Shenango Steel Bulldings, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1977

231 N.L.R.B. 586 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shenango Steel Buildings, Inc. and International
Association of Bridge, Structural and Ornamental
Iron Workers, Shopmen's Local Union No. 527,
AFL-CIO. Case 6-CA-9094
August 24, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On March 30, 1977, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
to the Administrative Law Judge's Decision and the
General Counsel filed cross-exceptions and a sup-
porting 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, find-
ings,' and conclusions of the Administrative Law
Judge except as herein modified.
The Administrative Law Judge found that Respon-
dent technically violated Section 8(a)(l) and (5) in
bypassing the Union to ascertain employees' desires
for a 10-hour-a-day 4-day workweek. The Adminis-
trative Law Judge noted that Respondent subse-
quently submitted its proposal to the Union and
withdrew such proposal after the Union responded
that any hours beyond a regular 8-hour day had to
be paid as overtime. Moreover, the Administrative
Law Judge noted that Respondent's activities were
designed to help employees because of the gas
shortage rather than to disparage the Union's status.
Accordingly, the Administrative Law Judge found it
unnecessary, in these circumstances, to issue any
remedial relief for this violation inasmuch as he had
recommended a general bargaining order. The
General Counsel excepted to the Administrative Law
Judge's failure to issue a cease-and-desist order and
notice for the violation that he found. We find merit
in the General Counsel's exceptions.
The Administrative Law Judge's general bargain-
ing order does not contain a cease-and-desist
provision which bars future unlawful direct dealing
' The Administrative Law Judge assumed that there was clear objective
evidence of a lack of union majonty status by March 15, 1976. We find it
unnecessary to pass on the validity of that assumption as we agree with the
Administrative Law Judge that "any loss of majonty by that time (was I...
meaningless in view of the earlier refusal to bargain. The Administrative
Law Judge also found that Respondent did not violate Sec. 8(aX5) by
unilaterally assigning unit work to a nonunit employee. In the absence of
exceptions thereto, we adopt, pro forma, the Administrative Law Judge's
finding.
231 NLRB No. 94
with employees. We cannot be sure that Respon-
dent's direct dealing with employees will not again
occur. Therefore, in order to assure employees that
Respondent will not again bypass their collective-
bargaining representative, we shall direct Respon-
dent to cease and desist therefrom.2
The Administrative Law Judge's general bargain-
ing order also contains no notice which informs
employees that Respondent will not engage in future
unlawful direct dealing. In effectuating the policies of
the Act, the Board requires a respondent to post a
notice to inform its employees of their statutory
rights.3 Here, Respondent has interfered with the
right of its employees to engage in collective
bargaining through their statutory representative. In
these circumstances, we perceive no reason for
departing from our customary practice of requiring
the posting of a notice to inform employees that
Respondent cannot interfere with that statutory
right.4 Thus, we find that, by bypassing the Union
and dealing with employees in the unit found
appropriate, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and
(5) of the Act. Accordingly, we shall issue an
appropriate remedial order and notice for the
violation found.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Shenango Steel Buildings, Inc., West Middlesex,
Pennsylvania, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Bypassing the Union and dealing directly with
employees as to wages, hours, and other terms and
conditions of employment covering employees in the
unit found appropriate herein.
(b) Refusing to recognize and bargain collectively
with International Association of Bridge, Structural
and Ornamental Iron Workers, Shopmen's Local
Union No. 527, AFL-CIO, as to wages, hours, and
other terms and conditions of employment covering
employees in the unit found appropriate herein.
(c) Assisting its employees to file decertification
petitions or to withdraw their dues-checkoff authori-
zations.
2 Luxuray of New York Division of Beaunit Corporation, 185 NLRB 100
(1970).
3 Schuykill Metals Corporation, 218 NLRB 317 (1975); Local Union 99,
International Brotherhood of Electrical Workers, AFL-CIO (Crawford
Electric Construction Co.), 214 NLRB 723, fn. 2 (1974).
4 Jeffco Manufacturing Co., a Division of Ball Corporation, 211 NLRB 787
(1974), reversed on other grounds 512 F.2d 1248 (C.A. 4, 1975).
586
SHENANGO STEEL BUILDINGS
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collective-
ly with International Association of Bridge, Structur-
al and Ornamental Iron Workers, Shopmen's Local
Union No. 527, AFL-CIO, as the exclusive bargain-
ing representative of the employees in the unit found
appropriate herein, and, if an agreement is reached,
embody such agreement in a signed contract.
(b) Post at its plant in West Middlesex, Pennsyl-
vania, copies of the attached notice marked "Appen-
dix." 5 Copies of said notice, on forms provided by
the Regional Director for Region 6, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order
what steps Respondent has taken to comply here-
with.
, 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 L abor 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 bypass International Association
of Bridge, Structural and Ornamental Iron Work-
ers, Shopmen's Local Union No. 527, AFL-CIO,
and deal directly with our employees in deroga-
tion of their exclusive bargaining representative.
WE WILL NOT refuse to bargain collectively with
International Association of Bridge, Structural
and Ornamental Iron Workers, Shopmen's Local
Union No. 527, AFL-CIO, as the exclusive
bargaining representative of our employees in an
appropriate unit regarding wages, hours, and
other terms and conditions of employment.
WE WILL NOT assist our employees to file
decertification petitions or to withdraw their
dues-checkoff authorizations.
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 representa-
tive of all employees in the appropriate unit
described below, 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 agree-
ment. The bargaining unit is:
All production and maintenance employees,
excluding office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
SHENANGO STEEL
BUILDINGS, INC.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Mercer, Pennsylvania, on October 21, 1976,
based on charges filed March 8, 1976, amended on June 2,
1976, and a complaint issued June 30, 1976, alleging that
Respondent violated Section 8(aX)(1) and (5) of the National
Labor Relations Act, as amended. The General Counsel
and the Respondent have filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Shenango Steel Buildings, Inc., is a Pennsylvania
corporation engaged in the manufacture and wholesale
distribution of prefabricated steel buildings at West
Middlesex, Pennsylvania. During the year preceding
issuance of the instant complaint, Respondent both
received and shipped goods and materials valued in excess
of $50,000 from and to points outside the Commonwealth
of Pennsylvania. I find, as Respondent admits, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union was certified as the exclusive bargaining
representative of Respondent's production and mainte-
nance employees in 1970, and in 1973 it executed its second
collective-bargaining agreement with Respondent, to ex-
pire April 30, 1976. On November 7, 1975, James
Campbell, Respondent's general manager and vice presi-
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent and the son of its president, William Campbell, met
with the employees to discuss the possibility of putting into
effect a 10-hour 4-day work schedule, telling them that, if
they were in favor of it, he would then present the proposal
to the Union.' The employees were in favor of the plan,
Campbell did present it to the Union, and the Union wrote
back that any hours beyond 8 each day had to be paid for
as overtime. Campbell posted his letter and the Union's
response on the plant bulletin board, and nothing more
was said or done about the proposal.
On January 31, 1976, the Union wrote Respondent,
stating:
This letter will serve as official notification of the
desire of Shopmen's Local Union No. 527 of the
International Association of Bridge, Structural and
Ornamental Iron Workers to terminate at the end of
the current contract year, its existing collective bargain-
ing agreement with your Company.
We desire that our representatives meet with your
representatives for the purpose of negotiating a new
collective bargaining agreement to become effective as
of the expiration of the current agreement, and we will
therefore appreciate your advising us as far in advance
as possible as to the date it will be convenient for your
representatives to meet with our representatives for the
purpose of starting such negotiations.
Respondent replied, by letter of February 12, 1976, that
it had decided "not to renew its present contract" with the
Union. On February 18 and again on March I the Union
wrote letters to Respondent requesting that it meet and
bargain with the Union, and requesting dates upon which
to begin bargaining negotiations. Respondent did not reply
to those letters. On April 30, the day the contract expired,
Union Business Agent James Puglin was at the plant and,
he testified, "they actually had me call an attorney, and the
attorney said no, he told them not to negotiate with me.2
About March 1, employee Ed Winters mentioned to
James Campbell that he had talked to several employees
about having a vote to see if they wanted the Union, and
Campbell responded that Winters should notify the NLRB
in Pittsburgh. Winters called the Board office at Pittsburgh
and, he testified, was informed by a Board agent that a
petition might be untimely because it would be less than 60
days before the contract's expiration date. 3
The next day Winters again spoke with Campbell, and
Campbell called Attorney Bodoh asking him for NLRB
petition forms. On or about March 4, Campbell gave
Winters the forms provided by Bodoh. During the next few
days, several employees signed the petition form in blank.
Campbell testified credibly that the idea stemmed from a Shenango
Valley Chamber of Commerce meeting where the gas shortage was
discussed, including the possibility of a shutdown of plants in the area for I
day a week to conserve energy.
2 The "they" apparently refers to William and James Campbell; the
attorney is apparently Respondent's counsel William T. Bodoh.
3 Because of Winters' recollection of the Board agent telling him the
petition might be untimely, which would have been the case after March 1, I
credit his testimony as to the date of his conversation with James Campbell,
who placed the date as about February 17. I found Campbell to be a
credible witness, but believe he must have been mistaken as to this date.
I According to Campbell, Bodoh told him he was "treading on pretty
About March 7, Winters asked Campbell for help with the
"legal wording" on the form. Campbell again called
Attorney Bodoh, who told Campbell how the form should
be prepared. 4
The form was then typed by Campbell's secretary, who
then put it into an envelope and sent it to the NLRB.
Winters was then informed by an NLRB agent that an
amended petition would have to be filed, and he so
informed Campbell. Campbell told Winters that if he
"needed any help from the attorney, like if I needed any
wording or anything like that, I could contact the
attorney," and Campbell called Bodoh at that time,
"jotting down" what Bodoh told him, then calling in his
secretary to type the amended petition, in Campbell's
presence.
Toward the end of April, employee Nicoloff asked James
Campbell whether his dues would continue to be deducted
after the contract's expiration.5 Campbell then called an
employee meeting for the purpose of discussing how the
employees could revoke their checkoff authorizations,
distributing a copy of his authorization to each employee.
He prepared language for the employees to use if they
wished to revoke them, and five or six of them copied the
language, one or two in Campbell's presence. Campbell
forwarded these revocations to the Union, having informed
the employees at the meeting that he would do so.
B. Discussion
The principal issue in this case is Respondent's alleged
refusal to bargain with the Union on and after January 31,
1976. The uncontradicted facts establish a clear violation
of the Act in that respect, wholly apart from the subsidiary
questions of whether Respondent unlawfully assisted
employees in filing a decertification petition or in revoking
their dues checkoff authorizations, both alleged as inde-
pendent violations of Section 8(a)( ) of the Act.
Thus, Campbell met the Union's initial request (the
January 31 letter) by stating that it decided "not to renew"
the present contract, and made no reply to the Union's two
followup letters of February 18 and March 1. James
Campbell explained that, although he read the entire
January 31 letter, he in effect focused on the word
"termination" in the first paragraph of that letter, and
prepared the response dated February 12, which he sent to
his father in Florida. 6 I credit Campbell, and believe his
shallow water," with respect to his (Campbell's) role in helping with the
filing of the petition.
I Campbell testified that "possibly" Winters was with Nicoloff at the
time. In view of his uncertainty, and because neither Nicoloff nor Winters,
both witnesses in the case (Nicoloff for Respondent), so testified, I conclude
that only Nicoloff made such a request of Campbell.
6 In 1973, as the contract then in effect was approaching expiration, the
Union sent the Company a virtually identical letter to the one it sent
January 31, 1976. William Campbell's reply at that time was that he would
be in a position to discuss the matter dunng a particular week. James
Campbell conceded that he read the 1973 exchange before composing the
February 12, 1976, letter.
588
SHENANGO STEEL BUILDINGS
explanation for responding to the Union as he did, and for
not responding thereafter.7 That explanation, however,
constitutes virtually an admission of a violation of the Act,
for it establishes that Respondent not only had no
objective evidence, at least prior to March 15,8 of any loss
of majority by the Union, but also that, in failing to
respond to the Union's February 18 and March I letters, as
well as in replying to the Union's January 31 letter with an
expressed desire "not to renew" the contract, James
Campbell was not even relying on any possible loss of
majority or facts that may have existed that might have
suggested such a loss. The law is clear that a refusal to
bargain with an incumbent union is violative of Section
8(a)(5) unless based upon objective evidence to support a
good-faith belief that the union has lost its majority. Such a
defense is neither advanced nor present on the facts here.
Respondent argues in its brief that, even if a violation of
Section 8(a)(5) occurred,9 it "continued only until March
15, 1976, at the latest." This contention is predicated on the
"decertification petition" filed at that time. It cannot
prevail, however, because, as already indicated, the refusal
to bargain itself serves to vitiate any subsequent loss of
majority, and also because by March 15 no decertification
petition could be filed, as the parties were already in the
insulated period where no question concerning representa-
tion could be raised. Telautograph Corporation, 199 NLRB
892 (1972).'0 1 conclude, accordingly, that Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to
bargain with the Union on and after February 12, 1976.
In view of the above finding, and the resultant order,
which I shall recommend, that Respondent bargain in good
faith with the Union, the two alleged independent refusals
to bargain are of no great significance, and would add
nothing, if found, to the broad bargaining order. As to one
of them, I have not as yet set forth any facts. It concerns
Respondent's alleged unilateral alteration of a contractual-
ly specified work assignment by assigning nonunit employ-
ee Van Dougherty to perform unit work. I doubt whether a
violation did occur for, without going into the facts at all,
the statement of the alleged violation itself seems to
indicate at most a breach of contract. tI Furthermore, what
violation there may have been occurred long before the
events herein.
As to the asserted bypassing of the Union in connection
with Respondent's assertaining employees' desires for a 10-
hour-a-day 4-day workweek, I believe that there probably
was a technical violation of the Act- for it is a union's job
to ascertain employee opinion prior to any bargaining, not
an employer's. But Respondent did go to the Union, after
7 That he sent the letters of February 18 and March I to his father in
Florida. and that his father told him not to worry about things that he would
be back before the end of March, and the Company had never started
negotiations before that time.
I For purposes of this portion of the case, it may be assumed that by
March 15 there was, as Respondent puts it. "clear objective evidence of a
lack of majority status," but the violation had already occurred. Any loss of
majority by that time is necessarily meaningless in view of the earlier refusal
to bargain.
' Suggesting an "earliest'" possible date of a failure to bargain on
February 12. rather than January 31. In terms of the outcome here, that is.
the Finding of a violation and the order based thereon, the choice of
February 12 rather than January 31 is of no consequence.
a0 I conclude below that Respondent unlawfully assisted in the filing of
checking its employees' desires, and did not put the
proposed new schedule into effect when the Union
countered that it would not agree unless the Company paid
premium pay for the 9th and 10th hours each day.
Furthermore, the suggestion was to help the employees,
and stemmed from the gas shortage of that period, and
there is no indication that Respondent, in checking with
the employees first, had any ulterior motive, any intent to
disparage the Union. i2 As I said earlier, Respondent did
commit a technical violation in this respect but I see no
point, in the circumstances, in making any specific finding
of a violation. It suffices that a general bargaining order
will issue.
The final issues herein concern the alleged unlawful
assistance given by Respondent to employees in connec-
tion with the decertification petition and revoking dues-
checkoff authorizations. It is true, as Respondent contends,
that an employer can lawfully respond to employees'
questions about such matters as decertification petitions
and the withdrawal of checkoff authorizations, provided
there is no coercion of the employees of any sort.
Respondent here, however, as the admitted facts reported
above demonstrate, provided much more assistance to the
employees that merely responding to questions from them.
Attorney Bodoh told James Campbell that he was
"treading on pretty shallow water" in connection with his
activities relating to the decertification petition. In fact, the
water was much too shallow to bear the weight of
Campbell's assistance, both as to the decertification
petition and the withdrawals of the checkoff authoriza-
tions. See, for example, Dayton Blueprint Company, Inc.,
193 NLRB 1100 (1971), Reilly Tar & Chemical Corporation,
151 NLRB 1503, 1508 (1965). I1 conclude, accordingly, that
Respondent violated Section 8(a)(1) by its assistance to the
employees in filing a decertification petition and in
withdrawing their dues-checkoff authorizations.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees em-
ployed by Respondent at its West Middlesex, Pennsylvan-
ia, facility, excluding all office clerical employees, and
guards, professional employees, 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.
2. By refusing to bargain with the Union as the
collective-bargaining representative of the employees in the
that decertification petition. That, of course, would remove the petition as a
valid ground for the Company refusing to bargain with the Union. even had
the petition been otherwise timely, and even had Respondent based its
refusal on that petition. The National Cash Register Companyr, 201 NLRB
1034, 1035 (1973); Telautograph Corp., supra
L1 I also incline toward Respondent's contention that any violation of the
Act in this respect was de minimis in nature. Also, the assignments to
Dougherty were openly done, and are not shown to have caused any
diminution of work to unit employees.
12 The posting by Respondent on the bulletin board of its letter to the
Union and the Union's response is suggested by the General Counsel as
being designed to discredit the Union. I accept Respondent's explanation
that it was to let employees know the outcome.
589
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing unit, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (5) of the Act.
3. By assisting the employees in the filing of a
decertification petition and in withdrawing dues-checkoff
authorizations, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]
590