ORDER
On March 24, 1966, Trial Examiner Stanley N. Ohlbaum issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
160 NLRB No. 105.