Motoresearch Co.

National Labor Relations Board - Board Decisions

Oct 9, 1962

138 N.L.R.B. 1490 (N.L.R.B. 1962)

1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT deal with or support Local 522 of the Teamsters and we will
not give effect to our contract with that union unless it wins a Labor Board
election and is certified by the Labor Board as your representative.
WE WILL NOT require our employees'tto be members of Local 522, and we
will not discourage them from being members of Local 282.
WE WILL NOT threaten our employees with loss of their jobs because they
join or do not join any union.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice or not to engage in any
union activities.
WE WILL offer Joe Amato, Robert DeBatt, Walter Fey, and James McLendon
reinstatement to their former jobs, and we will offer reinstatement to any other
employees who went on strike during October 1961 and who want to come back
to work. There will be no loss of seniority or other rights to any employee
who went on strike.
WE WILL give backpay to Amato, DeBatt, Fey, McLendon, and any other
striking employees who suffered a loss of pay because of our refusal to put them
back to work.
All our employees are free to become or remain members of Local 282, Local 522,
or any other union, and they are also free to refrain from joining any union unless
in the future we should enter into a valid union-shop contract with a union which
represents our employees
METROPOLITAN MILLWORK, INC,
Employer
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If the employees have any questions concerning this notice or whether the Em-
ployer is complying with its provisions, they may communicate with the Board's
Regional Office, 5th Floor, Squibb Building, 745 Fifth Avenue, Manhattan, Tele-
phone Number, Plaza 1-5500
Motoresearch Company and Kems Corporation and Interna-
tional Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, Local 1195, AFL-CIO. Case
No. 13-CA.-3907. October 9, 1962
DECISION AND ORDER
On March 7, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that, the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action as set forth in the attached Intermediate Report. Thereafter,
the Respondent filed exceptions, and the Respondent and General
Counsel filed briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a, three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
138 NLRB No. 145.
MOTORESEARCH COMPANY AND KEMS CORPORATION 1491
mediate Report, the exceptions^and briefs, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations only to the extent they are consistent herewith.
1. The Triail Examiner found that the Respondent violated Section
8(a) (5) of the Act by its repudiation of an agreement with respect to
insurance deductions which he found had previously been reached dur-
ing the bargaining negotiations. We do not agree that the facts sup-
port such a conclusion.
Between April 26 and October 7, 1960, the parties held some 18
meetings in an attempt to negotiate a new contract, but were unable
to agree. During these discussions the Union submitted a proposal
to change the carriers then underwriting an established group insur-
ance plan. The Respondent had customarily deducted the employees'
contributions and forwarded them to the insurance carriers. The Re-
spondent agreed to the proposal to change carriers, but stated at a
September 12 meeting that this approval was contingent upon the con-
dition that its overall expenses in connection with the plan not be in-
creased. At this meeting neither party raised the question of whether
Motoresearch would continue to deduct the employees' portion of the
premiums due and remit them to the carriers selected by the Union.
On September 20, pursuant to the Union's request, Respondent for-
warded a letter to the Union which summarized the Respondent's
position on about 10 subjects which remained in issue between the
parties after their September 12 meeting. In this letter Respondent
took the position that it would not deduct the employees' premium
contributions if the new insurance program proposed by the Union was
adopted because "the Company is expending as much as it will spend
for its contribution to insurance." This letter said in part "that the
[new] program as submitted, if it is acceptable to the Union must be
underwritten [meaning administered] by the Union and all the Coin-
pany will have to do with it will be to pay the present dollar amount
as its present contribution upon those whose names are certified each
month to the Company." Heggerman, the Union representative, testi-
fied that there was no objection to the change in carriers, so long as the
Union "picked up the entire tab."
The above evidence makes it clear that the parties never reached
any final agreement with respect to insurance deductions. On the
contrary it was recognized by both parties that the matter of payment
of the administrative expenses of the insurance program was still in
controversy. We therefore find that the Respondent had not reached
an agreement with respect to insurance deductions and hence did not,
by its position taken on this subject in its September 20 letter, violate
Section 8(a) (5) of the Act.
662353-63-vol. 138-95
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner found that Respondent failed to bargain
collectively in good faith, in violation of Section 8(a) (5), by refusing
to process grievances "according to policy and practice." The support
for this finding is derived from the alleged flat refusal on the part of
three of Respondent's officials to process grievances. We do not find
such refusals to process grievances in the conduct of these officials
which is cited to support the finding. The remark of Christensen,
Respondent's president, to employees returning from layoff on Octo-
ber 17, 1960, that "there would be no time for petty grievances" must
be viewed against his expressed willingness to have the Respondent's
attorney consider any grievance presented to him by the Union's repre-
sentative, and in this light cannot be considered' a refusal to process
grievances. Plant Manager Fraser's action in declining to arrange
a grievance meeting demanded by employees in October 1960, and
Departmental Superintendent Kressig's insistence that a grievance
submitted by a union steward be referred to respondent's attorney
must be considered against this same background, and their actions
do not when so considered amount to a refusal to handle grievances.
Nor does the record contain evidence to support the finding that apart
from the contract, any particular method of processing grievances was
required by any policy or practice established by the parties' dealings.
It is clear, however, and we find, that the Respondent violated
Section 8(a) (5) in September 1960 by unilaterally altering an exist-
ing grievance procedure. A specific grievance procedure to handle
"employee complaints" was established by Respondent's contract with
the Union, which had expired on August 15, 1960. The procedure
thus established provided employees with an orderly and well-under-
stood method for adjusting their grievances. In September 1960,
however, Christensen, acting unilaterally, terminated the existing
grievance procedure and established a new and different grievance
procedure, whereby employees were required to submit their grievances
to the Respondent's attorney through the Union's international repre-
sentative, Sahorske. We find here, as in the recent Bethlehem Steel
Company case, that this unilateral action taken by the Respondent
which substantially changed its employees' "terms and conditions of
employment," was in derogation of the Union's representative status
and a violation of Section 8(a) (5).'
3. The Trial Examiner also found that Respondent violated Section
8 (a) (5) of the Act by "failing and refusing to consult and negotiate
with the Union" concerning the transfer of work from the plant
operated by Motoresearch to that operated by its subsidiary, Kems.
He further found that this transfer took place in order to discourage
1 Bethlehem Steel Company ( Shipbuilding Division ) and Bethlehem-Sparrows Point
Shipyard, Inc, 136 NLRB 1500.
MOTORESEARCH COMPANY AND KEMS CORPORATION 1493
union activity in violation of Section 8 (a) (3). We do not agree that
the record supports such findings.
The record shows that the Respondent began moving machinery out
of Motoresearch's plant in March 1960. Campbell, a member of the
Union's bargaining committee, observed this movement and ques-
tioned Coulter, the plant superintendent, concerning it. Coulter
readily admitted that the work had been subcontracted out but de-
clined to identify the subcontractor. It is thus evident that the sub-
contracting had come to the Union's attention in March 1960. Despite
this knowledge the Union made no request to bargain nor did it protest
the Respondent's action. It is equally clear from the record, more-
over, that the Union did not effectively seek to bargain about subcon-
tracting in the 18 bargaining sessions that were held from April to'
October of the same year 2 The argument that Union inquiries regard-
ing subcontracting were "laughed off" by the Respondent's officials
at these meetings and that this precluded the union from negotiating
about the subcontracting is, considering the information the Union
had acquired prior to that time, untenable considering the realities of
present day collective bargaining. Under these circumstances we
cannot find that the Respondent failed to bargain in good faith with-
respect to the subcontracting of the work.'
Nor can we find sufficient evidence to support the finding that the
Respondent was discriminatorily motivated in subcontracting work
to hems in violation of Section 8(a) (3) of the Act. In finding that
the subcontracting was discriminatorily motivated, the Trial Exam-
finer relied on the Respondent's "lack of candor" in replying to unioli
inquiries about the subcontracting and on the fact that late in 1960'
the Respondent inade several antiunion statements. However, as we'
have previously found, the Union knew of the subcontracting and
made no request to bargain about it, and the failure of the Respond-
ent to discuss the subcontracting with the Union in these circumstances
does not in itself establish that the subcontracting was discrimina-
torily motivated. Nor do we believe that statements made by the Re-
spondent at the end of 1960 shed any significant light on its intent
in engaging in a subcontracting program which commenced almost
a year earlier. Rather, we find that the record establishes that the
Respondent subcontracted work for sound economic reasons. Thus,
according to the uncontradicted testimony of President Christensen,
it became necessary for the Respondent to subcontract certain work
because of production difficulties which had arisen at the Respond-
2 Montgomery Ward R Co , Incorporated, 137 NLRB 418.
3 We find, moreover, that, insofar as the complaint alleged that the Respondent's de-
cision to subcontract work, as distinguished from its actual subcontracting of the work,
violated Section 8 ( a) (5), such allegation is barred by the 6 -month limitation period con-
tained in Section 10(b) of the Act.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's Racine, Wisconsin, plant, making it unprofitable to perform the
work there; the Respondent had always subcontracted substantial por-
tions of its production work, often supplying materials, fixtures, tool-
ing, and machinery to its subcontractors, so that the work would
conform to customer specifications; and the Racine work was trans-
ferred to the Kems plant because other work scheduled for the Kerns
plant had been canceled by customers. In view of the foregoing, we
shall dismiss the complaint insofar as it alleges that, by subcontract-
ing work, the Respondent violated Section 8(a) (3) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(cy
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Motorsearch Company and Kerns
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile, Aircraft, and Agricultural Implement Workers
of America, Local 1195, AFL-CIO, as the exclusive representative
of all its production and maintenance employees, excluding office and
clerical employees, executives, watchmen, guards, and supervisors and
professional employees as defined in the Act, by unilaterally changing
their grievance procedure, without first giving notice and bargaining
with respect thereto with the above-mentioned Union.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist Inter-
national Union, United Automobile, Aircraft and Agricultural Im-
plement Workers of America, Local 1195, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, as guaranteed in Section 7 of the Act, or to refrain from any
or all such activities, except as permitted by Section 8(a) (3) of the
National Labor Relations Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with International Union,
United Automobile, Aircraft, and Agricultural Implement Workers
of America, Local 1195, AFL-CIO, as the exclusive representative of
its employees in the above appropriate bargaining unit with respect
to their grievance procedure.
MOTORESEARCH COMPANY AND KEMS CORPORATION 1495
(b) Post at its Racine, Lake Geneva, and Como Beach , Wisconsin,
facilities copies of the attached notice marked "Appendix ." 4 Copies
•of said notice , to be furnished by the Regional Director for the Thir-
teenth Region, shall , after being duly signed by representatives of
the Respondent , be posted by the Respondent immediately upon re-
ceipt thereof and maintained by it for 60 consecutive days thereafter
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered , defaced, or cov-
ered by any other material.
(c) Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleged violations of the Act other than those
noted herein.
4In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL bargain, upon request, with International Union,
United Automobile, Aircraft and Agricultural Implement Work-
ers of America , Local 1195, AFL-CIO, as the exclusive representa-
tives of all our production and maintenance employees, excluding
office and clerical employees, executives, watchmen, guards, and
supervisors and professional employees as defined in the Act, with
respect to the grievance procedure applicable to our employees.
WE WILL NOT unilaterally change our grievance procedure with-
out first giving notice and bargaining with respect thereto with
International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, Local 1195, AFL-CIO, as
the exclusive representative of all employees in the above ap-
propriate bargaining unit.
WE WILL NOT in any-like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights to
self-organization , to form labor organizations , to join or assist
International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, Local 1195, AFL-CIO, or
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other labor organization, to bargain collectively through rep-
resentatives of their own chosing, or to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act, or to refrain
from any or all such activities, except as permitted by Section
8 (a) (3) of the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
All of our employees are free to become or remain members of any
labor organization.
MOTORESEARCH COMPANY AND KEMS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 176 West Adams Street, Chicago 3, Illinois, Telephone Number,
Central 6-9660, if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and served , a complaint and notice of hearing thereon
having been issued and served by the General Counsel of the National Labor Rela-
tions Board, and an answer having been filed by Motoresearch Company and Kems
Corporation ,' a hearing involving allegations of unfair labor practices in violation
of Section 8(a)(1), (3 ), and (5 ) of the National Labor Relations Act, as amended,
was held an Racine, Wisconsin, on January 18 and 19, 1961 , before Trial Examiner
C. W. Whittemore.
All parties were represented at the hearing and were afforded full opportunity
to present evidence pertinent to the issues, to argue orally , and to file briefs. Briefs
have been received from General Counsel and the Respondent.
Upon .the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF MOTORESEARCH AND KEMS
Motoresearch and Kerns are Wisconsin corporations . Kerns is wholly owned by
Motoresearch, which in turn is owned and controlled by members of the Christensen
family, with Martin P. Christensen and his wife serving respectively as president and
vice president of both corporations . The two corporations share an office in the
same building in Racine , Wisconsin , where Motoresearch engages in the development,
processing , and sale of mechanical and electrical products . Kerns has properties in
Lake Geneva and Walworth County, both in Wisconsin . During 1960 Kems manu-
factured goods and performed services valued at more than $ 10,000, all of which
were for Motoresearch . During 1959 Motoresearch sold and shipped products
valued : at more than $50,000 to States of the United States other than Wisconsin.
'For reasons of common ownership , described in section I, the two companies will be
referred to herein as a single Respondent.
MOTORESEARCH COMPANY AND KEMS CORPORATION 1497
As alleged in the complaint, Motoresearch and Kems constitute a single, integrated
enterprise. The interstate business of Motoresearch clearly satisfies the Board's
jurisdictional standards. The Trial Examiner concludes and finds that the two cor-
porations, by virtue of being a single, integrated enterprise, are engaged in commerce
within the meaning of the Act.
II. THE CHARGING UNION
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, Local 1195, AFL-CIO, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
All of the events raised as issues by the complaint occurred during a period begin-
ning in the spring of 1960 and while negotiations were being carried on between
Motoresearch and the Union seeking renewal of a collective-bargaining agreement.
The latest of the long series of negotiating meetings took place on October 7, 2 weeks
before the initial charge in the case was filed.
In quick summary it may be said that the chief issues for resolution stem from
General Counsel's contention and the Respondent's denial that the latter:
1. Violated Section 8(a) (5) of the Act by refusing to bargain in good faith in
that it :
(a) On and after September 15 refused to discuss grievances in consonance with
established policy;
(b) Since April failed to negotiate with the Union regarding removal of machinery,
equipment and jobs from the plant of Motoresearch to Kems;
(c) Since April has moved such machinery, equipment and jobs in order to avoid
its obligation to bargain with the Union; and
(d) Failed to bargain in good faith concerning insurance provisions.
2. Violated Section 8(a)(3) of the Act by moving equipment and jobs from
Motoresearch to Kems, thereby reducing work schedules of employees of the former,
and by failing to offer such employees jobs at Kems.
B. The facts
Since 1952 Motoresearch has recognized and dealt with the Union, which was
certified by the Board, as the bargaining agent of its employees. The latest contract,
which was due to expire in May 1960, by agreement of the parties was twice extended,
finally terminating on August 15, 1960.
Although in its answer the Respondent denies that since that date the Union has
continued to be the exclusive bargaining agent of employees in an admittedly
appropriate unit, during the hearing its counsel conceded that it has never raised
the question of majority representation. Since the answer concedes that the alleged
unit is appropriate, no other facts are required to establish that at all material times
the Union has been the exclusive bargaining representative of employees in an
appropriate unit and that the Respondent has been obligated by the law to bargain
with it in good faith. The material period began April 21, 1960, a date 6 months
before the initial charge was filed.
The grievance issue: It is undisputed that until mid-September 1960, it had
always been the practice of management and a union committee of employees to
meet once a month to discuss plant grievances and safety measures. Pursuant to
such custom the committee met with Plant Superintendent P. J. Coulter on the third
Tuesday of September. Toward the close of this regular meeting President M. P.
Christensen came into the meeting and angrily told them there would be no more
grievance meetings "as long as there was no contract." He directed that any
grievances must be taken up by his attorney and the International Union representa-
tive, who were meeting on contract negotiations. So angry was Christensen, appar-
ently, that Coulter resigned, and it is undisputed that Coulter informed the employee
president of Local 1195 that his action was precipitated by the "bawling out" he had
received from Christensen for entertaining employee grievances.
Shortly after this, as noted below, all employees were laid off for a period of
10 days. Upon their being called back on October 17, they were met at the plant
entrance by Christensen. It is uncontradicted that he informed them there would be
a change in making out their timecards and "different ways of working." He further
told them there "was no time for petty grievances," and if they "didn't like it,"
they should leave.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the employee committee thereafter attempted to arrange a grievance
meeting with Plant Manager Fraser, the latter refused to meet.
In November William Kressig, departmental superintendent, refused to accept a
grievance submitted by a union steward. Kressig insisted that it must be taken up
through the International representative at the bargaining table.
The insurance issue: Credible evidence establishes and the Triad Examiner finds
that following earlier discussions at negotiating meetings, .the Respondent and the
Union by September 12 had reached agreement to the effect that insurance carriers
could be changed providing the Respondent's contributions to the premium costs
were not increased. No issue at any time had ever been raised as to continuance of
the long-established practice of management's deducting from their pay the em-
ployees' share of such contributions. On September 20, however, the Respondent
notified the Union in writing that if carriers were changed it would no longer deduct
employee contributions, but would insist that the Union assume full responsibility.2
Removal of machinery, equipment, and jobs: As noted in section I, above, Kems
came into being during the latter part of 1959, and is wholly owned by Motoresearch.
Early in 1960 the latter began transferring equipment and work to a plant operated
by its alter ego, Kems, at its plant about 40 miles from Racine. It transferred ma-
chinery, equipment, fixtures, and even inventory. As a witness for the Respondent,
Coulter admitted that as plant superintendent of Motoresearch in March 1960, he
went to the Kems plant to prepare the "layout" for production by the transferred
equipment. According to Christensen's testimony inventory on one specific job,
referred to in the record as the "magnus" job, was transferred from Motoresearch to
Kems as late as December 1960. Christensen also admitted that since April Kems has
performed other work transferred to it from Motoresearch of the same nature as that
performed by the latter. As noted heretofore, Kems produced and performed services
valued at more than $10,000 in 1960, all of which was for Motoresearch. Motore-
search employees were not offered work at Kems, which hired employees with no
previous experience in motor work and who are not represented by any labor
organization.
Failure of the Respondent to negotiate regarding such transfer: It is undisputed
that since April 21, 1960, Motoresearch has failed to notify, consult, or negotiate with
the Union regarding the transfer of equipment, work, or jobs to Kems. Christensen
admitted, "I would have no occasion to inform anyone" of such matters. And it is
uncontradicted that when, at negotiating meetings, the Union raised the question of
such transfers, management representatives "laughed off" such rumors and said
"there was no movement by the company." Finally, it is undisputed that in the
latter part of 1960 management posted notices in the plant to the effect that "contrary
to rumors" no work was "being farmed out."
Reduction of working hours at Motoresearch: Documents in evidence establish
that since May 1960 until the hearing date Kems employees worked more than 600
8-hour days, and that Motoresearch employees, engaged in similar occupations, were
laid off and suffered loss of working time to an extent far exceeding that number
of working days.
C. Conclusions
In summary, it has been found above that since April 21, 1960, the Respondent:
(1) moved from its Motoresearch plant to its Kems plant machinery, equipment,
inventory, and jobs; (2) deprived employees at its Motoresearch plant of work which
they had been performing or of a similar nature; (3) failed to consult or negotiate
with the Union concerning such transfer jobs; (4) refused to permit continuance of
an established grievance procedure; and (5) repudiated an agreement already reached
during negotiations concerning the insurance issue.
That the Respondent's motive in engaging in such conduct was to discourage
union membership and to avoid its obligation to bargain in good faith with the
Union may reasonably be inferred from its lack of candor in replying to the Union's
query concerning the transfer and subcontracting of work done at Motoresearch.
That such motive existed, moreover, is more firmly established by the following facts:
2 The finding that agreement had been reached rests upon the credible testimony of
Union Representative Sahorske and the Local's recording secretary Former Super-
intendent Coulter, the one management representative to testify on the subject, while
claiming "there never was any agreement reached on any of the subjects discussed in
the contract demands," on cross-examination admitted that the Respondent "indicated"
it had no objection to carrier change so long as it continued to "pay what they were
paying." There is no competent refutation of the testimony of the union representatives
in'the record.
MOTORESEARCH COMPANY AND KEMS CORPORATION 1499
,(1) Toward the end of 1960 the Respondent sent to all Motoresearch employees
a long letter in which it thinly veiled its opposition to further dealing with the
Union. It pointed out that when a "plant became organized, it lost its ability to serve
the special motor trade." It cited the benefits that it had provided for its employees.
It pointed out that "twice during the two preceding months a third party (the Union)
. has filed charges against your employer. . . . Even if true, the effect of such
activity during the tense competitive period is not conducive to the security of
those persons whom the third party claims to protect."
(2) In a speech to employees in mid-September 1960, Christensen told them:
"At the present time no organized plant in Racine is doing any work competitive
with ,that in which you are engaged. Those companies which have been competitors
in these fields have either discontinued this type work or taken it out of the city."
He said, further: "It is not a happy thought, but it is entirely possible that Motore-
search Company may discontinue production."
(3) When giving year-end bonus checks to employees the Respondent accompanied
them with a written statement in which it said, in part: "Recently 3rd party interests
seeking to impede this family relationship have come between you and Motoresearch
Company."
The Trial Examiner therefore concludes and finds that the Respondent has:
(d) failed and refused to bargain collectively in good faith with the Union as
the exclusive representative of all employees in an appropriate unit by: (a) repudiat-
ing its agreement concerning insurance deductions; (b) refusing to process grievances
according to policy and practice; (c) transferring machinery, equipment, inventory,
and jobs from the Racine plant to its alter ego plant; (d) failing and refusing to con-
sult and negotiate with the Union concerning such transfer;
(2) discriminated against employees in their work hours and tenure of employment
in order to discourage union membership and activity; and
(3) by such conduct interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act.3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirm-
ative action to effectuate the policies of the Act. Since it has been found that Kems
and Motoresearch constitute a single employer, it will be recommended that they be
held jointly accountable in the performance of all remedial provisions.
It will be recommended that: (1) Employees on the Motoresearch payroll be
offered, immediately, any and all positions now being occupied by employees of
Kems who are embraced within the classifications of the unit heretofore found
appropriate for collective bargaining; (2) employees be made whole for any loss
of pay they may have suffered as a result of the discrimination against them, as
found herein; and (3) the Respondent bargain in good faith with the Union con-
cerning future transfer of work to any other plant or plants acquired or controlled
by it.
It will be further recommended that the Respondent, upon request, negotiate in
good faith with the Union on all matters within the scope of collective bargaining
and, if an understanding is reached, embody such understanding in a signed
agreement.
Since the violations of the Act which the Respondent has committed are related
to other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is reasonably to be anticipated from their past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it will
8In his able brief, General Counsel cites a number of cases supporting his contentions,
including, VIP Radio, Inc., 128 NLRB 113; A M. Andrews Company of Oregon, et al.,
112 NLRB 626; De Diego Taxi Cabs, Inc, 107 NLRB 1026; Winchester Electronics,
Incorporated, 128 NLRB 1292; Knight Morley Corporation, 116 NLRB 140; and Indus-
trial Fabricating, Inc, et al, 119 NLRB 162.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union , United Automobile , Aircraft and Agricultural Implement
Workers of America, Local 1195, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of Motoresearch employed at its
Racine, Wisconsin , plant, exclusive of executives , office and clerical employees,
watchmen , guards, professionals , 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.
3. By virtue of Section 9(a) of the Act the above -named labor organization has
been since 1952 and now is the exclusive representative of all employees in the
above unit for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment , and other terms and conditions of employment.
4. By refusing , since April 21, 1960, to bargain collectively in good faith with the
Union as the exclusive representative of employees in the aforesaid unit, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of employees,
thereby discouraging membership in and activity on behalf of the above -named labor
organization , the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
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