Robertshaw Controls Co.

National Labor Relations Board - Board Decisions

Mar 7, 1979

240 N.L.R.B. 1260 (N.L.R.B. 1979)

1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robertshaw Controls Co. and Local 194, International
Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC. Case 10-CA-13361
March 7, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 28, 1978, Administrative Law Judge
Robert C. Batson issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed an
exception and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exception and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Ro-
bertshaw Controls Co., Ellijay, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
I. Insert the following as paragraph 2(d) and relet-
ter the existing paragraphs 2(d) and (e) accordingly:
"(d) Make whole the above-named Union for any
moneys that would have been due the Union under
the terms of any checkoff authorizations executed by
the Respondent's employees but which were not de-
ducted and transmitted to the Union as a result of
The Administrative Law Judge found that the Respondent violated Sec
8(aX5) of the Act by refusing to recognize the Union as the representative of
certain of its employees and apply the current collectise-hargaining agree-
ment to these employees. The Union contends that, as a result of the Re-
spondent's actions, the Respondent failed to deduct and transmit to the
Union the dues of those employees who had executed checkoff authoriza-
tions., and excepts to the Administrative Law Judge's failure to order the
Respondent to make whole the Union for these funds lost, We find merit in
this exception and accordingly modify the recommended Order to require
that the Respondent make the Union whole for any dues lost as a result of
the Respondent's unlawful conduct with interest thereon in the amounts
prescribed in Florida Steel C(ororation. 231 NLRB 651 (1977). and vis
Plumbing & Heating (o., 138 NLRB 716 (1962).
240 NLRB No. 188
the Respondent's failure to apply the terms of the
collective-bargaining agreement to said employees."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wll N refuse to recognize Local 194,
International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, as the ex-
clusive collective-bargaining representative of
our employees in the appropriate unit working
at our Sailor Drive plant.
WE WILL NOT refuse to apply the terms of the
collective-bargaining agreement to our employ-
ees in the appropriate unit working at our Sailor
Drive plant.
WE WILL recognize Local 194, International
Union of Electrical, Radio and Machine Work-
ers, as the exclusive bargaining representative of
our employees in the appropriate unit work at
our Sailor Drive plant.
WE WILL apply the terms of our collective-bar-
gaining agreement to our employees in the ap-
propriate unit working at our Sailor Drive plant.
WE WILL make whole those employees for any
loss of benefits they may have suffered by our
failure to apply the terms of the collective-bar-
gaining agreement to them.
WE WILL make whole the above-named Union
for any moneys that would have been due it un-
der the terms of any checkoff authorizations ex-
ecuted by our employees but which were not de-
ducted and transmitted to the Union as a result
of our failure to apply the terms of the collec-
tive-bargaining agreement to these employees.
ROBERISIIAW CONTROILS CO
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge: This pro-
ceeding under the National Labor Relations Act, as
amended, 29 U.S.C. § 151 e seq. (herein called the Act),
was heard before me on July 13, 1978,1 in Ellijay, Georgia,
based on a complaint 2 and notice of hearing issued by the
Regional Director for Region 10 on February 23, 1978,
'All dates hereafter are in 1978, unless otherwise indicated.
Ihe complaint was amended at the hearing to delete certain allegations
relating to the Respondent's failure to furniah information to the Union.
ROBERTSHAW CONTROLS CO. 1261
growing out of a charge filed by Local 194, International
Union of Electrical, Radio and Machine Workers, AFL-
CIO-CLC, herein called the Union, alleging that Robert-
shaw Controls Co., herein called the Respondent, had vio-
lated Section 8(a)(5) and (1) of the Act.
The issue presented here is whether the Respondent is
required by law to recognize the Union and to apply the
terms of the collective-bargaining agreement to a relocated
segment of the unit to which the collective-bargaining
agreement applies.
All issues were fully litigated at the hearing. All parties
participated throughout by counsel and were afforded full
opportunity to present evidence and arguments, to make
oral arguments, and to file post-hearing briefs. Briefs have
been received from the counsel for the General Counsel
and the Respondent. The record and briefs have been care-
fully considered.
Upon the entire record, including all exhibits and record
testimony, and upon substantial reliable evicence, I make
the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The Respondent is, and has been at all times material
herein, a Delaware corporation, with an office and place of
business located at Ellijay, Georgia, where it is engaged in
the manufacture of appliance controls. During the 12
months preceding the issuance of the complaint herein,
which is a representative period, the Respondent sold and
shipped goods valued in excess of $50,000 directly to cus-
tomers located outside the State of Georgia. The complaint
alleges, the Respondent admits, and I find that, at all times
material herein, the Respondent is, and has been, an em-
ployer within the meaning of Section 2(2), (6). and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that International Union of Electrical, Radio and Ma-
chine Workers, Local No. 194, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The pertinent facts giving rise to the legal issue presented
here are not in dispute. Since 1972. the Respondent has
operated a manufacturing facility located on Progress
Road at Gilmer County Industrial Park, Ellijay, Georgia.
The employees of the Progress Road facility have been
represented by the Union since 1975, the Union having
been certified by the Board as the exclusive collective-bar-
gaining representative of "all full-time and regular part-
time production and maintenance employees employed by
the Respondent at its Ellijay, Georgia facility" on October
6, 1975. The current collective-bargaining agreement is ef-
fective from March 8, 1976. to March 8, 1979.
During the fall of 1977, the Respondent was suffering
growing pains, as a result of which a decision was made to
acquire additional space to accommodate its fabricating
department in order that additional assembly operations
could be installed at the Progress Road facility.3 The Re-
spondent's search for additional space ended when it
found acceptable facilities located on Sailor Drive, Ellijay,
Georgia, about 2 miles from its Progress Road plant.
In December 1977, Respondent's works manager, Roy
Mathis, assembled all the fabricating department employ-
ees, approximately 74, in the breakroom and advised them
that the Company had purchased a new facility for the
fabricating portion of its operation. Mathis informed the
employees that they would not be represented by the
Union at the new facility. He suggested that those who
wished to remain in the bargaining unit could exercise their
seniority rights and bump into another department or, in
the alternative, take a layoff. Mathis further informed the
employees that those who wished to remain in the fabricat-
ing operation at Sailor Drive would be terminated from the
Progress Road plant and hired at Sailor Drive.
It was stipulated that on December 19, 1977, representa-
tives of the Respondent and the Union 4 met to discuss the
Employer's decision to move its fabricating operation from
the Progress Road plant to the new plant on Sailor Drive.
The Respondent's representative informed the union repre-
sentative, apparently not for the first time, that the Re-
spondent would not apply the terms of the collective-bar-
gaining agreement to the employees at the Sailor Drive
facility.
In early January, the Respondent, utilizing the services
of the fabricating department employees as well as the ser-
vices of some of the employees who were to remain at
Progress Road, moved essentially all of its fabricating ma-
chinery to the Sailor Drive plant. It began operating with
approximately 74 employees, all of whom had formerly
worked at the Progress Road plant. One of the former fa-
bricating department supervisors, Dave Parks, became fa-
bricating plant manager and the remainder of the fabricat-
ing supervision remained the same. All office clericals
initially employed at Sailor Drive formerly worked at Prog-
ress Road. Sometime after commencing operations at
Sailor Drive, the Respondent installed six or eight new
pieces of machinery and at the time of the hearing em-
ployed approximately 94 employees, 65 of whom formerly
worked at the Progress Road plant.
On January 18, the Respondent notified Union Repre-
sentative Garney Browning in writing of its move and ad-
vised him that all fabricating department employees had
elected to terminate their employment at Progress Road
and had been hired at the new plant which was not covered
by the collective-bargaining agreement. The Respondent
assured Browning that the procedures of the collective-bar-
gaining agreement had been followed in closing down its
fabricating operation at Progress Road.
'It appears that the two major production departments of the Respon-
dent at this time Were assembl, and fabricating
4The stipulation does not reflect the identity of the representatives
ROBERISHAW CONTROLS CO.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contentions of the Parties
The General Counsel's contention that the Respondent
has a duty to recognize the Union at the Sailor Drive plant
and apply there the terms of the collective-bargaining
agreement in effect at the Progress Road facility is ground-
ed on the theory that the certified unit has remained intact
despite the relocation of the fabrication department.
The Respondent contends that the Sailor Drive plant
constitutes a new, separate, and distinct unit, and it has no
duty to recognize the Union there until the Union has es-
tablished by appropriate means its majority status. It ar-
gues that under the management rights clause of the collec-
tive-bargaining agreement it has the right to relocate a
portion of its operations without incurring a duty to bar-
gain with the Union at the new location until the Union
has demonstrated its majority status. The Respondent fur-
ther contends that under the terms of the collective-bar-
gaining agreement, article I, section 1, paragraph II1, and
article Ill, section (b), the Union unequivocally limited its
right to represent employees under the agreement to those
employees working at the Progress Road facility, and no
other.
For the reasons hereinafter set forth, I find the Respon-
dent's contention to be without merit and that it violated
Section 8(a)(5) and (I) of the Act by refusing to recognize
the Union at the Sailor Drive plant and apply there the
terms of the collective-bargaining agreement in effect at
the Progress Road plant.
Analysis and Conclusions
Preliminarily, it should be noted that there are no com-
plaint allegations that the Respondent engaged in any un-
fair labor practices prior to or concurrent with its reloca-
tion of the fabrication department.
I find and conclude that the Respondent's operation at
the Sailor Drive plant is merely a continuation of the same
operation at the Progress Road plant and that the original
certified unit remains intact. In so finding, I reject the Re-
spondent's contention that the Sailor Drive facility consti-
tutes a separate and distinct unit which has no community
of interest with the remainder of the unit located on Prog-
ress Road. In support of this contention, the Respondent
relies upon a number of factors aside from separate geo-
graphical locations, including the fact that it renamed its
Progress Road facility as the "assembly plant" and its
Sailor Drive facility as the "fabricating plant." Other dis-
tinctions relied upon are the maintenance of personnel files
for Sailor Drive employees at Sailor Drive and separate
employment applications, mailing addresses, telephone
numbers, stationery, bank accounts, and check colors.
However, the two facilities remained functionally integrat-
ed. Roy Mathis, works manager, maintains offices at both
plants and is the immediate superior of the plant managers
of each plant. Vick Davis is quality control supervisor of
both facilities, and the remainder of the supervision at
Sailor Drive remains essentially the same as when the fa-
bricating operation was performed at Progress Road. The
office clericals employed at Sailor Drive previously worked
at Progress Road, and no other new employees were hired
at Sailor Drive before the employees relocated from the
Progress Road facility were employed there. While there
have been 8 to 10 new jobs created at the Sailor Drive
facility, 65 of the 94 employees employed at the time of the
hearing had formerly worked at Progress Road. The new
machinery installed at Sailor Drive constitutes a small per-
centage of the total machinery in use, and although certain
new products are made at Sailor Drive, which were not
formerly made at Progress Road. the basic products re-
main the same.
Additionally, the relocated employees retained the se-
niority they had at Progress Road, as well as job classifica-
tions, wage structure, holidays, and other benefits they had
previously enjoyed. Thus, the basic identity of the fabricat-
ing department has been preserved notwithstanding the re-
location. The same manufacturing process is utilized; the
same employees have been retained; the same departmen-
tal structure exists: the same supervisors, wages, seniority,
job classifications, and benefits all continue at the new lo-
cation. In essence, the only change in the employment sta-
tus of the fabricating department employees occurring in
January is that they then reported for work at a different
location some 2 miles away from their previous location.
Accordingly, I find that the unit has remained inta:t, not-
withstanding the relocation, which has not materially af-
fected the community of interest between the relocated em-
ployees and the remainder of the unit.
The Respondent's second contention, which is essen-
tially that the collective-bargaining agreement limits the
application of the agreement exclusively to the Progress
Road plant and is not a proper vehicle for the Union to
gain representation rights at a separate facility, must also
be rejected. The contract provisions relied upon by the Re-
spondent are:
It is clearly understood that the recognition granted
to the Union refers only to its right to represent the
employees described above working at the company's
facility located on Progress Road, Gilmer County In-
dustrial Park, and no other. Art. I, sec. III, para. Ill.
Any rights under this agreement or during its life
shall have no application beyond the terms of this
agreement or any renewal thereof or in any' plant in
which the company may be interested at an)' location
other than at the location of the plant herein involved.
Art. III, Sec. I(b).
The Respondent argues that the above-quoted provi-
sions explicitly limit the Union's right to represent employ-
ees at any location other than that on Progress Road. The
Respondent's works manager, Roy Mathis, a participant in
the negotiations that resulted in the current collective-bar-
gaining agreement, testified without contradiction that
during the negotiations Garney Browning, chief negotiator
for the Union, asked with reference to the provisions of
article I, set forth above, "What if one [another plant] was
placed at the Progress Road facility? Would it [the agree-
ment] apply?" Mathis replied, "Yes." Browning then
asked, "What about across town?" Mathis replied, "No."
Browning said, "Okay."
I find no substance in the Respondent's contention that
the contract provisions referred to clearly place a geo-
ROBERTSHAW CONTROLS CO. 1263
graphical limitation upon the Union's right to represent
employees at other locations who are otherwise in the unit.
Place designations frequently are used in unit descriptions,
Board certifications, and collective-bargaining agreements
as an additional factor clarifying the employees covered.
Thus, the language of article I referring to the Union's
"right to represent the employees ... working at the com-
pany's facility on Progress Road," merely defines which
employees the Union represents. Similarly, the language of
article 111, "any rights under this agreement . . . have no
application . .. in any plant in which the company may be
interested at any location other than at the location of the
plant herein involved" again merely defines the present lo-
cation of the employees covered by the collective-bargain-
ing agreement. The relocated fabrication department was
part of the unit at Progress Road at the time the contract
was negotiated. The Rittling Corporation, 203 NLRB 355
(1973). Therefore, the department would still be repre-
sented by the Union despite the relocation. Furthermore, it
appears that the question asked by Browning during nego-
tiations with reference to the pertinent language of article I
clearly indicates that at most the Union merely agreed that
the contract would not apply to any new plants or facilities
other than on Progress Road. But a relocation of the unit
employees was not discussed. Therefore, I find and con-
clude that the Union did not unequivocally agree to waive
its right to represent the unit employees in the event those
same employees were relocated to a place other than Prog-
ress Road. R. L. Sweet Lumher Company. 207 NLRB 529,
538, 539 (1973). Assuming that the contract language relied
on by the Respondent could be construed as a geographi-
cal limitation upon the Union's right to represent the unit
employees, it appears that, to the extent that it might be
construed as a waiver of the basic right to representation of
the unit, it would be repugnant to the Act. See Die Supply
Corporation, 160 NLRB 1326, 1340 (1966), denied in perti-
nent part 393 F.2d 462 ( Ist Cir. 1968). However, I need not
here decide whether or not such waiver is repugnant to the
Act, inasmuch as I have found that there was no waiver
here.
Accordingly, the Respondent's refusal to recognize the
Union at Sailor Drive and to apply the terms of the collec-
tive-bargaining agreement there violates Section 8(a)(5)
and () of the Act.
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. All full-time and regular part-time production and
maintenance employees employed by the Respondent at its
Ellijay, Georgia facilities, including local truck driver, but
excluding all office clerical employees, technical employ-
ees, professional employees, guards, and supervisors as de-
fined in the Act constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of Section
9(b) of the Act.
3. All full-time and regular part-time production and
maintenance employees employed by the Respondent at its
Sailor Drive facility, Ellijay. Georgia. are included in the
unit described in paragraph 2 above.
4. By failing and refusing to recognize the Union as the
exclusive collective-bargaining representative of its em-
ployees described in paragraph 3 above and by failing to
apply the terms and conditions of the current collective-
bargaining agreement to them, the Respondent has vio-
lated Section 8(aX5) and (I) of the Act.
5. The Respondent has not otherwise violated the Act.
THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices. it should be ordered to cease and
desist from those and any like or related conduct and take
certain affirmative actions designed to effectuate the poli-
cies of the Act. Such affirmative actions shall include the
recognition of the Union as the exclusive collective-bar-
gaining representative for all the employees described in
item 3, section IV of this Decision, entitled "Conclusions of
Law," the reinstatement of the terms and conditions of
employment existing under the collective-bargaining agree-
ment before the relocation of its employees in the fabrica-
tion department, and making such employees whole for
any losses of benefits which would have accrued to them
under those terms and conditions of employment.
Upon the foregoing findings of fact, conclusions of law,
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following:
ORDER 5
The Respondent, Robertshaw Controls Co., Ellijay,
Georgia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to recognize International
Union Of Electrical, Radio and Machine Workers, AFL-
CIO-CLC, Local 194, as the exclusive collective-bargain-
ing representative of "[A]ll full-time and regular part-time
production and maintenance employees employed by the
Respondent at its Sailor Drive plant, Ellijay, Georgia."
(b) Failing and refusing to apply the terms of the collec-
tive-bargaining agreement executed by the Respondent
and the Union on March 8, 1976, to its employees in the
appropriate unit employed at its Sailor Drive. Ellijay.
Georgia, facility.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Recognize the Union as the exclusive collective-bar-
gaining representative of its employees in the appropriate
unit employed at its Sailor Drive, Ellijay, Georgia, facility.
(b) Apply the terms of the collective-bargaining agree-
ment executed by the Respondent and the Union to the
employees in the appropriate unit employed at its Sailor
Drive, Ellijay, Georgia, facility.
(c) Make whole those employees for any losses of bene-
fits which would have accrued to them under the terms of
In the event no exceptions are filed as provided bh Sec. 102.46 of the
Rules and Regulations of the National abor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided In Sec.
102.48 of the Rules and Regulations. e adopted bh the Board and become
its findings. conclusions. and Order. and all objections thereto shall he
deemed wailed for all purposes
ROBERISHAW CONTROLS CO.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the collective-bargaining agreement during the time the
Respondent refused to apply the term of the agreement to
said employees.
(d) Post at its facilities at Progress Road and Sailor
Drive, Ellijay, Georgia, copies of the attached notice
marked "Appendix." Copies of said notice on forms pro-
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
vided by the Regional Director for Region 10, after being
duly signed by the Respondent's representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable ateps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify said Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.