Quaker Tool & Die, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1967

162 N.L.R.B. 1307 (N.L.R.B. 1967)

QUAKER TOOL & DIE, INC. 1307
activities for the purpose of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the National Labor Relations Act, or to
refrain from any of the foregoing.
WE WILL offer Johnny Mack Blevins immediate and full reinstatement to
his former position without prejudice to his seniority and other rights and
privileges and will make him whole for any loss of pay suffered as a result
of the discrimination against him.
HOT SPRINGS ALUMINUM PROCESSORS, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify the above- named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele-
phone 534-3161.
Quaker Tool & Die, Inc.' and United Steelworkers of America,
AFL-CIO. Case 8-CA-3758. January 30, 1967
DECISION AND ORDER
On August 13, 1965, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and it supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions.
As more fully set forth in the Trial Examiner's Decision, the Union
was certified on October 16, 1962, as the majority representative of
1 Hereinafter also referred to as Quaker.
162 NLRB No. 124.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees of Schnell Tool & Die Corporation2 at its plants 1 and
2. Schnell thereafter unlawfully refused to bargain with the Union at
all times,3 and a remedial order was entered directing Schnell to cease
and desist therefrom and to bargain with the Union upon demand.
The Respondent herein leased plant 1 and began operations there in
December 1964. It continued the same operations and was clearly a
successor to Schnell. In addition, it was aware of the issuance of the
certification and of the bargaining order against Schnell. Early in
January 1965, the Union requested that the Respondent recognize and
bargain with it. Respondent refused, asserting that there was no
Board certification involving Respondent and that it questioned
whether the Union represented any of its employees.
Like the Trial Examiner, we find that the Respondent violated Sec-
tion S (a) (5) and (1) of the Act by the above conduct in refusing to
recognize and bargain with the Steelworkers as the representative of
its production and maintenance employees. In addition to the reasons
set forth by the Trial Examiner for so concluding,4 we rely on the
well-settled rules that a certificate creates a presumption of majority
status which continues after a year has elapsed subject to rebuttal by
an affirmative showing that the union no longer commands a major-
ity,' and that where the "employing industry" remains essentially the
same after the transfer of legal ownership, the obligation to bargain
devolves upon the successor employer.e Under the circumstances of
this case, we find that the Union's certification created a presumption
of continuing majority which has not been rebutted by the mere
passage of time. Therefore, and in view of the continuity in the
employing enterprise, the Respondent was obligated to bargain with
the Union as requested, and its refusal to do so violated the Act.
In view of the above, we find no merit in the Respondent's argu-
ment that the holding in Symns Grocer Co.,7 and Idaho Wholesale
Grocery Co., requires dismissal of this complaint. That case is clearly
inapposite. Here, unlike Syrnns, the alleged unfair labor practice
2 Hereinafter referred to as Schnell.
3 Thus, near the end of 1962 it leased plant 2 to Quaker Manufacturing Company
without notice to or bargaining with the Union concerning the effects thereof and in-
stituted unilateral changes, and otherwise refused to bargain in good faith Schnell Tool
f Die Corporation, et at , 144 NLRB 385, enfd in relevant part and remanded on the
question of remedy 359 F .2d 39 (C.A. 6), April 7, 1966, Schnell ' s continuing unfair labor
practices were the subject of the proceeding in 162 NLRB 1313, issued simultaneously
herewith, in which the Board has found that Schnell violated Section 8(a) (5) In connec-
tion with its lease of plant 1 to the Respondent herein.
Quaker Manufacturing Company and the Instant Respondent are both owned by Henry
Ickes , Boyd Helm, and their wives . Ickes iaas an employee of Schnell until Quaker Manu-
facturing Company was incorporated and took over plant 2
4 We do not adopt the Trial Examiner 's gratuitous comments in the last paragraph of
his "Conclusions "
c Laystrom Manufacturing Co, 151 NLRB 1482, enforcement denied on the facts 359
F.2d 799 (C A. 7), April 19, 1966.
9 See Johnson Ready Mix Co , 142 NLRB 437, 442.
7 109 NLRB 346.
QUAKER TOOL & DIE, INC. , 1309
arose by reason of the Respondent's own conduct in refusing to fulfill
an obligation which it was legally obligated to assume. The issuance
of a remedial order is, therefore, proper in the instant case.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed January 27, 1965, by United Steelworkers of America,
AFL-CIO , herein the Steelworkers , against Quaker Tool & Die, Inc., herein
Quaker Tool or the Respondent , the General Counsel issued complaint alleging
Respondent violated Section 8(a)(1) and ( 5) of the Act.
The answer of Respondent denied the commission of any unfair labor practices
and specifically denied that the Steelworkers represented a majority of its employ-
ees in the alleged appropriate unit.
This proceeding , with all parties represented, was heard before Trial Examiner
John F. Funke at Salem, Ohio, on June 22, 1965, and at the conclusion of the
hearing the parties were given leave to file briefs.
Upon the entire record in this case and from my observation of the witnesses
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent admits and I find that it is an Ohio corporation with its principal
place of business at Salem, Ohio, where it is engaged in the manufacture and sale
of dies, tools , and fixtures . By projection Respondent will, in the period commenc-
ing November 1, 1964, and ending October 31, 1965, cause goods valued in excess
of $50,000 to be shipped from Salem directly to points outside the State of Ohio.
Respondent is engaged in commerce within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
The Steelworkers is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. Background
This case cannot be divorced from Schnell Tool & Die Corporation, Case
8-CA-3757, the decision which issues herewith. On November 1, 1964, Schnell
]eased its premises known as plant 1 to Quaker Tool and Quaker Tool commenced
business (the manufacture and sale of tools and dies ) at that location using Schnell
equipment . Prior to this leasing the employees of Schnell had designated the
Steelworkers as their collective-bargaining representative in a National Labor Rela-
tions Board election conducted October 9, 1962, and the Steelworkers was certified
on October 16 in Case 8-RC-4897. The appropriate unit was found to be:
All production and maintenance employees at Employer' s Plants Numbers '1,
and 2, including truckdrivers, but excluding office clerical employees , office,
cleaning women , guards, professional employees and supervisors as defined,
in the Act.
Shortly thereafter Schnell leased its premises known as plant 2 to Quaker Manu
facturing Company and ceased its operations at that location. Later the Board'in
Schnell Tool & Die Corporation, 144 NLRB 385, found Schnell had engaged in
unfair labor practices , including its unilateral action in the leasing of this ' plant, in
violation of Section 8(a)(1), (3 ), and (5) of the Act and issued a remedial order
directed to Schnell . This proceeding is pending before the Sixth Circuit on the
Board 's application for enforcement of its order.
Schnell continued operations at plant 1 until the aforesaid lease to Quaker Tool
on November 1.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The gravamen of the complaint herein is that Quaker Tool refused to bargain
with the Steelworkers as the certified collective-bargaining representative of the
employees of plant 1 after acquisition of that plant and the commencement of
operations.
2. The evidence in this proceeding
Quaker Tool was incorporated shortly before November 1, 1964, for the purpose
of leasing plant 1 and assuming its operations. The owners were Henry Ickes, Boyd
Helm, and their wives who also owned Quaker Manufacturing which operated
Schnell's former plant 2.
Under the terms of the lease Quaker Tool acquired all the machinery, manu-
facturing, and office equipment at the plant. It was also given "Purchase Orders"
by which it assumed the responsibility for the completion of certain orders of
Schnell outstanding at the time of transfer. Shortly thereafter, according to the
testimony of Henry Ickes, it received orders of its own from both former Schnell
customers and from new customers. (It also received orders channeled from
Quaker Manufacturing.) The nature of the business was the same as that previ-
ously conducted by Schnell and the job classifications remained the same, i.e., die-
makers, diemakers' helpers, machinists and apprentices, one utility man, and one
"tool crib man." Quaker Tool employed all the former Schnell production and
maintenance employees (a total estimated at 18) 1 but did not employ the clerical
employees.2 Some of the former Schnell employees were thereafter given merit
increases.
On January 5, 1965, the Steelworkers sent to Quaker Manufacturing (the Steel-
workers was not aware that Ickes and Helm had created a separate corporation to
operate plant 1) a demand for recognition and a request for negotiations for the
employees at plant 1. (General Counsel's Exhibit 5.) This demand and request
was refused by Ickes on behalf of Quaker Tool on January 18. (General Counsel's
Exhibit 6 ) In his letter Ickes stated:
This company is not aware of any NLRB election or certification involving
this company and does not believe that in fact you represent any of its
employees.
These being the circumstances, we could not agree to meet or bargain with
you concerning our employees.
On January 20 the Steelworkers renewed their demand, addressing it to Quaker
Tool. No reply was received.
Ickes, who had been a superintendent for Schnell before the incorporation of
Quaker Manufacturing, admitted that he knew of the certification of the Steel-
workers at Schnell Tool & Die and that he was also aware of the Board's Decision
and Order against Schnell, supra.
On January 27 Quaker Tool filed a petition for an election in a unit of pro-
duction and maintenance employees (Respondent's Exhibit 1) and there the matter
rested at the time of the hearing.
3. Conclusions
I do not find the facts upon which the issue must be decided seriously in dispute.
At the time the lease of the premises at plant 1 was executed there was out-
standing not only a Board certification of the Steelworkers as the bargaining repre-
sentative of the employees at this plant but there was also a Board Order directing
Schnell, the lessor, to bargain with the Steelworkers. Respondent acquired the
plant with knowledge of both the certification and the Order. It is true that Schnell
had severed the unit found to be appropriate in the representation of this case by
its prior leasing of plant 2 to Quaker Manufacturing (operating under the same
ownership and control as Quaker Tool). I do not find, contrary to the contention
of Respondent, that by these separate leanings Schnell could effectively destroy the
validity of the certification as it attached to either plant or escape from the respon-
sibility of its own unfair labor practices as found in 144 NLRB 385, supra.
I There was no agreement to hire these employees. Ickes stated they were terminated by
Schnell and hired by Quaker Tool as new employees Practicality alone would dictate
that Quaker Tool would hire a ready and available work force familiar with the plant and
equipment rather than recruit a new force in a small community and so interrupt
production.
2 The clerical employees were not included in the bargaining unit.
QUAKER TOOL & DIE, INC. 1311
Respondent, taking the plant with full knowledge of these facts, cannot stand in a
better position than Schnell. In short I find that the appropriate unit in this pro-
ceeding is:
All production and maintenance employees of Quaker Tool & Die, Inc.,
including truckdrivers, but excluding office clerical employees and guards, pro-
fessional employees and supervisors as defined by the Act.
In so finding reliance is placed upon the Board's decision in Maintenance, Incor-
porated, 148 NLRB 1299, where the Board reversed the Trial Examiner's finding
that the unit certified as to the predecessor employer was not the unit employed
by the successor respondent because of a division in the unit not unlike that
which took place herein. In Maintenance, as here, there was no effectual change
in the "employing industry" since all of Schnell's employees were retained
(although as new employees) by Quaker Tool under the same job classifications
and the character of the business, the manufacture of tools, die, and fixtures
remained unchanged. It is true that changes were effected by Respondent in work-
ing conditions, including the granting of merit wage increases, changes in over-
time, and increased fringe benefits. But neither these changes nor an increase in
the personnel employed can affect the unit 3 nor Respondent's obligation to
bargain.
These facts necessarily determine Respondent's obligations under the Act as a
successor to Schnell. Both the Board and the courts are in general agreement that
it is "the nature and functions of the same employing industry" which determines
this obligation of the successor. N.L.R.B. v. Auto Ventshade, Inc., 276 F.2d 303,
306 (C.A.5).4 The Board has likewise held that the critical question is "whether
Respondent has continued essentially the same employee unit whose duly certified
bargaining representative was entitled to statutory recognition at the time Respond-
ent took over." Maintenance, supra.5 In Maintenance, the Board also held that
the fact that the successor substituted its own supervisory staff (a point raised by
Respondent herein) was not of overriding importance. Nor does the fact that the
transfer of operations was a bona fide transaction carried out at arm's length help
Respondent's cause. See Tempest Shirt, supra.
The most persuasive argument in Respondent's brief is that the Respondent was
entitled to a good-faith doubt of the Steelworkers majority status at the time the
bargaining demands were made in 1965. As counsel points out, the certification
(which followed a close election) was over 2 years old, bargaining negotiations
with Schnell had been broken off in January 1963, and there was no offer to prove
majority status at the time the demand on Quaker Tool was made. But the age of
the certification and the termination of negotiations were due expressly to the
unfair labor practices found in the Schnell case, 144 NLRB 385, and Schnell's
refusal to comply with the Board's order therein. Since the Board's orders are not
self-enforcing the case has pursued its litigious path to the court with inevitable
delay. The Steelworkers could not bargain alone and the adamant refusal on the
part of Schnell, as set forth in the Trial Examiner's decision in Schnell, left the
Steelworkers without option. It would violate any rule of law or logic to hold
that an employer may refuse to comply with his lawful obligation to engage in
collective bargaining, and by reason of the lapse in time required to secure com-
pliance of that obligation, permit him to assert a good-faith doubt as to the
Union's continued majority status.6 The employer's own unlawful conduct should
not obtain such a gratuitous benefit.
It may seem anomalous to hold that it is an unfair labor practice for an
employer to sign a collective-bargaining contract with a union which does not
represent a majority of his employees and,7 on the other hand, to order an
employer to bargain with a labor organization which well may not represent a
S See N.L.R B. V. Albert Armato, and Wire h Sheet Metal Specialty Co., 199 F.2d 800
(C.A. 7), where a sharp reduction in personnel was held not sufficient to warrant an
assumption that the employees did not continue to desire to have the union to represent
them
I See also N.L.R B. v. Tempest Shirt Manufacturing Company, Inc., 285 F.2d 1 (C.A. 5).
Cf. N.L.R.B v. Alamo White Truck Service, Inc., 273 F 2d 238 (C.A. 5).
s See also Chemrock Corporation, 151 NLRB 1074.
e See N.L.R.B. v. John S. Swift Company, Inc, 302 F.2d 342 (C A. 7).
T See International Ladies' Garment Workers' Union, AFL-CIO (Bernhard-Altman
Texas Co ) v. N.L R B, 366 U.S. 731.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority 8 but the problems of labor-management relations are not subject to
mechanistic solutions . When Cardozo sighed for logarithmic formulas for justice
he had not-been exposed to the intellectual moiass of labor law or his sign might
have been more anguished.
IV. THE REMEDY
It having been found that Respondent has engaged in and is engaging in an
unfair labor practice I shall recommend that it take certain action designed to
effectuate the purposes of the Act.
Upon the basis of the foregoing findings and conclusions, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The Steelworkers is a labor organization within the meaning of the Act.
3. By refusing to bargain in good faith with the Steelworkers in the unit found
appropriate herein Respondent violated Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor practice within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case it is recommended that Quaker Tool & Die,
Inc., its officers, agents , successors , and assigns , shall take the following action neces-
sary to effectuate the policies of the Act:
(a) Upon request bargain collectively with United Steelworkers of America,
AFL-CIO, as the exclusive bargaining representative of its employees at its plant
at Salem, Ohio, in the unit found appropriate herein and embody any understand-
ing reached in a written agreement.
(b) Post at its plant at Salem, Ohio, copies of the attached notice marked
"Appendix." 9 Copies of said notice, to be furnished by the Regional Director of
Region 8, after being signed by an authorized representative of Respondent, shall
be posted by Respondent immediately upon receipt thereof, and be maintained by
Respondent for 60 consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted.
(c) Notify the Regional Director , in writing , within 20 days from the receipt
of this Decision, what steps Respondent has taken to comply herewith.io
8 Franks Bros. Company v N L R B , 321 U S 702.
8In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals Enforcing an Order" for the
words "a Decision and Order "
is In the event that this Recommended Order is adopted by. the Board, this provision
shall be modified to read • "Notify the Regional Director for Region 8, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notity our employees that:
WE WILL, upon request, bargain with United Steelworkers of America,
AFL-CIO, as the exclusive bargaining representative of our employees in the
appropriate unit described. below, and, if an understanding is reached, embody
such understanding in a signed agreement. The appropriate unit is:
All production and maintenance employees of Quaker Tool & Die, Inc.,
including truckdrivers (if any), but excluding office clerical employees,
and guards, professional employees, and supervisors as defined in the Act.
QUAKER TOOL & DIE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
SCHNELL TOOL & DIE CORPORATION 1313
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland , Ohio 44115 , Telephone Main
1-4465.
Schnell Tool & Die Corporation and United Steelworkers of
America, AFL-CIO. Case 8-CA-3757. January 30, 1967
DECISION AND ORDER
STATEMENT OF THE CASE
Upon a charge filed January 27, 1965, by United Steelworkers of
America, herein called Steelworkers, against Schnell Tool & Die
Corporation, herein called Schnell or the Respondent, the General
Counsel issued a complaint dated April 23, 1965, alleging the
Respondent had violated Section 8(a) (1) and (5) of the National
Labor Relations Act, as amended. Copies of the complaint and charge
were duly served on all the parties. The answer of Respondent admit-
ted that it was an Ohio corporation but denied all the other allega-
tions of the complaint.
This proceeding, with all parties represented, was heard before
Trial Examiner John F. Funke at Salem, Ohio, on June 22, 1965. The
Board 1 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. At the conclusion of the hearing the
parties were given leave to file briefs with the Trial Examiner and
the General Counsel and Respondent thereafter did so.
On August 13, 1965, the Trial Examiner issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged
in and was engaging in the alleged unfair labor practices within the
meaning of the Act and recommending that it cease and desist there-
from and take certain affirmative action. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and a supporting
brief.
The Board has considered the Trial Examiner's Decision, the
exceptions and the brief, and the entire record in the case. Although
the Board is in substantial agreement with the Trial Examiner's
principal findings, conclusions, and recommendations, it is not satis-
fied with the presentation of the case in the Trial Examiner's Decision
'Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this case to a three -member panel
[ Members Fanning , Brown, and Zagoria].
162 NLRB No. 123.
264-047-67-vol. 162-84