Rish Equipment Co.

National Labor Relations Board - Board Decisions

Nov 21, 1968

173 N.L.R.B. 943 (N.L.R.B. 1968)

RISH EQUIPMENT COMPANY 943
Rish Equipment Company and Chauffeurs, Teamsters
and Helpers Local Union No. 175, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 9-CA-
4513
November 21, 1968
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On May 14, 1968, Trial Examiner Joseph I.
Nachman issued his Decision in this proceeding
finding that the Respondent had engaged in and was
engaging 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
Trial Examiner's Decision. Thereafter, the Respond-
ent filed exceptions to his Decision, and a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
all but two employees in the unit without notifying or
consulting with Chauffeurs, Teamsters and Helpers Local
Union No 175, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (herein
called the Union), which had been certified by the National
Labor Relations Board (herein called the Board), and by failing
and refusing to answer the Union's letter requesting bargaining
and information relevant and material to such bargaining,
violated Section 8(a)(5) and (1) of the Act, and (2) whether
under the circumstances here, a bargaining order should issue.
For reasons hereafter stated, I find and conclude that Respond-
ent violated Section 8(a)(5) and (1), as alleged in paragraph 7
of the complaint, and that a remedial order should issue.
At the trial all parties were represented by Counsel, and
were afforded full opportunity to adduce pertinent evidence,
to examine and cross-examine witnesses, and to argue orally on
the record and to submit briefs Submission of briefs was
waived. The parties argued orally on the record, and the same
is included in the transcript
Upon the entire record in the case,3 I make the following
FINDINGS OF FACT 4
The record made at the trial herein presents no factual or
evidentiary dispute, the General Counsel relying upon the facts
developed and found by the Board in the two prior pro-
ceedings above mentioned, of which I take official notice, and
certain facts stipulated by the parties No oral testimony was
taken.
The Prior Proceedings
After extensive proceedings in Case 9-RC-5417, the Board
on July 26, 1963, issued its Decision and Direction of Election
in a unit composed of the employees at Respondent's
Bluefield, West Virginia, facility, including parts department
and service department employees, janitors, inside salesmen,
and plant clerical employees, but excluding all office clerical
employees, guards, professional employees, and supervisors as
defined in the Act Following the election, which was won by
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Rish Equipment Com-
pany, Bluefield, West Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
I At one point in his Decision the Trial Examiner inadvertently
referred to the Board certification of the Teamsters as occurring on
July 26, 1963. The correct date is February 10, 1965.
TRIAL EXAMINER'S DECISION
JOSEPH I. NACHMAN,Trial Examiner This complaint,' is-
sued pursuant to Section 10(b) of the National Labor
Relations Act (herein called the Act), was tried before me at
Bluefield, West Virginia, on April 24, 1968. The issues
presented for decision are whether Rish Equipment Company
(herein called Respondent) by (1) granting a wage increase to
I Issued February 28, 1968, on a charge filed November 13, 1967
2 The complaint as issued, also alleged that by withholding the
aforementioned wage mcrease from two employees because they
assisted and supported the Union, and because they gave testimony
adverse to Respondent in a prior Board proceeding , it also violated
Section 8 ( a)(1) and (4) of the Act In the course of the trial before me,
but before any testimony was taken , the General Counsel and
Respondent, with the concurrence of the Charging Party, entered into
an agreement settling the 8(a)(I) and (4) allegations set forth in
paragraph 4 of the complaint. The settlement agreement provided for
the payment to Yost and Johnson of the amounts lost by them by
reason of the withholding of the wage increase, stipulated to be $ 143 60
and $ 170 84 , respectively , and the posting of notices in conformity
with Board practice . Those allegations of the complaint, therefore, were
severed and will be dismissed upon compliance with the settlement
agreement
3 I direct that the transcript of proceedings at the trial be corrected
in the following particular At p. 37, 1. 25, and p. 38 , 1. 6, the word
"Harding," be changed to read "Harlan "
4 No issue of commerce or labor organization is presented. The
complaint alleges and the answer admits facts which establish both of
these jurisdictional elements. I find these facts to be as so pleaded.
Moreover , in two prior proceedings , hereafter more fully discussed, the
Board found that Respondent was engaged in commerce , and that the
Union was a labor organization within the meaning of the Act See
Rish Equipment Company, 150 NLRB 1185, enfd . 359 F.2d 391 (C.A.
4), and Rish Equipment Company 169 NLRB No. 129
173 NLRB No. 136
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, the Board on February 10, 1965, certified the
Union as the collective-bargaining representative of the
employees in the aforementioned unit.
Prior to the aforesaid certification the Board, on January
23, 1965, issued its Decision and Order in a proceeding based
on unfair labor practice charges filed by the Union (150
NLRB 1185.) In that proceeding the Board found that
Respondent violated Section 8(a)(3) and (1) of the Act, and
remanded the representation case which had been consolidated
therewith, for action by the Regional Director on disputed
ballots. The Board's order in the unfair labor practice case was
enforced by the court of appeals, in 359 F.2d 391 (C.A. 4).
Thereafter, sometime in June 1966, Respondent complied
with the aforesaid order.
On or about February 27, 1967, the Union wrote Respond-
ent requesting recognition and bargaining in the unit certified
by the Board. On the following April 11, the Union renewed
its request by letter to Respondent, and its counsel. The letter
stated that the Union's claim of majority status was predicated
not only on the Board's prior certification, but upon the fact
that the Union had obtained new authorization cards from a
majority of the employees, and the Union offered to prove its
majority status if Respondent had any doubt of that fact
Although Respondent and its counsel received the Union's
April 11 letter on April 12, neither replied thereto.
On charges filed by the Union, the General Counsel on June
29, 1967, issued a complaint charging that Respondent
violated Section 8(a)(5) and (1) of the Act. Finding that there
had been no change in circumstances justifying a change in the
unit from that previously certified by the Board, that the
Union was and continued to be the majority representative of
the employees in that unit; and that the Union had requested
but Respondent had failed and refused to recognize and
bargain with the Union, the Board concluded that Respondent
had violated Section 8(a)(5) and (1) of the Act, and directed it
to bargain with the Union upon requests At the trial before
me the General Counsel stated that the Board had not as yet
sought enforcement of that order in a court of appeals.
In the instant proceeding, the complaint alleges and the
answer admits that on or about October 6, 1967, Respondent
unilaterally granted a wage increase to certain of its employees
without notifying or consulting with the Union. It was
stipulated that at the time there were 19 employees in the unit
certified by the Board, and that the increase referred to was
granted to 17 of these 6 Additionally, the record shows that
by letter dated January 1, 1968, the Union requested that
Respondent meet and bargain with it regarding the wages,
hours and other terms and conditions of employment of the
employees in the aforesaid unit, and that in the interim
Respondent furnish the Union with the names, classifications
and rates of pay of the said employees Although Respondent
received said letter on January 4, the Union has received no
reply thereto.7 By letter dated March 2, 1968, the Union
wrote Respondent's counsel renewing the request that
Respondent meet and bargain with it, this time referring to the
Board's order of February 13, 1968. The letter also renewed
the request for the classification, rate of pay and hours of
work of the employees in the unit Although counsel received
this letter on March 5,he did not reply thereto until March 11,
refusing to bargain on the ground that Respondent did not
believe that the Union represented an "uncoerced majority of
the employees in an appropriate bargaining unit "
Contentions and Concluding Findings
The first issue to be disposed of is whether the Union was
the majority representative of Respondent's employees in the
Unit above set forth, so as to impose upon Respondent the
duty to bargain In determining that question we must start
with the premises that having been certified by the Board on
July 26, 1963, the continued majority status of the certified
union is presumed, but an employer may rebut the presump-
tion by an affirmative showing that the Union no longer
commands a majority. NL.R.B. v Brooks, 348 U.S. 96
However, such "an affirmative showing" is made only if the
employer presents "objective facts that it has a reasonable
basis for believing that the Union has lost its majority status
since the certification." United States Gypsum Company, 157
NLRB 652, 655. See also Kentucky News, Inc., 165 NLRB
No 119, J. C. Penney Company, 162 NLRB 1553, and the
cases there cited Here Respondent has failed to make any
showing whatever of objective facts that would form a basis
for believing that the Union lost its majority status after the
Board's certification It has failed, therefore, to make the
showing required of it if it is to be relieved of the obligation of
bargaining with the Union as the majority representative
Moreover, the Board having on February 13, 1968, ordered
Respondent to recognize and bargain with the Union as the
majority representative of the employees in the aforesaid unit,
that order created a relationship which "must be permitted to
exist and function for a reasonable period in which it can be
given a fair chance to succeed." Franks Bros. Company v
N.L R.B., 321 U S 702, 705. See also Langenberg Hat
Company, 116 NLRB 198, Ruffalo's Trucking Service, 114
NLRB 1549 cf. Squirrel Brand Co., Inc., 104 NLRB 289.
There is no evidence that Respondent has complied with that
Order; it admits that it has not done so. Respondent's March
11, refusal to bargain and its lack of bargaining at any time
since the Board's order, makes it plain that Respondent did
not provide an adequate opportunity for the bargaining
relationship to succeed. Indeed its conduct involved in the
instant proceeding I find and conclude, must be regarded as
but a continuation of Respondent's refusal to bargain involved
in the prior case and evidences its overall design to avoid
bargaining with the Union See Elliott-Williams Co., Inc., 149
NLRB 1242, fn. 1
For the reasons stated, I find and conclude that at all times
material the Union was the collecti ve-bargaining representative
of the employees in the unit above set forth, and that by its
admitted refusal to bargain with the Union upon request,
Respondent violated Section 8(a)(5) and (1) of the Act. I
further find and conclude that by unilaterally granting wage
increases to employees in the aforesaid unit, and failing and
refusing to comply with the Union's request for the names,
classifications and rates of pay of the employees in the Unit,
Respondent also refused to bargain with the Union in violation
5 The findings to this point are based on those made by the Board in 7 It was stipulated that Respondent 's counsel prepared and sent a
150 NLRB 1185, and 169 NLRB No. 129. reply to the Union 's letter, but the same was directed to the wrong
6 The two who did not receive such increase were Yost and Johnson, address and was never received by the Union.
referred to in fn. 2, supra.
RISH EQUIPMENT COMPANY
of Section 8(a)(5) and (1) of the Act NL.R.B v Katz, 369
U S 736, 743; N.L R B v. Truitt Mfg Co , 351 U S 149;
Shoreline Enterprises ofAmenca, Inc , 1 17 NLRB 1619.
Only one question remains, namely, whether under the
facts here, a bargaining order should issue. Respondent argues
that the Board's bargaining order of February 13, 1968 (169
NLRB No 129), is all inclusive, affording full relief, and that
nothing is to be gained by another order which would require
no affirmative or negative action by Respondent not required
by the previous Board order The General Counsel, on the
other hand, argues that the violations here include conduct not
involved in the prior case and hence not specifically mentioned
in the prior order, although the language is broad enough to
embrace all conduct here complained of. In my view the issue
is foreclosed by the Board's decision in Quaker Tool & Die,
Inc 169 NLRB No. 166, where the Board said.
"The fact that an employer is contesting in a court of
appeals the validity of a Board determination that it has the
duty to recognize and bargain with a labor organization
should not be viewed as a bar to the latter's invoking the
Board's remedial processes where the employer, as here, has
allegedly engaged in subsequent acts derogating from its
duty to bargain in good faith which are different in nature
from those covered by the existing Board order. As the
unilateral action which is the subject of the instant
complaint has a tendency to undermine and disparage the
Union in the eyes of employees in the bargaining unit, it is
our opinion that issuance of an order to offset the effects of
any unlawful action by Respondent will effectuate the
purposes of the Act. [Emphasis supplied.]
As heretofore pointed out, the Board's order of February
13, 1968, did not deal with or provide a specific remedy with
respect to unilateral wage increases, or the refusal to supply
appropriate information which the Union had requested,
which are among the subjects of this proceeding. That such
conduct has a tendency to undermine and disparage the Union
in the eyes of the employees in the bargaining unit, there can
be no doubt Accordingly, and on the authority of Quaker
Tool & Die, supra, I find and conclude that an order offsetting
the effect of such conduct by Respondent will effectuate the
purposes of the Act, and is therefore, proper
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2) of the Act and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3 All employees of Respondent, at its Bluefield, West
Virginia, facility, including parts department and service
department employees, janitors, inside salesmen, and plant
clerical employees, but excluding all office clerical employees,
commissioned salesmen, guards, professional employees, and
supervisors as defined in the Act, constitute a unit appropriate
for purposes of collective bargaining, within the meaning of
Section 9(b) of the Act.
4 At all times material the Union has been the collective
bargaining representative of the employees in the aforesaid
unit for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other terms and
conditions of employment.
5. By unilaterally granting the October 6, 1967, wage
945
increase, by fading to reply to the Union request for
bargaining, and to furnish information concerning the
classifications and rates of pay of the employees in said unit,
Respondent refused to bargain with the Union, and thereby
engaged in and is engaging in unfair labor practices proscribed
by Section 8(a)(5) and (1) of the Act.
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent failed and refused to bargain
with the Union as the collective-bargaining representative of the
employees in the aforementioned unit, and failed and refused to
furnish the Union with information relevant and material to
such bargaining, it will be recommended that Respondent be
required to bargain with the Union upon request, and if an
understanding is reached, embody the same into a signed
agreement, and upon request furnish to the Union information
relevant and material to the bargaining between the parties,
including specifically information with respect to the classifica-
tions and rates of pay and hours of work of the employees in
the aforementioned unit. It will also be recommended that
Respondent be ordered to refrain from changing the wages,
hours and other terms and conditions of employment of
employees in the Unit without first bargaining with the Union
concerning the same.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations Act,
as amended, it is recommended that the National Labor
Relations Board order Rish Equipment Company, its officers,
agents, successors, and assigns, to.
I Cease and desist from
(a) Refusing to bargain collectively with Chauffeurs, Team-
sters and Helpers Local Union No 175, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of its employees in the
appropriate unit consisting of- All employees at its Bluefield,
West Virginia, facility, including parts department and service
department employees, janitors, inside salesmen, and plant
clerical employees, but excluding all office clerical employees,
commissioned salesmen, guards, professional employees, and
supervisors as defined in the Act
(b) Refusing to furnish the aforesaid Union, upon request,
with information concerning the names, classifications, and
rates of pay of the employees in the aforesaid unit
(c) Granting any wage increases or otherwise altering the
terms and conditions of employment of any employees in the
aforesaid unit without prior notification to consultation, and,
if requested, bargaining with the aforementioned Union
concerning same.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed to them by Section 7 of the aforesaid Act, except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized by the proviso to Section 8(a)(3)
of said Act, as amended
946 DECISIONS OF NATIONAL
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Upon request, bargain collectively with the above-
mentioned Union as the exclusive bargaining representative of
the employees in the above mentioned unit and, if an
understanding is reached, embody the same into a written
signed agreement
(b) Furnish the aforesaid Union, on request, information
concerning the names, classifications, and rates of pay of the
employees in aforesaid unit, as well as all other information
relevant and material to the bargaining between the parties
(c) Post at its place of business in Bluefield, West Virginia,
copies of the notice attached hereto marked "Appendix "8
Copies of said notice, on forms furnished by the Regional
Director of the Region 9 of the aforesaid Board, after being
duly signed by an authorized representative, shall be posted by
it immediately upon receipt thereof, and be so 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 it to insure that said
notices are not altered, defaced, or covered by any other
material
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision, what
steps it has taken to comply herewith 9
8 In 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 In
the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words " a Decision and Order "
9 In the event the order herein recommended is adopted by the
Board, this provision shall be modified to read "Notify the aforesaid
Regional Director , in writing within 10 days from the date of this
Order , what steps it 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 notify our employees that
WE WILL , upon request, bargain collectively with
Teamsters Local No. 175, as the exclusive representative of
the employees in a unit composed of the employees at our
Bluefield, West Virginia, facility, including parts department
LABOR RELATIONS BOARD
and service department employees, janitors, inside salesmen,
and plant clerical employees, but excluding all office
clerical employees, guards, professional employees and
supervisors as defined in the aforesaid Act, with respect to
the rates of pay, hours of employment, or other conditions
of employment, and if an agreement is reached embody the
same into a written signed agreement
WE WILL, upon request, furnish the aforesaid union
information concerning the names, classifications, and rates
of pay of the employees in the aforesaid unit, and any other
information relevant and material to our bargaining with
Teamsters Local 175
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the right to self-organization, to form labor organizations,
to join or assist Teamsters Local No. 175, or any other
labor organization, to bargain collectively through represen-
tatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act
WE WILL NOT grant wage increases to, or otherwise
alter or change the terms and conditions of employment of
our employees in the aforesaid unit without prior notifica-
tion to, consultation, and, if requested, bargaining with the
aforesaid union concerning the same
All our employees are free to become or remain a member
of Teamsters Local No 175, or any other Union, or not to
become or remain a member of any Union
RISH EQUIPMENT COMPANY
(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 employees have any question concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, Room 2407 Federal
Office Building, 550 Main Street, Cincinnati, Ohio 45202,
Telephone 684-3686