Moeschl-Edwards Co.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1029 (N.L.R.B. 1978)

MOESCHL-EDWARDS COMPANY, INC
Moeschl-Edwards Company, Inc. and Shopmen's L.o-
cal Union No. 522 of the International Association
of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO
Moeschel-Edwards Company, Inc. and Terry Richie,
Petitioner and Shopmen's aLocal Union No. 522 of
the International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO. Cases
9-CA 11704 and 9-RD-792
August 25, 1978
DECISION, ORDER, AND DIRECTION OFr
SECOND ELECTION
On April 19, 1978, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the Charging
Party filed a brief in reply thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' rec-
ommendations, and conclusions of the Administra-
tive Law Judge and to adopt his recommended Or-
der.
ORDER
Pursuant to Section 10(c) of the National labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Moeschl-Edwards Com-
pany, Inc., Covington, Kentucky, its officers, agents.
successors, and assigns, shall take the action set forth
in the said recommended Order.
11 IS FURTHER ORDERED that the election held on
September 2, 1977, in Case 9-RD-792 be, and it
hereby is, set aside and that the case be remanded to
the Regional Director for Region 9 for the purpose of
conducting a second election at such time as the Re-
gional Director deems appropriate.
[Direction of Second Election and Ex.celvior foot-
note omitted from publication.]
; The Respondent has excepted to certain credibillt? findings made bs the
Administrative Law Judge. It is the Board's established polics not to o'er-
rule an Administrative L aw Judge's resolutions with respect to credlbilits
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Drt W'4all Produt-rs. I1n 91
NLRB 544 (1950), enfd. 188 F.2d 362 ((A. 3. 1951). We have carefull'
examined the record and find no basis for reversing his findings
DEC ISION
St 1I MEl'I () TniF CAsiE
MA^RION C LADwI(;. Administrative Law Judge: These
consolidated cases were heard at Cincinnati, Ohio, on Feb-
ruary 27, 1978. The charge was filed by the Union on Sep-
tember 1, 1977,1 and the complaint was issued on Novem-
ber 17. The Company 2 threatened two new employees with
loss of employment unless they signed dues and initiation-
fee checkoff authorizations. even though the Union had
waived enforcement of the contractual union-security pro-
visions for the two employees while the decertification pro-
ceeding was pending. The primary issues in this complaint
case are whether the Company, the Respondent, (a) unlaw-
fully required the employees to execute the checkoff au-
thorizations, and (b) unlawfully told assembled employees
that the collective-bargaining agreement obligated it to re-
quire employees to sign the checkoff authorizations, in vio-
lation of Section 8(a)(1) of the National Labor Relations
Act, as amended.
In the decertification case. employee Terry Richie filed
the petition on August 8 and a stipulated consent election
was held on September 2. The vote was 23 for and 27
against union representation, with I void ballot. The
Union filed six timely objections. In his report on objec-
tions, dated November 18, the acting Regional Director
recommended that the Board overrule Objections I
through 4, sustain Objection 5, and direct a new election;
and found that the evidence concerning Objection 6 was in
conflict. The Company filed timely exceptions to the re-
port. On February 17. 1978, the Board remanded the case
for the purpose of consolidating Objections 5 and 6 with
the complaint case involving similar factual and legal is-
sues. The order consolidating the cases was thereafter is-
sued on February 23.
Upon the entire record, including my observation of the
demeanor of the witness, and after due consideration of the
arguments made at the hearing and the briefs filed by the
Company and Union, I make the following:
FINDINGS OF FACT
I Jt RISI( TION
The Company. a Kentucky corporation, is engaged in
the manufacture and fabrication of rolling doors at its
plant in Covington, Kentucky, where it annually receives
goods and materials valued in excess of $50,000 directly
from outside the State. The Company admits, and I find,
that it is an employer engaged in commerce and in opera-
tions affecting commerce within the meaning of Section
2(2), (6). and (7) of the Act, and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
All dales are In 1977 unless olherwise staled
The name of the ( ompanv was corrected at the hearing
237 NLRB No. 153
1029
DE(CISIONS OF NAIJONAL LABOR RELA-IIONS BOARD
II ALLEGED UNFAIR L.ABOR PRA(7 T1( r
A. f'lnion't a (il' c 'e
Subsection A of section 4. "Union Securit." min the col-
lective-bargaining agreement (effective from November 1.
1974. through October 31. 1977), is a lawful union-shop
provision which requires each emploee in the barigaining
unit, as a condition of emplosnment. to become a member
of the Union not later than the 31st das of emiplohment.
Subsection 4(B) provides:
Lpotn recelipt of a writllen notice from the Le nlon that anil
employee has not acquired menibership in the Lmnion
. . . as provided for in Subsection (A) of this Section.
the Company shall notify such employee that as a
condition of employment he or she must conmplsy sith
the provisions of Subsection (A) abouse A ithin the nest
succeeding three (3) woik days: alnd if. at the end of
such three (3) work dass. the cmplosce does not fur-
nish the Companpny documentitr proof of complillanice.
such employee shaill be discharged. [Emphasis sup-
plied.]
Thus the Company is not required to enforce the union-
security provisions by discharging an employee until (1)
the Union notifies the Compans, and (2) the employee is
given 3 workdays to comply.
Subsection 5(A) provides that the Company shall check
off union dues, and subsection 5(() provides that the Corn-
pany shall check off the initiation fee, upon "receipt of an
authorization signed by an employee." (Employees sign
separate checkoff authorizations for dues and initiation
fees.) It is undisputed that under these provisions, signing
of the authorizations is not mandatory.
Shortly after employee Richie filed a decertification peti-
tion (in a unit of production and maintenance employees)
on August 8. the Union's business agents notified General
Manager Jack Torline that the Union was waiving enforce-
ment of the union-security provisions for two new emplov-
ees, Paul Wells and John Smith, who had been employed
in July. The business agents told Torline that "while there
was a question of representation," the Union had no inten-
tion of requesting anybody to sign dues or initiation-fee
checkoff authorization, and that "if the employees feel that
they want to come into the Union they can do so on theii
own.
Several days later, company bookkeeper Steve lucas
asked the Union's new chief shop steward. Norman Ma',s.
if he had the checkoff authorizations for dues and ninita-
tion fees from employees Wells and Smith. It is undisputed
that Mays responded no, "that the ULnion told me not to
have the authorizations signed because there was a ques-
tion of representation at this time." A few days later. Gen-
eral Manager Torline (as Mays credibly testified) "asked
me if I had the checkoff authorizations for the initiation
fees and union dues authorizations signed." Mays again
said no, "that the UInion told me not to haive them signed
because there was a question of representation." Torline
said that this was a "trick" and claimed (contrary to the
above-quoted language) that the union officials "know that
if I don't go by the contract that the) can get me for it." It
is also undisputed that he added that "if he didn't get the
authorizations to take out the initiation fees and union
dues that he would be forced to send the men home." (The
('ompan) did not call any defense witnesses.)
B. Threat of Loss of Eniplovment
After General Manager 'orline told Steward Mays that
the Company would be forced to send employees Wells
and Smith home unless they signed the checkoff authoriza-
tions. Torline said. 'Tlet's get the guys together and take
them Lip to the front par t of the building and talk to them."
At that point. Iorline and Mays went to where the two new
employees were working. and Torline asked them "to meet
him in the front of the building to discuss the forms."
I here. in the presence of NMa!s (who was employed in Feb-
rualx anld swas first macde a steward in July), Torline ex-
plained the checkoff authorization forms and (as Wells
credibl) and undisputedly testified). "he told us that if we
dild not si,n tthe'l hle couldn't let us .'ort Ithere [emphasis
supplied] because we would be nonunion." Similarly, Mays
testified that Torline "explained to the men that if the! did
not iign Ih or.ts"' which "he had to have" and if they "did
not pas their dues and initiation fees as the other employ-
ces had done in the past that he would be forced to send them
home." (Emphasis supplied.) Fearing discharge of the em-
ployees, the new steward filled out the tops of the checkoff
authorization cards, laid them on the table, and handed a
pen to the two employees, who signed the cards.
1 hese checkoff authorizations signed on August 25 (8
dass before the election) authorized the Company to de-
duct from each employee's earnings and not only the
monthlv dues, but also $61 as the initiation fee.
(. Stotc mentL at Etn/ployee Meeting
On August 31 (after having talked to the business
agents), Steward Norman Mays told employee Wells "I
was not supposed to have allowed you to sign those
forms," that Torline wsas not authorized to have Wells sign
the forms, and that Torline "wasn't supposed to take out
the fees and dues on you."
A few hours later, General Manager Torline called an-
other enmployee meeting. (Torline had held a series of em-
ployee meetings during the election campaign in August,
talking "against the t.nion . . . putting the Union down."
As elicited bv the ('ompany's counsel, Steward Mays credi-
bl) testified thit although Torline stated he did not care
whether the employees voted for or against the Union as
long as the 5 stuck together as a group, he also "said that
the Union didn't care about the men . . . they were con-
cerned about the money," and that the union officials
were sitting back and "not doing anything while we were
sitting at home probably not having hardly anything to
eat.") Torline began the August 31 meeting by stating, "I
can't believe the rumors that are being spread around here
by certain people." When asked what he meant, he said,
"Well, let's just let Paul Wells explain what I mean." Wells
said, sarcastically, that "my buddy Norm" told him that
morning that Torline "should not have taken out the initia-
tion fees and union dues and I shouldn't have signed the
1030
MOESCHL-EDWARDS COMPANY. INC
authorization." (Emphasis supplied.) Torline then turned to
the union-security provisions in the agreement and asked.
"Norman, how many times have you read this contract?"
Mays answered two or three times, and Torline said, "Then
you know what it says." Torline began reading the agree-
ment, and employee Richie (who had filed the decertifica-
tion petition) suggested, "Why don't we let our union stew-
ard read it?" Torline, as Mays credibly testified. "walked
back and handed me the contract and showed me where to
read and I read the section about union dues and initiation
fees." Torline told Mays. "Now if you read that contract so
many times, then you know what it means." He said to the
assembled employees (despite the above-quoted union-se-
curity enforcement provisions in the agreement, the
Union's waiver, and the permissive checkoff provisions).
"It means that I am required by the Union to take out
initiation fees and union dues." (At the time of the investi-
gation of the Union's objections, Torline admittedly "told
the employees assembled on this date that he believed that
if he kept the two probationary employees past 31 days
without requiring them to check off dues [emphasis sup-
plied], the Union would charge him with using 'scab' la-
bor." Torline then-referring to Steward Mays-told the
employees, "This is the kind of man you have leading
you.
D. Contentions and Concluding Findings
The General Counsel argues that there was a question
concerning representation, and also a question whether the
Union was going to represent these employees any more.
The General Counsel contends that "The Union was trying
to be fair in the context of an election." Enforcing the
union-security provisions in the agreement immediately be-
fore the election would require each of the two new em-
ployees to pay a substantial amount ($61 for initiation fee
and $10 in dues) right away; whereas deferring enforce-
ment of the provisions would result in the employees pay-
ing nothing at all if the Union lost the election. Citing a
number of cases, the General Counsel further contends
that it is well settled that requiring dues checkoffs as a
condition of employment violates Section 8(a)(l) of the
Act.
The Union contends that General Manager Torline's
"conduct in requiring such signed authorizations as a con-
dition of employment clearly amounted to an unfair labor
practice." The Union also contends that Torline's calling
of the meeting and-as a "justification for forcing Wells
and Smith to sign the authorizations"-incorrectly inform-
ing the employees that the union agreement required him
to have the checkoff authorizations signed, further violated
the Act. The Union also argues that Torline intended to
discredit the Union and to belittle the union steward in
front of other employees, and that "Torline purposely ridi-
culed Mays in an attempt to show the men that they had
weak union leadership and that if they voted for the Union
it would be an exercise in futility."
The Company contended at the hearing that General
Manager Torline was in a "very tense" decertification elec-
tion campaign, that the employees were going to make per-
haps the most critical decision they had made in a long
time, that Torline "did not want to see that [decision] inter-
fered with in any fashion," and "He chose to continue to
apply the contract to the two new employees" as it applied
to all others. In its brief, the Company contends that the
signed checkoff authorizations were not obtained in a coer-
cive manner. Ignoring Steward Mays' testimony (corrobo-
rated by employee Wells) that Torline told Wells and
Smith on August 25 that they could not work "if they did
not sign the [checkoff authorization] forms," the Company
argues that Torline "merely told them that they were in
fact required to pay initiation fees and dues to the Union,"
and "neither encouraged, requested, nor directed them to
sign these cards." Further ignoring Mays' testimony that
near the beginning of the August 31 employee meeting,
Wells stated that he had been told by Mays that he
"shouldn't have signed the authorization" for the checkoff
of the initiation fee and dues (indicating that the discussion
in the meeting concerned Tolline's requirement that the
new employees sign the checkoff cards), the Company ar-
gues that Torline merely told the assembled employees that
his failure "to deduct fees and dues despite the receipt of
such an authorization card would constitute a clear breach
of contract." I reject these arguments as afterthoughts.
(The brief ignores the Company's contradictory position at
the time the Union's objections were being investigated.)
It is well established, as ruled by Administrative Law
Judge Barban in Baggett Industrial Constructors Incorporat-
ed, 219 NLRB 171, 172 (1975), that "The Act guarantees to
each employee the right to determine for himself, free from
coercion, whether he shall sign a checkoff authorization or
not." Here, in an obvious attempt to influence the outcome
of the decertification election, General Manager Torline on
August 25 required new employees Wells and Smith-
upon threat of the loss of employment-to sign the author-
izations to check off dues and initiation fees. Thereafter on
August 31 (2 days before the election), Torline incorrectly
informed assembled employees that he was obligated by
the union agreement to require the employees to sign the
checkoff authorizations on behalf of the Union, while
holding the chief union steward up to ridicule for correctly
advising employee Wells that he was not required to sign
the checkoff authorizations. I find that Torline's conduct
on both occasions was coercive and violated Section
8(a)(1) of the Act.
111 OBJF(CTIONS TO THE ELECTION
Objections 5 and 6 are based on the same conduct as the
allegations in the complaint. Objection 6 specifically alleg-
es that the Company assembled the employees on August
31 and belittled and intimidated Union Steward Mays in
the presence of the assembled employees.
The Company contends that in the absence of evidence
"that employees were forced by the Employer to sign au-
thorization cards, or that assembled employees were told
that they were required to sign such cards . . . the pending
objections are as invalid as the pending unfair labor prac-
tice allegations."
The Union contends that "Even assuming. arguendo.
Torline's conduct [threatening to send the two new em-
ployees home if they refused to sign the checkoff authori-
1031
DI)EISIONS OF NATIONAI. LABOR RE:I.ATIONS BOARI)
zations] was not serious enough to constitute an unfair la-
bor practice, his interference with employees Wells and
Smith furnishes the basis for a valid objection." Because of
the closeness of the vote (23 for and 27 against the tlnion),
"A swing in the vote of Wells and Smith could have result-
ed in a tie vote. In view of the later incident where Torline
called an employee meeting to explain his actions and to
belittle the union steward, it is safe to assume that he inter-
fered with the free choice of several other employees."
The Union had waived, until after the election, the con-
tractual requirement that new employees Wells and Smith
pay dues and the $61 initiation fee. As an obvious means of
dramatizing the Company's campaign criticism of the
Union, that it was interested only in the employees' money.
General Manager Torline ignored the Union's waiver and
required the new employees to sign checkoff authorizations
as a condition of employment. l-{e thereby' placed the onus
on the Union for requiring each of the two employees to
pay the Union a total of $71 at once, whereas they would
not have had to pay the Union anything if it lost the elec-
tion. When the union steward explained to employee Wells
that Torline wrongfully required Wells to sign checkoff au-
thorizations, Torline called another antiunion meeting and
had the steward read the contractual union-security provi-
sions to the assembled employees. Then, without advising
the employees of the Union's waiver or the fact that sign-
ing checkoff authorizations was voluntary, Torline ridi-
culed the union steward for protesting Torline's require-
ment that the new employees sign the authorizations before
the election. He thus demeaned the union steward in the
eyes of the bargaining union employees, thereby derogat-
ing the effectiveness of the Union and its chief steward in
representing the employees and tending - 2 days before the
election to impress upon the employees the futility of vot-
ing for union representation. I therefore find that this con-
duct, in addition to Torline's requirement that the two em-
ployees sign the authorizations on August 25 as a condition
of employment and his wrongful advice to the assembled
employees on August 31 that the collective-bargaining
agreement obligated him to require the employees to sign
the checkoff authorizations, interfered with the employees'
free and untrammelled choice of representation. Accord-
ingly I sustain the Union's Objections 5 and 6 and find
that the election must be set aside and a new election held.
C()NC .ISIONS ot LxA
I. By requiring employees Paul Wells and John Smith
on August 25, 1977. to execute checkoff authorizations on
behalf of the Union as a condition of employment, the
Company engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)( 1) and Sec-
tion 2(6) and (7) of the Act.
2. By wrongfully telling assembled employees on August
31, 1977, that the collective-bargaining agreement obli-
gated the Company to require employees to sign checkoff
authorizations on behalf of the Union, the Company fur-
ther violated Section 8(a)( I ) of the Act.
xSec. gcrlcrail]s /Us l't, PumIl t & Ii im/ i ('U 138 NLRB 716 (1962).
IIl the ecilnl in cxccptlonl arc filed as proided bh Sec 10246 of the
Rules and Regulutirns -of the Nahiln; l I.hbor Relations Board. Ihe findings.
Ri MF)r
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of
the Act.
The Respondent having unlawfully required two em-
ployees to sign dues and initiation-fee checkoff authoriza-
tions, I find it necessary to order the Respondent to refund
to the employees any deductions it has made from their
earnings pursuant to the authorizations, plus interest as
computed in Florida S',eel Corporation, 231 NLRB 651
(1977). 3
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act. I hereby issue the following recommended:
ORDER 4
The Respondent. Moeschl-Edwards Company, Inc.,
('ovington. Kentucky, its officers, agents. successors, and
assigns. shall:
('ease and desist from:
(a) Requiring an' employee to execute a checkoff au-
thorization on behalf of a union as a condition of employ-
men t.
lb) Informing employees that a collective-bargaining
agreement obligates it to require employees to sign check-
off authorizations on behalf of a union.
(c) In any like or related manner interfering with, re-
straining. or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make employees Paul Wells and John Smith whole
for any deductions it has made from their earnings pur-
suant to their August 25. 1977. checkoff authorizations in
the manner set forth in the Remedy section.
(b) Post at its plant in ('ovington, Kentucky, copies of
the attached notice marked "Appendix." 5 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's author-
ized representative. shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that the notices are not altered, defaced, or cov-
ered by an, other material.
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order. what steps the Respon-
dent has taken to comply herewith.
conclulsions. and l recommended Order herein shall. as proivided In Sec.
It)2 48 of the Rule alid Regulations, he ;idopted hb the Board and become
is flingiiS. . onluisii ns a.. d Order,. and all objections thereto shall he
*lee1lcd k.11XCd 1h,1 .,11 a'Llulpses.
In the eenl tlat this() Order is enforced h iajudgllent of Ia nlied States
(iorl Iof Appc;ils. the .ord, im the notice re;ldilng Piosted b, Order of the
\.lliilnl.l labor Relatllins B.rid " sh.ll read "Posted Pursuanl to a Judg-
irenil or the I tlated StiIc.> ( ,urt of Appeals i nforcing an Order of Ihe
'.11lii.Ill I aih T .Realilons Fiihurd"'
1032
MOE-S( IHL-IF I)WAR[)S (OMPANN , IN(
11 Is AISO ORDI-REI) that the election held in (Case 9 RC
792 on September 2, 1977. he set aside, that the case he
remanded to the Regional I)irector. and that a new elec-
tion shall be conducted when the Regional l)irector deems
the circumstances permit a free choice hs the emplo')ees.
APPE N[)IX
No i 1( I To) I.MPit o'1 is
PostI: I ) B ORDIR R)[ llti
NAII()NAI ABO()R Rl lII()Ns BOARRD
An Agenct of the United States Government
WE sIl I uoI require any emploNee to sign a check-
off authorization as a condition of emplovyment.
WI [iiL ,ol tell you that a union agreement obli-
gates us to require employees to sign checkoff authori-
zations on behalf of a union.
\VW fil 'oi inl an, similar manner interfere with
xour rigzht uinder Section 7 of the Act.
E 111i reiefund to Paul Wells and John Smith anN
monc deducted from their earnings pursuant to the
checkoff authorizations they signed before the Sep-
temhlb r 1977 election. plus interest.
M1s( III F T D%\RI)S (C()MPANY IN(
1033