Hayes-Albion Corp.

National Labor Relations Board - Board Decisions

Apr 28, 1971

190 N.L.R.B. 146 (N.L.R.B. 1971)

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fifty Division , Hayes-Albion Corporation and Local
107 of the International Union Allied Industrial
Workers of America AFL-CIO. Case 8-CA-5839
April 28, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On November 20, 1970, Trial Examiner Benjamin A.
Theeman issued his Decision in the above-entitled pro-
ceeding, 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 at-
tached Trail Examiner's Decision. The Trial Examiner
further found that Respondent had not engaged in cer-
tain other unfair labor practices alleged in the com-
plaint. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner to the extent they are consistent with
the following:
The record shows that for many years the standard
procedure among the original equipment manufacturer
(O.E.M.) companies (of which the Respondent is one)
has been for the more complicated tools and dies used
by them to be constructed by outside shops. While the
O.E.M. companies had possession of these tools and
dies, ownership remained with the customer, such as:
General Motors, Chrysler, etc., for whom the O.E.M.
companies, and in this instance the Respondent, made
frames, etc. When the tools and dies are outdated or
worn out they are scrapped and the cash proceeds from
such sales are given to the owner-customer.
Concerning the Respondent's operations, undis-
puted testimony establishes that for many years prior
to November 1969 it was also the practice and custom
for Respondent's toolroom employees to maintain and
repair these tools and dies and to build simple dies.
However, prior to November 1969 Respondent had
also sent maintenance and repair work and simple dies
for construction to outside shops. The sending out of
such work was done usually, but not always, when
there was sufficient work in the toolroom to keep the
employees busy. Starting in November 1969, when
190 NLRB No. 18
toolroom employees were on layoff, or were being laid
off because of lack of work, it is alleged that Respond-
ent sent to outside shops toolroom work upon which
the toolroom employees could work. Hastreiter, com-
mittee chairman for the Union, testified that if this
work had not been sent out, the toolroom employees
would have been fully employed during the period in
question, November 1969 to June 1970.' The Respond-
ent on the other hand attributed the layoffs to the fact
that there was not sufficient toolwork to do.
The record shows that the usual function of the tool-
room dealt with the maintenace and repair of tools and
dies after they were delivered to Respondent for use in
production. In particular, toolroom employees made
modifications and changes as required to accommodate
the tools or dies to Respondent's operations; to repair
damage; to replace wornout parts, or to correct certain
minor problems with the tools and dies when they ar-
rived from outside shops. In some cases, the toolroom
employees dismantled old dies and reconstruct the new
where necessary.
A meeting was held on February 19, 1970, to discuss
the layoffs, and during the meeting Hastreiter re-
quested information about toolwork being done out-
side. Adams, the plant manager, replied that he did not
feel that he had to give him this list of dies that were
being made on the outside. Adams further stated that
this had not been done since the plant started in 1950,
that it was management's prerogative, and that tools
had never been made in the plant.
On March 5, the Union filed two grievances with
regard to this matter. In the first, reference was made
to the February 19 meeting and to the Union's request
for "a list of maintenance, tool or production work
contracted out.... " The grievance went on to state
that the Union needed "this list to determine settlement
of grievances.... " Respondent denied the request
stating that the lists "are strictly company information
and are not going to be issued to non-company person-
nel.... This is a management right." In the second
grievance the Union stated that toolwork has been con-
tracted out since November 5, 1969, when toolroom
employees were laid off, and that, if enough toolwork
had been kept in the plant as was past practice, produc-
tion employees would have not been laid off and the
toolroom employees would not have taken a reduction
in pay. The Respondent in its denial stated that new
toolwork has always been placed in outside shops, "ex-
cept what work our toolroom personnel was capable of
performing on a feasible and time basis."
' The record shows that the number of employees in the toolroom in
November 1969 was 14. Starting in November, Respondent began to lay off
toolroom employees. By June 1970, the number of toolroom employees was
eight. Of the six laid off, five went to the production line at lesser pay in
accord with the seniority program in the plant. One quit. The five that went
to production caused the layoff of an equal number of production employees.
FIFTY DIVISION, HAYES-ALBION CORP. 147
The Trial Examiner found that under the circum-
stances of this case and the record as a whole, it is
unclear whether Hastreiter's data request was a request
for data involving "contracted out work ... that could
have been easily performed by the tool room" or
whether it was a request for data involving work or
tooling that "does not belong to the company," "when
such tooling has never been built in the plant or the
company." The Trial Examiner further found that as
original tooling had never been performed in the tool-
room and as no showing has been made that the tooling
performed by outside shops affects the wages, hours,
working conditions, or other conditions of employment
in the toolroom, the Union's request was ambiguous
and the Respondent's failure to comply with such re-
quest did not constitute a refusal to bargain within the
meaning of Section 8(a)(5) of the Act. In the absence
of exception thereto, we adopt the Trial Examiner's
finding pro forma and hereby dismiss this allegation of
the complaint.
The Trial Examiner does find that during the period
in question toolroom work which could have been per-
formed by toolroom employees was sent to outside
shops. This fact he finds is undisputed. The work, he
finds, included maintenance and repair on tools and
dies and the manufacture of steel dies for fan blades and
a series of simple roll section transfer dies. He con-
cluded that the sending out of toolroom work after
November 1969 constituted a change in the working
conditions of the toolroom employees and such a uni-
lateral change without notice to, or negotiation with,
the Union was in derogation of Respondent's duty to
bargain and was violative of Section 8(a)(5) of the Act.
Contrary to the Trial Examiner, we find upon review
of the record herein that there is no clear evidence that
the work performed by outside shops during the period
in question did in fact include any work normally per-
formed by toolroom employees. To support a violation
of the Act, it was necessary for the General Counsel to
establish by a preponderance of the evidence that the
work in question included unit work.
A review of the record indicates to us that (contrary
to the Trial Examiner) conflicting views have been set
forth as to whether or not the unit employees have
performed such work in the past. In this regard, Has-
treiter testified that the reason for the cutdown in the
toolroom was because new work was sent out that
could have been kept in the toolroom, mainly, a fan
blade die that was rebuilt and the DIM 18, 19, 20, 21,
and 23 dies. Hastreiter, when he was asked what work
had been performed in the past that was either the same
as or similar to the above work, stated that they (tool-
room employees) had made new steels for fan blade dies
and had done similar work before and that they had
built roll section dies for the 56, 73, 77, and 78, the
DIM 9's. He identified the 5673's, the DIM 9's, the
5677's, and 78's as being similar to the above dies made
by the outside shops during this period of time. Con-
cerning the one fan blade die sent out, Hastreiter stated
that the toolroom employees made steel for this die and
others in 1969. He also stated that the toolroom em-
ployees had made new steels for the D 1 M 9's in 1969
and 1970 and for the 56, 73's in '64.
Hastreiter further testified that there had been some
discussion concerning the above work and that at a
January meeting of the whole toolroom the Respond-
ent informed the employees that one cutoff die that had
been made by the toolroom cost twice as much as it
should have.' The DIM 18 to 23 dies were mentioned
and Respondent said there were 72 stations involved
and they were sending those out that they could not
handle. Also, in March at a committee meeting, the
DIM 23 was discussed and Adams said it was a job for
the engineering department to do. At a committee
meeting in April, the discussion concerned how many
employees would be needed in the toolroom for the
next year and the Union was advised that approxi-
mately 8 to 10 would be needed. Hastreiter also stated
that in his opinion half of the dies used in Respondent's
operations are of the roll section type and that the
toolroom employees have the facilities, talent, and
equipment to build the dies for the Respondent. He also
stated that the toolroom employees have the capabili-
ties for building an entire series from blueprints for roll
section dies. However, while alleging this, Hastreiter
did state that the toolroom employees generally only
repair such dies and helped with production and
maintenance and built experimental stuff for cutoff
dies. Another toolroom employee, Bloir, testified that
during the period in question repair work was done
outside on door frame miter dies; namely, the trimming
of the ends of it. Also, there was a D 1 D 12 notched die
repaired on the outside. Hwever, the notched die had
been built by an outside shop, and, when it came into
Respondent's plant, it fell apart and was sent back for
repair in keeping with the Respondent's practice of
returning defective work.
The Respondent contends that the building of the
basic tools and dies and all toolwork except the repair-
ing of the tools and occasionally minor modification is
not now nor has it ever been the work of the bargaining
unit. Respondent further states that its toolroom is in
effect a tool maintenance room and that the toolroom
employees could not build the dies because of the lack
of time, ability, and equipment. However, the evidence
shows that Respondent subcontracted out even repair
work in the past, although grievances had been filed
because the work involved dies that were being used in
' Robert Bloir, another toolroom employee and union steward on the
second shift, testified that they were told that the cutoff die was not competi-
tive with the outside shops' work.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production at the time . Babcock , the plant superintend-
ent, testified that the two DIM dies built in 1969 or
1970 by the toolroom employees are not similar to the
DIM 18, 19 , 20, 21, and 23 dies made by outside shops.
Not only are the plans different , but the basic operation
is not the same , because of different forms, trims, and
roll sections.
In view of the above factors , we find that while repair
work had been performed both within and outside the
toolroom in the past , it appears that the work done in
the toolroom was limited largely to repair and mainte-
nance on tools and dies which were being used in pro-
duction at the time such work was required . Moreover,
all new tool and dies have been made by outside shops
with the exception of some experimental dies made in
the toolroom with the assistance of the engineering
department . Of the known work performed by the out-
side shops during the period in question , the work per-
formed on door frame miter dies appears to be repair
work that may have been work that toolroom em-
ployees could have performed . However , there is no
evidence showing that the toolroom employees have
performed repair work on this type of dies in the past.
Concerning the other dies made by outside shops, the
only claim to the work alleged by the Union is that they
had done similar work and could perform this work.
The fact that they have done similar work is disputed
and, even assuming that they could do the work if given
the opportunity , the evidence shows that the function
of the toolroom was to repair and maintain existing
tools and dies and to on occasion build experimental
dies . Furthermore , while it may be true that, if Re-
spondent had not sent this work out, there may not
have been a need to lay off toolroom employees, the
Respondent was nevertheless under no obligation to
alter its past practice in order to avoid a layoff, The
maximum employment at the plant has been about 300.
During the winter of 1969-70 this employment de-
creased to between 98 and 115 ; There is no evidence of
union animosity and, as the parties in April discussed
the number of toolroom employees that would be
needed for the next year (approximately 8 to 10 ), we are
not convinced that the layoffs were caused by any in-
crease in the use of outside shops for work which the
toolroom employees would normally perform . Accord-
ingly , the Trial Examiner 's finding that the subcon-
tracting out of this work after November 1969 con-
stituted a change in the working conditions of the
toolroom employees is not supported by the evidence.
We are convinced on the basis of the above factors that
the General Counsel has failed to support this allega-
tion by the preponderance of the evidence ; We there-
fore do not find this activity violative of Section 8(a)(5)
of the Act and accordingly dismiss this allegation of the
complaint.
We do not agree with the Trial Examiner 's finding
that Respondent violated Section 8(a)(1) of the Act by
the alleged threat of reprisal made by a supervisor for
a grievance that affected the supervisor personally.
Robinson , who is a union committeeman and worked
in the toolroom , testified that around the first of March
1970 he was personally responsible for the filing of a
grievance concerning the amount of time Sanders, a
production engineer and supervisor , worked in the
toolroom doing work normally performed by unit em-
ployees . On March 18, Sanders approached Robinson
because some delay in production had occurred . In this
regard , Robinson testified that Sanders asked him if he
was having trouble with the welder . Sanders testified
that the production line in which Robinson was weld-
ing was running behind the other line and that Robin-
son was cleaning his welder too frequently and taking
too much time . At this point , Sanders and Robinson
engaged in a discussion , the context of which is con-
flicting according to their testimony . However, on the
basis of their testimony , the Trial Examiner states that
whether or not Robinson was "goofing off" is of no
significance . Nor is it significant that Sanders did not
refer to the grievance . Instead , crediting Robinson's
testimony , the Trial Examiner finds that Sanders said:
"I understand you are complaining about me work-
ing," and that he then said in reply to Robinson's
affirmative answer "I am going to complain about you
,not working , you have been goofing off." The Trial
Examiner concluded that the clear import of the state-
ment by Sanders was that he would complain about
Robinson because Robinson was complaining about
Sanders through the filed grievances . Continuing, the
Trial Examiner further concluded that Sanders ' state-
ment clearly contained a threat of reprisal because of
the filing of the grievance.
Contrary to the Trial Examiner , we do not agree that
a clear threat of reprisal was made by Sanders because
Robinson had filed a grievance involving him. At most
the statement was ambiguous.
In view of the above facts, together with absence of
evidence of union animosity or other unfair labor prac-
tices , we are not persuaded that the Respondent by
Sanders ' statement has violated the Act . Accordingly,
we shall order that the complaint be dismissed in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act , as amended , the National Labor Relations
Board hereby orders that the complaint herein be, and
hereby is , dismissed in its entirety.
FIFTY DIVISION, HAYES-ALBION CORP. 149
TRIAL EXAMINER'S DECISION All employees at its Bryan, Ohio, plant, excluding office
STATEMENT OF THE CASE
BENJAMIN A. THEEMAN,Trial Examiner: Local 107 of the
International Union Allied Industrial Workers of America,
AFL-CIO, (Local 107) filed the initial charge in this matter
on April 30, 1970, and an amended charge on June 4, 1970.
On June 12, the Acting Regional Director of Region 8 issued
his complaint and notice of hearing alleging that Fifty Divi-
sion, Hayes-Albion Corporation (Respondent) among other
things violated Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended, 29 U.S.C. 151, et seq. (the Act)
by (a) threatening to close the plant if Local 107 continued
to prosecute certain grievances; (b) threatening to discipline
a committeeman of Local 107 because he filed a grievance; (c)
refusing to supply Local 107 with information concerning the
subcontracting of work necessary for the processing of griev-
ances; and (d) refusing to bargain in good faith regarding the
subcontracting of work. Respondent denies the commission
of any unfair labor practices.
The trial herein took place on August 18, 1970, in Bryan,
Ohio. All parties were afforded full opportunity to partici-
pate , to examine and cross -examine witnesses , and to argue
orally. Briefs have been filed and carefully considered.
On the basis of the record in this case, and my observation
of the witnesses,' I make the following:
FINDINGS OF FACT
1. THE ISSUES
The issues are adequately set forth in the statement of the
case above.
II. RESPONDENT'S BUSINESS
Respondent is now and at all times material herein has
been a division of Hayes-Albion Corporation, a Delaware
corporation with plants in several States of the United States,
including Michigan, Ohio, and North Carolina. The Bryan,
Ohio, plant is involved in this proceeding. There, Respondent
manufactures ornamental trim, window frames, and engine
cooling fans for Ford, General Motors, and Chrysler. Annu-
ally in the course and conduct of its business the Bryan plant
ships products valued in excess of $50,000 directly to points
outside Ohio.
It is found that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
III. THE LABOR ORGANIZATION
It is found that Local 107 is a labor organization within the
meaning of Section 2(5) of the Act.
IV. THE UNIT AND THE COLLECTIVE-BARGAINING
AGREEMENT
The unit involved herein, within the meaning of Section
9(b) of the Act, is composed of the following employees of
Respondent:
' The testimony of all witnesses has been considered. In evaluating the
testimony of each witness, his demeanor was relied upon. In addition, incon-
sistencies and conflicting evidence were considered. The absence of a state-
ment of resolution of a conflict in specific testimony or of an analysis of such
testimony does not mean that such did not occur. See Bishop & Malco, Inc.,
d/b/a Walker's, 159 NLRB 1159, 1161. Further, to the extent that a witness
is credited only in part, it is done upon the evidentiary rule that it is not
uncommon "to believe some and not all of a witness' testimony." NL.R.B.
v. Universal Camera Corp., 179 F.2d 749, 754 (C.A. 2).
clerical employees, Superintendents and Foremen, or
anyone having authority to discipline or discharge em-
ployees.
For several years past, Local 107 has been the exclusive
representative of Respondent's employees in the unit and has
engaged in collective bargaining with Respondent with re-
spect to rates of pay, hours of employment, and ottlier terms
and conditions of employment. Respondent and Local 107
are operating under a collective -bargaining agreement dated
May 1, 1969, and expiring May 1, 1972.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For many years the automobile industry has been geared
to a model year operation which begins not later than August
1. This requires that each year automobile parts be machined
and produced by the suppliers not later than the end of July,
The manufacture and supply of parts is done by many compa-
nies like Respondent , known in the industry as Original
Equipment Manufacturers, their operation as an OEM opera-
tion.
For many years the standard procedure among the OEM
companies for the manufacture and sale of their products has
been somewhat as follows:' Respondent's sales department
offers its products to the automotive companies at a bid price.
In preparation for the bids, the sales department requests a
cost quotation from the tool engineering department. The
cost quotation includes piece price and tool costs. Tool costs
are based upon quotations from at least three outside tool
shops which manufacture the tools and dies. Should Re-
spondent get the order, the tools and dies are ordered from
one of these outside shops.' The outside shop delivers them
to Respondent's tool room for Respondent's operations to
start. Dependent upon size and complexity the outside tool
company takes from 14 to 30 weeks to construct the tools and
dies. Respondent neither buys nor owns the tools and dies
made by the outside shops. The tools and dies are owned by
the customer for whom Respondent has made the frames, etc.
The tools and dies remain in Respondent's plant until the
customer advises that they may be scrapped. The scrap value
goes to the customer.
In the normal course of Respondent's business its tool
room' did not construct the tools and dies made by the out-
side shops. The usual function of the tool room dealt with the
maintenance and repair of these tools and dies after they were
delivered to Respondent. The tool room made modifications
and changes as required to accomodate the tools or dies to
Respondent's operation, to repair damage, to replace worn
out parts, or to correct certain minor errors in the tools and
dies when they arrived from the outside shop .' In some cases
the tools or dies used by Respondent for the current year's
production were used with some changes to manufacture the
next year's product. The tool room employees also made
Respondent's procedure as outlined herein is typical.
In many cases the automobile company (Respondent's customer) ap-
proves or selects the outside tool shop.
4 Respondent 's Division Manager stated Respondent does not "have a
tool room as such, we have a tool maintenance room ." The room will be
referred to as "tool room."
In many instances before delivery to Respondent, the outside tool shops
try out the tools and dies they construct on presses that are different than
those in Respondent 's plant . Under the arrangement with Respondent, the
outside shops are responsible for the correctness and operability of the tools
and dies. On such occasions Respondent has required the outside tool shop
to send its men into Respondent's plant to correct the errors, or Respondent
has returned the tool to the outside shop for the necessary corrections.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these changes, dismantling the old die and the restructuring
the new where necessary.
The toolroom employees also made certain simple dies and
tools under the following circumstances . Tools and dies are
made in sets and are considered simple or complex. The
number of stations (or details) in each set establishes its sim-
plicity or complexity . A simple series might include one die
set with three stations in it . A complex series includes as
many as 10 or 15 die sets with 1 or more stations in each set.
The more complex the operation the more people are in-
volved and the greater number of operations are performed.
Two among the more simple dies are known as (1) roll section
transfer die and (2) cutoff die . Each of these is usually part
of a complex series. Each of these is most easily separated
from the rest of the series. Respondent 's toolroom employees
have built roll section transfer dies and cutoff dies, either to
replace broken ones in the main series or on an experimental
basis as required by Respondent.
B.. Starting November 1969, Respondent Reduces
the Number of Toolroom Employees
The critical period in this case commenced November
1969. For at least 15 years before that time, there had always
been sufficient work in Respondent 's shop to keep the tool-
room employees at work . This was so even though during this
period , Respondent subcontracted out some of the work usu-
ally done by its toolroom employees . The number of em-
ployees in the toolroom in November 1969, was 14. Starting
in November 1969 Respondent began to lay off toolroom
employees . By June 1970 the number of employees was eight.'
Of the six laid off, five went to the production line' at lesser
pay in accord with the seniority program in the plant.' One
quit . Respondent attributed the layoff to the fact that there
"wasn 't sufficient tool work to do."
Except for the layoff of the six men, working conditions in
Respondent 's tool room during the period November 1969 to
June 1970 were the same as they were prior to November
1969. Tools and dies were in Respondent 's plant and tool-
room that had been made and delivered by outside tool shops.
As occurred before November 1969, some of these tools and
dies needed maintenance and repair; also a need existed for
the structuring of roll section transfer dies or cutoff dies.
Some of this work the toolroom employees performed as they
had before . Between November 1969 and June 1970, Re-
spondent sent work that could have been performed by the
toolroom employees to outside tool shops for completion.
C. The Employees Demand Data Concerning Work
Performed by Outside Shops
The first layoff of toolroom employees occurred in Novem-
ber 1969 . In late 1969 or early 1970 , a meeting occurred
between toolroom employees and Babcock , plant superin-
tendent , Pierce , plant engineer, and Hallett , toolroom fore-
man. Pierce informed the men that there would be a layoff in
the toolroom because of lack of work. He mentioned further
that one of the cutoff dies built by the second shift was not
competitive from the cost standpoint with the work of outside
tool shops. Respondent advised the employees that it wished
to bring into the toolroom employees of an outside tool shop
to work on a tool or die originally made by the outside shop
The record shows three laid off in November 1969, three in February
and March 1970, two in April, and two in May. No attempt to reconcile this
figure with the eight working in June was made.
' Production line personnel were laid off to make room for the toolroom
employees.
' In November 1969, production line employees received $1 per hour less
pay. As of the time of the hearing the difference was 60 cents.
and then in the toolroom . The employees pointed out that a
grievance was pending on the same matter.'
In February and March 1970, further layoffs occurred. A
meeting occurred on February 19, 1970 , to discuss the layoffs,
during which Hastreiter requested information about tool-
work done outside. Present for Respondent were Adams,
plant manager, Babcock , and Hallet . Present for the tool-
room employees were Hastreiter , committee chairman,10
Moore and Robinson , committeemen , Anna Studenka , presi-
dent Local 107, and Sidari , I.A.W. International . Hastreiter,
Robinson , Studenka , Adams, and Babcock testified as to their
version of the discussion dealing with the demand for infor-
mation . Their testimony follows:
Hastreiter : I asked for a list of the work that was being
farmed out ... I requested a list of work being farmed
out for processing grieviences.
Robinson : A. Well, Jack (Hastreiter) got word there
was tool , dies and fixtures being made outside the shop,
he asked Mr. Adams for a list of such tools dies and
fixtures.
Q. What did Mr. Adams say to that?
A. He denied him. He told him he did not have to give
him such information , that that was part of his mana-
ger's rights.
Studenka : Q. Did he (Hastreiter) explain what infor-
mation he wanted ...
A. Farming out tool work.
Adams: As I recall the conversation went, they were
asking why this was outside and as I tried to explain to
them , the work has never been in the plant, it was ex-
plained time and time again , it was originally placed
outside and they felt they could build these tools. Mr.
Hastreiter said they-meaning the tool and die people
we had-and I said I did not feel that we could , because
of the ability and we did not have the equipment and so
forth.
So, he asked for a list of dies that as he termed it `we
had sent out' and I said, well, I did not feel that I had
to give him this list of dies , that were placed on the
outside, this was something that we had done ever since
the plant started in 1950, and that this was the manager's
prerogative We had always done this, we had never built
any tools in the plant....
Q. The request that Mr. Hastreiter made was for tools
being made on the outside , in shops outside , before com-
ing to the plant.
A. Yes.
Babcock: Q.... what did Mr. Hastreiter inform you
regarding the tooling , at what time
A. At the grievance meeting of February 19th'... .
Q.... he requested a list of all the tools that was being
built on the outside....
Hastreiter maintained it was a legitimate request according
to the NLRB. Mr. Adams denied that . Hastreiter said he
would go to the NLRB with the matter. Adams responded
that if the NLRB told him that directly he would give him
the list."
On March 5, Local 107 filed two grievances with regard to
this matter , both of which were denied by Respondent. In the
first, reference was made to the February 19 meeting and the
request for "a list of maintenance, tool or production work
contracted out ... " The grievance went on to state that Lo-
The record discloses no more with regard to this meeting or its results.
° He was made chairman subsequent to this meeting but was the spokes-
man at the meeting.
" The remainder of this conversation is alleged by the General Counsel
as a threat to close the plant. It is treated in sec. D.
FIFTY DIVISION, HAYES-ALBION CORP. 151
cal 107 needed "this list to determine settlement of grievances
" Respondent denied the request stating that the lists
are strictly company information and are not going to be
issued to non-company personnel ... This is a management
right."
In the second grievance Local 107 stated:
We are grieved that tool work has been contracted out
since Nov. 5, 1969, while tool room employees were
considered to be surplus and put on production jobs and
an equal number of production employees were laid off
because tool room employees replaced them because of
more seniority. If enough tool work has been keep in this
plan as was past practice these production employees
would not have been laid off and the tool room em-
ployees would not have taken a reduction in pay. We
request all pay involved.
Respondent in its denial stated:
New tool work has always been placed in outside shops,
except what work our tool room personnel was capable
of performing on a feasible and time basis.
In April 1970, Hastreiter held a meeting with Adams and
Babcock. The subject of discussion was that the work force
needed in the toolroom for the coming year would be from
8 to 10 men.
Since the February 19 meeting the information requested
by Local 107 has not been supplied by Respondent.
Since June 1970, the record contains no evidence of, nor is
Local 107 aware of, any work done by outside shops at Re-
spondent's request that could have been performed by the
tool room employees.
Conclusion-the Demand for Data is Ambiguous
The General Counsel contends (1) the February 19 request
for data involved "contracted out work ... that could easily
have been made by the tool room"; and (2) the refusal by
Respondent to supply this information was violative of the
Act.
Respondent contends (1) the February 19 request for data
involved work or tooling that "does not belong to the Com-
pany," "when such tooling has never been built in the plant
of the Company, when there is no way of building the tooling
in the plant, and when the practice has been the opposite in
this company and throughout the automotive industry for the
entire history of the automotive industry"; (2) such data had
no "effect upon the wages, hours, working conditions or other
conditions of employment" of the tool room employees; and
(3) Respondent's refusal to give the data was not violative of
the Act.
In view of the divergent contentions, it appears that a
resolution of this issue requires a determination as to exactly
what Hastreiter asked for. Under the circumstances of this
case and the record as a whole, it is concluded that Has-
treiter's data request on February 19 (a) was ambiguous and
unclear12 and subject to an interpretation that it was a request
either for the data as contended by General Counsel, or the
data asserted by Respondent or inclusive of both;" (b) Adams
interpreted the request to refer to the original tooling per-
formed by outside shops; and (c) Adams' interpretation was
not unreasonable.
" Cf. Vertol Division , Boeing Company, 182 NLRB No. 62, wherein the
requests for information were clearly set forth in writing and where the
collective-bargaining agreement contained a specific clause dealing with
subcontracting of unit work.
" The Act does not prescribe "any special formula or form of words."
Joy Silk Mills, Inc. v. N..L.R.B., 185 F.2d 732, 741, but there is no question
that the request must be made by clear implication. Cf. Keller Industries,
Inc., 170 NLRB No. 197 (TXD).
In arriving at the foregoing conclusion consideration has
been given to the fact that there is doubt as to what was the
exact language of Hastreiter's request; that one of the three
union representatives testified that Hastreiter asked for a list
of the tools, dies, and fixtures made outside the shop which
language supports the interpretation reached by Adams;"
that Adams in responding to Hastreiter specified that he was
referring to the original tooling; and Hastreiter, though he
had full opportunity to do so, did not correct Adams or tell
Adams that he was not after information dealing with the
original tooling but was after data concerning the tooling
work performed by the toolroom.
The record clearly shows that original tooling had never
been performed in the toolroom. It had never traditionally or
regularly been a part of toolroom work as had been the •
maintenance and repair of the tooling or the structuring of
simple dies.
Section 8(a)(5) of the Act requires an employer to bargain
with the exclusive representative of the employees in respect
to rates of pay, wages, hours of employment, or other condi-
tions of employment. It is well settled that the subcontracting
of unit work is a "condition of employment"; and, further,
that upon request an employer is required to furnish the
representative all information concerning the subcontracting
of such work as may be reasonably necessary and relevant to
administering an existent collective-bargaining agreement or
the intelligent performance of its function as such bargaining
representative."
No showing has been made that the original tooling per-
formed by outside shops affects the wages, hours, working
conditions, or other conditions of employment of the tool-
room. No showing has been made that data regarding the
original tooling is reasonably necessary or relevant to enable
Local 107 intelligently and effectively to carry out its bargain-
ing agreement or represent the employees in the unit. Accord-
ingly, it is concluded that the refusal of Respondent on Feb-
ruary 19 to comply with the ambiguous request of Local 107
does not constitute a refusal to bargain within the meaning
of Section 8(a)(5) of the Act.
It is recommended that this allegation of the complaint be
dismissed.
Conclusion that After November 1969 Respondent
Unilaterally Changed its Work Practice
Respondent admits that prior to November 1969 and at
least since 1958 it was the practice and custom for its tool
room to maintain and repair tools and dies and to build
simple dies. Further, all parties agreed that prior to Novem-
ber 1969, Respondent had sent maintenance and repair work
and simple dies for construction to outside shops; and that the
sending out of such work was done when there was sufficient
work in the toolroom to keep the employees busy and without
causing a layoff of toolroom employees,16
Starting with November 1969, Respondent changed this
practice. After November, when toolroom employees were on
layoff, or were being laid off because of lack of work Respond-
ent sent to outside shops tool room work upon which the tool
room employees could work. This fact is undisputed. The
work included maintenance and repair on tools and dies, and
the manufacture of steel dies for fan blades and a series of
simple roll section transfer dies. Hastreiter testified that if this
" It is noted that the same lack of clarity exists in the two March 5
grievances filed by Local 107.
" Fibreboard Paper Products Corporation v. N.LR.B., 379 U.S. 203;
Curtiss-Wright Corporation v. N.LR.B., 347 F.2d 61 (C.A. 3). Town and
Country Manufacturing Company, Inc., 136 NLRB 1022, 1026.
" Except for an instance in 1967 when a grievance was filed and paid.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work had not been sent out the toolroom employees would
have been fully employed during the above-mentioned 8-
month period, avoiding the layoff to the lower paying job on
the production line." This change in the practice of sending
out the toolroom work without any form of layoff was unilat-
erally put into existence by Respondent. At no time after
November 1969 did Respondent inform Local 107 of the
change nor did Respondent give Local 107 an opportunity to
bargain in respect to the sending out of the toolroom work
under the changed circumstances.
On the record as a whole, it is concluded that the sending
out of tool room work after November 1969 constituted a
change in the working conditions of the toolroom employees.
It is now well settled that such a unilateral change without
notice to, or negotiation with, Local 107 acts in derogation
of Respondent's duty to bargain and is violative of Section
8(a)(5) of the Act. Beacon Piece Dyeing and Finishing Co.,
Inc., 121 NLRB 953, 956. See also American Cyanamid Com-
pany, 185 NLRB No. 135; cf. C & S Industries, Inc., 158
NLRB 454, 457.
D. The Alleged Threat To Close the Plant
Hastreiter testified that during the February 19 meeting
Adams said that if Local 107 went to the NLRB "and caused
the plant to close down-not by moving the equipment out
but by running low, they would phase out the operation."
Robinson testified that Adams said if Local 107 "pushed
the grievances, the Hayes-Albion Corporation would either
close down or phase out the company."
Studenka testified that Adams said that Local 107 could go
to the NLRB and "possibly they [Respondent] might phase
out and close up the plant." On cross-examination when
asked to repeat Adams' statement approximately word-for-
word Studenka testified that Adams said "You pursue this
avenue and it could be a possibility of closing this plant
down."
Adams testified that after he told Hastreiter to "have the
NLRB tell me directly and I will give you the list," the
conversation continued as follows:
And after that I said "If you want to continue to pursue
this avenue, on this situation, that he very easily could
be jeopardizing all the employee's jobs, including my
own because we just could not survive under this type of
operation."
The General Counsel alleges that the Adams' statement
violates Section 8(a)(1) of the Act because it was a threat to
"close the plant if the Union persisted in pursuing grievances
over the information request or filed charges with the
NLRB." It is found that this allegation is unsubstantiated by
the evidence. From the record as a whole, Adams' version of
his statement is credited, particularly in light of the corrobo-
ration contained in Studenka's version brought out on cross-
examination.
On the record as a whole it is concluded that Adams'
statement related to the economic probabilities that might
ensue if Local 107 insisted on bargaining or negotiating on the
tools or dies originally constructed by the outside shops. 1I In
" This statement was uncontroverted by Respondent.
" Adams testified that the Company could not survive in the keen com-
petition that exists in this industry if Respondent were required to negotiate
the letting of tools into the shop. First, in Adams' opinion, Respondent's tool
room was incapable of handling the tooling normally done by outside tool
shops and the automobile companies knew Respondent's capabilities. Sec-
ond, production and machining in the automobile industry is geared to the
model year which begins not later than August 1. By that time all tooling
must be completed and they must be in production. To meet this type of
stopwatch timing, production quantities must be built and inventories estab-
that framework they are not coercive and do not exceed the
permissible limits of Section 8(c) of the Act. It is further
concluded that the Adams' statement is not a disguised
threat. This conclusion is supported by the lack of evidence
in the record of antiunion action or animosity on the part of
Respondent," the fact that the Company had acted upon and
paid grievances previously filed by the Union, and the exist-
ence of a current union contract under which Local 107 and
Respondent appear to be operating amicably.
It is recommended that the allegation of Section 8(a)(1)
violation in the complaint based on the alleged threat to close
the plant if the employees prosecuted grievances be dis-
missed.
E. Sanders Threatens Robinson Because of a Filed
Grievance
It is undenied that during the months of February and
March 1970 Robert Sanders, production engineer was em-
ployed in the tool room in the "door frame" area doing work
normally done by tool room employees. The engineer was a
salaried personnel and not a union member. On previous
occasions, tool room employees had worked with the produc-
tion engineer. Robinson, a committeeman, observed Sanders
working alone and in early March filed a grievance concern-
ing the matter.
On March 18, 1970, about 2:30 p.m. Sanders was acting as
the supervisor in the toolroom. Robinson was operating a
welder and some delay in production occurred. The following
conversation occurred in accord with the credited testimony
of Robinson:20
A.... he says: "I understand you are complaining
about me working."
And, I said: "That's right."
And, he said: "I am going to complain about you not
working, you have been goofing off."
Q. What did you way-well, did he say anything else?
A. I told him he had better not do it and he said I had
better quit it or he would have me put out the door.
Whether or not Robinson was "goofing oft" is of no signifi-
cance. Nor is it significant that Sanders did not refer to the
grievance. The only complaint made by Robinson was in the
form of the grievance. The clear import of the statement by
Sanders was that he would complain about Robinson because
Robinson was complaining about Sanders through the filed
grievance. Clearly Sanders' statement contained a threat of
reprisal because of the filing of the grievance, It is well settled
that an employee filing a grievance is engaged in protected,
concerted activities and is protected by the Act. See Trailmo-
bile Division, Pullman Incorporated, 168 NLRB 230, enfd. in
part 407 F.2d 1006 (C.A.5). A threat of reprisal constitutes
a violation of Section 8(a)(1) of the Act. It is so found.
Upon the foregoing factual findings and conclusions, I
make the following:
lished by Respondent by the end of July at the latest. In Adams' opinion this
precise timing would not permit the negotiation with the Union with regard
to the question of letting tools into the shop.
" The 8(a)(1) violation found in the next section is not considered gen-
eral union animus on the part of Respondent. Though Respondent is respon-
sible for the actions of its supervisors, nevertheless, the incident appears to
be an isolated instance of a supervisor threatening reprisal for a grievance
that affected the supervisor personally.
10 Sanders denied the conversation occurred. Sanders testified that Rob-
inson called him "a damned liar but, it was stronger than that" and he
warned Robinson to watch his language or he would go home for the rest
of the day. Robinson admitted that he used the words "damned liar." The
credited testimony preceded the name-calling.
FIFTY DIVISION, HAYES-ALBION CORP. 153
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 107 is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees at Respondent's Bryan, Ohio, plant, ex-
cluding office clerical employees, superintendents, and fore-
men, or anyone having authority to discipline or discharge
employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. Local 107 has been for several years and now is the
exclusive representative of the employees in the said unit for
the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By threatening an employee because he filed a grievance,
Respondent interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed by Section 7 of the
Act, thereby engaging in unfair labor practices within the,
meaning of Section 8(a)(1) of the Act.
6. Respondent, by unilaterally changing its practice with
regard to toolroom work normally and regularly performed
by tool room employees has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) of the Act.
7. The aforesaid acts are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
8. Other than as found above, Respondent has not engaged
in unfair labor practices within the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
in order to effectuate the policies of the Act.
The record shows that Respondent and Local 107 agreed
on the number of employees in the toolroom for 1970-1971.
Further, Local 107 states that since June 1970 Respondent
has not sent to outside shops any work customarily done by
the toolroom. Thus, it would appear that work conditions in
the toolroom are back to where they were prior to November
1969. Accordingly, the remedy herein will require Respond-
.ent not to change the terms and conditions of employment
without first notifying Local 107 and affording it an oppor-
tunity to bargain collectively over the proposed change. How-
ever, to restore the situation as far as possible to the situation
that existed prior to the occurrence of the unfair labor prac-
tice, the Respondent should be charged with the monetary
loss incurred by the laid off employees by reason of its unilat-
eral action during the period from November 1969 through
June 1970. The recommended order will provide accord-
ingly-11 Such monetary remedy shall be computed in the man-
ner set forth in F W. Woolworth Company, 90 NLRB 289,
with interest thereon, Iris Plumbing & Heating Co., 138
NLRB No. 716.
[Recommended Order omitted from publication.]
"Royal Plating and Polishing Co., Inc., 148 NLRB 545, 549; Spun-fee
Corp., etc., 152 NLRB 943, 947. Cf. Jersey Farms Milk Service, Inc., 148
NLRB 1392, 1393; Ozark Trailers, Inc., 161 NLRB 561, 571.