Hall Industries, Inc

National Labor Relations Board - Board Decisions

Apr 25, 1989

293 N.L.R.B. 785 (N.L.R.B. 1989)

HALL INDUSTRIES 785
Hall Industries , Inc and International Association
of Machinists and Aerospace Workers, Local
Lodge No 52, AFL-CIO and Janeal Bartus,
Petitioner Cases 6-CA-20505, 6-CA-20577,
and 6-RD-1026
April 25, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 26, 1988, Administrative Law Judge
Walter H Maloney issued the attached decision
The Respondent filed a consolidated request for
remand for de novo hearing before a different ad
ministrative law judge, exceptions, and a support-
ing brief The General Counsel filed a brief in re-
sponse
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record' in light of the exceptions and briefs and
has decided to affirm the judge's rulings, findings,2
I The Respondent requests a remand for de novo hearing before a dif
ferent administrative law judge alleging in effect that the judge discred
ited every witness for the Respondent made adverse and hostile rulings
against the Respondent used a rejected exhibit misquoted testimony and
evidence questioned the Respondents witnesses in an argumentative
fashion and misled the Respondent as to the need to develop particular
lines of evidence We have carefully examined the entire record includ
ing the judge s decision and we are convinced that the judge s conduct
does not constitute legal prejudice nor even an appearance of partisanship
sufficient to warrant a rehearing Pak Mor Mfg Co 214 NLRB 211
(1974)
There is no basis for finding that bias or partiality existed merely be
cause the judge participated in the examination of witnesses and resolved
important factual conflicts ansing in the proceeding in favor of the Gen
eral Counsels witnesses See M System Inc 123 NLRB 1281 (1959)
Indeed it is the duty of the judge to inquire fully into the facts and he
has the authonty to call examine and cross examine witnesses See Sec
102 35 of the Board s Rules Further as the Supreme Court has stated
[T]otal rejection of an opposed view cannot of itself impugn the integn
ty of competence of a trier of fact NLRB P Pittsburgh Steamship Co
337 U S 656 659 (1949)
3 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In his decision the judge inadvertently referred to the date of the de
certification election as October 29 1988 It is clear that the proper date
is October 29 1987
In affirming the judge s findings we do not rely on his use of informs
tion and quotations from rejected G C Exh 10
and conclusions as modified, 3 and to adopt the rec-
ommended Order as modified 4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Hall Industries, Inc, Pittsburgh, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied
1 Delete paragraph 1(f) and reletter the other
paragraphs accordingly
2 Substitute the following for paragraph 2(a)
"(a) Offer to Joseph Beringer full and immediate
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights or
privileges previously enjoyed, and make him whole
for any loss of earnings and other benefits suffered
as a result of the discrimination against him, in the
manner set forth in the remedy section of the deci-
sion "
3 Insert the following as paragraphs 2(b) and (d)
and reletter other paragraphs accordingly
"(b) Remove from its files any reference to the
unlawful discharge of Joseph Bennger and notify
the employee in writing that this has been done
and that the discharge will not be used against him
in any way "
"(d) Preserve and, on request, make available to
the Board or its agents for examination and copy
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order "
4 Substitute the attached notice for that of the
administrative law judge
3 We do not adopt the finding that the statement of Respondent s presi
dent Hall to employee Beringer that he had recordings of statements
made by Beringer during negotiations created the impression that the em
ployees union activities were under company surveillance Cf Chemtron
ics Inc 236 NLRB 178 (1978)
4 The judge failed to include expunction language to remedy the un
lawful discharge of Joseph Bennger Accordingly we have inserted the
appropriate modifications to the recommended Order and notice
293 NLRB No 96
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT threaten employees with plant
closure if they continue to support the Internation-
al Association of Machinists and Aerospace Work-
ers, Local Lodge No 52, AFL-CIO
WE WILL NOT sponsor or encourage the filing of
a decertification petition
WE WILL NOT discourage membership in or ac-
tivities on behalf of the International Association of
Machinists and Aerospace Workers, Local Lodge
No 52, AFL-CIO, or any other labor organiza-
tion, by discharging or laying off employees or
otherwise discriminating against them in the hire or
tenure of their employment
WE WILL NOT refuse to bargain collectively in
good faith with the International Association of
Machinists and Aerospace Workers, Local Lodge
No 52, AFL-CIO as the exclusive collective-bar-
gaining representative of all of our working fore-
men, tool and die makers , machinists , machinists
helpers, apprentices, specialists, production work-
ers, laborers, and helpers, employed at our two
Pittsburgh , Pennsylvania plants, exclusive of office
clerical employees , guards, professional employees,
and supervisors as defined in the Act
WE WILL NOT bypass the Union and negotiate
directly with employees concerning wages , hours,
and terms and conditions of employment
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
rights guaranteed you by Section 7 of the Act
WE WILL pay to the Union dues that we are ob-
ligated to deduct from the wages of bargaining unit
employees pursuant to dues authorizations that
have been signed for any period of time up to De
cember 27, 1987, with interest
WE WILL pay to the IAM National Pension
Fund all pension fund payments that we are obli-
gated to make on behalf of our employees pursuant
to the contract with the Union that expired in
1986
WE WILL offer Joseph Beringer immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings re
sulting from his discharge , less any net interim
earnings , plus interest
WE WILL notify Joseph Beringer that we have
removed from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way
HALL INDUSTRIES, INC
Barton Meyers Esq and Patricia Scott Esq, for the Gen
eral Counsel
James Q Harty Esq, of Pittsburgh, Pennsylvania , for the
Respondent
Eugene Marcaccio, International Representative , of Wash
ington , D C, for the Charging Party
DECISION
STATEMENT OF THE CASE
WALTER H MALONEY, Administrative Law Judge
This case came on for heanng before me at Pittsburgh,
Pennsylvania, on a consolidated unfair labor practice
complaint , ' issued by the Regional Director for the
Board 's Region 6 , which alleges that Respondent Hall
Industries , Inc 2 violated Section 8 (a)(1), (3) and (5) of
I The principal docket entries in the complaint cases are as follows
charges filed in Case 6-CA-20505 against the Respondent by Internation
al Association of Machinists and Aerospace Workers Local Lodge No
52 AFL-CIO (Union or Machinists) on November 20 1987 amended
charge filed on December 18 1987 complaint issued against the Re
spondent by the Regional Director for the Board s Region 6 on Decem
ber 23 1987 Respondents answer filed on December 31 1987 charge
filed in Case 6-CA-20577 by the Union against the Respondent on De
cember 18 1988 complaint issued therein by the Acting Regional Direc
tor for Region 6 against the Respondent on February 10 1988 and con
solidated with the outstanding complaint in the first case Respondents
answer filed February 12 1988 amendments to consolidated complaints
issued by the Acting Regional Director of the Board s Region 6 against
the Respondent on February 26 1988 Respondents answer filed at the
hearing heanng held in these cases at Pittsburgh Pennsylvania on
March 7 and 8 1988 briefs filed by the General Counsel and the Re
spondent with me on or before April 4 1988 The principal docket en
tries in the consolidated representation case are as follows Decertifica
tion petition filed by Janeal Bartus an individual on September 18 1988
in a unit composed of the production and maintenance employees at the
Respondents two Pittsburgh Pennsylvania factories stipulated election
agreement approved by the Acting Regional Director for Region 6 on
October 9 1987 election held on October 29 1988 which resulted in an
8-8 tie with no challenged ballots objections to the conduct of the elec
tion filed by the Union on November 4 1987 order directing hearing on
objections and notice of hearing issued by the Regional Director for
Region 6 on December 24 1987
2 The Respondent admits and I find that it is a Pennsylvania corpora
non which maintains its principal place of business in Pittsburgh Penn
sylvania where it is engaged in the manufacture and nonretail sale of
screw machine parts and related products In the course and conduct of
this business the Respondent annually purchased and received at its Pitts
burgh Pennsylvania facilities directly from points and places located out
side the Commonwealth of Pennsylvania goods and materials valued in
excess of $50 000 Accordingly the Respondent is an employer engaged
in commerce within the meaning of Sec 2(2) (6) and (7) of the Act The
Union is a labor organization within the meaning of Section 2(5) of the
Act
HALL INDUSTRIES
the Act More particularly the amended consolidated
complaint alleges that, during the so called Goodyear
period 3 the Respondent threatened employees with clos
ing of the plant if the Union was not voted out created
the impression among employees that their union activi
ties were the subject of company surveillance, threatened
employees with discharge if they continued to support
the Union, promised employees continued employment if
they eliminated the Union as their bargaining agent, and
encouraged the filing of a decertification petition The
consolidated complaints also allege that the Respondent
unilaterally discontinued checkoff and pension fund pay
ments in violation of its duty to bargain with the Union,
that it discriminatonly laid off Joseph Beringer because
of his union activities, and that it also bypassed the
Union and dealt directly with employees by offering
Beringer and another laid off employee, Warren Baxter,
part time jobs at rates considerably lower than those pro
vided for in the expired collective bargaining agreement
The Respondent denies these allegations and asserts that
Beringer was laid off because of lack of work On these
contentions the issues were framed 4
I THE UNFAIR LABOR PRACTICES AND
OBJECTIONABLE CONDUCT ALLEGED5
A Background
The Respondent is a closely held family business
which operates two production facilities in Pittsburgh,
Pennsylvania It manufactures screws and similar items
The president and principal owner of the Company is
Harold Hall The main facility is a three story building
located on Carson Street on the south side of Pittsburgh
Respondent also owns and operates a small plant on the
northside of the city, referred to in the record as the
Barrett Machine Company The two plants are a mile or
so apart and are part of the same production and mainte
nance unit which has been represented for many years
by the Union in this case The last formal contract be
tween the parties expired on September 1 1986
Negotiations for a new contract have proved fruitless
A few bargaining sessions took place in the fall of 1986
but the Union refused to accede to at least one of the
Respondents requests for concessions so no agreement
has been forthcoming No bargaining sessions took place
in 1987 Certain testimony in the record from company
witnesses suggests that the Union was remiss by aban
doning its membership in failing to schedule any negoti
ating sessions in 1987 However documents introduced
by the Respondent are in sharp conflict with this tests
mony On November 14 1986 Respondent's counsel
James Q Harty, wrote a letter to James W Elnyczky,
the Machinists ' business representative who was conduct
ing negotiations on behalf of the Union, in which he re
fused the Unions demand for a meeting in the near
future, expressing the opinion that further negotiations
8 The Goodyear period in this case extended from September 18 to Oc
tober 29 1987
Certain errors in the transcript have been noted and corrected
All conduct now relied upon by the Union in urging that the Octo
her 29 election be set aside is also alleged in the consolidated complaint
to be unfair labor practices
787
would not be productive Counsels letter also noted that
the Union had relinquished its original bargaining
demand for wage increases and stated that there had
been mutual resolution of all matters except the question
of the arbitration agreement contained in the prior agree
ment " This was a reference to the Company s insistence
that the binding arbitration provision in the previous
contract be replaced by an agreement merely to mediate
any grievances which could not be resolved in the first
steps of that grievance procedure Such mediation would
not result in an enforceable obligation on the part of
either party to comply with a mediators determination
but, under the company proposal the Union would still
have to forego its right to strike to enforce its position
In another letter dated May 7, 1987, the Company also
refused to meet further with the Union claiming that ne
gotiations had reached an impasse In this letter the Re
spondent asked the Union if it was prepared to make fur
ther concessions to meet the provisions of the Compa
ny s best offer "
In light of this ongoing stalemate, the parties executed
an interim agreement, dated November 6, 1986, in which
they agreed to continue in effect the recently expired
agreement but giving either party the right to discontin
ue the agreement on 5 days written notice The parties
continued to operate for more than a year under this ex
tension On December 22 1987, the Respondent wrote
the Union a letter exercising its right to terminate the ex
tension, so there has been no outstanding contract be
tween the parties since December 27, 1987
B The Discharge of Joseph Beringer and Events
Related Thereto
Joseph Beringer worked for the Respondent at its
Carson Street plant since 1966 He was employed as a
union working foreman,' a bargaining unit position
which meant that he was, in effect, a leadman 6 There is
little doubt that, throughout his career with the Re
spondent, Beringer was a leading union activist and that
he was so regarded by company management In the late
sixties and early seventies he had been the shop steward
a post now held by James L Williams To use Harold
Hall s words Joe Beringer has always been the thought
provoker of union activities in our plant " Another man
agement witness referred to him as a union champion'
Beringer was the leadman for all the employees work
ing in the automatic screw department located on the
first floor of the Carson Street plant He often attended
production meetings to receive production schedules and
job assignments He was regarded as an expert in the
handling of the machines in his department and he often
trained the employees who used them, including the man
who ultimately took his place
For the past few years, production has declined at the
Respondent's plants and a number of employees have
been laid off' I credit Beringer's testimony that, some
6 All parties agree that Beringer was not a supervisor within the mean
mg of the Act notwithstanding his job title
7 In 1986 11 employees on a seniority list of 24 were laid off In 1987
three layoffs took place on February 24 and one more was made in early
June
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time in the summer of 1987 he became concerned about
his own job tenure, notwithstanding the fact that he had
more than 20 years service with the Company, so he ap
proached Frank Schlafhauser, the general manager, and
asked him about his status with the Company F Schlaf
hauser told Beringer he had nothing to worry about, that
he was the best union foreman that they had and the
Company could see no benefit in having another one
take Beringer s job
On Tuesday, September 8, 1987 the day after Labor
Day, F Schlafhauser took Beringer into the caucus room
in the plant dropped an envelope on the table and told
him that he was being laid off immediately The enve
lope contained a check for 2 days pay, in observance of
the contract provision that a laid off employee was enti
tled to 3 days notice of a layoff Beringer was surprised
and reminded F Schlafhauser of their conversation a
few weeks earlier concerning his status at the plant F
Schlafhauser simply shrugged his shoulders and told Ber
inger that, if he wanted to know anything more, he
would have to talk with Harold Hall, the company presi
dent
Beringer went up to the third floor with F Schlaf
hauser and spoke with H Hall who was in an irate
mood When Beringer asked him what was going on he
simply replied You wanted to belong to the Union
You supported the Union Here s what you get for be
longing to the Union It s your turn Hall went on to
remind Beringer of his activities back in the sixties
during a strike saying You beat me The Union beat
me Here's what you get for it' During the course of
their conversation H Hall reminded Beringer that
during the strike at the plant in 1976, he had supplied
pickets with beer and they had littered the premises with
beer cans He also told Beringer he had recordings of a
statement Beringer assertedly made during negotiations
in which he said piss on the Company H Hall told
Beringer he would play them for him some day Ber
inger kept asking H Hall what he had to do to save his
job and he saying that the Union would not stay in the
plant
H Hall went on to explain what had immediately
brought about this move He told Beringer that he had
watched the Labor Day parade in Pittsburgh on televi
sion and observed that the IAM had entered a float in
the parade The float was a balloon or rocketship which
had IAM written on its side 8 I credit Beringer s further
testimony that H Hall said that he had decided, right
there and then, the union would cease' at Hall Indus
tries H Hall went on to say that if anyone wanted to
work at the plant it would be without a union and that
9 H Hall never gave a completely coherent explanation as to why the
presence of an IAM float from California in the Pittsburgh Labor Day
parade triggered such an emotional response on his part There is no
doubt it did H Hall complained that the float was expensive and that
union dues had paid for it He suggested that he was one of those who
had been forced to contribute to this extravagance although he was not
an IAM member He also complained that what was going on in the
California aerospace industry was wholly irrelevant to Pittsburgh where
the wage scale was much lower I can only infer from H Hall s stated
remarks that he must have felt that the presence of the float constituted
an incitement to his employees to ask for higher wages
he would close the plant rather than operate it with a
union
Beringer mentioned to him the conversation which he
had with F Schlafhauser a few weeks previously con
cerning his job security but Hall simply ignored him
When he told H Hall that Schlafhauser had told him
that he was the best working foreman in the Company
H Hall s only reply was that he would write him a ref
erence but the reference would contain a little edge
Bennger asked him more than once what he could do to
save his job but H Hall simply said that, if the Union
stayed at the plant, he would close it down He told Ber
inger that he had been planning to retire and to hand the
Company over to his son, Jonathan Hall, and to Frank
and John Schlafhauser He went on to say that, if Ber
inger wanted to work at the plant in a nonunion status,
he should speak to these individuals By this time both
Schlafhauser brothers had come to H Hall s office Ber
inger arranged to meet with them the following morning
at 10 a in The meeting with H Hall closed with a hand
shake, with H Hall saying to Beringer that if he had five
more people like Bennger, he would have five more
companies, but Beringer had not supported Hall when he
needed him
On September 9, 1987, at 10 a in Beringer met with
Jonathan Hall the vice president of the Company F
Schlafhauser, and John Schlafhauser the company
comptroller in J Schlafhauser s office I credit Ber
roger s version of this meeting Beringer started the meet
ing with a question about what he could do to save his
job At first they replied to this question rather hesitant
ly stating that under the law they were not entitled to
say anything to him unless he approached them Beringer
repeated the question as to what he had to do to save his
job J Hall replied by saying that he would not put up
with what his father put up with over the years with the
Union and that he would close the plant down sell the
machinery and put his money in the stock market rather
than operate with a union J Hall went on to tell Ber
inger that he was a natural leader and that if anyone
could persuade the employees to abandon the Union he
could Beringer said he would give it his best shot if that
was all he had to do to keep his job
Beringer went downstairs to speak with his former
crewmembers, who were eating their lunch in the plant
lunchroom Five employees were present to listen to
Beringer He told them that the Halls, Harold and Jona
than, had told him that if the Union stayed in the plant
they would close it down In 6 months, everyone would
lose their jobs, there would be no Union, and there
would be no Company He went on to say that if the
employees wanted to decertify the Union they had to
approach the Company because the Company could not
approach them They discussed this matter for a few
minutes and decided to go up to the company office and
speak with the individuals that Beringer had been talking
with a few minutes earlier
A few minutes later they met with J Hall and the
Schlafhausers in J Schlafhauser s office They asked
management officials what they had to do to save their
jobs These officials repeated what they had said to Ber
HALL INDUSTRIES 789
roger earlier in the morning, namely, that employees had
to approach them concerning decertification The Com
pany could not approach employees concerning this sub
ject Employees Mary Gnmaldi and John Kirsch spoke
up, said that they were approaching the Company, and
asked the company officials present what they had to do
to decertify the Union Company officials replied that
they did not know offhand what had to be done but they
would consult their attorney and forward his reply to
them I credit Williams testimony to the effect that J
Hall said, during the course of this meeting , that they
were not going to put any more money into the Compa
ny so long as the Union was in the plant
After consulting with counsel, the Respondent pre
pared a document which read as follows
The following information was provided by our
labor attorney per your request on September 9,
1987
National Labor Relations Board (412-644-2977)
Decertification Procedure
METHOD 1 FORMAL
Step a 30% or more eligible employees (those
working or laid off less than one year) must sign
petition for Decertification
Step b Labor Board will then conduct an elec
tion of eligible employees majonty prevails
METHOD 2 INFORMAL
Step a Signed and dated letter which contains a
written statement that the employees no longer
wish to be represented by the I A M signed by
the majority of employees
On the morning of September 10 1987, F Schlaf
hauler called a bnef meeting of employees in the lunch
room It was attended not only by those who had met in
J Schlafhauser s office the preceding day but also by
employees in the secondary department on the second
floor of the Carson Street plant and employees from the
Barrett Machine Company who had been summoned
from that building to attend Respondent s management
passed out the above quoted paper to everyone in attend
ance Shortly thereafter, Shop Steward Williams went to
the company office and with J Schlafhauser went over
company records to determine the names of all employ
ees who had been laid off within the preceding year
Williams called a meeting of all employees for the fol
lowing Monday September 14, 1987 at 3 30 p in at the
end of the shift It was attended not only by employees
from both buildings but also by laid off employees who
had been contacted either by him or by others Williams
invited Elnyczky to attend Williams had prepared a
document which he laid on the table for the signatures of
all employees At the top of the page the following had
been typed
To Labor Board
This Petition is in regard to Decertification of IAM
Lodge 52
For Decertification Against Decertification
Some discussion took place regarding the pros and cons
of petitioning the Board to conduct a decertification
election Elnyczky spoke bnefly urging employees to
stick with the Union Williams asked those who favored
an election to sign the paper accordingly and those who
opposed it to indicate their opposition as well Five em
ployees signed for decertification These were the five
individuals who had participated with Beringer in the
group meeting with Respondent's management Ten indi
viduals, including Beringer, signed against decertifica
tion
The following day Williams brought the signed docu
ment to the plant, laid it on a table, and said that, as shop
steward, he was not going to have anything more to do
with it Employee Gnmaldi took the document with her
and, after work, visited her niece Janeal Bartus, who had
been on layoff status for about a year She indicated to
Bartus that she was going to take it to the Labor Board,
however, Bartus volunteered to do it for her in light of
the fact that she was not working and had more time
available
At this point the record is muddled regarding the pre
cise chain of events which led to the filing of a decertifi
cation petition by Janeal Bartus on Friday, September
18, 1987 At some point Bartus took the document which
had been signed at Williams Monday afternoon meeting
to the Board s Regional Office in downtown Pittsburgh
She was informed that it was incorrect as to form and
insufficient to serve as a showing of interest foundation
for a decertification petition She was further informed
by a Board agent of the correct wording which had to
be used on an employee petition for decertification
She went to the plant, spoke with Grimaldi, and the
two of them went to the company office on the third
floor They asked a secretary to type up a petition in
proper form and she did so whereupon they went back
to the lunchroom and obtained the signatures of the five
individuals who had originally signed for decertification
Bartus also obtained individual handwritten statements
from each of the five signers to the effect that each of
them no longer desired to be represented by IAM Lodge
52 She took these documents back to the Board ofice
and filed the decertification petition in Case 6-RD-1026
Sometime after the petition was filed, Warren Baxter,
an employee who had been laid off in February 1987,
called the plant to inquire about recall prospects His call
was routed to William King a longtime management em
ployee of the Company s Baxter gave King his new ad
dress and phone number and asked him how things were
going I credit Baxter s testimony that King told him in
the course of this phone conversation that the Union
9 The Respondent concedes that King is a management employee but
denies that he is a supervisor within the meaning of the Act Baxter de
scribed King as the Company s chief inspector King is in charge of final
inspection He occupies an office on the second floor rather than any
work station on a production floor and dresses similarly to other manage
ment employees He does no production work He schedules work at
tends daily production meetings and establishes priorities on jobs He as
signs particular employees to particular jobs and is authorized to grant
time off when employees request it I conclude that King is a supervisor
within the meaning of the Act for whose acts and statements the Re
spondent is vicariously liable
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was still in at the plant and that we have to get the
Union out It s causing a lot of trouble King went on
to say that Hall would close the doors eventually if
things were not resolved with the Union
The decertification election was held on October 29
1987 And resulted in a tie vote Objections to the con
duct of the election, which form a part of this proceed
ing, were filed on November 4 1987 As recited above,
in mid December the Respondent wrote to the Union
terminating the contract extension effective December
27, 1987 The first complaint in this case was issued the
day after Harty s letter to the Union discontinuing the
contract extension There is no factual dispute that, since
November, the Respondent has not checked off any dues
or remitted any dues payments to the Union There is
also no factual dispute that since that date, the Respond
ent has made no pension fund payments as required by
the provisions of the expired agreement
The Respondent acknowledges a continuing obligation
to recognize the Union so long as objections to the de
certification petition are pending It met once with the
Union on January 12, 1988, to discuss contract matters
but nothing came of this meeting By letter of January
14, 1988, from Harty to Elnyczky, the Respondent with
drew the outstanding offer which it had made in Septem
ber 1986, and informed the Union that it would forward
a new contract proposal in a few days It did so The
new proposal reiterated the grievance mediation provi
sion which the Union found objectionable and lowered
wage rates even further, providing specified individual
rates for named employees who were then on its payroll
These rates were presumably what these individuals
were making at that time The Union did not respond to
this offer
Late in January 1988, the Respondent contacted both
Baxter and Bennger to offer them part time employment
as laborers at $7 an hour This rate is concededly lower
than what either employee was earning on the dates of
their respective layoffs and is not a rate which was pro
vided for in the expired agreement 10 Neither Baxter nor
Beringer accepted the offer
II ANALYSIS AND CONCLUSIONS
A Independent Violations of Section 8(a)(1)
of the Act
(a) When, dunng his conversation with Bennger on
the occasion of the latter s discharge, H Hall stated that
here's what you get for belonging to the Union It's
your turn Respondent was threatening employees with
discharge in reprisal for engaging in union activities in
Violation of Section 8(a)(1) of the Act
(b) When on the same occasion, H Hall told Bennger
that if anyone wanted to work at the plant it would be
without a union because he would close the plant rather
than operate with a union the Respondent was threaten
ing employees with plant closure in reprisal for engaging
10 There is no job classification of laborer in Appendix A of the ex
pired agreement in which contractual classifications and wage rates are
set forth There are wage rates for various classifications (e g $5 61 to
$7 38) which span $7 per hour but none which specifies that rate
in union activities in violation of Section 8(a)(1) of the
Act
(c) On the occasion of the meeting with Bennger in
the company office on September 9, J Hall stated to
Beringer that he would not put up with what his father
had put up with over the years with the Union and,
rather than do so, he would close the plant, sell the ma
chinery, and put his money in the stock market Such a
statement constitutes a threat to close the plant in viola
tion of Section 8(a)(1) of the Act
(d) On the occasion of their meeting with several
screw department employees on September 9, 1987 com
pany officials were met with the question of what em
ployees had to do to save their jobs This question had
been prompted by remarks made by J Hall a few min
utes earlier to Beringer, when Beringer posed the same
question, namely, that if anyone could bring about decer
tification of the Union Bennger could This remark is
sufficient to designate Beringer as the Respondents agent
for the purpose of bringing about the decertification of
the Union From that moment onward Beringer s state
ments and activities are legally attributable to the Re
spondent
Bennger went down to the first floor of the plant
where he had formerly been a leadman and called to
gether the employees who were working there It is
clear from the time sequence established in the record
that he spoke with them on September 9 not only on
company property but on company time The same is
true for the meeting which ensued a few minutes later in
J Schlafhauser s office Beringer , on behalf of the Re
spondent told five screw department employees that the
two top company officials had told him that, if the
Union stayed the plant would close down and that in 6
months, there would be no Union and no Company He
also said that the Company could not approach them
concerning decertification they had to approach the
Company It is with this impetus all generated by the
company spokesman that a meeting took place in John
Schlafhauser's office a few minutes later
The conversation in J Schlafhauser s office between
company officials and the group Beringer brought to the
office began with the same employee question posed a
few minutes earlier by Beringer and it ended with the
same answer namely decertification The statement by
J Hall and others that employees had to approach them
concerning decertification because they could not ap
proach employees was simply a clumsy and transparent
ruse The thrust of the statements and actions by compa
ny officials on this occasion was to convey the idea to
employees that getting rid of the Union could preserve
employee jobs H Hall had said as much to Beringer the
previous day Such a promise of benefit for rejecting the
Union, as well as J Hall s statement and Beringer s state
ment to employees relaying J Hall s threat are viola
tions of Section 8(a)(1) of the Act Respondent then
phoned the company lawyer obtained the details about
how to go about decertification and called a meeting the
following day in which it disseminated this information
in writing not only to those who had asked for it but to
everyone in the bargaining unit Respondent was plainly
HALL INDUSTRIES 791
campaigning for decertification before any petition was
on file Since the Respondent actively stimulated the de
certification effort and did so in the context of serious
unfair labor practices, its conduct in this regard is also a
violation of Section 8(a)(1) of the Act and the decertifi
cation petition which resulted from its effort is void ab
initio Placke Toyota, 215 NLRB 395 (1974), Texaco Inc,
264 NLRB 1132 (1982), Alexander Linn Hospital Assn,
288 NLRB 103 (1988) 11
(e) By telling Beringer that he had recordings of state
ments made by Beringer during negotiations and that he
would play them back for him some day, H Hall created
the impression that the union activities of employees
were the subject of company surveillance and thus vio
lated Section 8(a)(1) of the Act
(f) Quality Control Supervisor King spoke by tele
phone with laid off employee Baxter when the latter
called the plant to inform the Company of a change of
address and to inquire about his prospects for recall
When King told Baxter that we have to get the Union
out It's causing a lot of trouble, and the Halls would
close the doors eventually if the question of the Union
was not resolved, the Respondent violated Section
8(a)(1) of the Act These statements were made between
the date of the filing of the decertification petition and
the date of the election If the petition were to remain
viable, these remarks would constitute objectionable con
duct warranting the setting aside of the October 29, 1987
election
What the Respondent added to this evidence at the
hearing was plainly afterthought There is little doubt
that the Company was losing business but it is also clear
from the record that even in the face of a decline in
orders it was also farming out bargaining unit work,
thus aggravating the impact of economic conditions on
its employees Beringer was admittedly an excellent em
ployee in fact he had trained his replacement to run the
machines that he had been running before his discharge
However, when it came to applying the seniority provi
sions of the contract in selecting an employee for layoff,
Beringer was released under a claim of seniority while
others, with fewer years of service, were retained One
such employee was transferred from the Barrett Machine
Shop to the East Carson Street plant to take up the
slack These contradictions in the Respondents stated
position must also be viewed in conjunction with the
timing of the discharge, which coincided with H Hall s
irritation with the IAM's Labor Day activities but not
with any concrete discernible event which had occurred
at the plant These factors indicate clearly that the expla
nation proffered at the hearing for this action was
wholly pretextual and that Beringer was fired for the
reasons H Hall said he was-it was now Beringer s turn
to suffer for his union activities In light of these consid
erations, I conclude that Joseph Beringer was discharged
by the Respondent for union activities in violation of
Section 8(a)(1) and (3) of the Act
B The Discharge of Joseph Beringer
Joseph Beringer was a longtime employee of the Re
spondent He was recognized as the Union s strongest
adherent in the plant He was discharged abruptly on
September 8 after being told a few weeks earlier that his
job tenure was secure While Beringer was actually told
he was being laid off, the layoff was of indefinite dura
tion and, to all intents and purposes, was a discharge
The record in this case contains the best possible evi
dence supporting the contention that Beringer was fired
for union activities-the company president told him so
During a final interview between Beringer and H Hall,
the latter fulminated about the IAM s extravagance in
entering a float from California in the Pittsburgh Labor
Day parade He then told Beringer You wanted to
belong to the Union You supported the union Here s
what you get for belonging to the union It s your turn
This is a categorical statement that Beringer s discharge
was discnminatonly motivated H Hall went on to talk
about Beringer s union activity 10 or 20 years earlier
while still rankled Despite the fact that many years had
elapsed since Beringer had supplied employees with beer
as they walked a picket line, H Hall never forgot and he
never forgave Direct evidence of a discriminatory dis
charge is rare in Board proceedings but it should not be
ignored on that account
11 The Respondent s activity in this case far exceeded mere ministerial
acts such as furnishing inquirers with the phone number of the local
Board office However even ministerial acts which smooth the path to
decertification constitute unfair labor practices where as here they are
performed in the context of other unfair labor practices D & H Mfg Co
239 NLRB 393 (1978)
C The Offer of Positions to Baxter and Beringer
In late January 1988, the Respondent contacted both
Bennger and Baxter to offer them part time positions in
the plant as laborers at a wage of $7 per hour Both de
clined Since these offers did not even remotely approxi
mate the earnings which they enjoyed at the time of
their respective layoffs they cannot in any sense be
deemed offers of reinstatement There was no provision
in the union contract for such wage rates and the Com
pany 's attempt to establish such wages by offers to Ber
inger and Baxter constitutes direct bargaining with unit
personnel to establish such a rate in derogation of its
duty to bargain with the Union
The fact that the contract between the parties had ex
pired and that extensions had also been terminated does
not detract from the Respondent 's obligation to negotiate
changes or additions in wages with the bargaining agent
Respondents counsel stated at the hearing that the Com
pany will continue to recognize the Union , notwithstand
ing the vote at the decertification election , until the ob
jections to that election have been resolved A few
weeks before negotiating with Beringer and Baxter it had
met with union representatives and engaged in a brief
and unsuccessful effort to reach a contract The same ob
ligation extended to the setting of wage rates for part
time laborers Ace Galvanizing 217 NLRB 144 (1975)
Caravelle Boat Co , 227 NLRB 1355 (1977) Stone Boat
Yard, 264 NLRB 981 (1982)
Respondent 's defense to this allegation in the consoli
dated complaint is that part time laborers are outside the
scope of the bargaining unit , so an obligation to bargain
did not exist with respect to these positions The conten
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion is without merit The positions offered to Bennger
and Baxter involved the performance of bargaining unit
work at the East Carson Street plant They would be
working alongside other employees who were admittedly
doing bargaining unit work The contract definition of
the bargaining unit, included also in the definition in the
Respondents latest offer to the Union, included all
employees in the bargaining unit It did not differentiate
between full time and part time employees That defini
tion went on to define the bargaining unit [as] consist
ing of all working foremen, tool and die makers, machin
ists, machinist helpers apprentices, specialists production
workers laborers, and helpers (emphasis added) This
definition plainly included the jobs offered to Bennger
and Baxter since all laborers does not mean just all
full time laborers Having failed to negotiate with the
Union concerning the offers made directly to these indi
viduals, the Respondent here violated Section 8(a)(1) and
(5) of the Act
D Termination of Dues Checkoff and Pension
Contributions
The duty to negotiate with a union after the expiration
of a contract includes a duty to retain intact the wages,
hours and terms and conditions which exist at the end of
the contract until changes have been either agreed on or
have been offered to the Union and bargained to im
passe This duty includes a duty to continue making pay
ments to fringe benefit funds The duty to bargain also
includes a duty to check off and remit union dues so
long as there is a contractual basis for doing so Bethle
hem Steel Corp 136 NLRB 1500 (1962), Hassett Mainte
nance Corp 260 NLRB 1211 (1982) In the present case,
the contract was still in effect through a series of exten
sions until December 27, 1987, so the Respondents duty
to deduct and remit union dues did not expire until that
time The duty to make payments to fringe benefit funds
still continues, unless and until the Respondent can dem
onstrate that the Union has agreed to discontinue those
payments that it has bargained in good faith to impasse
concerning an alternative to making such payments, or
that the Union has waived such bargaining
By failing to deduct dues between November 1 and
December 27 1987 from the paychecks of employees
who had filed dues deduction authorizations and by fail
ing to remit such dues to the Union the Respondent
here violated Section 8(a)(1) and (5) of the Act By fail
ing to make pension fund payments after November 1,
1987, the Respondent also violated Section 8(a)(1) and
(5) of the Act The Respondents duty to tender such
payments to the trustee is in no way to be affected by
the correspondence contained in the record from the
trustee Nor does the fact that the Respondents last offer
to the Union provides employees with an option to con
tine to be covered by the IAM pension plan or by the
Respondents profit sharing plan affect the Respondent s
statutory obligation Even assuming that this proposal
had been bargained to impasse by the parties, there is no
evidence that any employee covered by the IAM plan
has ever opted out of it so there is no basis for the Re
spondent to discontinue payments due and owing on
behalf of any of them
On the foregoing findings of fact and on the entire
record considered as a whole, I make the following
CONCLUSIONS OF LAW
1 Hall Industries, Inc is, and at all times material has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act
2 International Association of Machinists and Aero
space Workers, Local Lodge No 52, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act
3 All working foremen, tool and die makers machin
ists, machinists helpers apprentices specialists produc
tion workers laborers and helpers employed by the Re
spondent at its two Pittsburgh Pennsylvania, plants, ex
cluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act consti
tute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act
4 At all times material here the Union has been the
exclusive collective bargaining representative of all of
the employees in the unit found appropriate in Conclu
sion of Law 3 for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act
5 By directly negotiating the wages and terms and
conditions of employment with members of the aforesaid
bargaining unit by failing to deduct union dues from em
ployees who had filed with the Respondent dues deduc
tion authorizations and by failing to remit dues so de
ducted to the Union, and by failing to remit to the IAM
National Pension Fund payments which were due and
owing on behalf of members of the aforesaid bargaining
unit, the Respondent has violated Section 8(a)(5) of the
Act
6 By discharging Joseph Bennger because of his mem
bership in and activities on behalf of the Union, the Re
spondent has violated Section 8(a)(3) of the Act
7 By the acts and conduct set forth above in Conclu
sions of Law 4 and 5, by threatening employees with
plant closure for continuing to support the Union by
creating in the minds of employees the impression that
their union activities were subject to company surveil
lance and by sponsoring and encouraging the filing of a
decertification petition, the Respondent violated Section
8(a)(1) of the Act
8 The decertification petition filed in Case 6-RD-1026
is null and void and of no legal force and effect
9 The aforesaid unfair labor practices have a close, in
timate , and substantial effect on the free flow of com
merce within the meaning of Section 2(6) and (7) of the
Act
REMEDY
Having found that the Respondent has committed cer
tarn unfair labor practices I will recommend that it be
required to cease and desist and to take other affirmative
actions designed to effectuate the purposes and policies
of the Act Because the violations of the Act found
herein are repeated, pervasive, and serious, I will recom
mend to the Board a so called broad 8(a)(1) remedy de
signed to suppress any and all violations of that section
HALL INDUSTRIES 793
of the Act Hickmott Foods, 242 NLRB 1357 (1979) I
will recommend that the Respondent be required to offer
full and immediate reinstatement to Joseph Beringer to
his former or substantially equivalent position, without
prejudice to his seniority or to other benefits, and that he
be made whole for any loss of pay or benefits which he
may have suffered by reason of the discrimination found
in this case, in accordance with the formula set forth in
the Woolworth case,12 and with interest computed at the
short term Federal rate used to compute interest on un
derpayment and overpayments of Federal income taxes
under the Tax Reform Act of 1986 New Horizons for the
Retarded, 283 NLRB 1173 (1987) I will also recommend
that the Respondent be required to remit to the Union all
dues which it should have deducted and which were due
and owing between November 1 and December 27, 1987,
with interest as calculated I will also recommend that
the Respondent be required to remit to the IAM Nation
a] Pension Fund all pension fund payments due and
owing under the terms of its expired contract with the
Union Interest on said payments will be computed at the
compliance stage of these proceedings Merryweather Op
tical Co, 240 NLRB 1213 (1979) I will also recommend
the posting of the usual notice advising employees of
their rights and of the results of this case
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
edis
ORDER
The Respondent , Hall Industries Inc, Pittsburgh
Pennsylvania , its officers , supervisors , agents , successors,
and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively in good faith with
Association of Machinists and Aerospace Workers, Local
Lodge No 52 AFL-CIO the exclusive collective bar
gaining representative of all of its working tool and die
makers, machinists , machinists helpers, apprentices, pro
duction workers , laborers and helpers , employed at its
two Pittsburgh , Pennsylvania plants, exclusive of office
clerical employees guards, professional employees and
supervisors as defined in the Act
(b) Bypassing the Union and negotiating directly with
employees concerning wages hours, and terms and con
ditions of employment
(c) Failing and refusing to remit to the Union dues
which are due and owing under terms of existing collec
tive bargaining agreements and extensions
(d) Failing and refusing to remit to trustees of fringe
benefit funds periodic payments which are due and
owing on behalf of bargaining unit employees
(e) Threatening employees with plant closure for con
tinuing to support the Union
(f) Creating in the minds of employees the impression
that their union activities are subject to company surveil
lance
(g) Sponsoring and encouraging the filing of a decerti
fication petition
(h) Discouraging membership in or activities on behalf
of International Association of Machinists and Aerospace
Workers, Local Lodge Number 52, AFL-CIO, or any
other labor organization by discharging or laying off
employees or otherwise discriminating against them in
their hire or tenure
(i) By any other means or in any other manner inter
fering with, restraining , or coercing employees in the ex
ercise of rights guaranteed to them by Section 7 of the
Act
2 Take the following affirmative action neccessary to
effectuate the policies of the Act
(a) Offer to Joseph Beringer full and immediate rein
statement to his former or substantially equivalent em
ployment, without prejudice to his seniority or to other
rights which he previously enjoyed, and make him
whole for any loss of pay or benefits which he may have
suffered by reason of the discrimination found herein, in
the manner described above in the remedy section
(b) Remit to the Union all dues which are due and
owing in the manner described above in the remedy sec
tion
(c) Remit to the IAM National Pension Fund all pen
sion fund payments which are due and owing in the
manner described above in the remedy section
(d) Post at the Respondents Pittsburgh, Pennsylvania
plants copies of the attached notice marked Appen
dix 14 Copies of the notice on forms provided by the
Regional Director for Region 6, after being signed by
the Respondents authorized representative shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus
tomarily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered de
faced or covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER ORDERED that the representation peti
tion filed in Case 6-RD-1026 be dismissed
12 F W Woolworth Co 90 NLRB 289 (1950)
is If no exceptions are filed as provided by Sec 102 46 of the Boards 14 If this Order is enforced by a judgment of a United States court of
Rules and Regulations the findings conclusions and recommended appeals the words in the notice reading Posted by Order of the Nation
Order shall as provided in Sec 102 48 of the Rules be adopted by the al Labor Relations Board shall read Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur the United States Court of Appeals Enforcing an Order of the National
poses Labor Relations Board