Employers' Assn. of Bldg. Metal Fabricators, Etc.

National Labor Relations Board - Board Decisions

Oct 30, 1964

149 N.L.R.B. 382 (N.L.R.B. 1964)

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employers ' Association of Building Metal Fabricators , Rhode'
Island District ; Rumford Steel Products , Inc.; Tower Iron
Works, Inc.; John E . Cox Company, Inc.; and Providence
Steel & Iron Company and Shopmen 's Local Union No. 523,
International Association of Bridge , Structural and Orna-
mental Iron Workers, AFL-CIO. Case No. 1-CA-4246. Octo-
ber 30, 1964
DECISION AND ORDER
On March 10, 1964, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceeding finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices within the meaning of the Act, and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. Thereafter, both the General Coun-
sel and the Respondent filed exceptions to the Decision and briefs in
support thereof. The Respondents also filed a motion to dismiss the
complaint or in the alternative to remand the case for further hear-
ing. The General Counsel filed a motion in opposition thereto, and
Respondents filed an answer to the General Counsel's opposition mo-
tion.' . ,
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom 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 Examiner's Decision, the exceptions and briefs, the motions,
and the entire record in this case and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the
following modifications.
We agree with the Trial Examiner's finding that the Respond-
ent Association and Respondents Tower and Providence Steel vio-
lated Section 8(a) (1) and (5) of the Act by refusing to honor the
Union's request for information with respect to the seniority position,
classification, and rate of pay of bargaining unit employees. Also,
like the Trial Examiner, we find that Respondents Cox and Rumford
substantially complied with the Union's request for this information,
and therefore we shall dismiss those allegations of the complaint re-
lating to these individual Respondents.
1 Our findings with respect to these motions appear below.
149 NLRB No. 45.
EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC. 383
We also agree with the Trial Examiner that the Union satisfied
the notice requirements of Section 8(d )2 of the Act, and therefore
that the issuance of a bargaining order is appropriate. However, in
reaching this conclusion we rely solely upon the following evidence :
As more fully described in the Trial Examiner's Decision, the rec-
ord establishes that the Respondents have recognized the Union as
the contractual representative of their employees for more than 10
years. The most recent contract was effective from September 1,
1960, to August 31, 1963, with provision for a 1-year automatic re-
newal unless written notice of intention to terminate was given not
less than 60 or more than 90 days prior to the expiration date.
Pursuant to the terms of the contract, the Union, on June 27, 1963,
sent formal notice by certified mail to Respondent Association of its
intention to terminate the existing agreement, and by regular mail to
the other Respondents. For some unexplained reason, the certified-
mail notice was not actually received until July 8, some 11 days after
mailing. Less than 60 days thereafter, on September 3, 1963, the
Union called a strike at the Association members' plants which was
still in progress at the time of the hearing.
Respondents contend that they did not receive the Union's certified-
mail notice at least 60 days before the advent of the strike as required
by Section 8(d) and therefore under the terms of this provision, the
strike was illegal and all strikers lost their status as employees un-
less and until reemployed by their Employer.3 Consequently,' Re-
spondents argue, the Union cannot be presumed to be the majority
representative of the bargaining unit employees, and, absent such a
finding, a Section 8 (a) (5) allegation can not be sustained. - : ` -
We disagree. In our opinion - the" Union's notice must be found
timely under Section 8(d) in the special circumstances of this case.
s Section 8(d) of the Act provides in pertinent part as follows:
.. . Provided, That where there is in effect a collective-bargaining contract covering
employees in an industry affecting commerce, the duty to bargain collectively shall
also mean that no party to such contract shall terminate or modify such contract.
unless the party desiring such termination or modification-
(1) serves a written notice upon the other party to the contract of the pro-
posed termination or modification sixty days prior to the expiration date thereof,
or in the event such contract contains no expiration date, sixty days prior to the
time it is proposed to make such termination or modification :
s s r , s « s t
(4) continues in full force and effect, without resorting to strike or lockout, all
the terms and conditions of the existing contract for a period of sixty days after
such notice is given or until the expiration date of such contract. whichever
occurs later:
Any employee who engages in a strike within the sixty-day period specified in
this subsection shall lose his status as an employee of the employer engaged in the
particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as
amended, but such loss of status for such employees shall terminate if and when he
is reemployed by such employer.
3 See footnote 2, supra.
384 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The notice, sent by certified mail, return receipt requested, was ad-
dressed to "Mr. William McLeod, secretary, Building Metal Fabri-
cators, 27 Sims Avenue, Providence, Rhode Islalid." It is undis-
puted that this address was the only one ever given to the Union by
the Association, and that previous correspondence from the Union to
the Association was sent to this address. The Sims Avenue address
is also the address of Providence Steel, one of the Respondent Com-
panies, and McLeod, who is secretary of the Association, is also the
vice president of Providence Steel. At the hearing, however, it was
established that neither the Association nor Providence Steel received
mail at the foregoing address. Instead, under an arrangement with
the local post office, all mail addressed to 27 Sims Avenue was de-
livered to a post office box maintained by Providence Steel .4 _
According to the testimony of a post office official, under such cir-
cumstances mail would travel a circuitous route. A letter such as
the one in question, mailed at the local post office which services the
Sims Avenue address, would be directed to the main post office in
Providence for sorting. Because 27 Sims Avenue was a location
serviced by the local post office, the letter would be returned there for
delivery. However, because Providence Steel maintains its post of-
fice box at the annex station in downtown Providence, the letter
would be sent back to the main post office for routing to the annex
station. As the letter here in question was sent by certified mail, it
would not be placed in Providence Steel's post office box. Instead a
notice of receipt of certified mail would be placed in the box and if
the letter was not picked up within 5 days, a second notice would be
placed in the box.
As noted, the letter here in question was mailed on June 27, some
67 days before the commencement of the strike. It is also established
that Respondent Association picked up the letter on July 8, some 11
days after mailing. What caused such an unusual delay ,can not be
determined from the record before us. The post office maintains no
records which would establish when the letter was delivered to the
Annex station, when the notice of certified mail was placed in the
post office box, or whether more than one notice was required before
the letter was picked up.
The post office official testified without contradiction that under
normal conditions the letter would have been delivered to 27 Sims
Avenue the following day while a letter delivered to the post office
box maintained by Providence Steel would have been available for
pick up no more than 2 days after its mailing. This testimony
sAlthough McLeod denied that Providence Steel had made arrangements with the post
office to have the Association ' s mail delivered to Providence Steel ' s post office box, he did
admit that he regularly received Association mail in Providence Steel 's post office box, and
that this matter was never brought to the attention of the post office.
EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC. 385
clearly establishes that the letter had been nailed sufficiently before
the critical notice date (60 days before commencement of the strike)
to be received timely by Respondents.
In all of the circumstances of this case, we are satisfied that the
Union acted in good faith in mailing its notice to the only address
provided by the Respondents, with ample time for delivery, and that
it had the right to assume its notice would be timely received in the
due course of the mails. Had it been aware that Respondent Asso-
ciation's mail was circuitously delivered to a post office box, it might
very well have chosen to use another form of notices In any event,
we find that Respondents may not assert that the notice was not
served in timely fashion, when Respondent Association arranged for
it different method ' of delivery without notification to, the Union.
Accordingly, we find that the Union's notice to the Association was
timely with respect to the requirements of Section 8(d) (1) of the
Acts
117hile our finding disposes of Respondents' principal contention
that the Union's presumed majority status was destroyed because its
Section 8(d) (1) notice was untimely, there remain for our consid-
eration certain additional matters, which Respondents have raised in
a motion filed with the Board during the pendency of this proceed-
ing. In their motion, Respondents urged, the dismissal of the com-
plaint on the following grounds occurring after the close of the hear-
ing : (1) in a different proceeding, the General Counsel has ruled
that the Union 'no longer, represented a majority of the employees
employed by the Association members; and (2) the Respondent As-
sociation has been dissolved and therefore the multiemployer unit
found appropriate herein is no longer in existence.
Neither of the grounds raised in Respondent's motion would war-
rant dismissal of the complaint because these alleged grounds oc-
curred after Respondents' commission of the unfair labor practices.
However, these grounds do relate to the question of whether a bar-
gaining order may be proper and they will be considered in that
context.
As to Respondents' first contention, we find that even though the
Union may no longer represent a majority of-the employees in the
bargaining unit, it would not serve to effectuate the policies of the
Act to allow Respondents' unfair labor practices to go unremedied •in
this instance. With respect to Respondents'. second contention, the
c As noted , no post office records are kept as to when a certified letter is received by the
station in which the post office box is located. Nor is there a record of the date on which
the notice of certified mail is placed in the post office box, or whether additional notices
were required . Thus by the simple expedient of ignoring the notice of certified mail, the
date of receipt could be delayed.
6In view of our finding , we deem it unnecessary to pass upon the question of whether
the notice requirement 6f Section 8(d)(1) of the Act was satisfied by separate notice to
the individual Respondent Companies which comprised the Association.
7 7 0-0 76-6 5-v o f 14 9-2 6
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board regards it as a compliance question, and is now making no
final adjudication of the status of Respondent Association. Hence,
we regard the request for such a ruling to be premature. Accord-
ingly, we shall deny the motion at this time, but in so ruling, we
expressly reserve the right to modify our order in the light of cir-
cumstances not now clearly apparent.
Accordingly, we shall order Respondent Association and Respond-
ents Tower and Providence Steel 7 to furnish to the Union, upon re-
quest, information with respect to the seniority position, classifica-
tion, and rate of pay for their employees.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that Re-
spondent Employers' Association of Building Metal Fabricators,
Rhode Island District, Providence, Rhode Island; Respondent Tower
Iron Works, Inc., Seekonk, Massachusetts; and Respondent Provi-
dence Steel and Iron Company, Providence, Rhode Island, their of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from refusing to bargain collectively with
Shopmen's Local Union No. 523, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, as the ex-
clusive representative of the employees in the appropriate unit by
refusing to furnish the Union the seniority position, classification,
and rate of pay of each employee in the collective-bargaining unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, furnish to the Union the name of -each em
ployee in the bargaining unit together with his seniority position,
classification, and rate of pay.
(b) Post at their plants in Providence, Rhode Island, and, See-
konk, Massachusetts, copies of the attached notice marked "Appen-
dix." 8 Copies of said notice, to be furnished by the Regional Di-
rector for Region 1, shall, after being duly signed by the Respond-
ents' representatives, be posted by Respondents immediately upon
receipt thereof, and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places' where notices
to employees are customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
7 As we have dismissed the allegations of the complaint charging Respondents Cox and
Rumford with violations of the Act , we do not deem it appropriate to include them in
our Order.
8 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC . 387
(c) Notify the Regional Director for Region 1, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS HEREBY FURTHER ORDERED that the allegations of the complaint
charging Respondents Cox and Rumford with Section 8(a) (1) and
(5) violations of the Act be, and they hereby are, dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL, upon request, furnish to Shopmen's Local Union No.
523, International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO, the seniority position, classi-
fication, and rate of pay of each employee in the bargaining unit
herein. The bargaining unit is
All production and maintenance employees of Rumford
Steel Products, Inc., Providence, Rhode Island; Tower Iron
Works, Inc., Seekonk, Massachusetts; John E. Cox Com-
pany Inc., Fall River, Massachusetts; and Providence Steel
& Iron Company, Providence, Rhode Island, -excluding of-
fice or clerical employees, draftsmen, engineering employees,
watchmen, guards, janitors, supervisors, and employees en-
gaged in erection, installation, or construction work.
EMPLOYERS' ASSOCIATION OF BUILDING METAL
FABRICATORS, RHODE ISLAND DISTRICT,
Dated----------------
Employer.
By-------------------------------------
(Representative ) ( Title)
TOWER IRON WORKERS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
PROVIDENCE STEEL AND IRON COMPANY,
Employer.
Dated---------------- By----------------------------------?--
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional
Office, Boston Five Cents Savings' Bank Building, 24 School Street,
Boston, Massachusetts, Telephone No. 523-8100, if they have any
question concerning this notice or compliance with its provisions..
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on July 30, 1963, and on September 13, 1963, the Regional
Director for Region 5 of the National Labor Relations Board, herein called the
Board, issued a complaint on September 13, 1963, on behalf of the General
Counsel of the Board against Employers ' Association of Building Metal Fabrica-
tors, Rhode Island District ; Rumford Steel Products , Inc.; Tower Iron Works,
Inc.; John E. Cox Company , Inc.; and Providence Steel & Iron Company, the
Respondents herein , alleging violations of Section 8(a)(1) and ( 5) of the Na-
tional Labor Relations Act, as amended ( 61 Stat. 136), herein called the Act. In
their duly filed answer the Respondents denied the commission of any unfair labor
practices.
Pursuant to notice a hearing was held before Trial Examiners Eugene E.
Dixon in Providence , Rhode Island, on October 7, 1963.
On November 20, 1963, the General Counsel filed a motion to reopen the
record herein for the purpose of receiving in evidence documents pertaining to
the filing by Respondents of charges against the Union herein alleging a
violation of Section 8(b)(3) of the Act. On November 22 Respondents filed its
opposition to said motion . The motion is hereby denied.
On December 10, 1963, by letter to the parties I indicated that I needed
additional evidence upon which to reach a decision herein as to ( 1) the cause of
the strike which had started on September 3, 1963, and was still in progress on
October 7 , 1963, and (2 ) the reason for the 11-day lapse between the mailing by
the Union of its June 21 , 1963, notice to the Association of its intention to
terminate the collective-bargaining agreement and the Association's receipt there-
of. By telegram dated January 8 , 1964 , Respondents objected to the hearing
being reopened , but moved in the alternative "that if hearing is reopened it not
be limited in scope and any pertinent and relevant evidence on issues presented by
the complaint should be received and parties should be given full opportunity for
argument by briefs after the hearing, if any is held."
On January 20, 1964 ( a stipulation having failed to materialize ), I reopened the
hearing for the sole purpose indicated in my December 10 letter. At the re-
opened hearing the parties stipulated that the cause of the strike "is not in issue at
this time and, does not relate to the allegations now alleged in the instant
complaint" and no evidence was offered on that question . Thereafter , the admis-
sion of evidence was restricted to the two matters specifically referred to in my
letter of December 10 notwithstanding attempts by both parties to adduce evi-
dence as to other matters . In this connection , Respondents filed with the Board
an interlocutory appeal from my ruling which was denied by the Board "without
prejudice to the Respondents ' right to renew their position in any exceptions which
they may file to the Trial Examiner 's Decision."
Upon the entire record in the case and from my observation of the witness, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Employers' Association at all times material has been an unincor-
porated association consisting of Respondents Rumford, Tower, Cox, and Provi-
dence Steel. Rumford and Providence Steel are corporations duly organized
under and existing by virtue of the laws of the State of Rhode Island. Tower
and Cox are corporations duly organized under and existing by virtue of the laws
of the Commonwealth of Massachusetts. Respondent Employers' Association,
Rumford, and Providence Steel maintain their principal offices and places of
business in Providence, Rhode Island. Tower maintains its principal office, and
place of busines in Seekonk, Massachusetts, and Cox maintains its principal office
and place of business in Fall River, Massachusetts.
Respondents Rumford, Tower, Cox, and Providence Steel in the course and
conduct of their business cause and continuously have caused, at all times material
herein, large quantities of iron and steel used by them to be purchased and
transported in interstate commerce from and through various States of the United
EMPLOYERS ' ASSN. OF BLDG . METAL FABRICATORS , ETC. 389
States other than the States of Massachusetts and Rhode Island, and cause and
continually have caused, at all times material herein, substantial quantities of iron
and steel to be sold and transported from said plants in interstate commerce to
States of the United States other than the States of Massachusetts and Rhode
Island. Each of said Respondents received at their respective locations goods
valued in excess of • $50,000 annually directed from points located outside their
respective States and shipped from their respective locations goods valued in
excess of $50,000 annually directly to points outside their respective States. Re-
spondents Rumford, Tower, Cox, and Providence Steel are engaged in commerce
as defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Shopmen's Local Union No. 523, International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO is a labor organization as defined in
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
As indicated, the Respondents herein are four companies joined together in an
association (also a Respondent herein) called Building Metal Fabricators-Rhode
Island District, Providence, Rhode Island. For over 10 years the Union has had a
bargaining relationship with Respondents. The current or last contract with the
Association and the four Companies was in effect from September 1, 1960, to
August 31, 1963. The agreement provided for automatic renewal of 1 year unless
written notice of intention to terminate was given no less than 60 or more than 90
days prior to the stated expiration date. The bargaining unit covered by this
contract (as it had been in substance for the past 10 years) was all the production
and maintenance employees of the four Employers, excluding office or clerical
employees, draftsmen, engineering employees, watchmen, guards, janitors, super-
visors, and employees engaged in erection, installation, or construction work.' I
find this to be an appropriate unit for the purposes of collective bargaining within
the meaning of the Act.
On November 19, 1962, the Union wrote letters, to each of the four Companies
requesting the seniority position, classification, and rate of pay of each individual
employee member of the Union, stating that "this information is necessary so that
we may prepare our proposed collective-bargaining agreement with the Building
Metal Fabricators, of which you are a member." On November 26, 1962, Cox
replied in writing supplying the requested information. Having had no replies
from the other three as of March 1963, the Union again requested in writing of
the three the information it had previously sought. On March 21, 1963, Rumford
wrote the Union supplying "basically" the information which had been requested
Shortly thereafter, the Union's business agent, Robert Thomas, had several
telephone conversations with various representatives of Tower and Rumford about
the matter of the Union's request. The substance of Respondents' position as
revealed in these conversations was that they did not wish to give the information
because they felt it might cause trouble, among the employees. They indicated
they were willing to give the classification and the seniority position of the individ-
ual employees, but not their individual wage rates. They further indicated to
Thomas that he could look at the company records to ascertain the individual rates
but could not make a written record of the information. Thereafter, in early April,
both - Tower and Rumford wrote the Union giving lists of the employees but
referring the Union to the minimum rates for the classifications contained in the
contract On April 19, 1963, Thomas then wrote the secretary of the Association
(with copies to each of the four Companies), reiterating the Union's demand for
the information it was seeking.
By letter dated June 21, 1963, directed to William McLeod, the secretary' of the
Association, the Union notified the Respondents of its desire to terminate the old
contract and negotiate a new one. Union Business Agent Robert Thomas testified
that he mailed (by certified mail) the letter in question (with copies-by ordinary
mail to each of the four members of the Association) on June 27. This date of
mailing is verified by the certified mail post office receipt received in evidence.
'In the complaint the unit is described simply as all the production and maintenance
employees exclusive of all supervisors as defined in the Act While this is substantially
the same as is set forth in the contract , I would follow ' this more detailed description
,which is contained in the contract.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, another post office receipt received in evidence shows that the letter
was not delivered until July 8. Thomas further testified that at the same time he
mailed the notice to the Union, he also notified the Federal Conciliation and
Mediation Service of the Union's intent to terminate the contract.
As of July and August 1963, the Union represented a majority of the production
and maintenance employees in each of Respondents' establishments.2 Pursuant to
the Union's request , negotiations for a new contract began in August. Both sides
agreed that neither was waiving any rights it might have by entering into
negotiations.
In a complete contract proposal submitted by the Union to the Company in
August 1963, the following was proposed:
The rates of pay set forth in subsection A of this section are minimum straight
rates or hourly wage rates, and there is nothing contained herein that shall be
construed as prohibiting or requiring the Company to grant individual em-
ployees per length of service or other reasons, a wage increase which would
result in such employees' regular straight time or hourly wage rate being in
excess of the minimum rates that he or she receives. However, in the event
that any such wage increases are granted The Company shall notify the
Union in writing of the names of the employees, who are granted the increase,
the amount of the increase , and the effective date thereon , and the reason
therefore.
While the previous contract had no prohibition against the Company's paying
wage rates above the minimum , there was no provision in that contract for notice
to the Union as to the specifics of such increases . Nor does the evidence show
that such a demand was made in the 1960 negotiations.
This matter of the Company's informing the, Union of increases it might make
above the minimum rates provided for in the contract was discussed among the
members of the Union' s negotiating committee during the 1963 negotiations.
"The general gist" of some of the committee members' comments made in
this connection among themselves and not to the company negotiators was that it
was none of the Union's business what the Companies paid the individuals so long
as such payments were not below the minimum rates provided for in the con-
tract. Notwithstanding these comments the Union made demands during nego-
tiations for the information in question here. There was also mention made at
these times about the charges which had been filed with the Board in this matter.3
On September 3, the Union went out on strike. There is no indication what the
purpose of the strike was. Nor, as I have indicated , was any evidence offered to
show the purpose.
At no time prior to the hearing herein did Respondents raise any question about
the appropriateness of the bargaining unit, which the Union claims to represent.
However, in a meeting that the Union had on October 2, 1963, with the State
and Federal conciliation people, the Union presented proposals then to be trans-
mitted to the Company. One of these proposals contained a provision for the
exclusion of leadmen from the bargaining unit.
The evidence also shows that no rate or wage grievances arose during the 6
or 7 months before the contract expired, during which period the Union was
considering and talking about a new contract . The evidence also shows that
stewards in one company do not participate in grievances involving one of the
other three company respondents . Also the employee -employer interchange
regarding such things as overtime work and other matters of mutual interest, is
strictly on a company-to-company basis , such matters in one company being of no
concern to any of the other three companies.
The evidence adduced by the General Counsel at the reopened hearing estab-
lished in substance that under the usual practice and normal procedures of both the
post office department and those responsible for picking up the mail of the Respond-
ent Association , the notice of June 21 , 1963, to the Association of the intention to
terminate the contract should have reached the desk of Association Secretary
2 In July, according to the checkoff lists of the various Companies , Cox had 3 union
members, Providence 21, Rumford 31, and Tower 148. The figures for August were Cox 14,
Providence 41, Rumford 32, and Tower 148; all constituting the majority of the employees
in the units of the respective Companies at these times
8It will be recalled that the original charge was filed July 30, 1963 , and thus was pend-
ing at the time negotiations began.
EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC . 391
McLeod several days before the 60-day strike limitation contained in Section 8(d)
of the Act became effective.4
Thus, the evidence shows that the letter in question was mailed from Olneyville, a
suburb of Providence, on June 27. The letter was addressed to "Mr. William
McLeod, secretary, Building Metal Fabricators, 27 Sims Avenue, Providence,
Rhode Island" 5 which was the only address that had ever been given to the Union
for the Association. Twenty-seven Sims Avenue is also the address of Respondent
Providence Steel Company. Providence Steel Company maintains a post office box
in the Providence annex post office and has an arrangement with the post office
that all mail addressed to 27 Sims Avenue is to go to this box.
According to the testimony of a post office official a letter mailed at the Olney-
ville post office addressed to 27 Sims Avenue, Providence, would first go to the
main post office in Providence for sorting. Because 27 Sims Avenue was a loca-
tion serviced by the Olneyville post office, the letter would be returned to that post
office for delivery. However, in this case since the arrangement was that all mail
addressed to 27 Sims Avenue was to be delivered to a post office box at the annex
station in downtown Providence, the letter would be sent back from Olneyville and
routed to the annex station through the main post office. Conversely, mail depos-
ited at the Olneyville post office addressed to a post office box at the annex station
would go directly to the annex station after sorting at the main post office.
A letter posted by certified mail, of course, is not placed in the post office box
to be picked up as ordinary mail. Instead, a notice to the addressee is placed in
the box with the information that a certified letter or certified mail has been
received by the post office for the addressee and can be picked up by request. Cer-
tified mail delivered to the annex station of downtown Providence can be called for
and delivered at any time when the boxes are open to the box holders-namely 21
hours a day, 7 days a week.
The undenied and credited testimony of Herman L. Toof, an officer of Provi-
dence Steel, shows that for years the practice has been that the mail in the Com-
pany's post office box is picked up daily either by him, his father, or McLeod and
that all mail addressed to McLeod is placed on the latter's desk the same day that it
is picked up. In his testimony McLeod at first testified that he was at work every
day in the last week of June and the first week of July, except Saturdays, Sundays,
and holidays. On cross-examination his assurance on this fact was considerably
weakened.
It is clear from the foregoing that the notification of the receipt of the certified
letter in question would under normal procedures have been placed in the Provi-
dence Steel Company box no more than 2 days after it has been mailed and that
it would have reached McLeod's desk on.the same day.
As to whether or not such notice was actually placed in the box at any time
before July 8 (the date it was delivered) the evidence does not show.
4 Section 8(d) of the Act describes in some detail the duties and obligations of em-
ployers and labor organizations in connection with collective bargaining. The pertinfnt
parts of that section relied upon by Respondents herein as a defense are as follows:
Provtided, That where there is in effect a collective-bargaining contract covering
employees in an industry- affecting commerce, the duty to bargain collectively shall
also mean that no party to such contract shall terminate or modify such contract,
unless the party desiring such termination or modification-
(1) serves a written notice upon the, other party to the contract of the pro-
posed termination or modification sixty days prior to the expiration date thereof,
or in the event such contract contains no expiration date, sixty days prior to the
time it is proposed to make such termination or modification ;
t « r « r r
(4) continues in full force and effect, without resorting to strike or lockout,
all the terms and conditions of the existing contract for a period of sixty days
after such notice is given or until the expiration date of such contract, whichever
occurs later:
. . . Any employee who engages in a strike within the sixty-day period specified in
this subsection shall lose his status as an employee of the employer engaged in the
particular labor dispute,. for the purposes of sections 8, 9, and 10 of this Act, as
amended, but such loss of status for such employee shall terminate if and when he is
reemployed by such employer.
5 McLeod was also a vice president of Providence Steel Company.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contentions and Conclusions
In its brief Respondents make the following contention:
1. The contract between the Respondents and the Union, signed on September
1, 1960, is still in existence and does not expire until August 31, 1964.
II. The Union has waived its right to the requested information for the dura-
tion of the contract.
III The employees, by striking without first giving the notice required by
Section 8(d) of the Act, have lost their status as employees and the Union
therefore no longer has any employees of whom it is the bargaining representative.
IV. Even if the employees did not lose their status as employees, there still is
no affirmative evidence that the Union represents a majority of employees in an
appropriate bargaining unit.
V There never has been a finding in the past that the unit alleged in the
complaint is an appropriate bargaining unit and there is no evidence on the
present record upon which such a determination can be made.
VI. The General Counsel has offered no evidence to prove his allegation that
the information requested by the Union is relevant and necessary to the Union as
the representative of the employees.
VII. All of the information requested has been given by two of the Respond-
ents so the complaint must be dismissed as to them, regardless of the Trial
Examiner's findings on the issues raised herein.
VIII. The Union's remedy here was through the grievance and arbitration
procedure under the contract and it was foreclosed from going to the Board with
the matter.
As to I and II, Respondents rely on Shell Oil Company, and Shell Chemical
Corporation, 93 NLRB 161, and Hearst Publishing Company, Inc. (Los Angeles
Examiner Division), 113 NLRB 384 holding that parties may waive their statu-
tory rights by collective bargaining. In the Shell case the union agreed in
negotiations to a certain composition of its grievance committee and later at-
tempted to go outside the bounds of its agreement in this respect. In the Hearst
case, the union proposed a contract clause during negotiations that would give it
the right to bargain on individual merit increases and would require the company
to inform the union of all such increases. The company refused to accept this
clause and the union signed a contract without it. Later, during the term of the
contract, the union asked for substantially the same information that it had
sought in its contract proposal. In both cases, the Board held that the employ-
ers' refusals to accede to the unions' positions were not refusals to bargain within
the meaning of Section 8(a)(5) of the Act on the grounds that in both instances
the unions had bargained away and waived what statutory rights they had in the
circumstances.
Respondents contend that the Hearst case is particularly in point here because
they claim the Union had made a similar proposal in the negotiations for the
1960 contract. But the evidence does not support Respondents. The evidence
shows that such a proposal was made by the Union in the 1963 negotiations
(which:were still in progress at the time of the hearing) but there is no probative
evidence that a similar proposal was made in the 1960 negotiations.
As to defense number IV, Respondents are also mistaken. The uncontroverted
evidence shows that during July and August, a period during which the Union's
demand was current and outstanding, the Union represented a majority of Re-
spondents' employees in the bargaining unit; and in this connection (Respond-
ents' defense number V), after the bargaining history here and with no question
raised until the hearing -as to the appropriateness of the unit, Respondents are in
poor position to claim that the unit is not appropriate.
As to defense number VI, it is clear that there was no need to prove the
relevance and necessity of the information here sought by the Union, since such
relevance is presumed. Boston-Herald Traveler Corporation v. N.L.R.B., 223 F.
2d 58, 62-64 (C.A. 1).
As to VIII, Respondents' reliance on The Timken Roller Bearing Co. v.
N.L.R.B., 325 F. 2d 746 (C.A. 6), for the proposition that under the grievance
and arbitration procedure contained in the contract here 6 the Union was fore-
6 This provision relied on states, "Should a grievance or dispute arise between the com-
pany and the union (emphasis by Respondents) in connection with the application, inter-
pretation, or alleged violation of any provision of this agreement, the complaining or
aggrieved party shall serve notice thereof, in writing, on the other not later than five (5)
work days from the date the grievance or dispute occurred, or comes to the attention of
the complaining or aggrieved party . . . .
EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC. 393
closed from going to the Board with this matter is misplaced. As the court
pointed out in that case,
the right of the Union to wage information was not acquired through
the bargaining agreement, whether the demand of the Union should be
honored, accordingly, does not involve the interpretation or application of
the agreement, which is necessary in order to- be eligible for arbitration, but,
on the contrary, involves the interpretation and application of the National
Labor Relations Act.
This brings us to the key issue in the case, namely, whether the employees lost
their status as employees (thus obviating Respondents' obligation to bargain
with them) by reason of a failure to give Respondents the requisite notice under
Section 8(d)(1) of the Act before engaging in a strike.
The General Counsel admits that the general rule is that the timeliness of a
Section 8(d)(1) notice depends not on the date of mailing but on the date it
is actually received.? But he contends that the Union's letter of June 21, 1963, to
the Association was timely under Section 8(d)(1) notwithstanding that its deliv-
ery date was shown to have been only 57 days before the strike began.8 In this
he relies on Vapor Recovery Systems Company, 133 NLRB 580, where the Board
held that the timely placing of notice of an 8 (d) (1) registered letter in the post
office box where mail was customarily called for was tantamount to receipt even
though not picked up by the employer until after the 60-day limitation provided
for in Section 8(d)(1) had expired. The Board's reasoning was that the union
had done all it could to comply with the statute and that the failure of timely
receipt was the result of the employer's own conduct. While there may be a
suspicion that such is the case here, the fact is that there is no showing here as
in the Vapor Recovery case that the notice was placed in the Providence Steel box
at any date prior to July 8.9 Accordingly, any presumption of constructive
delivery is effectively rebutted by the return receipt of the actual delivery date of
July 8.
In any event, the General Counsel further contends that even though it might
be determined that the letter to the Association was not timely under the Act, the
four letters mailed by regular mail on the same date, June 27, to the individual
members of the Association were timely and constituted adequate notice both to
them and (as members of an unincorporated association) to the Association
itself. I agree and so find.
As indicated the Board cases hold that notice under Section 8(d) to be effective
must be received and that mailing is not sufficient per se. The Ohio Oil Com-
pany, 91 NLRB 759; Koenig Brothers Inc., supra. However, where notice is
properly mailed, its receipt will be presumed in the absence of evidence to the
contrary, 39 Am. Jur. 249 sec. 28; and the presumption also arises that the receipt
will be in the ordinary course of the public mails unless there is evidence to the
contrary, 20 Am. Jur. 202, sec. 202. Here there is no denial by any of the four
Respondent Companies that they in fact received the four letters in question
before July 5, 1963. I find therefore that they were in fact received before that
date. I further find that a period of 7 days is ample to encompass "the ordinary
course of the public mails" between Olneyville and the three areas to which the
letters were directed, all in a radius of 25 miles of Olneyville.
The defense of noncompliance with Section 8(d)(1) of the Act having thus
been disposed of, it is clear , and I find, that by their failure to produce the
requested information the Respondent Association and the Respondents Tower
and Providence Steel have engaged in unfair labor practices by refusing to
bargain in violation of Section 8(a) (5) of the Act.
As for Respondents Cox and Rumford, it is clear that they both complied with
the Union's request, Cox on November 26, 1962, and Rumford on March 21,
1963. However, since the Association to which they belong never complied, and
the Union's demand continued to be asserted as late as August of 1963 as to
7 Koenig Brothers, Inc., 108 NLRB 804.
8 As noted, the strike began on September 3. July 5 thus was the crucial date for the
60-day notice period provided for in Section 8(d). Accordingly a letter mailed on June 27
had an allowance of 7 days for delivery before the limitation in Section 8(d) became
effective.
0 Respondents adduced evidence as to various incidents of delayed deliveries in the
Providence post office. Quite apart from this evidence, as I commented at the hearing it
is always a possibility that a given letter may be mishandled and delayed in the course
of its postal transmission.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entire Association, I believe an order directed to them to produce the request-
ed information will also be proper here.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of Respondents, described in section I, above, occurring in
connection with the unfair labor practices described in section III, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor prac-
tices, I shall recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondents refused to bargain with the Union in violation
of Section 8(a) (5) and (1) of the Act by refusing, on request, to furnish the rate
of pay classification, and seniority position of each employee in the bargaining
unit, I shall recommend that Respondents supply such information upon request.
Because of the limited scope of Respondents' refusal to bargain, I shall not
recommend that Respondents be ordered to cease and desist from the commission
of other unfair labor practices.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
- CONCLUSIONS OF LAW
1. Respondents are, and at all times material. herein have been, employers
within the meaning of Section 2(2) of the Act.
2. Shopmen's Local Union No. 523, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL-CIO, is, and at all times material
herein has been, a labor organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees of Respondent Companies, ex-
cluding office or clerical employees, draftsmen, engineering employees, watch-
men, guards, janitors, supervisors, and employees engaged in erection, installa-
tion, or construction work, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
4. Shopmen's Local Union No. 523, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL-CIO, is, and at all times material
herein has been, the exclusive representative of the employees in the above-de-
scribed unit for the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing to give said Union the seniority position, classification, and rate
of pay of each individual employee in the bargaining unit, Respondents have
refused to bargain with Shopmen's Local Union No. 523, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, thus engag-
ing in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act.
6. The above-described unfair labor practices, occurring in connection with
Respondents' operations, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow thereof, and constitute
unfair labor practices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the entire record in the case and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, I hereby recommend that Respond-
ents Employers' Association of Building Metal Fabricators, Rhode Island, Dis-
trict; Rumford Steel Products, Inc.; Tower Iron Works, Inc.; John E. Cox Com-
pany, Inc.; and Providence Steel and Iron Company, their-officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from refusing to bargain collectively with Shopmen's Lo-
cal Union No. ^ 523, International Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL-CIO, as the exclusive representative of the employees in
the appropriate unit by refusing to furnish the, Union the seniority position,
classification, and rate of pay of each employee in the collective-bargaining unit.
EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC. 395
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request furnish to the Union the name of each employee in the
bargaining unit together with his seniority position , classification , and rate of pay.
(b) Post at their plants in Providence , Rhode Island , Seekonk, Massachu-
setts, and Fall River, Massachusetts , copies of the attached notice marked "Appen-
dix." 10 Copies of said notice to be furnished by the Regional Director for
Region 1, shall , after being signed by Respondents ' representatives , be posted by
Respondents immediately upon receipt thereof and be maintained by them for 60
consecutive days thereafter , in conspicuous places, including all places where
notices to its employees are customarily posted . Reasonable steps shall be taken
by Respondents to insure that said notices 'are not altered , defaced, or covered by
any other material.
(c) Notify the Regional Director for the Region 1 , in writing , within 20 days
from the date of the receipt of this Decision , what steps have been taken to
comply herewith.11
11 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of the 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 Deci-
sion and Order"
ii In the event that this Recommended Order be 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 Respondents have 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 Relations Act, as amended ,• we hereby notify you that:
WE WILL, upon request , furnish Shopmen 's Local Union No. 523, Interna-
tional Association of Bridge , Structural and Ornamental Iron Workers,
AFL-CIO, the seniority position , classification , and rate of pay of each em-
ployee in the bargaining unit herein . The bargaining unit is:
All production and maintenance employees of Respondent Companies,
excluding office or clerical employees, draftsmen , engineering em-
ployees, watchmen , guards, janitors, supervisors , and employees en-
gaged in erection , installation, or construction work.
EMPLOYERS' ASSOCIATION OF BUILDING METAL
FABRICATORS , RHODE ISLAND DISTRICT,
Employer.
Dated------------------- By--------------------------------------------
(Representative ) ( Title)
RUMFORD STEEL PRODUCTS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
TOWER IRON WORKS, INC.,
Employer.
Dated-------------------
Dated-----------------
By----- ---------------------------------------
(Representative ) Title)
JOHN E. COX, INC,
Employer.
By--=----------------------------------------
(Representative) ' (Title)
PROVIDENCE STEEL AND IRON COMPANY,
° Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Employees may communicate directly with the Board's Regional office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts,
Telephone No. 523-8100, if they have any question concerning this notice or
compliance with its provisions.
General Motors Corporation , Buick-Oldsmobile-Pontiac Assem-
bly Division and International Union , United Automobile,
Aerospace and Agricultural Implement Workers of America
(UAW), AFL-CIO. Case No. 21-CA-5401. October 30, 1964
DECISION AND ORDER
On May 5, 1964, Trial Examiner Howard Myers issued his De-
cision in the above-entitled proceeding, finding that 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 De-
cision. Thereafter, Respondent, the Union, and the General Counsel
filed exceptions to the Trial Examiner's Decision and supporting
briefs, and the General Counsel also filed an answering brief.
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 Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations only to the extent that they are
consistent with this Decision and Order.
The Trial Examiner found that Respondent failed and refused to
fulfill its bargaining obligation in violation of Section 8(a) (5) and
(1) of the Act by not giving prior notice to or consulting with the
Union when it leased the OK parking lot at its South Gate, Cali-
fornia, plant, to Pacific Motor Trucking Co.' on June 17, 1963, and
contracted with that firm to have the latter's employees do work
which Respondent's drivers had previously performed. We disagree
for the reasons given below.
The record shows ' that prior to June 17, 1963, an area near the
plant was occupied by two parking lots. The OK parking lot in the
western section of the area adjoined the end of the assembly line and
was used by Respondent for temporarily parking cars while its car
distribution department made up the loads to be turned over to PMT.
The other lot, which was adjacent to but separated by a fence with a
gate from the OK lot, was leased from Respondent by PMT for
I Herein called PMT.
149 NLRB No. 40.