Mass. Machine & Stamping, Inc.

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 801 (N.L.R.B. 1977)

MASS. MACHINE & STAMPING, INC.
Mass. Machine & Stamping, Inc. (formerly Massa-
chusetts Machine Shop, Inc.) and United Electri-
cal, Radio & Machine Workers of America (UE).
Cases 1-CA- 10898 and I-CA- 11928
August 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On May 16, 1977, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs.
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, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The complaint in this matter alleged, inter alia, that
Respondent had violated Section 8(a)(5) of the Act
by withdrawing recognition of the Union on July 21,
1975,2 the day Respondent began operations at its
new location in Nashua, New Hampshire. The
Administrative Law Judge found that Respondent
did not violate the Act by such withdrawal of
recognition. For the reasons set forth below, we do
not agree with that finding, but, instead, find that
Respondent violated Section 8(a)(5) of the Act by
refusing to bargain with the Union on and after July
21.
During the year prior to July 3, Respondent
operated a metal stamping and machine tooling
plant in Roxbury, Massachusetts. An election was
held on June 28, 1973, in an appropriate unit of
production and maintenance employees at the
Roxbury plant. A majority of the employees chose
the Union as their collective-bargaining representa-
tive. Respondent and Union entered into a collec-
tive-bargaining agreement effective from November
2, 1973, until November 3, 1975.3 In November 1974,
Respondent notified the Union that it intended to
move the Roxbury operations to another unspecified
location. Respondent and Union, in a series of
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Drv Wall Products,
Iec. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 All dates hereafter refer to 1975 unless otherwise specified.
:' The contract ssas terminated at the time of the move in accord with a
231 NLRB No. 133
meetings over several months, bargained over the
effect of the move, entering into a "Memorandum of
Agreement" on June 23. Among other things, the
memorandum provided severance pay for employees
who did not wish to continue their employment at
the new plant. In addition, the agreement granted
travel allowances for commuters and specified other
working conditions.
On July 3, Respondent closed its Roxbury plant.
At that time there were 22 employees working at the
plant. 4 Of these 22, 11 employees continued their
employment at the Nashua plant when it began
operations on July 21. The remaining 11 employees
elected to accept the severance pay rather than
transfer.
The Nashua plant began operations on July 21
with 19 employees actually working at the plant. This
included 11 employees who had worked at the
Roxbury plant and 8 new employees hired for the
Nashua plant.5 In addition, as of July 21, three other
employees had been hired, but had not yet begun
work.
Throughout the negotiations on the effects of the
move, the Union had requested that Respondent
continue to recognize the Union as the collective-
bargaining representative of the employees after the
move to the new plant. Respondent stated that it
could not make a commitment to do so until it knew
the makeup of the work force at the new plant. On
July 17, the Union, by mail, requested recognition as
the representative of the employees at the Nashua
plant. By a letter dated July 23 Respondent replied
that it declined to recognize the Union because, in
Respondent's view, the Union no longer represented
a majority of the employees.
The Administrative Law Judge found that Respon-
dent was not required to recognize the Union as the
bargaining representative for the employees at the
Nashua plant. In so finding, the Administrative Law
Judge observed that, as of July 21, only about half
the machinery had been installed; the employee
complement was expected to increase to as many as
35 employees very shortly; by July 28, 15 new
employees from the Nashua area had been hired and
had actually begun working placing the 11 employees
from the Roxbury plant in the minority. The
Administrative Law Judge also pointed out that even
on July 21 there were II employees from the
clause within the contract itself which provided that the contract would
remain in effect if the operation was relocated within 30 miles. Nashua is
approximately 40 miles from Roxbury.
4 In addition to the 22 "active" employees, there were 22 employees on
layoff status and 7 employees on industrial injury leave. All 22 laid-off
employees elected to accept the severance pay. The seven injured employees
were not offered the severance-pay option.
s Six of these new employees had begun work prior to July 21 and had
assisted in the setup of the Nashua facility.
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roxbury plant, 8 new employees who had already
begun work, and 3 employees who had been hired
and were scheduled to begin work within a few days.
Because these 3 employees would have an interest in
the question of representation, the Administrative
Law Judge concluded that the 3 should be added to
the 19 employees working on July 21 assessing the
union strength. As a result, even on July 21, the
Administrative Law Judge concluded, the Union
would not have had a majority.
We do not agree with this analysis of the situation.
While the Administrative Law Judge rejected the
doctrine of the presumption of continuing majority
status, recent cases have reaffirmed this principle:6
It is well settled that a certified union, upon
expiration of the first year following its certifica-
tion, enjoys a rebuttable presumption that its
majority representative status continues.' This
presumption is designed to promote stability in
collective-bargaining relationships, without im-
pairing the free choice of employees. 2 According-
ly, once the presumption is shown to be operative,
a primafacie case is established that an employer
is obligated to bargain and that its refusal to do so
would be unlawful. The prima facie case may be
rebutted if the employer affirmatively establishes
either (I) that at the time of the refusal the union
in fact no longer enjoyed majority representative
status; 3 or (2) that the employer's refusal was
predicated on a good-faith and reasonably
grounded doubt of the union's continued majority
status. As to the second of these, i.e., "good faith
doubt," two prerequisites for sustaining the
defense are that the asserted doubt must be based
on objective considerations4 and it must not have
been advanced for the purpose of gaining time in
which to undermine the union.5
I Celanese Corporation ofAmerica, 95 NLRB 644, 671-672.
2 Id.
' "Majority representative status" means that a majonty of
employees in the unit wish to have the union as their representative for
collective bargaining purposes. Id.
I See Laystrom Manufacturing Company, 151 NLRB 1482, 1484,
enforcement denied on other grounds (sufficiency of evidence) 359
F.2d 799 (C.A. 7. 1966); United Aircraft Corporation, 168 NLRB 480
(TXD): N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5,
1966). enfg. 147 NLRB 977. And cf. United States Gypsum Company,
157 NLRB 652.
C & C Plywood Corporation, 163 NLRB 1022; Bally Case and
Cooler, Inc., 172 NLRB 1127.
Here Respondent had recognized and bargained
with the Union pursuant to a certification and had
entered into a collective-bargaining agreement. Thus,
the presumption of majority status is established. In
I Bartenders, Hotel, Motel and Restaurant Employees Bargaining Associa-
lion of Pocatello, Idaho and its Employer-Members, 213 NLRB 651 (1974).
7 Harpeth Steel, Inc., 208 NLRB 545 (1974).
support of its doubt of the Union's majority status,
Respondent relies solely on the large turnover of
employees at the time of the move as well as the
increase in the work force, noting that within a week
of July 21 the employees from the Roxbury plant
were no longer in the majority. However, it is well
established that turnover or increase in size of the
work force alone does not rebut the presumption of a
majority status, since there is also a presumption that
new employees will support the union in the same
proportion as the previous employee complement.7
Accordingly, the evidence offered by Respondent to
justify its withdrawal of recognition does not rebut
that presumption.
Moreover, Respondent's sole defense that the
Union no longer enjoys majority status does not
withstand analysis. First, there is no reason to search
for a date after July 21 when there was a newly
established, representative employee complement.
On July 21, 11 of 19 employees in the unit were from
the Roxbury plant.8 The Nashua plant is not a new
operation, but only a continuation of Respondent's
business at the Roxbury plant. The equipment and
machinery from Roxbury was moved to Nashua. The
job structure remained intact, with a few job titles
being renamed. The supervisory personnel were
retained during the move. Job skills and require-
ments were unchanged, with all active and laid-off
employees having been given the opportunity to
transfer. The size of the unit in the month after the
move grew from 19 to approximately 29 employees,
hardly an unusual occurrence for an enterprise that,
on July 3, had 22 active and 22 laid-off employees.
Even this minimal increase was gradual. On the first
day in the new facility there were 19 employees. On
July 22, there were 20 employees; July 23, 22
employees; July 24, 23 employees; July 28, 26
employees; August 18, 28 employees; and August 20,
29 employees. When one considers that, according to
General Manager Hill, Respondent's business varies
up to 30-40 percent from month to month, this
increase is not impressive. Stripped to its essentials,
the only significant shift in the operation was
geographic.
Therefore, because Respondent has failed to rebut
the presumption of continued majority status and,
additionally, because a majority of Respondent's
work force upon commencement of operations at the
new location consisted of employees who had been
represented by the Union at the Roxbury plant, we
find that Respondent violated Section 8(a)(5) of the
Act by failing and refusing to bargain in good faith
on and after July 21. Accordingly, we shall order
I The three employees who had been hired by July 21 but had not yet
begun work were not included in the unit on July 21. Colecraft Mfg. Co., 162
NLRB 680 (1967).
802
MASS. MACHINE & STAMPING, INC.
Respondent to recognize and bargain with the Union
as the exclusive collective-bargaining agent of the
employees in the appropriate unit.9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Mass. Machine & Stamping, Inc. (formerly Massa-
chusetts Machine Shop, Inc.), Nashua, New Hamp-
shire, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union membership and activities.
(b) Creating the impression of surveillance of its
employees' union activities.
(c) Threatening its employees with discharge or
closure of its Nashua, New Hampshire, plant, or
other reprisals, should its employees join, support, or
otherwise engage in activities on behalf of United
Electrical, Radio & Machine Workers of America
(UE), or any other labor organization.
(d) Promising wage increases or other benefits to
employees should they refrain from joining, support-
ing, or otherwise engaging in activities on behalf of
the above-named Union, or any other labor organi-
zation.
(e) Refusing and failing to bargain in good faith
with United Electrical, Radio & Machine Workers of
America (UE) as the exclusive bargaining representa-
tive of the employees in the following appropriate
unit:
All production and maintenance employees of the
Respondent employed at its Nashua, New Hamp-
shire plant, excluding office clerical employees,
professional employees, guards and all supervi-
sors as defined in the Act.
(f) Withdrawing its recognition of the Union when
such withdrawal is not supported by a good-faith
doubt as to the Union's majority status.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
Union as the exclusive representative of the employ-
ees in the above-described unit and embody in a
signed agreement any understanding reached.
(b) Post at its Nashua, New Hampshire, facility
copies of the attached notice marked "Appendix." 10
Copies of said notice, on forms provided by the
Regional Director for Region I, after being duly
signed by Respondent's representative, shall be
posted by it 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.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
9 For the reasons fully articulated by the Administrative Law Judge in
his Decision, Member Walther would affirm the dismissal of the 8(aX5)
allegation in the complaint.
lo 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
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice and we
intend to abide by the following:
Section 7 of the Act gives all employees these
rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To bargain collectively through represen-
tatives of their own choosing
To refuse to do any or all of these things.
WE WILL NOT coercively interrogate our em-
ployees concerning their union membership or
activities.
WE WILL NOT create the impression that our
employees' union activities are being spied upon.
WE WILL NOT threaten our employees with
discharge, or threaten to close our Nashua, New
Hampshire, plant, or otherwise threaten our
employees with reprisals if they join, support, or
otherwise engage in activities on behalf of United
Electrical, Radio & Machine Workers of America
(UE), or any other labor organization.
WE WILL NOT promise our employees wage
increases or other benefits should they refrain
803
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from joining or supporting the above-named
labor organization, or any other labor organiza-
tion.
WE WILL NOT refuse and fail to bargain in good
faith with United Electrical, Radio & Machine
Workers of America (UE) as the exclusive
bargaining representative of the employees in the
following appropriate unit:
All production and maintenance employees
of the Respondent employed at its Nashua,
New Hampshire plant, excluding office
clerical employees, professional employees,
guards and all supervisors as defined in the
Act.
WE WILL NOT withdraw recognition of the
Union when such withdrawal is not supported by
a good-faith doubt as to the Union's majority
status.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Section
7 of the National Labor Relations Act, as
amended.
WE WILL, upon request, bargain collectively
with United Electrical, Radio & Machine Work-
ers of America (UE) as the exclusive representa-
tive of the employees in the above-described unit
and embody in a signed agreement any under-
standing reached.
MASS. MACHINE &
STAMPING, INC.
(FORMERLY
MASSACHUSETTS
MACHINE SHOP, INC.)
DECISION
STATEMENT OF THE CASE
ROBERT CoHN, Administrative Law Judge: This consoli-
dated proceeding, heard before me in Nashua, New
Hampshire, on December 2 and 3, 1976, presents the
questions: (1) whether Mass. Machine & Stamping, Inc.
I United Electrical, Radio and Machine Workers of America (UE).
2 The original charge in Case I-CA 10898 is dated July 22, 1975; the
original charge in Case I-CA-11928 is dated June 25, 1976. The order
consolidating cases, amended complaint and notice of hearing was issued
August 25, 1976.
:1 Cf. Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161
(1966).
No question is presented respecting the issue of the Board'sjurisdiction
or of the status of the Union as a labor organization. The amended
complaint alleges sufficient facts, which are duly admitted in the Respon-
dent's answer, upon which I may, and hereby do, find that at all times
material the Respondent has been an employer engaged in commerce within
the meaning of Sec. 2(6) and (7) of the Act, and that the Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
(herein the Respondent or Company), violated Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended (herein the Act), when it refused to bargain with
the Charging Union ' pursuant to the latter's request, upon
the opening of the Company's Nashua, New Hampshire,
facility, and (2) whether the Respondent, through its agents
or supervisors, engaged in independent violations of
Section 8(a)(1) of the Act. 2
Subsequent to the hearing, helpful briefs were submitted
by counsel for the General Counsel and by counsel for the
Respondent, which have been duly considered. Upon the
entire record, including my observation of the demeanor of
the witnesses,3 I make the following:
FINDINGS AND CONCLUSIONS 4
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For some years prior to July 3, 1975, 5 Respondent
operated a plant in Roxbury, Massachusetts (a suburb of
Boston), where it engaged in metal stamping and machine
tooling operations. On or about June 28, 1973, a majority
of the production and maintenance employees employed
by the Respondent at its Roxbury plant voted to be
represented for purposes of collective bargaining by the
Charging Union, and the latter was subsequently certified
as such bargaining representative. Subsequently, the
Respondent and the Union entered into a collective-
bargaining agreement which extended for 2 years (Novem-
ber 2, 1973, until November 3, 1975). In November 1974,
the Respondent notified the Union of its intention to move
its Roxbury operations to another location, and there were
several meetings held between the parties at about that
time concerning this subject matter. However, such plans
were temporarily suspended, and the meetings, at that
time, ceased. Such negotiations resumed in April, and
culminated in the execution of a "Memorandum of
Agreement" which was executed by the parties on June 23.
Such memorandum concerned itself primarily with the
effect upon the employees of the decision of the Respon-
dent to cease operation of its Roxbury plant on July 3.
Thus, such memorandum provided for severance pay to
those employees who chose not to go to the Company's
new facility in Nashua, New Hampshire, and specified
certain working conditions, including gas allowances for
commuters, for those employees who elected to work in
Nashua. 6
5 All dates hereinafter refer to the calendar year 1975, unless otherwise
indicated.
6 Prior to the execution of the memorandum of agreement, both the
Union and the Company had conducted independent polls of the employees
(all of whom were members of the Union pursuant to a union-security
clause in the contract) to ascertain which employees desired to continue
working for the Respondent in Nashua. and those who preferred to cease
working for the Respondent and obtain severance pay under the collective-
bargaining agreement. Both polls indicated that of the 22 employees who
were actually working in the Roxbury plant on that last weekly payroll, I I
elected to work in Nashua, and I 11 opted for the severance pay.
It should be noted, additionally, in this connection, that at this time (the
last week of operation of the Roxbury plant), there were 22 employees in a
temporary layoff status who were also polled with respect to their desire to
804
MASS. MACHINE & STAMPING, INC.
As indicated, on July 3, at approximately 3:30 p.m., the
Respondent closed its Roxbury operation. During the
subsequent, approximate 2-week period, Respondent
moved a substantial amount of its machinery and equip-
ment from the Roxbury plant to the new operation in
Nashua, and commenced operations at the latter location
on Monday, July 21. However, prior to that date, and as a
result of the polls taken in June indicating that only II of
the Roxbury employees intended to work for the Company
in Nashua, the Respondent, in late June, advertised in a
New Hampshire newspaper for employees in the classifica-
tions utilized by the Respondent. The record reflects that
such prospective employees were interviewed by officials of
the Respondent during the first couple of weeks in July,
and that as of July 21, 11 persons from the Nashua area
had been hired although only 8 actually worked on the first
day of operations-July 21. 7 Thus the employee comple-
ment actually working at the plant on July 21 was 19
employees, which number comprised 11 from the Roxbury
plant and 8 from the Nashua area. The record further
reflects that an additional four employees were hired on
July 22, but did not report for work until several days
later. 8 Three additional employees were hired in August.
Meanwhile, on July 17, the Union dispatched a letter to
the Respondent in Nashua (received on July 19) demand-
ing continued recognition of the Union as bargaining
representative of the employees at Nashua. 9 By letter dated
July 23, the Respondent's attorney replied to the Union's
letter declining such request based upon lack of majority
status, i.e., that the initial work force at the Company's
Nashua's plant "consists of 26 production and mainte-
nance employees, only II of whom were previously
employed at the Company's plant in Roxbury, Massachu-
setts." 10
Analysis and Concluding Findings as to the 8(a)(5)
Allegations
It is the contention of counsel for the General Counsel
that the duty of Respondent to bargain with the Union at
the Nashua plant flowed from the fact that on the first day
work for the Respondent in Nashua. All 22 declined, opting in favor of
accepting severance pay.
Finally, there were seven persons who had previously worked for the
Company. whose names did not appear on the last payroll because they had
not worked for the Company for some time due to industrial accidents.
These persons were not polled with respect to their desires regarding work
for the Respondent in Nashua.
7 The record reflects that the other three (Pickenng. Hudson. and
Cisewski) although hired on July 17, 21, and 21, respectively, did not
commence work until July 28, 22. and 28, respectively.
They were: Brown, Mullen, Hanby, and Chenelle. See Joint Exh. 5.
" It should be noted that the collective-bargaining agreement contained
the following provision respecting its applicability to another location:
If. during the term of this collective bargaining agreement, the
Company moves its Boston, Massachusetts operations to a point within
thirty (30) miles of its present location on Albany Street. Roxbury,
Massachusetts, this Agreement will be applicable to such new location.
There is no issue that the Nashua plant is located more than 30 miles from
the Company's Roxbury plant.
to Jt. Exh. 4.
" As previously set forth, the facts show that as of that date, of the 19
employees actually working. I I employees were transferees from the
Roxbury plant all of whom were members of the Union pursuant to the
union-security clause in the contract.
of operations, July 21, the Union, in fact, represented a
majority of the employees actually working for Respondent
at the Nashua plant that day.tI
Counsel for the Respondent argues that it would be
highly erroneous to adopt such a "purely simplistic and
mechanistic approach to the issue of recognition," and that
the Respondent did not unlawfully refuse to bargain with
the Union because the latter never did represent a majority
of the employees of the Company at the Nashua location.
For the reasons hereinafter set forth, I agree with the
Respondent.
At the outset, it should be noted that there is no
allegation or contention that the Respondent engaged in
any unfair labor practices prior to or concurrent with the
relocation of its Roxbury plant to Nashua. Thus, it notified
the Union of its intentions, negotiated with it concerning
the effects upon the employees, consummated an agree-
ment with the Union with respect to such issues, and
offered all affected employees the opportunity to work at
the new plant. 2
Accordingly, unlike many plant relocation cases to come
before the Board, we do not have present in the instant
case a situation where an employer either (1) covertly
closes its plant at one location to move to another for the
purpose of evading its obligation to bargain with the
Union, or (2) where it is shown that the employer utilizes
an otherwise economic relocation for the purpose of
ridding itself of the Union as the employees' collective-
bargaining representative.13 Thus we face the issue of the
duty of the Respondent to recognize the Union at Nashua
bereft of any background of unfair labor practices by the
Respondent.
It is true, of course, as General Counsel argues, that on
the first day of operations at the Nashua plant the Union
represented a majority of the employees actually working
that day. However, viewing all surrounding circumstances
affecting majority status, it cannot be reasonably said, in
my view, that a duty devolved upon the Respondent to
recognize the Union as the collective-bargaining represen-
tative of the employees at the Nashua plant. In the first
place, the evidence shows that the employee complement at
1Z It is noted, in this connection, that neither the Company nor the
Union anticipated that the seven employees not actively working for the
Respondent at the close of the Roxbury operation because of industrial
accidents had a right to employment at the Nashua plant. In the aforesaid
"Memorandum of Agreement," it was stipulated in Sec. 2, (J):
With respect to those employees now out with industrial accident
claims, such employees, when they settle their industrial accident cases
and are able to work, may either terminate their employment and
obtain the termination benefits referred to in Section I or 2 above to
which their status entitles them or will be considered for available jobs
at the Nashua plant.
The record further reflects that neither the Union nor the Company
attempted to poll any of the seven employees with respect to their desires to
work for the Respondent in Nashua, nor have any of the seven
communicated with the Company with respect to their return to employ-
ment during the entire period of their disability which varied from 6 months
to as long as 2 years.
Under these circumstances, therefore. I do not believe it reasonable to
count any of the seven as employees who had a reasonable expectancy of
employment at the Nashua plant for the purpose of ascertaining the Union's
majority status.
1i Cf. Allied Mills, Inc.. 218 NLRB 281 (1975).
805
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that plant was expected to expand to at least 25 to 30
employees within a very short time, i.e., a week or two.
Thus, the record shows (I) that although the plant opened
for operations on July 21, only approximately one-half of
the equipment and the machinery was in place, but was still
in transit from Roxbury to Nashua; (2) that during the
prerelocation negotiations between union and company,
the latter advised that the employee complement in
Nashua would approximate 20 to 35 employees depending
upon business conditions; and (3) that by July 28 the
Company had employed from the Nashua areas 15
employees who had, by that date, actually commenced
working in the plant. These 15 Nashua employees added to
the II Roxbury transferees totaled 26 employees altogeth-
er, and formed an employee complement within I week of
commencement of operations which was certainly more
consistent with the Respondent's normal complement of
employees than the 19 which was extant on July 21.
Moreover, I am not convinced that a bargaining order
should issue even if one adopted the General Counsel's
theory that the July 21 date is critical. This because: (1) the
record shows that three employees from the Nashua area
(in addition to the eight employees who actually worked on
July 21) had been hired by the Respondent on or before
such date, even though they were not scheduled to start
work until July 22 and/or July 28.' 4 It would seem that
these three persons were clearly contemplated to become
employees at the Company and would therefore have an
interest in the question of representation. Adding their
number to the 19 who were actually working on July 21,
the Union, of course, did not have a majority as of that
date.
Furthermore, it seems questionable whether July 21
should be considered the critical date for the purpose of
resolving the issue of majority status because of the
probationary clause which the Union and Company
inserted in the "Memorandum of Agreement." That clause
is as follows:
C. Company will provide a 60 calendar day grace
period commencing on the first day of work for
each employee at the Nashua site, during which
such employees may exercise an option to be laid
off with the same termination benefits and status
provided in the formula agreed on for those
employees choosing not to accept employment in
Nashua. Company also guarantees a 60 day grace
period for the employees listed above for purpos-
es of receiving the same termination benefits and
status provided in the formula should they be
fired with just cause.
It appears from the foregoing that each of the II
Roxbury employees who opted to work in Nashua retained
the privilege for 60 days to exercise his option to remain an
employee in Nashua or to be laid off with the same
termination benefits and status of those employees who
opted not to go to Nashua. The Respondent argues, on the
basis of such 60-day grace period, that the critical date for
14 These employees are: Pickering, Hudson, and Cisewski. See Jt. Exh. 5.
'r, See Respondent's brief.
determining majority status should therefor be September
21 rather than July 21. It points out in its brief that one
employee (Alan Steinberg) accepted a job at the Nashua
plant, started working there on July 21, but changed his
mind before the expiration of 60 days and elected to take
severance pay in lieu of continued employment.?5 Without
necessarily adopting the Respondent's argument that the
September 21 date should be critical, I deem the inclusion
of the 60-day grace period as a significant factor in
declining to adopt the July 21 date as being critical to a
resolution of the question of majority status.
Finally, I must reject the further argument of the General
Counsel that the majority status of the Union is secured by
some doctrine based upon a presumption of continuation
of such status from the Union's previous certification and
contract. In his brief, counsel for the General Counsel
points out that there is a presumption of continued
majority status which, as applied to plant removal cases, "is
that good faith bargaining concerning the effects of the
employer's move will result in the transfer of a 'constituen-
cy sufficient to compel' continued recognition of the
bargaining relationship (citing Fraser & Johnston Company,
189 NLRB 142, reversed in pertinent part 469 F.2d 1259
(C.A. 9); Cooper Thermometer Company 160 NLRB 1902,
reversed in pertinent part, 376 F.2d 684 (C.A. 2); Allied
Mills, Inc., 218 NLRB 281)." 16 However, the cases cited by
counsel for the General Counsel arose in a context where
the respondent committed unfair labor practices with
respect to the relocation or in the negotiations pertaining
thereto. As we have seen, no such unfair labor practices
were committed by the Respondent in this case, and
therefore there is no occasion to delve into the question of
how many employees would have transferred to the new
location had the Respondent not engaged in the unfair
labor practices. As we have seen, only a minority of the
employees at the Roxbury plant chose to follow the
Company to Nashua so that there is no foundation upon
which to base a finding that the Union represented a
majority of the employees at the new plant, unless one
accepts the further contention of the General Counsel that
the new employees are presumed to support the Union in
the same ratio as other unit employees [citing N.L.IRB. v.
Little Rock Downtowner, Inc., 414 F.2d 1084 (C.A. 8,
1965)]. However, that statement was made by the court in
the context of refuting the company's contention in that
case that the union did not represent a majority because of
a high rate of employee turnover. There can be no question
that, as the court indicated, a high rate of turnover does not
of itself provide the basis for allowing an employer to
refuse to continue to bargain with an incumbent union.
However, that is not, of course, the situation in the instant
case, and the presumption is therefore not applicable to the
circumstances here.
For all of the foregoing reasons, I find and conclude that
the Respondent did not violate Section 8(a)(5) of the Act
through its refusal to bargain with the Union at the Nashua
plant. I shall therefore recommend that the complaint, to
that extent, be dismissed.
16 See General Counsel's brief.
806
MASS. MACHINE & STAMPING, INC.
C. The Alleged 8(a)(1) Violations
One day in January 1976, a union representative visited
the home of William Brown, an employee of the Company
at the time, 7 and requested that Brown secure a list of
names of other employees of the Company. Brown
acquiesced in such request, and subsequently contacted,
while at work, fellow employee Rod Taylor concerning the
matter. S According to the testimony of Brown (Taylor was
not called as a witness), he and Taylor were subsequently
approached by leadman Jerry Gilmore who told them that
"it had been reported in the office that we had been in
contact with the Union, and it would be better for us to go
in the office and report it ourselves or we would probably
get fired anyway." Gilmore denied making such a state-
ment, although he acknowledged having a conversation
with Brown and Taylor about this time. According to
Gilmore's version of the conversation, Taylor (whom
Gilmore stated "did most of the talking"), said that the
union representative had contacted Taylor and Brown, and
they wanted to know what they should do about it.
Gilmore stated that he did not know, and suggested that
they see Paul Swenson, an official of the Respondent.
After a careful consideration of the factors bearing upon
credibility, including demeanor, I credit Brown 19 and find
that by Gilmore's statements the Respondent: (1) created
an impression of surveillance of the employees' union
activities, and (2) threatened reprisals for engaging in such
activities.
Shortly after their conversation with Gilmore, Brown
and Taylor proceeded to the office of Paul Swenson,
Respondent's manager of manufacturing. There they had a
conversation with Swenson in the presence of Peter Smith,
Respondent's chief engineer.20
Brown testified that the employees told Swenson that
they had been contacted by the union representative, and
that the latter wanted a list of the employees; that at that
point Smith asked why the union representative came to
Brown for the list, to which Brown responded that it was
because the union representative lived close to him; that
Swenson said "he didn't care whether they got the names
or not"; and that the conversation ended upon Swenson's
stating, "Of course, you know if the Union gets in here
we'll have to close the doors."
Swenson testified that on this occasion the two employ-
ees presented themselves in his office and asked if they
could see him, to which he replied affirmatively. Taylor
advised that he had heard that he (Taylor) was about to be
visited by the business agent of some union, and sought
Swenson's advice as to what to do. Swenson replied that he
(Swenson) was not in a position to advise Taylor-that it
was up to him as to what he did; that during the
conversation Smith asked Brown if he knew the name of
the union representative to whom they were referring, and
: Brown left the Company's employ in May 1976.
I The reason that Brown asked Taylor for a list was that Taylor was an
organizer or promoter of gambling pools" in the plant, and apparently
knew the names of most of the employees.
!' Respondent argues in its bnef that I should rule in its favor on this
issue in view, inier alia, of the failure of General Counsel to call Taylor as a
witness. However. Taylor was an employee. and, apparently available to
either parts as a witness The Board has, in a recent case (Mangurian's, Inc.,
227 NLRB 113 (1976)). held that it was improper to draw an adverse
inference under such circumstances.
that Brown stated that he did not "catch the fellow's
name." Both Swenson and Smith denied that either made a
statement to the effect that if the Union came in the plant
would close.
Here again, resolution of the credibility issue has been an
extremely difficult one. However, after weighing all factors,
I am constrained to credit Brown in view of, primarily: (I)
demeanor, and (2) the circumstance that, as discussed
infra, Swenson's testimony at the hearing varied rather
significantly in some respects from that given by him in a
prehearing affidavit. Moreover, unlike Respondent, I do
not view as necessarily inconsistent Swenson's statement of
neutrality respecting the divulgence of information with his
warning of plant closure should the Union come in.
Furthermore, I do not consider the question admittedly
asked by Smith to be merely an innocuous inquiry made
from idle curiosity. Rather, I find it to be a pointed
interrogation into the union activities of the employees
made for the possible purpose of further investigation of
those activities. Such interrogation, made in the sanctum of
the manager's office without any assurance against recrimi-
nation has been held to be coercive within the meaning of
Section 8(a)(1). 21
Accordingly, I find the foregoing threat and interroga-
tion to constitute interference, restraint, and coercion
within the meaning of Section 8(a)(X) of the Act, and will
recommend an appropriate remedy.
On or about March 11, 1976, Brown had another
conversation (or two) with Swenson. It appears that prior
to March 11 both Brown and Swenson had been contacted
by Brown's previous employer (Spaulding Fibre Compa-
ny), the purpose of which was to ascertain whether Brown
desired to return to work for that company.22 The
conversation proceeded, according to Brown's testimony,
as follows:
A. He (Swenson) said he had a talk with Spaulding
Fiber Company, and wanted to know if I was going
back there or staying there. So I debated, and I said
why I thought Spaulding Fiber would be a lot better
and like that, but I liked it there. And he says, well, he
says, we're paying much better wages than we did down
in Boston and like that.
And I said, I don't think you are. And I had the
contract.
And I showed him. I said-then I said-he asked me
where I got that. And I said, "The union man asked me
to give it to Mike Spodnick."
So, he said, "Go ahead. Give it to him." He didn't
care. The idea was then again was really-
JUDGE COHN: We don't want what the idea was.
What did he say?
THE WITNESS: Go ahead and give it to him. He
didn't care.
20 Smith was called into Swenson's office after Brown and Taylor
presented themselves.
21 See, e.g., Bonnie Bourne, an individual, d/bha Bourne Co. v. N.LR.B.
332 F.2d 47 (C.A. 2, 1964); N.LR.B. v. Camco, Inc.. 340 F.2d 803 (C.A. 5.
1965); Shows, Inc., d/b/a Valle) Cable TV Co., 228 NLRB 1355 (1977).
22 The record reflects that Brown had been laid off from that company
prior to employment by Respondent.
807
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And then-and, of course, you know-again, he
said-he said that if the union got in why they'd close
the doors.
Q. (By Mr. Weiner) What else was said?
A. I think-oh. Oh. Then later on - that was all.
Q. That was all that conversation?
A. That was all.
Brown then observed that employee Spodnick was called
into Swenson's office and stayed approximately a half
hour. Subsequently, Brown was called back into Swenson's
office, and the latter stated:
A. He said he'd been thinking it over. And said
he'd recommend me for a Class A operator, and that
would mean probably approximately 25 cents more an
hour, arid for me to tell the union representative to go
fly a kite. I said I thought I was worth the 25 cents an
hour without flying the kite. And that was the - all of
that conversation.
Q. Did he give you an increase?
A. I never got it, no. He left after that.
Swenson's version of this incident is, in essence, that
upon receiving contact from someone in the personnel
department of Spaulding Fiber, he called Brown into his
office and asked what Brown's decision would be; that
when Brown stated that he was inclined to remain with the
Company rather than return to Spaulding Fiber, Swenson
expressed some surprise since it meant commuting approxi-
mately 120 miles each day; that Brown felt that he was
being "used" by Spaulding Fiber and that he did not wish
to risk being laid off again; that, with respect to the
question of a wage increase, this was a subject which the
two men had discussed on many occasions but Swenson
never "discussed actual money with Brown such as 25
cents," but that they did discuss his being upgraded from a
press operator "B" to a press operator "A" which would
mean a 25-cent per-hour increase to him. However,
Swenson categorically denied promising Brown an increase
of 25 cents per hour conditioned upon Brown's abstention
from union activities, and/or threatening that if the Union
came into the Nashua plant, the shop would be closed
down and that Brown would be the "first to go through the
door."
As previously indicated, the record reflects a rather
significant contradiction in Swenson's testimony on the
issue of a promise of benefit to Brown. In his testimony at
the hearing, Swenson, at first, denied offering Brown a
position as class "A" operator-they (Swenson and Brown)
had discussed it but that Swenson never offered it to him.
Yet when, on cross-examination, Swenson was confronted
with his prehearing affidavit, he acknowledged that he, in
fact, offered Brown such a position "in the future when his
qualifications would justify it," but denied that the offer
was made in the context of any meetings in which the
Union was mentioned.
Under all circumstances, I am unable to credit Swen-
son's denial, and find that the promise was made to Brown
in essentially the terms he testified, and was therefore a
promise of benefit in return for abstention from union
activities in violation of Section 8(a)(1) of the Act. I also
find and conclude that Swenson reiterated the threat that
Respondent would close the Nashua plant if the Union
came in, in violation of Section 8(a)(1) of the Act.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I, above,
occurring in connection with the interstate operations of
Respondent, have a close, intimate, and substantial
relationship to trade, traffic, and commerce in the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
III. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer 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 interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them in Section
7 of the Act, in the manner aforesaid, the Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(aXl) of the Act.
[Recommended Order omitted from publication.]
808