Marland One-Way Clutch Co., Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1972

200 N.L.R.B. 316 (N.L.R.B. 1972)

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marland One-Way Clutch Co., Inc . and Tool & Die
Makers Lodge No. 113, International Association
of Machinists and Aerospace Workers, AFL-CIO.
Case 13-CA-10823
November 14, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On July 17, 1972, Administrative Law Judge Jerry
B. Stone' issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief answering the General Counsel's
exceptions and supporting the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge to
the extent consistent herewith.
We agree with the Administrative Law Judge's
dismissal of the 8(a)(5) and derivative (1) allegations
of the complaint. Unlike the Administrative Law
Judge, however, we are persuaded by the evidence
that Respondent's conduct in conversations with
employee John Russell independently violated Sec-
tion 8(a)(1) of the Act.
By way of background, this case is the sequel to
Marland One-Way Clutch Co., Inc.,2 which involved
the same parties. In that proceeding, the Board
found, inter alia, that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally withholding
a third quarter installment of the 1970 Christmas
bonus and by failing to furnish the Union with
certain information relevant and necessary to intelli-
gent bargaining over bonus payments. The Board
ordered Respondent to pay the installment withheld,
furnish relevant information, and bargain with the
Union concerning the fourth and any subsequent
bonus installments.
The record in the present case reveals that
sometime in 1970 the Respondent's employees
engaged in a strike. On or about July 15, 1971,
employee John Russell had a conversation with
Joseph A. Marland, Respondent's president, in
which Russell sought to obtain a loan from the
Company's profit-sharing fund. Marland explained
he could not lend Russell any money from the fund,
but offered and made a $500.00 personal loan to him.
Before Russell left the office , Marland stated that
". . . if a certain person hadn 't started the union
over there that maybe [ Russell ] wouldn 't be short of
funds . . . ." Marland then suggested that Russell
start a letter to employees and "go around to some of
the fellow's houses and talk to them about the
amount of profit sharing this man had had, that it
would be a nice idea if we were to ask him to share
his profit sharing with the rest of us due to the fact
that he was the cause of us loosing [sic] that money."
During the same conversation Marland showed
Russell figures which indicated "Stan" had $7,400 in
profit sharing at the time of the discussion .3 At the
same time he showed Russell a figure of $27,000
payroll loss attributable to the strike.
The Administrative Law Judge, in dismissing the
8(a)(1) allegations based on the above transactions
concluded that Marland's remarks were nothing
more than a contention that as a result of unioniza-
tion , the employees went on strike and lost wages.
We disagree.
In our view, Respondent's statement about the
"certain person" allegedly starting the Union cou-
pled with the name "Stan" clearly creates the
impression of surveillance by suggesting Respondent
was observing the union activities of its employees
and had found out who had started such activity. It
further blamed an employee because of his union
adherence and activities for the financial losses
suffered by the other employees. Accordingly, we
find that such conduct violated Section 8(a)(1) of the
Act.
The record also reveals that Russell was at the
Marland home on the evening of August 9, 1971, and
the subject of the strike was brought up. After some
discussion Marland stated to Russell , "I'll promise
you the men will never get their bonus, and I 'll sell
the place before I settle ." The Administrative Judge
viewed Marland's statement as being no more than
an argument that he would not settle the case and
pay the bonus as a result of settlement . He further
concluded that this was a statement of the legal
position Respondent was taking in the litigation and
not violative of Section 8(a)(1). We disagree.
Marland's statement was made in the same
conversation when the subject of unionism was
raised and in a situation where no legal position was
called for . It was made to an employee with no legal
background who would not be able to distinguish a
legal position from a threat of plant closure as a
tactic Respondent would employ in opposition to its
1 The title of "Trial Examiner" was changed to "Administrative Law 3 At the hearing Stanley Terrutty testified that he was the union steward
Judge" effective August 19, 1972 . and organizer and that he was the only person the shop named Stanley.
2 192 NLRB No. 76.
200 NLRB No. 48
MARLAND ONE-WAY CLUTCH CO. 317
employees' union activities. Under such circum-
stances, Respondent's statement could only be
interpreted as a threat of plant closure which is
violative of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the
meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By suggesting that it knew who the union
organizer was, and blaming him and union activities
for losses which the employees suffered, Respondent
has created the impression of surveillance in viola-
tion of Section 8(a)(1) of the Act.
4. By telling employees they would never receive
a bonus and that it would close its plant before it
would settle, Respondent has threatened employees
with plant closure in violation of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
and is engaging in certain unfair labor practices, we
shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate
the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Marland One-Way Clutch Co., Inc., La Grange,
Illinois, its officers, agents, successors, and assigns:
1. Cease and desist from:
(a) Creating the impression of surveillance by
suggesting to employees it knows the identity of the
union organizer, and blaming him and union
activities for losses the employees have incurred.
(b) Telling employees they would never receive a
bonus and that it would sell its plant.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act.
(a) Post at its plant in La Grange, Illinois, copies of
the attached notice marked "Appendix."4 Copies of
said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT create the impression that our
employees' union activities are under surveillance,
and that such union activities are responsible for
losses which the employees have suffered.
WE WILL NOT threaten our employees with
plant closure.
MARLAND ONE-WAY
CLUTCH CO., INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 881, Everett McKinley Dirk-
sen Building, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 312-353-7572.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding, under
Section 10(b) of the National Labor Relations Act, as
amended, was tried pursuant to due notice on June 8, 1972,
at Chicago, Illinois.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The charge was filed on August 17, 1971. The complaint
was issued on May 15, 1972. The issues concern whether
(1) Respondent has violated Section 8(a)(5) and (1) of the
Act by (a) refusing to furnish certain information relating
to bonuses and (2) by unilaterally deciding to withhold and
withholding of bonuses in 1970, 1971, and 1972. (The
referred to bonuses may be described as a "Christmas
bonus" payable in quarterly installments. The referred to
installments are the fourth quarter bonus installment in
1970, the four installments in 1971, and the first installment
in 1972.)
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the Respon-
dent, the Charging Party, and the General Counsel and
have been considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts are based on the pleadings and admissions
therein. Marland One-Way Clutch Co., Inc., the Respon-
dent, is, and has been at all times material herein, a
corporation duly organized under, and existing by virtue
of, the laws of the State of Illinois. At all times material
herein, Respondent has maintained its principal place of
business at Washington and Elm Streets, La Grange,
Illinois, where it is, and has been at all times material
herein, engaged in the manufacture of mechanical clutches.
The Respondent, annually, in the course and conduct of its
business operation, manufactured, sold, and distributed its
completed products valued in excess of $50,000 from its La
Grange, Illinois, location directly to States of the United
States other than the State of Illinois.
Based on the foregoing and as conceded by Respondent,
it is concluded and found that the Respondent is, and at all
times material herein has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The facts, findings, and conclusions herein are based on
the pleadings and admissions therein. Tool & Die Makers
Lodge No. 113, International Association of Machinists
and Aerospace Workers, AFL-CIO, the Union , is, and at
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Supervisory Status
The facts, findings, and conclusions are based on the
pleadings and admissions therein.
At all times material herein the following named persons
occupied positions set opposite their respective names, and
have been and are now agents of the Respondent, acting
on its behalf, and are supervisors within the meaning of
Section 2(11) of the Act and/or agents within the meaning
of Section 2(13) of the Act:
Joseph A. Marland-President
Keith J. Aldrich-Vice President
L. Lee Burks, Jr.-Labor Relations Representative
R. G. Bowdish-Purchasing Agent
E. M. Alisauskis-Agent
B. Appropriate Bargaining Unit
The facts, findings, and conclusions herein are based on
the pleadings and admissions therein.
All production and maintenance employees at the
Respondent's LaGrange, Illinois, plant, but excluding
office clerical employees, professional employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
C. The Majority Status of the Union; the Certified
Status of the Union
On or about September 3, 1970, a majority of the
employees of Respondent in the unit described above, by a
secret ballot election conducted under the supervision of
the Regional Director for Region 13 of the Board,
designated and selected the Union as their representative
for the purpose of collective bargaining with the Respon-
dent, and on or about September 14, 1970, the Acting
Regional Director certified the Union as the exclusive
collective-bargaining representative of the employees in
said unit.
D. Marland Clutch Co., Inc., 192 NLRB No. 76
This proceeding, involving Case 13-CA-10823, is the
second case concerning alleged Respondent conduct
violative of Section 8(a)(5) and (1) of the Act in connection
with its handling of its Christmas bonuses and the four
installments thereof. The first case involved therein was
Case 13-CA-10161. The procedural facts relating to Case
13-CA-10161 are as follows: ( 1) The charge was filed on
October 20, 1970; (2) the complaint was issued on
December 22, 1970; (3) the unfair labor practice hearing
was held on February 18, 1971; (4) the Trial Examiner's
Decision issued on April 27, 1971; and (5) the Board's
decision issued on August 12, 1971, and is reported as
Marland Clutch Co., Inc., 192 NLRB No. 76.
The Trial Examiner's Decision and recommended Order
(issued on April27, 1971, and adopted in toto by the Board
on August 12, 1971) found in effect that (1) Respondent's
Christmas bonus and installments thereof constituted
wages within the meaning of the Act; (2) Respondent had
violated Section 8(a)(5) and (1) of the Act by the unilateral
withholding of the 1970 third quarter installment of the
Christmas bonus; and (3) Respondent had violated Section
8(a)(5) and (1) of the Act by failing to supply information
which was relevant and reasonably necessary to the
Union's intelligent bargaining concerning the bonus. The
Trial Examiner's recommended Order, adopted by the
Board, required (1) that Respondent make employees
whole for loss suffered by the unilateral withholding of the
1970 third quarter installment of the Christmas bonus; (2)
that Respondent bargain collectively, upon request, con-
cerning the payment of the fourth quarterly installment of
MARLAND ONE-WAY CLUTCH CO. 319
the 1970 Christmas bonus and any bonus installments, to
employees within the appropriate unit represented by the
Union; (3) that Respondent supply any information
requested by the Union which is relevant and reasonably
needed by the Union in order for it to bargain intelligently
with Respondent concerning the Christmas bonus and any
bonus.
In addition to the foregoing, it should be noted that the
Trial Examiner's Decision in Case 13-CA-10161 reflected
the facts concerning the withholding of the fourth quarter
installment of the 1970 Christmas bonus.
E. The Instant Case
The procedural facts relating to the instant case (Case
13-CA-10823) may be summarized as follows: (1) The
charge in the instant case was filed on August 17, 1971. (2)
The Regional Director for Region 13 issued a partial
dismissal of said charge on October 29, 1971. Said
dismissal in effect dismissed the refusal-to-bargain (8(a)(5))
allegation but did not "constitute dismissal of independent
violations of Section 8(a)(1)." (3) The complaint in the
instant case issued on May 15, 1972. (4) The Regional
Director for Region 13 issued a letter, on May 17, 1972,
withdrawing the dismissal of that portion of the charge
which alleged that the Employer failed to bargain in good
faith.
F. The 8(a)(1) Issues
Case 13-CA-10823
The General Counsel alleges and Respondent denies that
Respondent, by its supervisor and agent, Joseph A.
Marland, on or about July 15, 1971, blamed an employee,
because of his union adherence and activities, for certain
financial losses suffered by its employees.
The General Counsel's evidence to the above alleged
incident was adduced through the testimony of John
Russell. Russell's credited testimony to this event was to
the effect that he had a conversation with President Joseph
Marland on July 15, 1971. What occurred is revealed by
the following credited excerpts of Russell's testimony.
Q. Now, will you tell us what Mr. Marland said to
you, if anything, and what you said to Mr. Marland, if
anything.
A. Well, I had been off work for awhile and I had
called up Mr. Aldrich and requested to borrow money
from the profit sharing, and at first I thought it would
be all right. And then Mr. Aldrich called me up and
said Mr. Marland would like to see me in his office on
the 15th of July at 11:00 o'clock.
MR. KENT: Would you mind speaking up, sir, if you
will?
THE Wi rxnss: Mr. Marland would like to see me in
his office at 11:00 o'clock on July 15th. So I went over
there and he explained to me why he couldn't loan
money from the profit sharing and we discussed some
other subjects, and then he told me he could loan me
$500 in a personal check, no strings attached, literally
no strings attached. There were no strings attached to
it.
So I accepted the $500 in a personal check from him.
Q. (By Mr. Coleman) Then what did he say, if
anything?
A. We discussed a few other little problems for
awhile and then right before I was ready to leave he
explained to me that if a certain person hadn't started
the union over there, that maybe I wouldn't be short of
funds or other people, you know the situation wouldn't
be as bad there as they were. And then he said to me
that he thought if I were to start a letter, go around to
some of the fellow's houses and talk to them about the
amount of profit sharing that this man had, that it
would be a nice idea if we were to ask him to share his
profit sharing with the rest of us due to the fact that he
was the cause of us loosing [sic ] that money.
Russell credibly testified to receiving a slip of paper from
President Marland during the conversation. The slip of
paper had the following notations thereon.
27,000-Payroll loss
7,400-Stan Profit Share
Russell testified concerning the slip of paper as is
revealed by the following credited excerpts from his
testimony.
Q. (By Mr. Coleman) Now, Mr. Russell, I notice
on General Counsel's Exhibit 2 the second line there
reads "7,400." It looks like it reads "Stan, profit
sharing." Would you explain what that means?
A. Well, the second line, 7,400, evidently is the
amount, or Stanley had in his profit sharing at the time
the discussion took place.
Q. Do you know who Stanley is?
A. Mr. Stanley Terrutty. He is a worker in the
grinding department at Marland Clutch Company.
Q. Do you know the top line-refer to the top line
of 27,000 payroll loss. Did Mr. Marland explain to you
what that was?
A. That would have been the wages either in
bonuses-he didn't explain exactly in what form these
wages were . Some form of wages that were loss [sic] by
the men due to the strikes or problems that had been
incurred since the union came in.
Considering the foregoing, I am persuaded that the
remarks by President Marland did not interfere with,
restrain , or coerce employees in the exercise of Section 7
rights. It follows that such conduct does not constitute
conduct violative of Section 8(a)(1) of the Act. The record
in this case indicates that the employees went on strike in
1970. Marland's remarks are no more than a contention
that as a result of unionization employees went on strike
and lost wages as a result . Under such circumstances, the
referred to remarks do not constitute conduct violative of
Section 8(a)(1) of the Act.
The General Counsel alleges and the Respondent denies
that Respondent, by its supervisor and agent, Joseph A.
Marland on or about August 9, 1971, told its employees
that the men would not receive their bonus payments and
that he would sell the plant before he would settle.
General Counsel's witness Russell testified to a conversa-
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion with President Marland on August 9, 1971.On August
9, 1971, President Marland, his wife, John Russell, and his
wife attended a retreat at Ayles Ford.' Later the Marlands
and the Russells went to the Russells' home for refresh-
ments. Russell testified concerning a conversation Presi-
dent Marland had with him. Such conversation, according
to Russell, was as is revealed by the following excerpts of
Russell 's testimony.
Q. Is that when you had this conversation?
A. Yes, we had a conversation at the table. At one
time during the conversation he said to me, "I'll
promise you the men will never get their bonus and I'll
sell the place before I settle."
President Marland testified to the effect that he did not
make the statement attributed to him by Russell. Mar-
land's version concerning the incident is as revealed by the
following excerpts from his testimony.
When we returned to their home to take them back
to their home in our car, why, Mrs. Russell invited us in
for some light refreshment. I think it was tea and
cookies.
We then had some conversation. First of all,
concerning their youngsters who were either at the
preschool age or just about the beginning of school age.
And then the question was brought up about the strike
and our discussion followed on the points of difference
on the strike. Somewhat my disappointment in the
continuity of relations that were not as harmonious as
they had been before. Negotiations had started to
organize the union shop. And in that conversation I
mentioned the fact that many of the conglomerates
-there were a total at that time of 12 of the
conglomerate organizations had approached us in
writing or in person or in phone calls asking us if we
would want to get rid of all these headaches of
management and let them as a conglomerate manage-
Q. (By Mr. Kent) Do you recall what Mr. Russell
testified to with respect to the payment of the bonus?
A. Yes. And that is a complete, diametrically
opposed statement to what my thought had been or my
purpose in making a statement would be, because I
could not in good conscience state that the company
would never pay a bonus. That would be something I
could not bring myself or allow myself to think or state.
I hoped, of course, there would be no pressure to force
us to pay a bonus, but to speak definitely on this point
that I would never pay a bonus, that was never entered
my thoughts or thinking process.
Q. Are you denying that you made the statement
attributed to you?
A. Totally and absolutely denying that, yes.
I The retreat is of a religious nature.
2 1 found Russell to appear to be a very truthful witness. I credit his
testimony to the effect that bonuses were discussed.
3 See New Enterprize Stone and Lime Co., Inc. 176 NLRB No. 71. See
also Canton Sign Co., 186 NLRB No. 39. Because of the disposition of the
8(a)(5) issues in this case on other grounds, I do not pass upon the 10(b)
I am persuaded that Marland did speak to Russell about
the bonue2 and did indicate that he would sell his business
before he would settle. Marland's testimony does not set
forth what he said about the bonus but merely denies that
he made the statement attributed to him by Russell. I am
not persuaded that the facts as to what exactly was said has
been presented by Russell. The reference to the fact that
Marland would sell the place before he would settle
indicates that the question of bonus was discussed in
relationship to the pending case (13-CA-10161) and a
settlement of the issues arising from such case. Under such
circumstances, I do not find the evidence to be reliable to
establish that Marland was more than arguing that he
would not settle the case and pay the bonus as a result of
settlement. In effect it was a statement of the legal position
he was taking in litigation. Such conduct is not violative of
Section 8(a)(1) of the Act. I so conclude and find.
G. The 8(a)(5) Issues
The General Counsel seeks to litigate in this case
whether Respondent has violated Section 8(a)(5) and (1) of
the Act (1) by withholding various installments of its
Christmas bonus in 1970, 1971, and 1972 and (2) by failing
to furnish relevant information necessary for intelligent
bargaining concerning the Christmas bonus.
The General Counsel, Charging Party, and Respondent
are in agreement that the Board's Decision and Order in
Case 13-CA-10823 (1) required collective bargaining by
Respondent, upon request, as to all the bonus installments
involved herein, and (2) required the furnishing of relevant
information by Respondent, upon request, as to the
bonuses. The General Counsel seeks, however, an order
directing Respondent to pay the unit employees for all
bonus payments withheld that have accrued up to the
decision and recommended Order in this case.
It is clear that General Counsel could have litigated the
question of the unlawfulness of the withholding of the
fourth quarter 1970 bonus payment in Case 13-CA-10161,
and could have sought essentially the remedy he now
seeks. What the General Counsel in real effect is
attempting to do is to obtain a modification or clarification
of the Order in Case 13-CA-10161. I am persuaded that as
a matter of sound judicial administration of the Act, this
complaint proceeding should not be utilized as a vehicle to
in effect modify the Board's Order in Case 13-CA-10161
and to determine compliance issues in such proceeding.
Accordingly, I recommend that the complaint allegations
of conduct violative of Section 8(a)(5) and (1) of the Act be
dismissed.3
issues relating to the litigability of Respondent's conduct as regards the
fourth quarterly bonus installment in 1970. Nor do I pass upon the 10(b)
problem presented by the Regional Director's partial dismissal of the
charges on October 29, 1971, and the subsequent withdrawal of such partial
dismissal on May 17, 1972. See Koppers Company Inc., 163 NLRB 517.
MARLAND ONE-WAY CLUTCH CO. 321
Upon the basis of the above findings of fact, conclusions, ORDER
and upon the entire record, I issue the following recom-
mended:4 The complaint in this proceeding is dismissed in its
_.^-- entirety.
In the event no exceptions are filed as provided by Sec . 102.46 of the provided in Sec . 102.48 of the Rules and Regulations, be adopted by the
Rules and Regulations of the National Labor Relations Board , the findings, Board and become its findings , conclusions , and Order, and all objections
conclusions , recommendations, and recommended Order herein shall, as thereto shall be deemed waived for all purposes.