Jomar Metal Finishing Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1055 (N.L.R.B. 1964)

JOMAR METAL FINISHING CORP. 1055
Jomar Metal Finishing Corp . and Local 485, International Union
of Electrical , Radio & Machine Workers , AFL-CIO and Pro-
duction Workers Union , Local 148 , International Union of Doll
and Toy Workers of the United States and Canada, AFL-
CIO. Case No. 2-CA-9486. Jvrne 29, 1964
DECISION AND ORDER
On March 24, 1964, Trial Examiner John H. Eadie issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the General Counsel filed exceptions to the failure of the Trial Ex-
aminer to recommend certain remedial action, and a supporting brief.
The Respondent did not file exceptions, but filed a brief in support of
the Trial Examiner's recommendations as to the appropriate remedy.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers -in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudical error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the General Counsel's exceptions, the briefs,
and the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as. its Order, the Order recom-
mended.by the Trial Examiner and orders that Respondent, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
'In the absence of exceptions , the Trial Examiner 's finding of 8(a) (1), (2 ), and (3)
violations is adopted pro forma.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon an amended charge 1 filed on October 11, 1963, the General Counsel of the
National Labor Relations Board issued a complaint dated October 17, 1963, against
Jomar Metal Finishing Corp., herein called the Respondent , alleging that the Re-
spondent had engaged in unfair labor practices affecting commerce within the mean-
ing of Section 8 ( a)(1), (2), and ( 3) and Section 2(6) and (7) of the Act. The
The original charge and first amended charge were filed on July 22 and October 9, 1963,
respectively.
147 NLRB No. 129.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent and Production Workers Union, Local 148, International Union of
Doll and Toy Workers of the United States and Canada, AFL-CIO, herein called
Local 148, filed answers in which the violations alleged in the complaint were denied.
A hearing was held before Trial Examiner John H. Eadie at New York, New York,
on November 6 and 7, 1963. At the close of the whole case the Respondent moved
to dismiss the complaint. Ruling was reserved. The motion to dismiss is disposed
of as hereinafter indicated. The General Counsel and Local 148 presented oral
argument on the record. After the conclusion of the hearing the General Counsel
and the Respondent filed briefs with the Trial Examiner.
Both from the entire record in the case and from his observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York 'corporation, having its principal office and place
of business at 40 Ingraham Street, Brooklyn, in the city and State of New York.
It is engaged in electrochemical plating of steel products and in performing related
services.
During the period since about April 1963, which period is representative of its
operations generally, the Respondent purchased and caused to be transported and
delivered to its Brooklyn plant metals, plating chemicals, and other goods and mate-
rials valued at an annual rate in excess of $50,000, of which goods and materials
valued at an annual rate in excess of $50,000 were transported and delivered to its
plant in interstate commerce directly from States of the United States other than
the State of New York.
During the same period the Respondent caused to be sold and distributed at its
Brooklyn plant products valued at an annual rate in excess of $50,000, of which
products valued at an annual rate in, excess of $50,000 were furnished to,. among
others, Cadillac Wire Co., Manhattan Wire Co., Lebo Products, Industrial Wire Co.,
and Nova Manufacturing Co., each of which enterprises is located in New York
and annually produces and ships goods valued in excess of $50,000 directly out of
the State of New York.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 148 and Local 485, International Union of Electrical, Radio & Machine
Workers, AFL-CIO, herein called Local 485, are labor organizations which admit
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
Joseph Nardone, president of Local 148,, visited the Respondent's plant during
the middle of February 1963. He spoke to Martin Feldman, secretary-treasurer of
the Respondent. Nardone introduced himself and asked if he could be of "any
assistance." Feldman stated that the Respondent did not have any employees and
asked him if he could supply its labor demands. Nardone asked if the Respondent
would recognize Local. 148 as the bargaining agent for the Respondent's production
workers. Feldman agreed to do so provided Nardone sent the needed help.
On February 25, 1963, the Respondent hired Humberto Samame and Jesus Valen-
tin. They were referred to the Respondent by Nardone, and they signed authoriza-
tion cards of Local 148 before reporting to the Respondent. Thereafter, and about
the end of February or the beginning of March 1963, the Respondent executed a
recognition agreement with Local 148 which reads in part as follows: 2
1. The Employer recognizes the Union as the sole and exclusive bargaining
agent for all employees of the Employer exclusive of sales, Clerical, Guards,
Watchmen, and Supervisorypersonnel as defined in the N.L.R.B. as amended.
2. The Employer agrees that he will sign with the Union a collective bar-
gaining agreement embodying the Union's usual check off, recognition and
other such Union security clauses.
3. Negotiations for such other terms as wages, hours and other conditions
of employment to be included in the collective bargaining agreement shall begin
on 196- and any issues in dispute at the
2 The original agreement was not available at the hearing and an unconfirmed copy
was received in evidence. The record does not disclose the date of execution or the other
dates left blank in the exhibit. In addition to the two employees mentioned above, the
Respondent also employed Frank Zarnowski as a maintenance man when the agreement
was signed.
JOMAR METAL FINISHING CORP. 1057
end of two weeks thereafter shall be submitted to the New York State Board
of Mediation, for arbitration. The decision of the arbitrator shall be final and
binding upon the parties and fully enforceable in law and equity.
4. All terms included in the agreement between the parties shall be
retroactive to 196_
Feldman testified that: At the time of execution of the above agreement, the
Respondent anticipated hiring a substantial number of employees; thereafter he
requested Nardone to supply him with new employees; he hired some employees
who were not referred by Nardone; between May 7 and May 16, 1963, the Re-
spondent hired 9 additional employees, making a total complement of 12 employees: 3
the plant did not commence production until "the very end of May"; although a
collective-bargaining agreement between the Respondent and Local 148 is dated
May 15, 1963, it was not signed until May 16 or 17; he and Nardone held two
meetings during May in order to negotiate the contract; before the contract was
executed Local 148 proved that it represented a majority of the employees by show-
ing him membership cards; he had not been shown such cards at the time he
signed the recognition agreement; and starting about the middle of June 1963,
union dues were deducted and paid to Local 148 for those employees who had
signed "a dues deduction card pursuant to the collective bargaining agreement." 4
The collective-bargaining agreement, between the Respondent and Local 148 was
signed by Nardone and Feldman. In addition, it was signed by a "committee" of
employees, consisting of Samame, Valentin 5 and Leon Simmons. The contract pro-
vides for checkoff of union dues and contains the following clause:
It shall be a condition of employment that all employees of the employer
covered by this agreement who are members of the Union in good standing on
the effective date of this agreement shall remain members of the Union in good
standing, and those who are not members on the effective date of this agreement
shall, on or after the thirtieth day following the effective date of this agree-
ment, become and remain members in good standing. It shall also be a condi-
tion of employment that all employees covered by this agreement, and hired
on or after its effective date shall, on or after the thirtieth day following the
beginning of such employment become and remain members in good standing
in the Union.
The evidence discloses that during February 1963, before the Respondent had
any employees, it agreed to recognize Local 148 as the exclusive bargaining agent
provided that Local 148 furnished it with employees; that in late February or early
March 1963, when it had only three employees and anticipated the hiring of many
additional employees and long before the start of actual production in the plant,
the Respondent recognized Local 148 as the exclusive bargaining agent of all of its
employees "exclusive of sales, Clerical, Guards, Watchmen, and Supervisory person-
nel as defined in the N.L.R.B. as amended"; and that on May 15, 1963, the Respond-
ent entered into a contract with Local 148, which required membership in Local 148
as a condition of employment and provided for checkoff. By recognizing and deal-
ing with Local 148 at a time when it did not have a representative complement in
an appropriate unit in its employ and its plant was not yet in production, the Re-
spondent presented its newly hired employees with a readymade bargaining agent,
thus effectively depriving them of that freedom guaranteed by the Act to choose their
own collective-bargaining representative. It is found that the Respondent's conduct
was violative of Section 8(a)(1), (2), and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The 'activities of the Respondent set forth in section III, above, occurring in
connection with the Respondent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
'The record discloses that as of May 16 all of the employees hired by the Respondent
with the exception of Zarnowski were referred by Local 148.
The record shows that dues were first deducted by the Respondent on June 12.
6 Valentin testified that about 1 week after he was hired he and Samame signed "long
papers" ; that Simmons was not employed at the time ; and that he did not sign "any long
white papers" thereafter . Although it is not clear , his testimony indicates that he and
Samame also witnessed the recognition agreement executed about March 1.
756-236-65-vol. 147--68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
As it has been found that the Respondent unlawfully assisted and contributed
support to Local 148, the effect of this interference, and the Respondent's continued
recognition of that organization as the bargaining representative of its employees,
constitute a continuing obstacle to the free exercise by its employees of their right
to self-organization and to bargain collectively through representatives of their
own choosing. It will therefore be recommended that the Respondent withdraw
and withhold recognition of Local 148 and refrain from dealing with it unless and
until it shall have been certified by the Board as the bargaining representative of the
Respondent's employees. Having found that the collective-bargaining contract
entered into between the Respondent and Local 148 has been a means whereby the
Respondent has utilized an employer-assisted labor organization to frustrate self-
organization and to defeat genuine collective bargaining by its employees, the Trial
Examiner will recommend that the Respondent cease giving effect to that agreement
or any extension or modification thereof. Nothing in this recommendation should
be taken, however, to require the Respondent to vary those wages, hours, or other
substantive features of its relations with the employees themselves, if any, which the
Respondent has established in performance of this agreement.
The General Counsel seeks a general reimbursement of dues remedy. In this
connection the General Counsel states in his brief that the Respondent "permitted,
acquiesced in and encouraged Local 148 to require propsective employees to join
Local 148 as a condition of their being referred to Jomar for employment." The
record is devoid of facts to warrant such a finding. Further there is no evidence
that the Respondent coerced its employees to join Local 148 or to sign checkoff
authorizations, or that prospective employees were required to join Local 148
before being referred to the Respondent for employment.6 Accordingly, this remedy
does not appear to be justified.
Upon the basis of the foregoing findings of fact and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 148 and Local 485 are labor organizations within the meaning of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By recognizing and dealing with Local 148 at a time when it did not have a
representative complement in an appropriate unit in its employ and its plant was
not yet in production, and by providing in its contract with Local 148 for member-
ship in that organization as a condition of employment and for the deduction of dues
and initiation fees for the benefit of Local 148, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (1), (2), and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the Respondent, its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Assisting or contributing support to Local 148, or any other labor organization.
(b) Recognizing Local 148 as the exclusive representative of its employees for
the purpose of collective bargaining, unless and until said labor organization shall
have been certified by the National Labor Relations Board as the exclusive bargain-
ing representative of its employees in an appropriate unit.
eIn his affidavit Nardone states:
[The employees] signed Local 148 membership application cards for Mr. Bossman or
me when I went over to Jomar after sending them over. A couple of employees re-
fused to sign but thereafter signed . I do not recall when this occurred.
Bossman is identified in the record as a representative of Local 148.
JOMAR METAL FINISHING CORP. 1059
(c) Giving effect to its agreement with Local 148, entered into on May 15, 1963,
or to any extension, renewal , modification, or supplement thereof, or any superseding
agreement , unless and until Local 148 shall have been certified by the Board, and
only then if the agreement otherwise conforms to the provision of the Act; but
nothing herein shall be construed as requiring the Respondent to vary or abandon
the wages, hours, seniority, or other substantive features of any such agreement.
(d) Giving effect to any checkoff authorizations, heretofore executed by its em-
ployees, authorizing deduction of periodic dues, fines, fees, or assessments from wages
for remittance to Local 148, prior to the date of compliance with this Recommended
Order.
(e) Encouraging membership in Local 148, or any other labor organization, by
conditioning the hire or tenure of employment or any term or condition of employ-
ment upon membership in, affiliation with, or dues or other payments to, that labor
organization, or any other labor organization, except where such conditions have been
lawfully established by an agreement in conformity with Section 8(a) (3) of the Act.
(f) In any other manner interfering with, restraining , or coercing their employees in
the exercise of the right to self-organization , to form labor organizations, to join or
assist Local 485, or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Withdraw and withhold all recognition of Local 148 as the exclusive bargain-
ing representative of its employees, unless and until said labor organization shall
have been certified as such representative by the Board.
(b) Post at its plant in New York, New York, copies of the attached notice
marked "Appendix." 7 Copies of said notice to be furnished by the Regional Director
for the Second Region shall, after being duly signed by the Respondent or its
authorized representatives, be posted by Respondent immediately upon receipt
thereof and maintained by it for a period of 60 consecutive days thereafter in
conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to -insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region, in writing, within 20 days
from the date of the receipt of this Decision what steps it has taken to comply
herewith.8
7 In the event that this Recommended Order be adopted by the Board, the words "a Deci-
sion and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
9In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of- a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT assist or contribute support to Production Workers Union,
Local 148, International Union of Doll and Toy Workers of the United States
and Canada, AFL-CIO.
WE WILL NOT give effect to the agreement entered into with Local 148 on
May 15, 1963, or to any extension, renewal, modification, or supplement thereof,
or to any superseding agreement, unless and until Local 148 shall have been
certified by the National Labor Relations Board, and then only if the agreement
otherwise conforms to the provisions of the National Labor Relations Act.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give effect to any checkoff cards, heretofore executed by our
employees, authorizing deductions from their wages for remittance to Local 148.
WE WILL NOT encourage membership in Local 148, or any other labor
organization of our employees, by conditioning the hire or tenure of employ-
ment or any term or condition of employment upon membership in, affiliation
with, or dues payments to, that organization, or any other labor organization,
except where such conditions shall have been lawfully established by an agree-
ment in conformity with Section 8(a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Local 485, International Union of Electrical,
Radio & Machine Workers, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purposes of collective bargaining or mutual aid
or protection, or to refrain from any or all such activities, except to the extent
that such rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL withdraw and withhold all recognition from Local 148 as collective-
bargaining representative of any of our employees unless and until such labor
organization shall have been certified by the National Labor Relations Board
as the exclusive representative of such employees.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of any labor organization except to the extent that this right
may be affected by an agreement in conformity with Section 8(a) (3) of the Act.
JOMAR METAL FINISHING CORP.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
Hotel , Motel & Club Employees' Union , Local 568, AFL-CIO
and Restaurant Management , Inc. Case No. 4-CP-59. June 29,
1964
DECISION AND ORDER
On April 14, 1964, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
violative of Section 8(b) (7) (C) of the Act and recommending that
it cease and desist therefrom and take certain affirmative action as set
forth in the attached Decision. Thereafter, the General Counsel and
Respondent filed exceptions to the Trial Examiner's Decision and
supporting briefs, and the General Counsel also filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its power in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins].
147 NLRB No. 130.