Fraser & Johnston Co.

National Labor Relations Board - Board Decisions

Mar 22, 1971

189 N.L.R.B. 142 (N.L.R.B. 1971)

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fraser & Johnston Company and International Associ-
ation of Machinists and Aerospace Workers,
AFL-CIO, Lodge No. 1327 and International
Brotherhood of Electrical Workers, AFL-CIO,
Local 2131, Party to Contract
Fraser & Johnston Company I and' Sheet Metal Pro-
duction Workers International Association, Local
Union No. 355, AFL-CIO and International
Brotherhood of Electrical Workers, AFL-CIO,
Local 2131, Party to Contract
Fraser & Johnston Company and International Broth-
erhood of Boilermakers, Iron Shipbuilders , Black-
smiths, Forgers and Helpers of America, Local 6,
AFL-CIO and International Brotherhood of Elec-
trical Workers, AFL-CIO, Local 2131 , Party to
Contract . Cases 20-CA-5605, 20-CA-5659, and
20-CA-5670
March 22, 1971
DECISION AND ORDER
BY CHAIRMAN, MILLER AND MEMBERS
FANNING AND JENKINS
On March 13, 1970, Trial Examiner Benjamin B.
Lipton issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent and the Party to Contract filed excep-
tions to the Trial Examiner's Decision and supporting
briefs. The General Counsel filed cross-exceptions
and a supporting brief. A Charging Party filed a reply
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 these cases to a three-
member panel.
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, cross-exceptions
I Sheet Metal Production Workers International Association, Local
Union No 355, AFL-CIO
2 The Trial Examiner in his Decision inadvertently referred to
Respondent as a "Colorado" corporation which should have been
California The record is corrected , accordingly Because of its lack of
clarity, the last sentence in fn 20, of the Trial Examiner ' s Decision is
hereby deleted
i It is clear from the record herein that ( I) Respondent 's operation at
San Lorenzo is a continuation of the operations of its former plant in San
and briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions,2 and recom-
mendations of the Trial Examiner, except as modified
herein.
The General Counsel excepts to the Trial Examin-
er's alleged failure to include in his Recommended
Order that Respondent recognize and bargain collec-
tively with the Charging Parties as the exclusive
representatives of the employees in the respective
appropriate units at Respondent's San Lorenzo,
California, plant a provision that Respondent main-
tain in effect the respective collective-bargaining
agreements of the Charging Parties which were in
force at Respondent's San Francisco plant (at the
time of the relocation) unless the parties mutually
agree to do otherwise.
We find merit in the General Counsel's exception.
While the Trail Examiner's Recommended Order
when read as a whole would appear to require such
continued recognition of the Charging Parties as
bargaining representatives of employees in the appro-
priate units at the San Lorenzo plant, we shall for the
purpose of clarity, and finding it appropriate in the
circumstances.3 amend such order to read as follows:
(d) Continue to recognize and, upon request,
bargain collectively with IAM, Sheet Metal Workers,
and Boilermakers, respectively, as exclusive bargain-
ing representatives of the employees in the respective
appropriate units, at the San Lorenzo, California,
plant, pursuant to the respective collective-bargaining
agreements between the parties which were in force
and effect at its San Francisco plant at the time of the
relocation to San Lorenzo, unless these parties
mutually agree to do otherwise.
The Trial Examiner, in his Remedy provides, inter
alia, that:
.. . also be recommended that Respondent
offer the employees represented by the Unions
who were terminated as a result of Respondent's
unlawful actions, immediate reinstatement at the
San Lorenzo, California, plant . . . it will be
recommended that Respondent be required to
make whole each of the aforementioned employ-
ees for backpay from the date of their termination
to the date of Respondent's offer of reemployment
For the purpose of clarity and as an aid to the
compliance stage of this proceeding, our adoption of
Francisco , (2) the Charging Parties have represented the employees at the
San Francisco plant for over 25 years, and the present contracts are not
due to terminate until 1971, (3) the relocated plant is within the
metropolitan area of San Francisco, (4) the San Lorenzo plant is neither a
merger nor consolidation with previous operations of Respondent 's parent
company, Westinghouse , and (5) a majority of employees requested
transfer and continued representation by the Charging Parties and were
denied such transfers as a result of Respondent 's unfair labor practices as
found herein
189 NLRB No. 17
FRASER & JOHNSTON COMPANY
this Recommended Order of the Trial Examiner
includes within its scope all those employees repre-
sented by the IAM, Sheet Metal Workers, and
Boilermakers who were terminated by Respondent
after the start of its relocation program up to and
including July 3, 1969. Excluded, however, are such
employees who may have been discharged for reasons
other than such relocation program.4
We have adopted the Trial Examiner's Recom-
mended Order, including the reinstatement and
make-whole features and the bargaining orders for
reasons set forth below.
The starting point in determining the appropriate
remedy must be an examination of the nature of
Respondent's unfair labor practices and their effect
on the rights of its San Francisco employees and their
bargaining representatives. As our dissenting col-
league has correctly noted:
The violation here arose out of Respondent's
eagerness to do business with the IBEW in its new
location and the resulting premature recognition
of that Union. Respondent apparently believed
that it had a commitment to the IBEW which it
was free to implement and, in reliance thereon,
denied to the IAM, the Sheet Metal Workers, and
the Boilermakers any effective participation in
discussions relating to the employment of their
constituents in the San Lorenzo plant.
Respondent was, of course, not free to make this
commitment to the IBEW, and its commitment was
itself an unfair labor practice. But it is that commit-
ment which led Respondent to refuse even to consider
the proposals of the San Francisco unions that San
Francisco employees be permitted to follow theirjobs
to San Lorenzo. Had Respondent bargained in good
faith concerning those proposals, that is to say
without regard to its commitment to the IBEW, it is
highly unlikely that it would have refused to permit
those San Francisco employees who wished to
transfer to do so, for a majority of the employees of
each of the San Francisco units had indicated a desire
to transfer to San Lorenzo. These employees were
experienced and skilled in the necessary work tasks
and they could have worked in San Lorenzo---only 25
miles from San Francisco---without moving their
homes.
It is thus apparent that, though the form of
Respondent's unfair labor practices against its San
Francisco unions was an unlawful refusal to bargain
about the effects on unit employees of its move to San
Lorenzo, its substance was unlawful discrimination
against the San Francisco employees and in favor of
IBEW constituents at San Lorenzo based entirely on
the identity of their collective-bargaining representa-
4 We further amend the Trial Examiner's Remedy, for the purpose of
clarification, by inserting in the second sentence of the fourth paragraph
143
tives. It may be that the San Francisco unions do not
have a substantial constituency at San Lorenzo at this
time, but on this record we believe it is a fair inference
that they would have had a constituency sufficient to
compel Respondent to continue to bargain with the
San Francisco unions had it not been for Respon-
dent's unfair labor practices. Accordingly, we are
satisfied that the omelet prepared by Respondent can
be made palatable only with the seasoning provided
by the Trial Examiner's Recommended Order as
clarified in this Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its order the Recommend-
ed Order of the Trial Examiner, as modified above,
and hereby orders that Respondent, Fraser and
Johnston Company, San Lorenzo, California, its
agents, officers, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order, as so modified.
CHAIRMAN MILLER, concurring in part and dissenting
in part:
I concur in the legal conclusions of my colleagues,
although I do not share their rationale. Because of
that difference and because I do not think my
colleagues' remedy fits the practicalities of the
situation, I am compelled to express my views
separately.
The violation here arose out of Respondent's
eagerness to do business with the IBEW at its new
location and the resulting premature recognition of
that Union. Respondent apparently believed that it
had a commitment to the IBEW which it was free to
implement and, in reliance thereon, denied to the
IAM, the Sheet Metal Workers, and the Boilermakers
any effective participation in discussions relating to
the employment of their constituents at the San
Lorenzo plant. Ultimately, this legally improper
course of conduct resulted in, among other things,
minimal employment at San Lorenzo of the San
Francisco employees who had been represented by
those Unions, and the employment there of a
substantial number of new employees who were
blanketed into coverage by an IBEW contract
without having been afforded any choice as to what
union, if any, they desired to represent them.
This presents a difficult omelet to unscramble. The
order here attempts to do so by divesting the IBEW of
its present status at San Lorenzo, by conferring
representative status on the IAM, the Sheet Metal
Workers, and the Boilermakers at the San Lorenzo
thereof after the word "backpay" and before the word "from," the
following "at the wage rates applicable in the existing contracts "
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, by compelling adherence at San Lorenzo to
contracts formerly in effect at San Francisco, and by
requiring Respondent to reimburse its employees in
the amount of any IBEW dues and initiation fees
which it deducted and remitted to the IBEW pursuant
to the premature contract.
Yet this record discloses that the three San Francis-
co unions no longer have any substantial constituency
among Respondent's employees. Moreover, it is most
unlikely that the soon to expire San Francisco
contracts are now relevant to Respondent's current
operations. Consequently, I question whether the
measures we dictate here do, in fact, fairly balance the
harm done by the violation against the disruptions---
and harm---to be occasioned by this Order.5 We must
accept the fact that no remedy, however draconian,
can be fully effective in now undoing the wrongs of
the past and restoring the status quo ante I agree, of
course, that recognition should be withdrawn from
IBEW and dues collected by it should be remitted.
However, in myjudgment, it would be more appropri-
ate under all of the circumstances to require the
Employer to offer all former employees of the San
Francisco plant employment at San Lorenzo, without
loss of seniority but without backpay,6 replacing, if
necessary, employees hired on or after April 30, 1969.7
Upon compliance, I would have the Board conduct
appropriate elections to resolve, unequivocally and
consistently with Section 9, questions of representa-
tion hereafter.
5 The violation found is based on Respondent 's refusal to bargain in
good faith over the transfer rights of the San Francisco employees after
shutdown of that location We do not hold that Respondent was required
to transfer any San Francisco employees , only that Respondent was
required , but failed , to bargain over that issue We are not at liberty to
presume that good-faith bargaining would have produced any agreement to
require transfer of San Francisco employees See H K Porter Co v
NLRB,397US 99
6 I would not award backpay to any employee so reinstated , because I
do not find evidence that they were discriminatorily denied employment
The confusion which resulted from the Employer's actions , however, was in
my view sufficient to have discouraged at least some employees from
applying for work at San Lorenzo , knowing that their Union would have
no voice in the matter and that they would have had to join the IBEW,
presumably against their will A current offer of employment , with proper
safeguards , seems an appropriate remedy under these circumstances
7 Most of the employees hired at San Lorenzo prior to April 30, 1969,
were veteran employees of Respondent 's parent corporation at that
location and should not, in my view, be subject to replacement
TRIAL EXAMINER 'S DECISION
BENJAMIN B. LIPTON, Trial Examiner : A hearing in this
proceeding was held before me from December 2 through
1 All dates herein are in 1969 , except as otherwise noted
2 The complaint issued on September 18, based upon charges filed and
served on the same date by registered mail, as follows in Case
20-CA-5605, the initial charge on May 27, and amended charges on June 2
and July 11 , in Case 20-CA-5659, the initial charge on July 7, and
amended charges on July I I and August 20, in Case 20-CA-5670, the
original charge on July 15
8, 1969,' in San Francisco, California, upon a complaint by
the General Counsel ,2 and general denials in the answer,
that the above-named Respondent committed certain
violations of Section 8(a)(1), (2), (3 ), and (5 ) of the Act. Full
opportunity was afforded all parties3 to present relevant
evidence , to cross examine witnesses , to argue orally on the
record, and to file briefs . After the close , briefs were filed by
General Counsel , Respondent , Sheet Metal Workers, and
IBEW.
Upon the entire record in the cases , including the briefs,
and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Fraser & Johnston Company, herein called the Respon-
dent , is a Colorado corporation engaged in the manufacture
of heating and cooling equipment , with a place of business
until July 3 , 1969, in San Francisco , California , and a place
of business thereafter in San Lorenzo , California. Since
1966, respondent has been a wholly-owned subsidiary of
Westinghouse Electric Corporation , herein called
Westinghouse .4 During the year preceding issuance of the
complaint , Respondent had a direct inflow and a direct
outflow in interstate commerce , in each instance , valued in
excess of 50,000 . Respondent admits, and I find , that it is
engaged in commerce within the meaning of the Act.
California Metal Trades Association , herein called the
CMTA, which has member employers engaged in the metal
trades, has existed for the purpose of representing its
member employers in collective bargaining , including
contract negotiations with various labor organizations.
Respondent was a member of CMTA until it voluntarily
resigned as of July 31, 1969.
II. THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, and its Lodge No. 1327, herein called
IAM Lodge 1327 or collectively IAM; Sheet Metal
Production Workers International Association, Local
Union No. 355, AFL-CIO, herein called Sheet Metal
Workers; International Brotherhood of Boilermakers, Iron
Shipbuilders , Blacksmiths , Forgers and Helpers of Amen-
ca, AFL-CIO, and its Local 6 , herein collectively called
Boilermakers; 5 and International Brotherhood of Electri-
cal Workers , AFL-CIO, Local 2131 , herein called Party to
the Contract or IBEW , are each labor organizations within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Essential Issues
1. Whether Respondent violated Section 8(a)(5),(3),(2),
a Edgar Rainbow , business manager, was present on behalf of
Boilermakers and its Local 6, which were not represented by legal counsel
at the hearing
4 Previously , Respondent had been a subsidiary of Luxaire, in turn a
subsidiary of Westinghouse
5 The three Charging Parties are also referred to collectively as the
Unions
FRASER & JOHNSTON COMPANY
and (1) of the Act, following its decision to relocate the San
Francisco plant to San Lorenzo, 26 miles distant, by
refusing to bargain concerning the transfer of, and
terminating, all employees covered by existing contracts
with IAM, Sheet Metal Workers, and Boilermakers at the
San Francisco plant; by refusing to recognize the Unions
with respect to the same operations now performed at San
Lorenzo, and by recognizing and entering into a
union-security contract with IBEW as to such transferred
work at the San Lorenzo location; or
2. Whether, in the above circumstances, Respondent
fulfilled its statutory obligations by giving IAM, Sheet
Metal Workers, and Boilermakers advance notice of its
decision to relocate and by discussing at length with each of
the Unions Respondent's proposals limited to the payment
of severance pay, together with the termination of all
pre-existing rights of the Unions and of the employees
represented at San Francisco.
B. Relevant Background and Surrounding
Circumstances
There is no substantial dispute as to the material facts.6
Until July 3, 1969, a long and continuous bargaining
history at San Francisco had been in effect with the three
major unions,7IAM, Sheet Metal Workers, and Boilermak-
ers. In May 1956, following a Board consent election,8 a
certification was issued to IAM in a production and
maintenance unit, but excluding all employees covered by
existing collective-bargaining contracts with unions other
then IAM.9 At the time of this certification, inter aka, Sheet
Metal Workers represented under contract a unit of certain
sheet metal production employees, and Boilermakers
represented under contract a unit of specified classifica-
tions, e.g., manual welders. The record shows that, at least
since the certification, the broad production and mainte-
nance complement of employees, excluding those covered
by the contracts with other unions, was equally divided
6 The method of factual description herein is deemed necessary to
reduce a large record to the essentials and crystallize the controlling issues
The emphasis employed in relating particular facts is based upon careful
consideration of the entire record
1 Sheet Metal Workers Local 104 and Independent Tool and Die
Makers , representing a combined total of three employees , were also
recognized at San Francisco , but no charges were filed and no issues
presented as to these two unions.
8 Cases 20-RC-3010 and - 3021
9 The designated employer in the election was the CMTA in a
multiemployer unit which covered the employees of numerous specified
firms , including Respondent , who were parties to the master agreement
with the CMTA expiring July 1, 1956
10 It appears that in hiring and layoffs, the "policy" was followed by
Respondent of "equalizing" the number of represented employees in the
bargaining unit of each such union
11 About 80 employers throughout Northern California were embraced
in the master agreement
12 Under art I, sec 1, "Employees Covered," it is provided that "The
Employer recognizes the Union as the sole bargaining agent for employees
working within the trade claims of the Unions as set forth in its
constitution and, further , for employees described in the Unit in
N L R B Case No 20-RC-3010 " Job classifications were specified
elsewhere in the agreement Under sec 3, "the Union and the Employer
agree that during the life of this Agreement, they will not surrender
Jurisdiction over any of the employees covered by this Agreement to any
other Union "
i i Under "Jurisdiction," it is provided that the contract applies to "the
manufacture fabrication and assemblying of furnaces, furnace fans, air
145
between IAM and Sheet Metal Workers. 10
From 1944, Respondent was a member of CMTA, but
resigned as of July 31, 1969, after the principal events
herein. CMTA negotiated master or multiemployer
collective-bargaining contracts on behalf of those of its
members who executed in advance a power of attorney,
and it also negotiated individual employer contracts for
certain other members . From 1937 until 1955, IAM Lodge
1327 represented employees of Respondent under succes-
sive individual contracts, and thereafter under CMTA
multiemployer agreements . il The most recent agreement
with IAM and various of its locals, including Lodge 1327, is
effective from May 20, 1968, until March 31, 1971.12
Since about 1938, Sheet Metal Workers represented
employees of Respondent. The current contract, negotiated
for Respondent by CMTA, was executed on January 20,
1969, effective from May 20, 1968, until March 31, 1971.13
Since 1946, Boilermakers and various of its locals,
including Local 6, have had successive CMTA multiem-
ployer contracts embracing Respondent. The last such
agreement was effective from May 11, 1967, through March
31, 1969.14 Thereafter , Boilermakers negotiated with
Respondent an individual employer agreement effective
from April 1, 1969, through June 30, 1971.15
Since 1928, Respondent has been engaged in the
manufacture of heating and cooling equipment, consisting
essentially of furnaces and air- conditioning units. Until
July 1969, the plant was located in San Francisco, where
Respondent employed over 300 hourly paid employees.16
On July 3, 1969, Respondent effected a relocation of the
same operation at San Lorenzo, California, about 26 miles
from the San Francisco plant.17 As above noted, since 1966,
Respondent has been a wholly owned subsidiary of
Westinghouse. At San Lorenzo, in the Westinghouse name,
a "standard controls division" manufactured distribution
conditioning equipment and evaporating coolers and other production
work which is included in the Jurisdictional claims" of Sheet Metal Workers
Within the contract classifications are specified, e g , sheet metal production
specialists, sheet metal production workers, and shop cleaners
14 About 40 employers throughout Northern California were covered
15 The Union is recognized as the sole collective-bargaining agent for
all employees "performing work in the manufacturing, fabrication , contract
and repair shops, operation of all machines , mechanical devices and tools
of the trade , and excluding all employees presently represented in contracts
with other unions " The contract lists numerous work classifications,
among which "Welder and Burner" and "Helper" were identified in the
testimony as specifically applicable to Respondent In addition, the Union
undertook that it will not surrender jurisdiction over any employees
covered by this contract to any other union
16 The seniority lists in evidence show 116 employees represented by
IAM as of May 23, 154 employees represented by Sheet Metal Workers as
of February 7, and 46 employees represented by Boilermakers as of
February 1 While the sum of these seniori ty lists is 316 employees , a total
estimate was given on behalf of Respondent of 250 employees
11 The parties stipulated the distance of 26 miles via the Bay Bridge
from the San Francisco plant to the San Lorenzo plant , and jointly
introduced an AAA route map The official AAA distance from centers of
town is 24 miles San Lorenzo lies to the southeast of San Francisco across
the San Francisco Bay, and readily appears as part of the greater
metropolitan area of San Francisco Illustratively, it is 12 miles south of
Oakland on the East Bay along the Nimitz Freeway and is accessible from
various directions within the network of freeways surrounding San
Francisco Commutation by the employees to the San Lorenzo plant is
generally by automobile, as there is no public transportation available
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or switchboard panels for the construction and electrical
industries. About 85 hourly employees were employed in
this operation, under a union-security contract with IBEW.
In 1968, the plant at San Lorenzo was one-third occupied
by Westinghouse,18 with the remainder vacant.19 Respon-
dent physically occupied the San Lorenzo plant, while the
former Westinghouse operations were evacuated, as
described below. In all material respects, Respondent's
company name, products, manufactured, machinery,
equipment, operational methods, and supervision contin-
ued to be the same at San Lorenzo as they were in San
Francisco. And all personnel, except the union-represented
employees, were transferred to the new location. In a
similar manner, the Westinghouse standard controls
division was relocated from San Lorenzo to Visalia,
California (a distance of 200 miles), with the transfer of all
equipment and personnel, except approximately 85 hourly
employees. These employees, represented under contract
by IBEW, were retained at San Lorenzo to provide part of
the production complement for Respondent's relocated
operation. On April 1, Respondent commenced production
at San Lorenzo, and about April 20, Westinghouse
standard controls division moved out, so that there was an
overlap of about 3 weeks during which, to some extent,
both operations were independently conducted at San
Lorenzo.
In March, Respondent's smaller equipment began to be
moved to San Lorenzo; in April, the warehouse inventory,
mainly assembled and unassembled parts; and over a
period of months starting in June, the heavy machinery and
equipment. Furnace units were not fabricated or assembled
in San Lorenzo until the latter part of August. As of April 1,
about 30 employees were utilized by Respondent at San
Lorenzo; on April 30, about 100 employees; and at the
hearing dates, about 195 employees.
The existing contract between Westinghouse and IBEW
relating to the standard controls division was due to expire
on November 10, 1969. On January 20, in an anticipation of
the relocation of the San Francisco plant, Respondent
entered into negotiations with IBEW covering contract
changes on "job classifications." On April 3, contract
supplements were executed by these parties. At least 60
18 Including one other facility, Westinghouse Appliance & Service Co
(WASCO)
19 Preparatory to the move by Respondent into the San Lorenzo plant,
a 10-to 15-percent addition to the building was under construction from
December 1968 until late spring 1969
20 The negotiations above described were conducted by Respondent's
industrial relations director, Thomas Leen, together with a representative
from Westinghouse headquarters in Pittsburgh , Pennsylvania Theretofore,
it is clear that neither Leen , nor any other official of Respondent,
had any negotiations with IBEW.
21 In view of this circumstance , the Trial Examiner reverses his ruling at
the hearing rejecting testimony concerning the proceeding which was
concluded under the AFL-CIO internal disputes plan to resolve the
dispute as to union jurisdiction over Respondent's relocated plant at San
Lorenzo Only this narrative fact is admitted in order to provide a full
descriptive context, without accepting any of the facts or conclusions of the
arbitrator as relevant or binding in this case
22 On May 23, Respondent had terminated 32 employees represented by
IAM, 32 employees represented by Sheet Metal Workers, and 8 employees
represented by Boilermakers On May 26, IAM engaged in a strike and
picketed Respondent 's premises On May 29, the parties executed a strike
settlement , in which Respondent agreed to offer reemployment to all
employees in the IAM unit commencing on June 2, and to retain such
days prior to the expiration date, November 10, IBEW gave
notice under the termination and modification provisions
of the main contract, and negotiations were still continuing
at the time of the heanng.20 In addition, it may be noted
that the following appears in the brief received from IBEW:
By way of preface the Trial Examiner is advised that
subsequent to the close of the hearing in this matter,
IBEW disclaimed representational rights at the Em-
ployer's San Lorenzo operation. Our disclaimer was
made to conform to final decision under the AFL-CIO
internal disputes plan.21
None of the other parties has commented on this
disclaimer, and there is no present showing of the effect
thereof on existing contractual relations as among the
parties. It may further be noted that, until this information,
the position of IBEW was strongly maintained that it
possessed recognitional and contractual rights to embrace
Respondent's operation in San Lorenzo.
From June 1968 until July 1969, on the subject of the
relocation, Respondent engaged in numerous meetings and
correspondence with each of the Unions, as will be
described infra.
On July 3, 1969, the San Francisco plant was shut down
and all hourly employees still employed were terminated,
with no extension of existing rights or benefits.22 From the
time Respondent decided (in July 1968) to relocate to San
Lorenzo, it ruled out and rejected all requests by the
Unions and the hourly employees for transfers to San
Lorenzo with retention of existing rights. Applications for
work at San Lorenzo were not invited or accepted while the
San Francisco employees were still employed. After their
termination, applications were taken solely at the San
Lorenzo location and offers were extended for suchjobs as
Respondent wished to make available. They were hired
only as new employees and immediately made subject to
the union security contracts with IBEW,23
C. The Extent of Bargaining Concerning the
Relocation
It is not necessary laboriously to detail each of the
numerous meetings and letters between Respondent and
the separate Unions, as the respective positions may be
fairly synthesized in light of the effective issues: 24
Respondent first advised the Unions of its tentative plans
employees in employment through June 27
23 Leen testified that 65 former San Francisco employees applied at San
Lorenzo, jobs were offered to about 49 such employees, of whom about 33
accepted and were hired; 14 rejected Respondent's offers, and 2 failed to
pass physical examinations Leen indicated that, as time went on,
Respondent hired other employees not previously employed by
Respondent or Westinghouse, and that there was a "substantial turnover"
at San Lorenzo It also appears that the San Francisco employees taken on
at San Lorenzo suffered a reduction from their previous wage rate
24 In the initial stage , identical letters dated May 6 and June 5, 1968,
were sent by Respondent to each of the Unions, and separate meetings
were held on June 26, 1968, with IAM and Boilermakers , and on July 17,
1968, with Sheet Metal Workers Respondent was represented by Donald J.
Wood, president, Thomas Leen , industrial relations manager, and Richard
Martin of CMTA In virtually all the subsequent meetings , Leen acted for
Respondent, usually accompanied by Martin. In the last three meetings
with Sheet Metal Workers in 1969, O'Roark of Westinghouse headquarters
in Pittsburgh was present, but not Martin Usually appearing for IAM were
Business Representatives Raymond Gabel, Frank Meagher, and Steve
Gatto, for Boilermakers , Edgar Rainbow and L H Chilton, and for Sheet
Metal Workers, Al Texiera, John Fitzpatrick, Aaron Stewart, and
Attorneys Paduck and Smith
FRASER & JOHNSTON COMPANY
and discussed the economic reasons for the relocation, e.g.,
the inadequacy of the San Francisco physical plant and the
approaching expiration of the leases on this property. The
reasons given were not questioned by the Unions. No
allegation or issue is involved that Respondent failed to
notify or consult with the Unions concerning its economi-
cally motivated decision to relocate the San Francisco plant
to San Lorenzo.25 So far as relevant, the negotiations which
took place concern only the "effects" of the relocation upon
existing rights- as conceived by the respective parties.
Notwithstanding the numerous meetings on this subject, a
clear pattern is reflected indicating substantially identical
and unchanging positions taken on each side extending
over a period of a year from June 26, 1968. Thus,
Respondent sought from the Unions an agreement
confined to the payment of severance pay under a proposed
formula, coupled with the final termination of the
represented employees and the cessation of the contractual
and recognitional rights of the Unions. It held forth the
firm opinion that it could not transfer the San Francisco
employees as it was legally obligated to apply an existing
contract with IBEW to Respondent's relocated operation at
San Lorenzo.26 For their part, the Unions demanded that
the employees be offered transfers to San Lorenzo with the
retention of all rights, and continued recognition of the
Unions at the new location under the terms of the currect
contracts. It was made clear by the Unions that their
discussion of severance pay, or mention of specific sums,
pertained only as to those employees who would not desire
to transfer to San Lorenzo. Generally, it is abundantly
apparent that the Unions from the outset were not
interested or willing to negotiate the type of agreement
which Respondent proposed.
Relating to these discussions between Respondent and
the Unions, the following evidence is especially pertinent:
In its letter of May 6, 1968, Respondent notified the
Unions that studies were being conducted- leading to a
possible relocation of the San Francisco plant for described
economic reasons.27 At the first meeting, on June 26, 1968,
Respondent indicated that if it moved to San Lorenzo, it
would not transfer the San Francisco employees, as the
present work force of Westinghouse at that location,
represented by IBEW, could fill Respondent's needs for a
6-month period. By letter on July 17, 1968, Respondent
notified the Unions of its decision to move the operation to
San Lorenzo, and similarly advised the employees in a
bulletin. Among other things, the employees were told that
as the operations are removed to San Lorenzo, "hourly
employees now working there will produce our products,"
that the San Francisco employees will be terminated, and
25 See Fibreboard Paper Products Corporation, 130 NLRB 1558, enfd.
379 U S 203 As applied to plant removal cases , the Fibreboard doctrine
obligates the employer (a) to notify the union and afford it an opportunity
to negotiate concerning the contemplated decision to move the plant, and
(b) to bargain with the union concerning the effects on the employees of
the move after its consummation.
26 Leen testified to the effect that Respondent 's proposals and positions
were formulated at Westinghouse offices in Pittsburgh, and that he was not
authorized to vary therefrom.
27 Also stating "For the present at least, these plans do not relate to the
current strike"
211 The same statement , i e, that in view of the IBEW contract it was not
147
that Respondent will continue discussions with the Unions
regarding severance benefits.
On August 9, 1968, Respondent informed IAM that it
"felt" obligated to honor IBEW's jurisdictional claim to
represent employees at Respondent's operation when
relocated at San Lorenzo, and for this reason it was "not in
any position to accommodate the people by moving." 28 In
addition, through its foremen Respondent had canvassed
the employees and "felt" that the majority of them would
not wish to move.29 Leen also said at one of the meetings
that a company "study had shown that movement of people
from San Francisco as a center of the metropolitan area to
outlying areas is slight and the probability was that the men
would not want to move, and that the movement was to the
contrary, into San Francisco for work purposes." As
expressed on various occasions, IAM stated it would resort
to a strike or other economic action, if Respondent
undertook to relocate under its proposed conditions.
At the October 23 meeting with the Boilermakers, Leen
argued that IBEW was certified for the location or the plant
at San Lorenzo, while Boilermakers insisted that a union is
certified to represent employees rather than property.30 At
this meeting, Respondent submitted a written proposal
containing a formula for the payment of severance pay,
together with various conditions for eligibility to receive
payment. 31 Inter a/ia, it provided that all rights of the
employees shall be finally terminated and that severance
pay is made contingent upon continued performance of
work until the employee's termination and upon the
absence of a boycott, strike, or slowdown "sponsored,
ratified, or condoned by the Union." An identical proposal
was submitted to IAM and to Sheet Metal Workers, and
thereafter, during the course of the meetings, Respondent
revised its severance proposal to the extent of increasing the
amount of payment to the employees. Leen "explained" to
the Unions the reasons for Respondent's insistence upon
the conditions attached to the severance payment, e.g.,
because "there had been threats of strike in connection with
the move and this was why there was need in the severance
agreement for a `no strike, no boycott' clause and a
`termination of rights' clause ."32 To the extent they
indicated interest in severance pay limited to nontransfer-
ring employees, the Unions voiced strong objections to
these conditions.
On November 1, 1968, Respondent informed the
employees by letter that the move would begin in
mid-March 1969 and be completed in the latter part of
May; that it would continue to discuss with the Unions a
severance arrangement; and that it hoped "this information
will enable you to proceed with personal plans you have in
possible to transfer the employees or continue recognition of the Unions at
San Lorenzo, is reflected in identical letters to each of the Unions dated
October 21, 1968
29 This point was reiterated by Leen in other meetings and similarly
conveyed to Boilermakers and Sheet Metal Workers. No supporting
evidence was offered by Respondent other than Leen 's highly generalized
reference to such a "canvass" by foremen
w Other than the oral assertion , no evidence was offered to show a
Board certification of IBEW its date, nature , or coverage
3i A copy of this first proposal is attached hereto as Appendix B
32 Quoted from Respondent's brief
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mind with full knowledge that [Respondent] can provide
employment for you until March 1969."33
At the January 16 meeting, IAM proposed that a point
survey, by Respondent and the Union, be conducted to
determine the desires of the employees on the subject of
transferring to San Lorenzo. Leen responded in effect that
such a survey would not be reliable or conclusive as to the
true wishes of the employees. It was also his "feeling,"
from experience with other companies, that a number of
people might initially move on a transfer arrangement and
later decide not to continue.
At the January 23 meeting with Sheet Metal Workers,
Leen asserted that Respondent and Westinghouse were
"one and the same" employer, and read aloud from the
IBEW contract the clause which defines an hourly paid
production and maintenance unit. On January 24 with the
Boilermakers, Respondent indicated it would start phasing
out of San Francisco in March and estimated the entire
moving process to take about 6 weeks. As the contract with
Boilermakers was due to expire on March 31, Respondent
proposed that a new contract be negotiated for a short
term, such as 90 days, to terminate with the completion of
the move to San Lorenzo. Boilermakers wanted another
2-year contract. These positions were reiterated at
subsequent meetings and, ultimately, the parties executed,
on May 23, a new contract with a term extending through
June 30, 1971. On February 5, Boilermakers announced
that all its members wanted to transfer to San Lorenzo.
Leen said he was told by at least four employees that they
had no intention of moving. Boilermakers said it had a list
showing the desires of the employees. Leen commented that
such a petition was unreliable. The Union also mentioned
that the union jurisdictional dispute, involving Respon-
dent's operation at San Lorenzo, would come up at an
AFL-CIO convention in Miami, Florida. Leen answered
that Respondent was not a member of the AFL-CIO and
could not be bound by any internal decision made by
unions.
At the February 14 meeting, Boilermakers described and
showed to Respondent a petition signed by employees it
represented at San Francisco, which requested that
Respondent continue their employment at San Lorenzo,
and that Boilermakers continue as their bargaining
representative at the new location. Of 45 employees on the
seniority list as of February 1, the petition contained 35
signatures. In mid-March, Sheet Metal Workers obtained a
petition, with the same recitations, from employees in its
represented unit at San Francisco. Over a period of 3 days a
shop steward had circulated the petition in the plant.
Specific permission had been received in advance from
33 The latter is reasonably to be construed as an invitation to the
employees to seek other employment in the interim
34 The plant manager commented that he was very well pleased, as he
did not expect there would be this many signatures
35 A copy of the petition was attached to iAM's charge filed with the
Board on May 27 and served on Respondent The authenticity of the
signatures of current employees on the several petitions of the Unions was
not challenged
36 On behalf of IBEW, International Representative Orwri Babish
testified, inter alga, In July 1968, he was telephoned from Pittsburgh by
Clark Frame, Westinghouse director of industrial relations. Frame told him
that Respondent ' s relocation to San Lorenzo was probable , and that
Westinghouse was advised by its legal department that it had the
Respondent's plant manager, who also examined the
petition after the signatures were appended.34 Of 154
employees on the seniority list as of February 7, there were
120 signatories to the petition. On April 30, a similar
petition was circulated by IAM, with the permission of
Respondent's supervisors. Of 116 unit employees, 93 signed
the petition.35
At the meeting on May 20, Leen told Sheet Metal
Workers that, as a result of Respondent's negotiations with
IBEW since January 20, a supplement to the IBEW
contract (originally executed with Westinghouse) was
recently consummated to cover Respondent's operation at
San Lorenzo. As he testified, Leen explained to Sheet Metal
Workers that "we had an agreement from the time we
[Respondent] began our operations at San Lorenzo which
was approximately the first people released to us on March
31st and . . . since these people were now working for us,
that obviously there were some adjustments that had to be
made in the contract because of the change in
management." 36 At this meeting, Sheet Metal Workers
pointed out that there were employees who commuted to
the San Francisco plant from places as far away as
Santa Rosa (56 miles). Respondent replied that the dist-
ance factor between San Francisco and San Lorenzo was
not the major reason it refused to transfer the San Fran-
cisco employees; as it had previously indicated, the
"major consideration" was the IBEW contract in existence
at San Lorenzo.
On July 23, the last of the meetings was held with IAM.
As noted, the San Francisco plant had been closed and the
employees terminated on July 3. No agreement with any of
the Unions resulted from these meetings.
D. Analysis and Conclusions
In a comparable situation involving a nondiscriminatory
plant removal, the Board, in Pierce Governor, 37 applied a
test for determining whether the employer was under a duty
to recognize the union for the new plant (32 miles from the
old plant):
Would at least a majority of the old plant employees
have transferred to the new plant but for the employer's
failure to negotiate concerning the effects of the move?
In that case, which the Board actually dismissed, the
findings were made that (a) the employer did discuss with
the union transfer rights of the employees, with full
seniority; (b) the employer proposed that an arbitrator
determine through the use of objective standards which
employees should be offered jobs at the new plant; and,
moreover, (c) at no time during the bargaining over the
effects of the move did a majority of the represented
"responsibility on the contract to continue bargaining " with IBEW at San
Lorenzo as to the coverage of Respondent's relocated operation. In January
1969, Babtsh was called by William Towle, an assistant to Frame, who
informed him that Respondent 's move from San Francisco to San Lorenzo
would necessitate some negotiations on job classifications. Concerning the
move of standard controls division from San Lorenzo to Visalia, Towle
rejected IBEW 's request to transfer the hourly employees , as it was
"corporate policy" to hire employees in the area in which a new plant was
being located In February, Towle told him that the employees at San
Lorenzo would be trained to do the work normally done at San Francisco.
37 The Pierce Governor Company, Inc, 164 NLRB 97, affd 394 F.2d 757
(C A.D C ), cert denied 393 U S 831
FRASER & JOHNSTON COMPANY
employees have an interest in transferring to the new plant.
Pierce Governor, on which Respondent here relies as "the
leading Board decision," is indeed pertinent on theory but
contrary on the essential facts. In the present case, as I find,
Respondent was not at all concerned with the desires of the
San Francisco employees on transferring to San Lorenzo. It
had made a predetermination not to transfer them because
it verbally committed itself to recognize IBEW for the
relocated operation at San Lorenzo and to utilize in part the
work force previously employed at that location by
Westinghouse, under contract with IBEW. The repeated
reference by Respondent, in the meetings with the Unions,
based upon studies made by foremen, that it "felt" the
majority of San Francisco employees did not wish to
transfer is wholly unsupported by any probative facts, and
must be regarded purely as conjectural argument to
maintain its fixed position rejecting all overtures for
transfer. As evident, without contradiction, the opposite
was true, that its plant manager and other supervisors were
aware that an overwhelming majority of the employees, at
least those represented by Sheet Metal Workers, indicated
by petition that they favored transfer to San Lorenzo.
While Respondent made no positive effort itself to
ascertain the employees' desires, it brushed aside the union
proposal for a joint and objectively conducted survey and
conveniently dismissed as unreliable the petitions collected
by the Unions. In all the circumstances, the evidence at
hand of the petitions, with signatures of 248 employees out
of some 300 in the units,38 may reasonably be entitled to
appropriate weight as a reflection of the true wishes of at
least a majority of these signatory employees to continue
their employment at San Lorenzo, under the terms of the
existing contracts.39 Merely because Respondent proceed-
ed to hold a series of meetings with the Unions in which it
propounded the same restricted proposal for terminal
severance pay, while reiterating an inflexible refusal to
consider transfer of any employees to San Lorenzo,
scarcely demonstrates, as Respondent holds forth, that it
did engage in bargaining on the subject of transfer rights.
Rather, in dealing with the Unions, Respondent squarely
predicated its refusal to transfer the San Francisco
employees upon a legal judgment that it was bound to
recognize IBEW at San Lorenzo and to employ
IBEW-represented employees after their release from
employment with standard controls division of Westing-
house. As will be treated infra, this position was entirely
erroneous in law.
Cooper Thermometer Company 40 provides a particularly
apt precedent in the Board's disposition of the issues.
There, the plant was moved some 27 miles virtually
unchanged in all aspects of the operation, so that it was
held "no more than a continuance of the old plant." In
negotiating with the union concerning the relocation,
Cooper "did not depart from its basic position that its
obligation to bargain as to the effects of the move was
limited to determining the rights of the employees deriving
se The current contracts of all the Unions contain union-security
provisions, and it is therefore properly presumed that all the employees in
the three bargaining units were members of their respective Unions
39 In appraising the desires of the employees, consideration has been
given to all geographic factors, already described In my opinion, the
distance and conditions of travel to work at the new plant are not so
149
from the existing contract," e.g., severance pay. The Board
defined the bargaining obligation in those circumstances as
requiring that the union be afforded an opportunity to
bargain with respect to the contemplated move as it
affected the employees, such as the placement of the
employees in positions at the new plant. Upon evidence,
including the union composed letters of application signed
by most of the employees, it was found that a majority
would have transferred to the new plant if given the
opportunity, and that Cooper's unlawful refusal to bargain
precluded such a result. Cooper was ordered to bargain in
good faith concerning the effects of the plant removal, to
recognize the union for the employees at the new plant, and
to reinstate the terminated employees at the relocated
plant, with backpay. The Second Circuit Court of Appeals
affirmed the finding that Cooper failed to bargain in good
faith concerning the effects of the move-as it had "ousted
the Union from any role in negotiating what might be
offered to employees desiring transfer." It denied enforce-
ment of that part of the Board's order which required
Cooper to recognize the union at the new location,
essentially on the grounds, including distance and geo-
graphic factors, that the evidence did not fairly support a
finding that a majority of the employees, 80 percent of them
women, would have transferred to the new plant "on any
basis to which collective bargaining could reasonably have
been anticipated to lead." To the extent of the conflict of
opinions, the Trial Examiner is, of course, bound by the
Board's decision. However, the instant record is substan-
tially more compelling in two critical respects: the strong
evidence of the employees' desires, and the extent to which
Respondent effectively prevented by its unfair labor
practices the transfer of employees to the new plant.
More recently, in Westinghouse Electric Corporation, 174
NLRB No. 95, the Board had occasion to define and
distinguish "the Cooper Thermometer type" of plant
removal case as -
concerned with a loss of jobs caused by the partial or
complete termination of an operation at one location
and its relocation at another. In such situations, the
employees at the old plant are directly affected by the
relocation, and an employer is required to negotiate not
only respecting the shutdown, but also the bases and
conditions on which employees affected by the termination
may transfer to the new location and thus continue to be
employed. [Emphasis supplied.]
As to the further question of the employer's obligation to
bargain at the new location, the Board held that it "must be
established by affirmative evidence showing either the
presence of the Union's majority status at [the new plant]
or that the absence thereof has been caused by Respon-
dent's unfair labor practices."
In California Footwear Company, 41 the Board found the
employer violated its statutory bargaining obligation by
refusing to discuss with the union the transfer of its
employees from Los Angeles to the relocated plant in
unusual or onerous as to cast any serious doubt on the expressed intentions
of these employees See Cooper Thermometer Company, 160 NLRB1902,
1911
40 160 NLRB 1902, enfd in part 376 F 2d 684 (C A. 2)
41 114 NLRB 765, enfd 246 F 2d 886 (C A 9)
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Venice, 12 miles distant, for the false reason that it had no
control over the management at the new plant. The 8(a)(5)
violation consisted of the employer's refusal to apply at
Venice the collective-bargaining contract which existed at
Los Angeles; its unilateral establishment of wages and
working conditions at Venice, which differed substantially
from those required by the contract; and its refusal to
recognize the contracting union at the Los Angeles plant
for the employees at the new Venice plant. Concerning the
latter holding by a majority of the Board, it was reasoned
that, under the circumstances, the fact that there was
economic reason for removal of the plant ceases to be
controlling. The union's failure to muster a majority at the
new plant was attributable to the employer's deceit and
subterfuge in concealing the fact that it remained the same
employer at the new location. Moreover, it could not be
known for certain whether, if the employer had bargained in
good faith on the transfer of employees and had not
deliberately misled the union and the employees, a
sufficient number of employees would have transferred to
preserve the union's majority. As the cause of the
uncertainty was created by the employer, the question must
be resolved against the employer. In affirming the Board
majority, the Ninth Circuit Court of Appeals construed the
Board's holding of the unfair labor practices after the
closing of the Los Angeles plant as resting upon "the
assumption that most of the local's employees would have
transferred to Venice and thus preserved local's majority
had it not been for the refusal to bargain about transfer of
employees. " [Emphasis supplied.]
The 8(a)(2) and (3) Violations
Respondent's principal defense is devoid of any
substance-that it could not transfer the San Francisco
employees as it was legally obligated to recognize IBEW
and to employ the existing San Lorenzo (Westinghouse)
work force for Respondent's relocated operation. The
vaguely defined contention that Respondent and Westing-
house at San Lorenzo were one and the same employer,
even if established, would not justify such recognition of
IBEW. For even assuming that the two corporations, with
Respondent as a wholly owned subsidiary, constitute a
single employer, which I do not find on the record as
made,42 there is no rational basis for obliterating the prior
existing appropriate units at both locations validly rooted
in contract bargaining history and partly in Board
certification.43 Accretion or integration of the relocated
San Francisco units, comprising over 300 employees, into
the San Lorenzo (Westinghouse) unit, of some 85
employees, is not contended or possible; indeed, the latter
42 It is sufficiently clear that these are two distinct operating concerns,
manufacturing different products, with different immediate management,
supervision , employee functions, and operational methods Cf N L R B v
Shawnee Milling Company, 184 F 2d 57 (C A 10)
43 Cf Westinghouse Electric Corporation, 174 NLRB No 95, where the
past bargaining history was recognized as permitting a particular union to
continue as bargaining representative at several plants, despite operational
changes and interplant transfer of employees.
44 See , e g., Die Supply Corporation, 160 NLRB 1326, 1338, The Hurley
Company, Inc 136 NLRB 551, enfd. 310 F 2d 158 (C A 8)
45 Although it would in no event be controlling, the original IBEW
contract contained no special provisions which would colorably require
unit, in turn removed to Visalia, was no longer existent at
San Lorenzo as of May 1969. Nor is any issue raised that
there was such a transformation as to materially change the
nature of Respondent's operation at the San Lorenzo site;
and the contrary is clearly evident 44 The relatively
insubstantial changes, in equipment and added processes,
would not alter the relocated units at San Lorenzo any
more than they would had they been effected at San
Francisco. From the testimony, it appears that the initiative
was taken by Respondent in recognizing IBEW anticipato-
rily for Respondent's plant after its removal to San
Lorenzo.45 Supplements to the existing IBEW contract with
Westinghouse were then negotiated between Respondent
and IBEW to cover job classifications of Respondent's
relocated operation. There is no such concept in Board law
that a contracting union, e.g., IBEW. has a continuous right
to recognition on the basis of location, regardless of the
particular employees, their functions, or scope and
composition of the certified or recognized bargaining unit.
Of some significance, IBEW has, following the hearing,
renounced any claim to represent the employees of
Respondent at San Lorenzo.
In necessary effect, Respondent extended recognition to
IBEW, formally at their first meeting on January 20, 1969,
at a time when there were no employees yet hired for such
operation. Or even if it is construed that the recognition of
IBEW and the execution of the contract supplements
contemplated the hiring of the 85 former
IBEW-represented employees of the discontinued standard
controls division of Westinghouse, these parties were then
well aware that the bargaining unit involved in the
recognition and the contract did not constitute a substantial
and representative employee complement, but rather that
the actual unit would expand upon the completed transition
to embrace in excess of 300 employees.46 In either case, it is
clear that IBEW did not at these material times represent
an uncoerced majority of employees in an appropriate
bargaining unit for Respondent's relocated operation at
San Lorenzo.
Therefore, it is found that Respondent, in violation of
Section 8(a)(2), rendered unlawful assistance and support
to IBEW, when IBEW did not represent an uncoerced
majority of Respondent's employees in an appropriate
bargaining unit, by granting recognition to IBEW on and
after January 20, 196947 and by entering into and adopting
an IBEW collective-bargaining contract on April 3, 1969,
to cover Respondent's employees at the relocated San
Lorenzo plant 48 It is further found that as the aforemen-
tioned contract, executed, adopted, and enforced on and
after April 3, 1969, contained a union security provision
requiring as a condition of continued employment
such recognition, as Respondent attempted to argue with the Unions
46 See General Extrusion Company, Inc, 121 NLRB 1165
47 While the complaint specifies the date as to this allegation as April 3,
1969, the evidence discloses the date of January 20, 1969, when recognition
formally commenced, and I find the variation in dates sufficiently within
the framework of the complaint and fully litigated Section 10(b) presents
no barrier to such finding, as the IAM charge covering this allegation was
filed on June 2, 1969.
46 International Ladies' Garment Workers' Union, AFL-CIO v N L R B,
and Bernhard-Altman Texas Corp, 366 U.S. 731, and, e.g., Newport Window
Cleaning Co, Inc, 170 NLRB No 131, international Paper Company, 150
NLRB 1252
FRASER & JOHNSTON COMPANY
membership by Respondent's employees in IBEW and
payment to IBEW of initiation fees and monthly dues,
Respondent violated Section 8(a)(3).49
The 8(a)(5) Violations
Based upon the existing contracts between the respective
parties, and essentially as alleged in the complaint, the
following units are found appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act, together with their respective majority and
exclusive bargaining representatives:
All employees employed by member employers of
CMTA, including employees of Respondent at its San
Francisco, California, plant, covered by the
collective-bargaining agreement between IAM Interna-
tional and its affiliated district and local lodges, including
IAM Lodge 1327, and CMTA effective from May 20, 1968,
through March 31, 1971 (excluding all employees in
appropriate bargaining units of Respondent represented by
Sheet Metal Workers and Boilermakers, described below),
and excluding guards and supervisors as defined in the Act.
At all times material, the majority and exclusive bargaining
representative in such appropriate unit consisted of IAM
International, and its affiliated district and local lodges,
including IAM Lodge 1327.
All sheet metal production specialists, sheet metal
production workers, and shop cleaners employed by
Respondent at its San Francisco, California, plant covered
by the collective-bargaining agreement between Sheet
Metal Workers and CMTA on behalf of Respondent,
effective from May 20, 1968, through March 31, 1971,
excluding guards and supervisors as defined in the Act. At
all times Material, the majority and exclusive bargaining
representative in such appropriate unit consisted of the
Sheet Metal Workers.
All welders and helpers employed by Respondent at its
San Francisco, California, plant covered by the collective-
bargaining agreement between Respondent and Boiler-
makers International and its locals , including Local 6,
effective from April 1, 1969, through June 30, 1971,
excluding guards and supervisors as defined in the Act. At
all times material , the majority and exclusive bargaining
representative in such appropriate unit consisted of
Boilermakers International and its Local 6.50
It is found that Respondent violated Section 8(aX5) by
failing and refusing to bargain in good faith with each of
the Unions 51 concerning the transfer of employees from
45 E G , Mears Coal Co, 175 NLRB No. 135, Lunard-Central
Distributing Co, Inc, 161 NLRB 1443
50 There is no merit in Respondent's contention , first advanced in its
brief, that it was not obligated to bargain with any of the Unions on the
ground that the respective bargaining units , as alleged in the complaint and
claimed by the Unions, are inappropriate as constituting a divided
production and maintenance unit Divided production and maintenance
units are not uncommon and are certainly not inappropriate per se E g,
Pacific Drive-In Theatres Corp, 167 NLRB No 88; Swift & Company, 127
NLRB 87 (residual units). Fundamentally in Board representation law, it is
well known that long-established bargaining relationships , evidenced by
successive contracts, as here, will not be disturbed where they are not
repugnant to the Act's policies E g, The Great Atlantic & Pacific Tea Co,
Inc 153 NLRB 1549, General Electric Company, 89 NLRB 726, 731,
Westinghouse Electric Corporation, 174 NLRB No. 95, N L R B v Royal
Oak Tool & Machine Co, 320 F 2d 77, 82 (C A. 6) Moreover, Respondent
is in a poor position to dispute the appropriateness of the units which it
itself had accepted as a proper basis for bargaining not only over the many
151
the San Francisco plant to the relocated plant in San
Lorenzo.52
There remains the more critical question of the right of
the Unions to recognition at the removed San Lorenzo
plant. For the purpose of this issue, it is found that the
employees in each of the Unions' contractual units at San
Francisco, supra, also constitute appropriate bargaining
units at San Lorenzo. In accordance with the pertinent
decisional law, discussed above, the evidence convincingly
shows, in my opinion, that at least a majority of the old
plant employees would have transferred to the new
plant-but for Respondent's serious unfair labor practices
in refusing to bargain with the Unions concerning the
transfer of employees, and its preemptive foreclosure of the
rights of the San Francisco employees and the Unions by
recognizing and entering into a union- security agreement
with IBEW covering the employees at the San Lorenzo
plant. Supporting such conclusion, the following further
factors in evidence are particularly noted: Of some 300
former San Francisco employees, 65 actually applied for
jobs at San Lorenzo despite the numerous handicaps
created by Respondent. Thus, for many months prior to the
consummation of the move, they were expressly encour-
aged to seek employment elsewhere, while they were
precluded from making application for continuing to work
at the San Lorenzo location. Only after their final
termination were their applications entertained by Respon-
dent, provided they presented themselves personally at San
Lorenzo. Employees of long tenure at San Francisco had to
accept the status of new employees at San Lorenzo. As
such, they were immediately subordinated in seniority to
the 85 former Westinghouse employees under the adopted
IBEW general contract. The pay was lower, and they were
not necessarily given their same jobs. Although longstand-
ing members of the respective Unions, which Respondent
refused to recognize at San Lorenzo, they were compelled
to join, and pay dues and initiation fees to, IBEW. Those
who did not apply under the restricted conditions laid
down by Respondent presumably were aware that only
about half of the employees who did apply were hired, and
that many of these applicants rejected the job offers made
to them by Respondent. The existence of the current
contracts with the Unions-that with the Boilermakers
consciously executed by Respondent in May 1969 after the
relocation was underway-further augments the equitable
rights of the Unions. Considering in addition that,
prior years but in all the meetings which it sought with the Unions to
discuss the matters in question pertaining to the plant relocation See
International Telephone & Telegraph Corporation, 159 NLRB 1757, 1764,
enfd in pertinent part 382 F.2d 366 (C A 3), cert denied 389 U S. 1039
51 Commencing November 27, 1968, with IAM, commencing January 7,
1969, with Sheet Metal Workers; and commencing February 10, 1969, with
Boilermakers While, as indicated herein , meetings and correspondence
between Respondent and the Unions took place prior to the 6-month
limitation period in Section 10(b) (as related to the dates the appropriate
charges were filed and served), the same positions were restated and
continued by Respondent , and given ultimate crystallization of the refusal
to bargain , well within the permissible period See The Pierce Governor
Company, Inc, 164 NLRB 97, 101
52 E g, Cooper Thermometer Company, 160 NLRB 1902, enfd in
pertinent part 376 F 2d 684 (C A 2); Fibreboard Paper Products Corporation,
138 NLRB 550, enfd 379 U S 203; Rapid Bindery, Inc ,127 NLRB 212,
enfd in pertinent part 293 F.2d 170 (C A 2), Standard Handkerchief Co,
151 NLRB 15, cf Westinghouse Electric Corporation, 174 NLRB No 95
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following the hearing, IBEW disclaimed representation of
Respondent's employees in San Lorenzo, the balance of
rights under the Act's policies, in my view, favors extending
to the former San Francisco employees the recognition of
their respective Unions at San Lorenzo, as against the
possibility of depriving newly hired employees at San
Lorenzo of any freedom of choice in selecting a bargaining
representative.53
Accordingly, it is concluded that Respondent further
violated Section 8(a)(5) by refusing to recognize and
bargain collectively with each of the Unions as the
exclusive representative in the respective appropriate units
at Respondent's relocated operation in San Lorenzo.54
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent and CMTA described in section i, 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 Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5) of
the Act in particular respects, I shall recommend that
Respondent, upon request, bargain collectively with the
respective Unions concerning the effects upon the repre-
sented employees of the plant relocation from San
Francisco to San Lorenzo, particularly the transfer rights of
such employees, and further that Respondent recognize
and, upon request, bargain collectively with each of the
Unions as the exclusive bargaining representative of the
employees in the respective units herein found appropriate
at the San Lorenzo, California, plant pursuant to the
existing contracts.
Having found that Respondent violated Section 8(a)(2) of
the Act by rendering unlawful support and assistance to
IBEW, I shall recommend that Respondent withdraw and
withhold recognition from IBEW as representative of such
employees both until it has complied with the provisions of
the Recommended Order herein requiring it to bargain with
the respective Unions, and thereafter, unless and until
IBEW shall be so certified as representative by the Board. I
shall also recommend that Respondent be required to set
aside the contract supplements executed April 3, 1969, in
53 Cf Garwin Corporation, et al v N L R B, 374 F.2d 295 (C A D C ),
cert denied 387 U.S 942
54 Cooper Thermometer Company, 160 NLRB 1902, enfd. in part 376
F 2d 684 (C A 2), California Footwear Company, 114 NLRB 765, enfd 246
F 2d 886 (CA 9), The Hurley Company, Inc, 136 NLRB 551, enfd 310
F 2d 158 (C A 8), cf The Pierce Governor Company, inc, 164 NLRB 97,
affd 394 F 2d 757 (C A D.C ), cert denied 393 U S 831
15 Notwithstanding IBEW's present disclaimer of representation, the
Recommended Order to sever contractual relations is necessary to assure
effectuation of these affirmative remedies deemed appropriate
56 The record does not identify those employees who, for their own
which Respondent became party and subject to the existing
general contract between IBEW and Westinghouse, and to
cease applying the terms of such contract and contract
supplements relating to the bargaining unit employees
represented by the Unions as described herein. However,
nothing in this recommendation shall require Respondent
to vary or abandon any wage, condition of employment, or
other benefit which has been accorded to these employees
under the IBEW agreements, or prejudice the assertion by
these employees of any rights they may have thereunder.55
Having found that Respondent applied and enforced an
unlawful union-security contract with respect to Respon-
dent's employees employed at the San Lorenzo, California,
plant, I shall further recommend that Respondent be
required to reimburse the affected employees, excepting
those who were preexisting members of IBEW, for all
initiation fees, dues, or other moneys exacted from them in
favor of IBEW, including interest thereon at 6 percent per
annum, computed in the manner set forth in Seafarers
International Union of North America, 138 NLRB 1142.
I shall also recommend that Respondent offer the
employees represented by the Unions, who were terminated
as a result of Respondent's unlawful actions, immediate
reinstatement at the San Lorenzo, California, plant in their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
displacing other employees, if necessary. In addition, I shall
recommend that Respondent be required to make whole
each of the aforementioned employees for backpay from
the date of their termination to the date of Respondent's
offer of reemployment ,56 less net earnings during such
period, computed on the quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289. Backpay shall carry interest at the rate of 6
percent per annum, as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716. Further, I shall recommend that
Respondent preserve and make available to the Board,
upon request, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary and useful to determine the amount
of backpay due and the right to reinstatement under the
terms of this recommendation.
As Respondent no longer operates the San Francisco
plant, and most of the former employees are not presently
employed at the relocated San Lorenzo plant, the posting of
notices alone would not be sufficient to reach these
employees. I shall recommend, therefore, that Respondent
be required to mail a copy of the attached notice to each
employee who was on Respondent's payroll as of July 17,
1968 (the date of Respondent's notice to the employees and
the Unions of its decision to relocate) at his or her last
known address, as disclosed by Respondent's records, or as
personal reasons , would not have transferred to the San Lorenzo plant and
would not, therefore, be entitled to reinstatement and backpay These are
matters to be determined at the compliance stage of this proceeding E g ,
Cooper Thermometer Company, 160 NLRB 1902, 1917, Puerto Rico
Telephone Company, 149 NLRB 950, 969 In the present case, the identity
of the employees who were willing to transfer to San Lorenzo is sufficiently
reflected in the petitions obtained by the Unions, which are in evidence As
to the remainder , and those 14 employees who, for undisclosed reasons,
rejected Respondent's job offers at San Lorenzo, the backpay, if any, shall
be based on the results of the bargaining as recommended herein . Cooper
Thermometer Company v N L R B,376 F.2d 684, 691 (C A 2)
FRASER & JOHNSTON COMPANY 153
may be amplified by the Unions . Further , I shall
recommend that the Board reserve to itself the right to
amend or modify its order to provide for events which have
not been anticipated.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the cases , I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Each of the Unions and IBEW are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
3. By the conduct set forth in section III, above,
Respondent has rendered unlawful assistance and support
to IBEW and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(2)
and (1) of the Act.
4. By executing , adopting , and enforcing a
union-security agreement with IBEW with respect to
Respondent 's employees at the San Lorenzo, California,
plant , thereby encouraging membership in IBEW, and
discouraging membership in the respective Unions, Res-
pondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. The following units are appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
(a) All employees employed by member employers of
CMTA, including employees of Respondent at its San
Francisco , California , plant and at its relocated plant at
San Lorenzo , California , covered by the
collective-bargaining agreement between IAM Interna-
tional and its affiliated district and local lodges,
including Lodge 1327 and CMTA, effective from May
20, 1968 , through March 31,1971 (excluding all
employees in appropriate bargaining units of Respon-
dent represented by Sheet Metal Workers and Boiler-
makers, described below), and excluding guards and
supervisors as defined in the Act.
(b) All sheet metal production specialists , sheet metal
production workers, and shop cleaners employed by
Respondent at its San Francisco , California , plant, and
at its relocated plant in San Lorenzo , California,
covered by the collective-bargaining agreement be-
tween Sheet Metal Workers and CMTA on behalf of
Respondent , effective from May 20, 1968 , through
March 31, 1971, excluding guards and supervisors as
defined in the Act.
(c) All welders and helpers employed by Respondent at
its San Francisco , California, plant , and at its relocated
plant in San Lorenzo , California, covered by the
collective-bargaining agreement between Respondent
and Boilermakers International and its locals, including
Local 6, effective from April 1, 1969, through June 30,
1971, excluding guards and supervisors as defined in the
Act.
6. At all times material the respective Unions have been
the majority and exclusive representatives in the aforesaid
bargaining units, as follows: in unit (a), IAM International,
and its affiliated district and local lodges , including Lodge
1327; in unit (b), the Sheet Metal Workers; in unit (c), the
Boilermakers International , and its Local 6.
7. By refusing to bargain collectively, since November
27, 1968 , with IAM, since January 7 , 1969, with Sheet Metal
Workers , and since February 10 , 1969, with Boilermakers,
as the exclusive representatives of the employees in their
respective appropriate units , as aforesaid, concerning the
transfer of employees from the San Francisco , California,
plant to the relocated plant at San Lorenzo, California,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(5) and (1) of
the Act.
8. By refusing to recognize and bargain collectively with
each of the Unions as the exclusive representative of the
employees in their . respective appropriate units at the
relocated plant in San Lorenzo , California, and by
recognizing and bargaining with IBEW as the exclusive
representative of the employees at such plant , Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)(5) and ( 1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the cases,
it is recommended that Respondent , Fraser & Johnston
Company, San Francisco and San Lorenzo, California, its
officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Recognizing IBEW as the representative of any of its
employees in the appropriate bargaining units described
below for the purpose of dealing with Respondent
concerning grievances , labor disputes , wages , rates of pay,
hours of employment, or other terms and conditions of
employment , both until it has complied with the provisions
of this Order requiring it to bargain with IAM, Sheet Metal
Workers, and Boilermakers , and thereafter , unless and until
IBEW shall have been certified by the Board as representa-
tive of any such employees.
(b) Giving any force or effect to the collective -bargaining
agreement and supplements thereto adopted and executed
on April 3 , 1969, covering Respondent's employees at the
San Lorenzo , California , plant , in the appropriate units
described below , or to any modification , extension, or
renewal of such agreement , provided, however, that
nothing herein shall require Respondent to vary or
abandon any wage , hour, seniority , or other substantive
feature of its relations with such employees under these
agreements , or prejudice the assertion by these employees
of any right that they may have thereunder.
(c) Encouraging membership in IBEW , or any other
labor organization , or discouraging membership in IAM,
Sheet Metal Workers , Boilermakers , or any other labor
organization , by applying , maintaining , or enforcing an
invalid collective-bargaining agreement containing
union-security provisions, or by discriminating in any like
manner in regard to the hire or tenure of employment or
any other term or condition of employment.
(d) Refusing to bargain collectively concerning the
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transfer of employees from the San Francisco, California,
plant, to the relocated plant at San Lorenzo, California;
and refusing to bargain collectively with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, with IAM, Sheet Metal
Workers, and Boilermakers, respectively, as the exclusive
representatives of its employees in the following respective
appropriate units:
All employees employed by member employers of
California Metal Trades Association, including employ-
ees of Respondent at its San Francisco, California,
plant, and at its relocated plant at San Lorenzo,
California, covered by the collective-bargaining agree-
ment between IAM Inter national and its affiliated
district and Local Lodges, including Lodge 1327, and
California Metal Trades Association, effective from
May 20, 1968, through March 31, 1971, excluding
guards and supervisors as defined in the Act.
All sheet metal production specialists, sheet metal
production workers and shop cleaners employed by
Respondent at its San Francisco, California, plant, and
at its relocated plant in San Lorenzo, California,
covered by the collective-bargaining agreement be-
tween Sheet Metal Workers and California Metal
Trades Association on behalf of Respondent, effective
from May 20, 1968, through March 31, 1971, excluding
guards and supervisors as defined in the Act.
All welders and helpers employed by Respondent at
its San Francisco, California, plant, and at its relocated
plant in San Lorenzo, California, covered by the
collective-bargaining agreement between Respondent
and Boilermakers International and its Locals, includ-
ing Local 6, effective from April 1, 1969, through June
30, 1971, excluding guards and supervisors as defined in
the Act.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from IBEW as
the collective-bargaining representative of any of the
employees in the appropriate units described above, both
until it has complied with the provisions of this Order
requiring it to bargain with IAM, Sheet Metal Workers, and
Boilermakers, and thereafter, unless and until the Board
shall have certified IBEW as such representative.
(b) Reimburse each of its present and former employees,
excepting those employees who were members of IBEW
prior to April 3, 1969, for all initiation fees, dues, and other
moneys, if any, exacted pursuant to the terms of a
union-security agreement between Respondent and IBEW
effective on and after April 3, 1969, as set forth in the
remedy section of this Decision.
(c) Upon request, bargain collectively with IAM, Sheet
Metal Workers, and Boilermakers, as the exclusive
bargaining representatives of its employees in the respective
appropriate units at the San Francisco, California, plant,
described above, concerning the transfer of employees, and
other effects upon the employees, resulting from its
relocation of the San Francisco, California, plant to San
Lorenzo, California.
(d) Recognize, and upon request, bargain collectively
with IAM, Sheet Metal Workers, and Boilermakers,
respectively, as the exclusive representatives of the
employees in the respective appropriate units at the San
Lorenzo, California, plant, and embody in a signed
agreement any understanding reached, giving due effect to
the existing contracts.
(e) Offer those employees terminated as a result of
Respondent's unlawful actions immediate and full reins-
tatement to their former or substantially equivalent
positions at the San Lorenzo, California, plant, without
prejudice to their seniority or other rights or privileges, and
make them whole for any loss of earnings, in the manner set
forth in the Remedy section of this Decision.
(f) Notify any terminated employee, if presently serving
in the Armed Forces of the United States, of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(g) Preserve and make available to the Board or its agents
all payroll and other records, as set forth in The Remedy
section of this Decision.
(h) Post at its plant in San Lorenzo, California, copies of
the attached notice marked "Appendix A," 57 and forthwith
mail to the last known address of each employee on its
payroll on and subsequent to July 17, 1968, a copy of such
notice. Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly signed by
Respondent, shall be posted immediately upon receipt
thereof, in conspicuous places, and be maintained for a
period of 60 consecutive days. Reasonable steps shall be
taken to insure that such notices are not altered, defaced, or
covered by any other material.
(i) Notify the Regional Director for Region 20, in writing,
within 20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.58
IT IS FURTHER RECOMMENDED that the complaint be
dismissed as it alleges violations not specifically found
herein.
51 In the event no exceptions are filed as provided by Section 102 46 of
Labor Relations Board , the findings, conclusions , recommendations, and
Recommended Order herein shall, as provided in Section 102.48 of the
Rules and Regulations , be adopted by the Board and become its findings,
conclusions, and order, and all objections thereto shall be deemed waived
for all purposes . In the event that the Board's Order is enforced by a
Judgment of a United States Court of Appeals, the words in the notice
reading "POSTED BY ORDER OF THE NATIONAL LABOR
RELATIONS BOARD" shall be changed to read "POSTED PURSUANT
TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELA-
TIONS BOARD "
as 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 Respondent
has taken to comply herewith "
FRASER & JOHNSTON COMPANY 155
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize International Brotherhood
of Electrical Workers, AFL-CIO, LOCAL 2131 (herein
called IBEW), as the representative of any of our
employees at the San Lorenzo plant in the appropriate
bargaining units, below, for the purpose of dealing with
us concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other terms and
conditions of employment of these employees, or give
IBEW any other assistance or support with respect to
these employees.
WE WILL NOT apply, enforce, or give effect to the
collective-bargaining agreement, and supplements
thereto, adopted and executed on April 3, 1969,
covering our employees at the San Lorenzo, California,
plant, or to any modification, extension, or renewal of
such agreement. We are not required to carry or
abandon any wage, hour, seniority, or other substantive
benefits accorded to employees under this agreement,
or prejudice the assertion by employees of any right
they may have thereunder.
WE WILL NOT encourage membership in EBEW, or
any other labor organization, or discourage member-
ship in International Association of Machinists and
Aerospace Workers, AFL-CIO, or its Lodge No. 1327
(herein collectively called IAM), Sheet Metal Prod-
uction Workers International Association, Local Union
No. 355, AFL-CIO (herein called Sheet Metal Work-
ers), or International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers, and Helpers of
America, AFL-CIO, or its Local 6 (herein collectively
called Boilermakers), or any other labor organization,
by applying, maintaining, or enforcing an invalid
collective-bargaining agreement containing
union-security provisions, or by discriminating in any
like manner in regard to the hire or tenure of
employment or any other term or condition of
employment.
WE WILL NOT refuse to bargain collectively concern-
ing the transfer of employees from the San Francisco,
California, plant, to the relocated plant at San Lorenzo,
California; or refuse to bargain collectively with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment, with the IAM,
Sheet Metal Workers, and Boilermakers, respectively,
as the exclusive representatives of our employees in the
following respective appropriate units, excluding guards
and supervisors as defined in the Act:
All employees employed by member employers of
California Metal Trades Association, including
employees of Fraser & Johnston Company at the
San Francisco, California, plant, and at the
relocated plant at San Lorenzo, California,
covered by the collective-bargaining agreement
between IAM and its affiliated Lodges, including
Lodge 1327, and California Metal Trades Associ-
ation, effective from May 20, 1968, through
March 31, 1971.
All sheet metal production specialists , sheet metal
production workers, and shop cleaners employed
by Fraser & Johnston Company at its San
Francisco, California, plant, and at its relocated
plant in San Lorenzo, California, covered by the
collective-bargaining agreement between Sheet
Metal Workers of Fraser & Johnston Company,
effective from May 20, 1968, through March 31,
1971.
All welders and helpers employed by Fraser &
Johnston Company at its San Francisco, Califor-
nia, plant, and at its relocated plant in San
Lorenzo, California, covered by the
collective-bargaining agreement between Fraser
& Johnston Company and Boilermakers and its
Locals, including Local 6, effective from April 1,
1969, through June 30, 1971.
WE WILL NOT in any similar manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed in the National Labor Relations Act.
WE WILL withdraw and withhold all recognition from
IBEW as the collective-bargaining representative of
any of the employees in the appropriate units, above,
both until we have complied with the provisions of the
Board's Order requiring us to bargain with the IAM,
Sheet Metal Workers, and Boilermakers, and thereafter,
unless and until so certified by the National Labor
Relations Board.
WE WILL reimburse each of our present and former
employees, except those employees who were members
of IBEW prior to April 3, 1969, for all initiation fees,
dues, and other moneys, if any, exacted pursuant to the
terms of a union-security agreement with IBEW
effective on and after April 3, 1969, including interest.
WE WILL,upon request, bargain collectively with the
IAM, Sheet Metal Workers, and Boilermakers, respec-
tively, as the exclusive bargaining representatives of our
employees in the respective appropriate units at the San
Francisco, California, plant, concerning the transfer of
employees, and other effects upon the employees,
resulting from the plant relocation to San Lorenzo,
California.
WE WILL, upon request, bargain collectively with the
IAM, Sheet Metal Workers, and Boilermakers, respec-
tively, as the exclusive representatives of our employees
in the respective appropriate units at the relocated plant
in San Lorenzo, California, and embody in a signed
agreement any understanding reached, giving due effect
to the existing contracts.
WE WILL offer those employees terminated as a result
of our unlawful actions immediate and full reinstate-
ment to their former or substantially equivalent
positions, at the San Lorenzo, California, plant, without
prejudice to their seniority or other rights or privileges,
and we will make them whole for any loss of pay
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffered as a result of their termination , including
interest.
WE WILL notify those employees terminated as a
result of our unlawful actions, 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 the Universal Military
Training and Service Act of 1948 , as amended, after
discharge from the Armed Forces.
FRASER & JOHNSTON
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board's Office, 13050
Federal Building, Box 36047 , 450 Golden Gate Avenue,
San Francisco, California 94102 , Telephone 556-3197.
PROPOSED AGREEMENT FOR SETTLEMENT OF SEVERENCE
NEGOTIATIONS
FRASER & JOHNSTONE COMPANY , 1900-17TH STREET,
SAN FRANCISCO, MAKES THE FOLLOWING PROPOSAL FOR
A SEVERANCE AGREEMENT WITH IAM LODGE 1327, 1450
ROLLINS ROAD , BURLINGAME , THE AGREEMENT IS TO
BECOME EFFECTIVE AT THE TIME OF SEVERANCE OF AN
EMPLOYEE AS DEFINED BELOW.
ELIGIBILITY
A. EXCEPT AS PROVIDED IN PARAGRAPH B AND C OF
THIS SECTION AND IN THE SECTION ENTITLED
"TERMINATION OF RIGHTS", ANY EMPLOYEE IN THE
BARGAINING UNIT REPRESENTED BY THE UNION WHO IS
TERMINATED DURING THE PERIOD IN WHICH THIS
AGREEMENT IS EFFECTIVE BECAUSE OF THE SHUTDOWN
AND DISCONTINUANCE OF OPERATIONS AT THE SAN
FRANCISCO OPERATION SET FORTH ABOVE , SHALL BE
ELIGIBLE TO RECEIVE THE SEPARATION BENEFITS
DESCRIBED IN THE SECTION ENTITLED "BENEFITS",
PROVIDED THAT SUCH EMPLOYEE CONTINUES TO
PERFORM WORK ASSIGNED TO HIM UNTIL THE SPECIFIC
DATE OF HIS TERMINATION, WITHOUT INTERRUPTION OF
OR INTERFERENCE WITH SUCH WORK OR THE WORK OF
OTHERS EMPLOYED AT THE PLANT.
B. EMPLOYEES WHO QUIT VOLUNTARILY, ARE
RELEASED OR ARE DISCHARGE FOR JUST CAUSE PRIOR TO
THEIR NORMAL TERMINATION DATE AS DETERMINED BY
THE COMPANY WILL NOT BE ELIGIBLE FOR THE BENEFITS
PROVIDED UNDER THIS AGREEMENT.
C. EMPLOYEES WHO ARE AGE 65 OR OVER AND ARE
ELIGIBLE FOR RETIREMENT BENEFITS UNDER THE
PROVISIONS OF THE CMTA/IAM PENSION TRUST AS OF
THE DATE OF THEIR TERMINATION WILL NOT BE ELIGIBLE
FOR THE BENEFITS PROVIDED UNDER THIS AGREEMENT.
BENEFITS
A. SEPARATION ALLOWANCE:
1. EACH EMPLOYEE WHO HAS THREE OR MORE
YEARS OF SERVICE WITH THE COMPANY ON THE
DATE HI's IS TERMINATED AND WHO MEETS THE
ELIGIBLITY REQUIREMENTS OF THE "ELIGIBILITY"
SECTION OF THIS AGREEMENT , IS ENTITLED TO A
SEPARATION ALLOWANCE BASED ON HIS YEARS OF
SERVICE AT HIS DATE OF TERMINATION.
2. YEARS OF SERVICE WILL BE DETERMINED BY AN
EMPLOYEE 'S SENIORITY AS DEFINED IN THE
COLLECTIVE BARGAINING AGREEMENT . YEARS OF
SERVICE WILL BE CREDITED AS FULL YEARS ONLY.
3. PAYMENTS DUE EMPLOYEES UNDER THE
PROVISIONS OF THIS SECTION WILL BE BASED ON
THE BASE CLASSIFICATION SHIFT RATE OF PAY IN
EFFECT THE SECOND MONDAY PRECEDING THE
DATE OF TERMINATION.
4. THE TOTAL AMOUNT TO BE PAID TO THE
EMPLOYEE SHALL BE CALCULATED BY MULTIPLUING
HIS BASE CLASSIFICATION SHIFT RATE OF PAY BY HIS
YEARS OF SERVICE BY THE INCREMENT OF PAY
(NUMBER OF HOURS) IN ACCORDANCE WITH THE
FOLLOWING FORMULA:
YEARS OF SERVICE
3-LESS THAN 5
5-LESS THAN 10
10-LESS THAN 15
15-LESS THAN 20
20 and OVER
INCREMENT OF PAY
(HOURS)
8
10
12
14
16
B. PAYMENT OF SEPARATION ALLOWANCE:
THE ELIGIBLE EMPLOYEES WILL RECEIVE THE
SEPARATION ALLOWANCE WITHIN SIX MONTHS AFTER THE
DATE OF TERMINATION.
BOYCOTTS, STRIKES OR SLOWDOWNS
IT SHALL BE PROVIDED IN THE AGREEMENT THAT THE
PROVISIONS OF THE AGREEMENT SHALL NOT APPLY TO
ANY EMPLOYEES IF THE OPERATIONS OF THE COMPANY AT
EITHER THE MANUFACTURING PLANTS BEING CLOSED OR
ANY OTHER LOCATIONS OF THE COMPANY ARE IN ANY
WAY ADVERSELY AFFECTED BECAUSE OF A BOYCOTT,
STRIKE, SLOWDOWN , OR OTHER INTERFERENCE WITH OR
INTERRUPTION OF PRODUCTION PARTICIPATED IN BY
EMPLOYEES REPRESENTED BY THE UNION , OR IF SUCH
CONDUCT BY OTHERS IS IN ANY WAY SPONSORED,
FRASER & JOHNSTON COMPANY
RATIFIED , OR CONDONED BY THE UNION.
TERMINATION OF RIGHTS
IT SHALL BE PROVIDED IN THE AGREEMENT THAT UPON
COMPLETION BY THE COMPANY OF ALL OBLIGATIONS
UNDERTAKEN BY THE AGREEMENT , ALL EMPLOYEES IN
THE BARGAINING UNIT WILL LOSE ANY AND ALL
EMPLOYMENT RIGHTS AND BENEFITS , INCLUDING BUT NOT
LIMITED TO REEMPLOYMENT AND TRANSFER RIGHTS. ANY
EMPLOYEE IN THE BARGAINING UNIT WHO MAY,
SUBSEQUENT TO TERMINATION , BE EMPLOYED AT ANY
157
OTHER LOCATION OF THE COMPANY , ITS PARENT
COMPANY OR ANY OF THE PARENT COMPANY'S
SUBSIDIARIES , WHEREVER SITUATED, WILL RECEIVE NO
CREDIT FOR ANY SERVICE PRIOR TO THE DATE OF
TERMINATION FOR ANY PURPOSE , INCLUDING BUT NOT
LIMITED TO SENIORITY , VACATION , PENSION, AND
INSURANCE.
DATED AND SIGNED THIS DAY
OF , 1968.
FRASER AND JOHNSTON COMPANY