Racine, Die Casting Co., Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1971

192 N.L.R.B. 529 (N.L.R.B. 1971)

RACINE DIE CASTING CO. INC.
Racine , Die Casting Co., Inc . and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America (UAW), Local
627-Racine ' Die Casting Co. Unit. Case
30-CA-1475
August 4, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
Upon a charge filed by International Union, United
Automobile, Aerospace & Agricultural Implement
Workers of America (UAW), Local 627-Racine Die
Casting Co. Unit, hereinafter called the Union, on
January 14, 1971, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 30, issued a complaint on
February 12, 1971, against Racine Die Casting Co.,
Inc., alleging that the Respondent had, engaged in and
was engaging in certain unfair labor practices within
the meaning of Section 8(a)(1),and (5) and Section
2(6) and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and notice
of hearing were duly served upon the Respondent and
the Union.
With respect to the unfair labor practices, the
complaint in tisubstance alleges that the Union is the
recognized collective-bargaining representative' of
certain employees of Racine Die Casting Co., Inc.; 1
that it has had a, series of collective-bargaining
agreements with the Respondent dealing with the
wages, hours, terms, and conditions of employment of
the employees, the, most recent of which was effective
by its terms from February 1, 1968, to January 31,
1971; and that commencing on or about December
31,,1970, and at all times thereafter, the Respondent,
iA violation of Section 8(a)(5) and (1) of the Act, has-
refused, and continues to date to refuse, to bargain
collectively with the Union as employees' exclusive
bargaining representative, by refusing to meet and
bargain with its duly designated bargaining commit-
tee so long as the said committee includes, as a
member thereof, the president of the Union. On
February 19, 1971, Respondent filed its answer to the
complaint, admitting in part the allegations in the
complaint, alleging certain other facts in support of its
defense, but denying the commission of any unfair
labor practices on the grounds that the president of
the Union, Robert Coombs, in whose presence it
i in its answer, the Respondent admits that all production and
maintenance employees at the Respondent's plant in Racine County,
Wisconsin, excluding office clerical, plant guards, watchmen, engineering
employees , foremen, employees of the tool room, and supervisory
employees , constitute aunit appropriate for the purposes of, collective
bargaining within the meaning of Section 9(b) of the Act.
529
refuses to bargain, is no longer an employee of
Respondent, and requesting that the complaint be
dismissed.
On March 3, 1971, a hearing was held in the above-
entitled proceeding before Trial Examiner Jerry B.
Stone of the National Labor Relations Board, at
which time certain exhibits were received into
evidence and certain stipulations were entered into on
the record. Pursuant to the stipulations, the parties
agreed to waive oral argument before the Trial
Examiner, the filing of briefs to the Trial Examiner,
and the issuance of a Trial Examiner's Decision, and
agreed to submit the case directly to the Board for
decision, based on a record consisting of the stipula-
tion of facts and the exbibits attached, thereto. The
stipulation also provided for the filing of briefs with
the Board.
On March 23, 1971, the Board approved the
stipulation of the parties, ordered the case transferred
to the Board, and granted permission-and time for the
filing of briefs. Thereafter,, the General Counsel and
the Respondent filed briefs, and the General Counsel
filed a motion to strike certain portions of Respon-
dent's brief.2
Pursuant to the provsions of Section 3(b) of the Act,
the Board has delegated its powers in connection with
this case to a three-member'panel.
Upon the basis of the stipulation, the exhibits, the
briefs, and the entire record,in this case, the Board
makes the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a Wisconsin corporation with its
principal offices and plant located in Sturtevant,
Racine County, Wisconsin, has, at all times material
herein, been engaged in the manufacture and sale of
castings. In the course and conduct of its business
operations, the 'Company annually 'ships products
valued in excess of $50,000 from its Sturtevant plant
to customers located outside the State of Wisconsin
and annually receives products valued in excess of
$50,000 from points outside the State of Wisconsin.
The Respondent admits that it is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and we find it will effectuate
the policies of the Act to assert jurisdiction herein.
2 In its motion to strike, the General Counsel specifically designates that
portion of Respondent's brief which incorporates a copy of its brief to an
arbitrator in a related case, basing its motion on the grounds that the latter
brief refers to facts contained in the transcript of the arbitration matter
which are not part of the record evidence herein. In view of our decision
herein , the General Counsel 's motion to strike is hereby granted.
192 NLRB No. 73
530. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION_ INVOLVED
International Union, United Automboile, Aeros-
pace 8 c Agricultural, Implement Workers of America
(UAW), Local 627-Racine Die Casting Co. Unit, is a
labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR =LABOR PRACTICES
A. Facts
The parties stipulated, and we find, that the
Respondent has refused to bargain with the Union at
any time that Robert Coombs, president of the Union,
is present for negotiations; that such refusal has taken
place since December 31, 1-970, and has continued to
date; that the Respondent bases this refusal to
bargain in Robert Coombs' presence on the fact that
he was terminated by the Respondent on August 3,
1970,' and therefore is - not an employee of the
Respondent; that the parties have in fact bargained
on the following days without the presence of Robert
Coombs: January 25, 27, and 30,- February 3, 10, 12,
16, and 23, and March 1,1971; and that the validity of
the termination of F,,abert Coombs has been submit-
ted to arbitration by the parties.
B. The Issue Involved and the Contentions Of,
the Parties
The 'sole issue thus presented is whether the
Respondent's refusal to bargain with the Union
because the latter's bargaining committee contains a
member who is no longer an employee of the
Respondent is privileged under the Act.
The General Counsel contends that, the Respon-
dent's refusal to bargain in the above-described
circumstances violates the basic right of employees
under Section 7 of the Act which guarantees to
employees the right to bargain collectively through
representatives of their own choosing and imposes, a
,correlative duty on the part of the Respondent to
negotiate with the Union's appointed agents. The
General Counsel further contends that there are no
extenuating circumstances which would, in this- case,
justify the Respondent's admitted refusal to bargain.
The Respondent, in the course of this proceeding,
has interposed several defenses to the allegation that it
engaged in, an unlawful refusal to bargain. In its
answer, the' Respondent, admitted that it has refused
to bargain in the presence of Coombs, asserting that
Coombs' failure' to return to work following a
disciplinary suspension constituted a voluntary termi-
s N.L.R.B. v. International Ladies' Garment Workers Union. 274 F. 2d
376,378 (C.A. 3).
4 N,L:R.B. v. Kentucky Utilities, Co., 182, F. 2d 810 (C.-6); Bausch &
Lomb Optical Company, 108 NLRB 1555.
nation of employment on his part, that, hip is no longer
an employee of the Respondent,;and-that, as the most
recent collective-bargaining agreement between, the
parties provides only for assistance by an "outside
representative" with respect to the disposition of
grievances, such limitation precludes the Union from
the use of outsiders, such as Coombs, in matters of
contract negotiation. At the hearing, the Respondent
stated that the only reason for refusing to bargain in
Coombs' presence is the fact that he is no longer its
employee. Notwithstanding, in its brief to the Board,
the Respondent now contends that its refusal is based
on the conduct, of Coombs which precipitated his
suspension and which indicates clearly his extreme
hostility toward the Respondent.
C. Discussion and Conclusion
Section 7 of the Act grants employees the right to
select, with their discretion and without employer or
other interference, those organizations which they will
to' represent them for the purposes of collective
bargaining. A fortiori, the right thus conferred- extends
to the, selection of the agents of organizations thus
chosen. Otherwise stated:
Each party to the collective bargaining process' has
a right `to choose, its' representative, and there is a
correlative duty On the opposite party to negotiate
with the appointed agent[31.
This right is not absolute, and there may be extraordi-
nary' situations; which render, any attempt at- good-
faith bargaining a 'futility, where one party to
negotiations may' validly object to' an agent of the
other.4 However, an objection may not be validly
asserted, as the Respondent here contends, merely
because an agent of the union is not an employee of
the employer under a duty to bargaiii.5
The Respondent's further contention, in its answer,
that its most' recent agreement with the Union
precludes 'the latter from utilizing nonemployee
agents in, future contract negotiations is patently
without'merit. That portion of the contract to which
the Respondent refers relates merelyto the processing
of grievances and in no way purports to deal with the
basic statutory right of either party to select whomev-
er it wishes as its representative' for the purpose of
bargaining.6
Finally, the Respondent tardily contends in its brief
that Coombs, by reason of his conduct' which
precipitated disciplinary action, has evidenced ex-
treme hostility to the Respondent justifying the
latter's refusal to bargain in his presence. We are
precluded from considering these belatedcontentidns
5 Canton Sign Co., 174 NLRB No. 133, TXD, sec. 1).
6 In these circumstances we deem it unnecessary to decide whether a
Imitation , such as that which the Respondent suggests , would be
repugnant to the purposes of the Act and, therefore , unenforceable.
RACINE DIE CASTING CO. INC. 531
since they are predicated on facts which are not a part
of the record in this case and which are inconsistent
with the stipulation that the sole reason for Respon-
dent's refusal to bargain? was the nonemployee status
of Coombs.
Therefore, in light of the record before us and for
the foregoing reasons, we find that the Respondent,
by, refusing to bargain in, the presence of Robert
Coombs, has violated Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic,
and commerce, among-the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE' REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom and, upon
request, bargain collectively with the Union, or with
any member of its duly designated bargaining
committee, including Robert Coombs, as the exclu-
sive representative of all employees in the appropriate
unit and, if an, understanding is reached, embody such
understanding in a signed agreement.
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Racine Die Casting Co., Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, United Automobile, Ae-
rospace & Agricultural Implement Workers of Ameri-
ca (UAW), Local 627-Racine Die Casting Co. Unit, is
a labor organization within the meaningof Section 2(5)
of the Act.
3. All production and maintenance employees at
the Respondent's plant in Racine County, Wisconsin,
excluding office clerical, plant guards, watchmen,
engineering employees, forement, employees of the
tool room, and supervisory employees, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. At all times material herein, the above-named
labor organization has been and now is the exclusive
bargaining representative, of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing, on or about December 31, 1970,,
and continuing to date, to bargain collectively with
the Union or its duly designated bargaining commit-
tee as the exclusive bargaining representative of the
employees of Respondent in the appropriate unit, so
long as its president, Robert Coombs, is present, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with,- restrained, and coerced, and is,
interfering with, restraining, and coercing, employees
in the exercise of the rights, guaranteed to them in
Section 7 of the Act and thereby 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 commerce with in, the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(e) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Racine Die Casting Co., Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions
of employment with International Union, , United
Automobile, Aerospace & Agricultural Implement
Workers of America (UA), Local 627-Racine Die
Casting Co. Unit, or with any member of its duly
designated bargaining committee, including Robert
Coombs, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees at the
Respondent's plant in Racine County, Wisconsin,
exluding office clerical, plant guards, watchmen,
engineering employees, foremen, employees of the
tool room, and supervisory employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
7 See fn . 2, infra.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all employees in the aforesaid appropriate unit or with
all members of its designated bargaining committee;
including' Robert Coombs, with respect to rates of
pay, wages, hours, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agreement. "
(b) Post at its plant in Sturtevant, Racine County,
Wisconsin, copies of the attached notice marked
"Appendix:" 8 Copies ' of said notice, on forms
provided' by the Regional Director for Region 30,
after ' duly signed by Respondent's representative,
shall be postedby the Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Resonable steps shall be taken by
the ' Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith. ,
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words m the notice reading "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURTS 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay , wages, hours, and, other
terms and conditions of employment with Interna-
tional " Union, United Automobile , Aerospace &
Agricultural Implement Workers of America
(UAW), Local 627-Racine Die" Casting Co. Unit,
or with any member of its duly designated
bargaining committee, including Robert Coombs,
as the exclusive-representative-of the"employees in
the bargaining unit-described below.
WE, WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights "guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union as the exclusive representative of all
employees in the bargaining unit described below
or with all members of its duly designated
bargaining committee, including 'Robert Coombs,
with respect` to rates of pay, wages, hours, and
other terms and conditions of , employment and, if
an understanding is reached, embody such under-
standing in a signed agreement. The .bargaining
unit is:
All,. production and maintenance employees
at the Respondent's plant-in Racine County,
Wisconsin, exlcuding ,office clerical, plant
guards, watchmen, engineering employees,
foremen, employees of the tool room, and
supervisory employees.
RACINE DIE CASTING
Co., INC.
(Employer)
Dated By ti
(Representative) (Title)
This is an official noticeland must not be defaced, by
anyone.
This notice must remain posted for ;60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with 'its provisons may be directed to the Board's
Office, Second Floor, Commerce Building, 744 North
Fourth Street, Milwaukee, Wisconsin 53203, Tele-
phone 414-224-3561.