Schlen Body and Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1975

216 N.L.R.B. 110 (N.L.R.B. 1975)

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schlen Body and Equipment Co., Inc . and United
Steelworkers of America, AFL-CIO-CLC. Case
14-CA-7785
January 9, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On September 18, 1974, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and supporting briefs, the Charging Party
filed cross-exceptions and a supporting brief, and the
General Counsel filed exceptions limited to the
Administrative Law Judge's failure to make refer-
ence in his conclusions of law, recommended Order,
posting requirements , and notice to Plaza Truck
Service as comprising a single employing enterprise
with Respondent . The Respondent also filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Steelworkers of America , AFL-CIO-CLC, referred to
herein as the Union , on February 4, 1974 , pursuant to
which complaint issued on April 22, 1974, alleging that
Schien Body and Equipment Co., Inc ., referred to herein as
the Respondent, had engaged in unfair labor practices in
violation of Section 8(aX5) and (1) of the National Labor
Relations Act, as amended . On May 29, 1974, a hearing
was held in St. Louis, Missouri.
Upon the basis of the entire record herein , including my
observation of the witnesses , and after due consideration of
the briefs filed by General Counsel and Respondent, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation , is engaged in the
manufacture and installation of truck bodies and equip-
ment, and the servicing of trucks, at its facility in
Carlinville , Illinois. In the course and conduct of its
business Respondent annually purchases and receives at its
Carlinville , Illinois , facility goods valued in excess of
$50,000 directly from points located outside the State of
Illinois.
I find, on the basis of the foregoing admitted facts, that
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act , and that it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent 's answer admits,
and I find that United Steelworkers of America,
AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Schien Body and
Equipment Co., Inc., Carlinville, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
1 While we agree with the Administrative Law Judge's conclusion that
the Respondent did not violate Sec . 11(ax5) and ( 1) of the Act by unilaterally
transferring bargaining unit work to Plaza Truck Service , we do so on the
basis of all the facts and circumstances of this case, not solely because the
employees suffered no detriment to their employment . We find it
unnecessary to consider or pass upon the Administrative Law Judge's
statement that the Respondent and Plaza Truck Service are a single
employing enterprise . This conclusion is not relevent to the unfair labor
practices found or the remedy ordered herein . Member Penello finds that
the cases cited by the Administrative Law Judge in relying solely on lack of
detriment to the employees are distinguishable and inapposite.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge: This
proceeding arose out of a charge filed by United
III. THE UNFAIR LABOR PRACTICES
A. The Refusal to Bargain
On March 22, 1973, a majority of Respondent's
employees in a unit of its production and maintenance
employees , including warehouse and parts department
employees , by a secret ballot election , conducted under the
supervision of the Regional Director for Region 14 of the
National Labor Relations Board in Case 14-CA-7256,
designated and selected the Union as their exclusive
representative for purposes of collective bargaining with
Respondent.
Following the election, Respondent filed timely objec-
tions to conduct affecting the results of the election. On
April 24, 1973, following his investigation, the Regional
Director issued his Report on Objections and Recommen-
dations, recommending the overruling of Respondent's
objections and the certification of the Union. Upon
consideration of Respondent 's exceptions to the Regional
Director's report, the Board, on August 1, 1973, directed a
hearing.
Thereafter, on October 17, 1973, following a hearing, the
Hearing Officer issued a report recommending that
Respondent 's objections be overruled. On January 15,
216 NLRB No. 15
SCHIEN BODY AND EQUIPMENT CO., INC. 111
1974, the Board issued its Supplemental Decision and
Certification of Representative , overruling Respondent's
objections and certifying the Union as the collective-
bargaining representative of Respondent's production and
maintenance employees , including warehouse and parts
department employees . On January 28, 1974, Respondent
filed with the Board alternative motions , one for reconsid-
eration of the January 15 decision, the other for remand of
the representation proceeding to the Regional Director for
investigation of the alleged preelection offer by the Union
to waive initiation fees, in light of the Supreme Court's
decision in N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270
(1973). Thereafter, on April 12, 1974, the Board issued an
order denying the motion for reconsideration on the
ground that it raised "nothing not previously considered,"
and also denying the motion to remand upon finding it to
be an untimely additional objection to the election.
Since January 28, 1974, the Union has requested that
Respondent bargain with it in accordance with the Board's
certification . On and since January 30, Respondent has
refused to bargain and in its brief to the Administrative
Law Judge admits its refusal . However, both at the hearing
and in its brief, Respondent has sought to defend its
refusal to bargain by challenging the underlying certifica-
tion. In neither instance has Respondent offered any newly
discovered or previously unavailable evidence to support
its timely filed objections. Nor has Respondent offered any
special circumstance which might warrant reconsideration
of any of the Board's determinations in the underlying
representation proceeding. In short, Respondent has not
raised any issue properly litigable in this proceeding
respecting the validity of the certification .' I find, there-
fore, that Respondent was, and continues to be, obligated
to recognize and bargain with the Union which has been
duly certified and that by refusing to do so Respondent has
violated and is violating , Section 8(aX5) and (1) of the Act.
B. The Transfer of Bargaining Unit Work2
In December 1973, John Schien and his wife Norma,
who each own 35 percent of Respondent's stock, opened
Plaza Truck Service, a truck safety and repair facility
which they have since operated as a partnership. Plaza
Truck Service is located approximately 400 yards down
and across the road from Respondent 's facility. John
Schien stdffed Plaza Truck Service with a manager, Keith
Medford, who is responsible for its day-to-day operations,
two welder-mechanics, and a bookkeeper. John Schien sets
the pay rates for Plaza Truck Service's employees, and
together with his wife has set the pay rates for Respon-
dent's employees . John and Norma Schien have set the
layoff policies for both enterprises, and direct Respon-
dent's day-to-day operations.
It appears that in December 1973, the Schiens trans-
ferred two front-end machines, a frame-straightener and a
wheel-balancer from Respondent to Plaza Truck Service.
Since the transfer , Respondent's employees have not
performed front-end alignments , axle-straightening or
wheel-balancing , because of the loss of these machines.
Norma Schien credibly testified that the operation of the
Plaza Truck Service has not reduced regular working
hours, or overtime, nor caused any layoff or loss of pay at
Respondent's facility.3 Respondent afforded the Union no
notice of the equipment transfer and has never offered to
bargain with the Union about the transfer or its impact
upon the bargaining unit.
Arguing that Respondent and Plaza Truck Service
constitute a single entity, General Counsel contends that
by unilaterally transferring bargaining unit work to Plaza
Truck Service at a time when Respondent had a duty to
bargain with the Union, Respondent violated Section
8(a)(5) and (1) of the Act. I do not agree.
The Board has consistently refused to find transfers of
unit work violative of Section 8(aX5) of the Act "where the
employer's allegedly unlawful unilateral action resulted in
no `significant detriment' to employees in the appropriate
unit." Westinghouse Electric Corp., 153 NLRB 443, 446
(1965). Accord: Union Carbide Corporation, 178 NLRB
504, 508 (1964); American Oil Company, 151 NLRB 421,
422 (1965). In the instant case, there has been no showing
of any "significant detriment" to unit employees. On the
contrary, the credited evidence shows that no loss of
overtime, layoff, or other reduction of bargaining unit
working hours has resulted from the transfer of work to
Plaza Truck Service. Thus, notwithstanding that the
Schiens' dominant ownership or financial control, and
overall control of the business and labor policy of the
functionally related entities render Respondent and Plaza
a single employing enterprise (N.LRB. v. Jordan Bus
Company, 380 F.2d 219, 221, (C.A. 10, 1967)), and that the
unilateral conduct occurred after the Union had won the
representation election and Respondent's duty to bargain
collectively had arisen (Laney & Duke Storage Warehouse
151 NLRB 248, 267 (1965), enfd. in pertinent part 369 F.2d
869 (C.A. 5, 1966)), there is no showing that Respondent's
conduct iesulted in any significant detriment to the unit
employees. Accordingly, I shall recommend that General
Counsel's allegations regarding Respondent's unilateral
conduct be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The Respondent's activities as set forth in section III A,
above, occurring in connection with its operations de-
scribed 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.
I See Pittsburgh Plate Glass Co. v. N.LR.B. 313 U.S. 146,158 , 161-162
(1941); Coronet- Western, a Division of Coronet Industries, Inc., 212 NLRB
524 (1974).
2 Except as discussed in fn . 3 below, no credibility issues are presented.
8 Union Representative Becker testified on redirect examination that
Respondent's employees suffered a loss of "overtime or additional time"
because of Plaza 's opening. However, upon recross-examination Becker
conceded that his testimony on redirect was an assumption and that no
employee had ever complained to him about losing overtime . In light of
Becker's subsequent concessions, I have not credited his testimony that
there was a loss of overtime. Moreover , Norma Schien impressed me as an
honest witness in firm possession of the facts . Further, the testimony of
Respondent's employees Talkington and Hunt that the removal of the
equipment had no impact upon their working hours tends to corroborate
her testimony.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(aX5) and (1) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom , and, upon request, bargain collectively
with the Union as the exclusive representative of all
employees in the appropriate unit, and, if an understanding
is reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the appropriate
unit will be accorded the services of their selected
bargaining agent for the period provided by law, I shall
recommend that the initial period of certification be
construed as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropriate
unit . See Mar-Jac Poultry Company, Inc., 136 NLRB 785
(1%2); Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229 (1%2), enfd. 328 F.2d 600, 601 (C.A. 5,
1964), cert . denied 379 U.S. 817 ; Burnett Construction
Company, 149 NLRB 1419, 1421 ( 1964), enfd . 350 F.2d 57,
60 (C.A. 10, 1%5).
Upon the basis of the foregoing facts and the record, I
make the following:
CONCLUSIONS OF LAW
1. Schien Body and Equipment Co., Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO-CLC, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees includ-
ing warehouse and parts department employees employed
at Respondent's Carlinville, Illinois, facility, but excluding
office clerical employees , plant clerical employees, sales-
men, and driver-salesmen, over-the-road truckdrivers,
guards and supervisors as defined in the Act , constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since January 15, 1974 , the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the aforesaid
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about January 30 , 1974, and at all
times thereafter , to bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of all the employees of Respondent in the
appropriate unit , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(aX5) of the Act.
6. By the aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced, and is interfering
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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(axl) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
Respondent, Schien Body and Equipment 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 United Steelworkers of America,
AFL-CIO-CLC, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees including
warehouse and parts department employees employed
at Respondent's Carlinville, Illinois, facility, but ex-
cluding office clerical employees, plant clerical employ-
ees, salesmen, and driver-salesmen , over-the-road
truckdrivers, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of 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 all employ-
ees in the aforesaid appropriate unit 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 Carlinville, Illinois, facility, copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director for
Region 14 , after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered , defaced, or covered by
any other material.
(c) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of
5 In the event that the Board's 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."
SCHIEN BODY AND
complaint found not to have been sustained by a
preponderance of the evidence be dismissed.
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 concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment with United Steelworkers of
America, AFL-CIO-CLC, as the exclusive representa-
tive 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.
EQUIPMENT CO., INC. 113
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative of all
employees in the bargaining unit described below, with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed
agreement . The bargaining unit is:
All production and maintenance employees
including warehouse and parts department em-
ployees employed at Respondent's Carlinville,
Illinois, facility, but excluding office clerical
employees, plant clerical employees, salesmen,
and driver-salesmen , over-the-road truckdrivers,
guards and supervisors as defined in the Act.
SCHIEN BODY AND
EQUIPMENT CO., INC.