Siegler Corp.

National Labor Relations Board - Board Decisions

Jan 3, 1961

129 N.L.R.B. 1098 (N.L.R.B. 1961)

1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee benefits as full-time employees and have the same supervision
and working conditions. In accordance with Board policy we shall
include regular part-time mechanics in the unit herein found ap-
propriate?
We find that the following employees of the Employer constitute a
unit appropriate for purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All employees of the Employer's New York, New Jersey, and Con-
necticut shops including mechanics, stock clerks, stock clerks and de-
livery men, brakeshoe rebuilders, brakeshoe and powerbrake rebuild-
ers, and regular part-time employees but excluding clerical employees,
,sales employees, professional employees, guards, and supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
9 Dependable Part8, Inc., 112 NLRB 581.
Holly-General Company , Division of Siegler Corporation and
United Automobile, Aircraft and Agricultural Implement
Workers of America , Western Region #6. Case No. 21-CA-
3900. January 3, 1961
DECISION AND ORDER
On August 1, 1960, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
,ceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Jenkins and Kimball].
The Board has review 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 Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
129 NLRB No. 136.
HOLLY-GENERAL CO., DIVISION OF SIEGLER CORP. 1099
Relations Board hereby orders that the Respondent, Holly-General
,Company, Division of Siegler Corporation, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively concerning rates of pay, wages,
hours of employment, and other terms and conditions of employment
with United Aircraft and Agricultural Implement Workers of Amer-
ica, Western Region #6, as the statutory representative of the em-
ployees in the following appropriate unit:
All Respondent's production and maintenance employees at its
Pasadena, California, plant, including movemen, the stockroom ware-
housemen, the storeroom helpers, group leaders, tow motor operators,
truckdrivers, inspectors, and janitors, but excluding field service,
engineering department, time study, production control, office clerical,
and professional employees, management trainees, the plant manager
secretary, guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
,effectuate the policies of the Act :
(a) Upon request of the Union embody in a written agreement all
the contractual terms and conditions agreed to between it and the
Union on January 6, 1960, including a 6-month reopener clause with
waiver of the no-strike no-lockout provisions.
(b) Post at its plant in Pasadena, California, copies of the notice
attached to the Intermediate Report marked "Appendix A." 1 Copies
of said notice, to be furnished by the Regional Director for the Twenty-
first Region, shall, after being duly signed by Respondent's representa-
tive, be posted for 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees customarily are posted.
Reasonable 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 the Twenty-first Region, in
writing, with 10 days from the date of this Order, what steps it has
taken to comply therewith.
1 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on February 16, 1960, by United Automobile, Aircraft
and Agricultural Implement Workers of America , Western Region #6 , herein called
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union , the General Counsel of the National Labor Relations Board , herein
respectively called the General Counsel' and the Board, through the Regional
Director for the Twenty-first Region (Los Angeles , California ), issued a complaint,
dated March 25, 1960 , against Holly-General , Division of Siegler Corporation,2
herein called Respondent , alleging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and ( 5) and Section 2(6) and ( 7) of the National Labor Relations Act,
61 Stat. 136 , as amended from time to time, herein called the Act.
Copies of the charge , the complaint , and notice of hearing thereon were duly
served upon Respondent and copies of the complaint and notice of hearing there-
on were duly served upon the Union.
With respect to the unfair labor practices , the complaint alleged in substance
that the Respondent since February 12, 1960, has refused to bargain collectively
with the Union , although the Union had been since February 26, 1959, the statutory
representative of Respondent 's employees in a certain appropriate unit.
On April 5, 1960, Respondent duly filed an answer denying the commission of
the unfair labor practices alleged.
Pursuant to due notice , a hearing was held on May 2, 1960 , at Los Angeles,
California , before the duly designated Trial Examiner. The General Counsel,
Respondent , and the Union were represented by counsel . All parties were afforded
full opportunity to be heard , to examine and cross-examine witnesses , to introduce
evidence pertinent to the issues , to argue orally at the conclusion of the taking of
the evidence , and to file briefs on or before May 23, 1960 . Each party has filed a
brief and each has been carefully considered.
Upon the record as a whole and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS OPERATIONS
Respondent , a Delaware corporation , is engaged at its Pasadena, California, plant
in the manufacture of heating and air-conditioning equipment. During the calendar
or fiscal year immediately preceding the issuance of the complaint herein , Respondent
sold finished .products valued in excess of $50 ,000 to customers located outside the
State of California . During the same period , Respondent sold finished products
valued in excess of $50 ,000 to local customers who, in turn, made sales outside of
the State of California . During the same period, Respondent 's direct out-of-State
purchases of merchandise exceeded $50,000 and its indirect out-of-State purchases
of merchandise exceeded $50,000.
Upon the above -admitted facts the Trial Examiner finds that Respondent , during
all times material , was, and now is, 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 for
the Board to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
The Refusal To Bargain Collectively With the Union
1. The appropriate unit and the Union 's majority status therein
The complaint alleged , the answer admits, and the Trial Examiner finds, that on
February 26 , 1959 , the Union was certified by the Board in Cases Nos. 21-RC-5383
and 21-RC-5387 ,as the exclusive representative of all Respondent 's production and
maintenance employees at its Pasadena , California , plant , including movemen, the
stockroom warehousemen , the storeroom helpers, group leaders , tow motor oper-
ators, truckdrivers , inspectors , and janitors but excluding field service , engineering
department , time study, production control , office clerical , and professional em-
ployees, management trainees , the plant manager secretary , guards, and supervisors
as defined by the Act. The Trial Examiner further finds that since February 26,
1 This term specifically includes counsel for the General Counsel appearing at the
hearing.
2 Respondent 's name appears as corrected by stipulation at the bearing.
HOLLY-GENERAL CO., DIVISION OF SIEGLER CORP. 1101
1959, the Union has been the statutory representative of the employees in the above-
described appropriate unit for the purposes of collective bargaining in respect to
grievances, labor disputes, rates of pay, wages, hours of employment, or other con-
ditions of employment.
2. The refusal to bargain
a. The pertinent facts
On January 6, 1960,,after the parties had about 20 bargaining conferences, repre-
sentatives of Respondent met with the Union's representatives and discussed the
proposed contract which Respondent had submitted to the Union about mid-
December 1959. The terms of the proposed agreement were acceptable to the
Union and its representatives so indicated at said meeting. However, there were
five items not included in Respondent's proposal which were discussed at the afore-
said .meeting. These items included the Union's request for a union-security clause,
for a checkoff of dues clause, and for a wage increase. Respondent refused each
of these demands. 'In lieu of an immediate wage increase, Respondent proposed a
6-month wage reopener clause which the Union accepted. The Union also agreed
to waive a no-strike, no lock-out clause which Respondent had proposed. The
Union also agreed to withdraw its demands for a union-security clause, for a check-
off of dues clause, and to accept a 1-year contract.
With (respect to the verbiage to be used in connection with the wage reopener
clause, Lon Chaney, Respondent's vice president manufacturing, testified, and the
Trial Examiner finds, as follows:
Q. At the very close of the meeting [of January 6], you or Mr. Irwin,3
management said, "Now, with respect to details in connection with any wage
reopener .that you say you are willing to, there may be some provisions about
who notifies whom, when, about what, ,but those are things that can easily be
worked out"; and to that Mr. West 4 nodded his agreement, is that correct?
A. These are things that would have to be worked out, yes.
Q. Those were things that would have to be worked out and that would be
worked out, am I correct?
A. Correct.
Q. And the statement that was made by management were these things that
can be worked out and Mr. West nodded his agreement, am I correct?
A. Yes.
The January 6 meeting concluded with the understanding that since Respondent's
proposed contract was acceptable to the Union, the details of the reopener clause
would be worked out, and that Respondent's proposed contract would be submitted
to the Union's members for acceptance or rejection.
On or about January 18 or 19, Jean Amman, Respondent's personnel manager,
showed Chaney a three-page document headed:
To Whom It May Concern
We the undersigned request a vote against union representation in the shop of
Holly General plant, 875 So. Arroya Parkway, Pasadena, California.
This document, which is referred to in record as a decertification petition and which
is discussed more fully below, bore the purported signatures of approximately 110
employees of Respondent.
On January 21, the Union called a meeting of all Respondents' employees-as dis-
tinguished from union members exclusively-in order to, according to one of the
union handbills, "hear the reading of a proposed contract and [to] get all the facts
,[and to cast] a secret ballot for or against the proposed UA.W.-Holly contract."
Another handbill announcing the aforesaid meeting reads, in part, as follows:
For the last few weeks UAW Representatives along with your elected Com-
mittee have been meeting with Holly General Management in an effort to reach
agreement on your contract. Holly Management made what it calls it's last offer
regarding your contract and it is most important that you attend a special meet-
ing to consider this offer.
The proposed contract will be presented to you for your approval or dis-
approval. Hear the final positions taken by your employer and the UAW
Committee at the January 6 meeting.
8 Respondent' s counsel.
4 The Union's assistant director
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Get all of the facts by being present and casting your secret ballot vote for or
against the proposed contract . Ernest West , Region 6 , UAW, Assistant Dir.,
who took part in final negotiations will be present to give his views concerning
the proposed contract agreement.
A democratic Union must be guided by the desires of its membership. Do not
disenfranchise yourself by being absent from this important meeting!
The Union submitted to those attending the meeting referred to immediately above,
Respondent 's proposed contract. The persons attending the meeting voted to reject
Respondent's proposal.
In the latter part of January or in the fore part of February members of manage-
ment met and discussed among themselves , to quote from Chaney's testimony, "what
our alternates might be in view of [the Union's] acceptance of the contract , in view of
the [so-called decertification ] petition we had received."
On February 4, the Union held a membership meeting for the purpose of voting to
accept or reject Respondent 's proposed contract . The handbill announcing this meet-
ing reads , in part , as follows:
A MEETING SHALL BE HELD TOMORROW FOR THE PURPOSE OF
VOTING TO ACCEPT OR REJECT THE UNION CONTRACT WITH THE
HOLLY GENERAL COMPANY.
THOSE ELIGIBLE TO VOTE ON THE PROPOSED U.A.W. CONTRACT
ARE EMPLOYEES WHO SIGNED MEMBERSHIP CARDS. NO OTHER
HOLLY GENERAL EMPLOYEES THAN THOSE WHO SIGNED THE
U.A.W. MEMBERSHIP CARD WILL BE ELIGIBLE TO CAST A VOTE ON
THE ACCEPTING OR REJECTING OF THIS CONTRACT.
At this meeting the proposed contract was accepted by the membership.
On or about February 8, the Federal Mediator who had been assigned to the then
pending controversy between Respondent and the Union, informed Chaney that the
Union's membership had voted to accept Respondent's proposed contract.
On February 8, Employee Vince Scharfenberg went to Amman's office and asked
for the so-called decertification petition because he wanted to file it with the Labor
Board. Upon receiving said petition from Amman, Scharfenberg informed Charles
Burton, his immediate supervisor, that he desired to leave the plant to attend to some
business .5 Burton told Scharfenberg that he may leave the plant provided he
"clocked out." Scharfenberg, after clocking out, went to the Board's Twenty-first
Regional office and submitted the decertification petition to a Board attorney or a
field examiner for filing and processing. After some discussion with the aforesaid
Board agent, Scharfenberg and he conferred with a Board attorney, who informed
Scharfenberg that the decertification petition could not be processed because it bore
no date and for the further reason that the Union's certification year would not expire
until after February 27.8
Upon returning to the plant, after his visit to the Board's offices, Scharfenberg in-
formed Chaney and Amman that the Board would not accept the decertification peti-
tion because it was undated and untimely?
Under date of February 12, Chaney wrote West as follows:
Confirming our representative 's statements during the meeting of February 12,
1960, at which meeting we were requested to reduce the contract to its final form
and execute it, and so that there will be no misunderstanding , we wish to re-state
the Company's position.
As we told you , within the last several days, we have received a petition signed
by more than sixty percent of our employees in the bargaining unit requesting
that an election be held to determine the question of employee representation.
We are further informed that one or more employees went to the Board to
initiate such an election, and that they were told that they were premature.
5 Scharfenberg testified, and the Trial Examiner finds, that he told Burton "the nature
of the business "
6 The Union was certified on February 26, 1959
Section 9(c) (3) of the Act provides, in pertinent part:
No election shall be directed in any bargaining unit or any subdivision within which,
in the preceding twelve-month period, a valid election shall have been held.
9 Later that day, February 8, Scharfenberg drafted another decertification petition and
had it typed by Amman's secretary. This second petition was circulated in the plant by
employee Joe Pauro. The record indicates that the second petition was filed with the
Board but the record is silent as to what action, if any, the Board has taken with respect
thereto.
HOLLY-GENERAL CO., DIVISION OF SIEGLER CORP. 1103
In view of the fact that the certification year expires in less than two weeks,
and in view of the expressed desires of our employees against your continued rep-
resentation , which expression was contained in the petition above referred to and
the signatures on which we have verified, it appears to us that to reduce our
agreement to final form and execute it would operate to deprive our employees of
their rights to an election to determine the question of continued representation.
We therefore have offered , and renew our offer, to execute the final agreement,
such agreement to take effect upon the happening of any of the following
events:
1. A reasonable time has elapsed from the earliest date at which a peti-
tion for election could be filed and no such petition is filed, or
2. A petition for election is filed within such time and the petition is dis-
missed by the Board, or
3. A petition is filed and an election held with results favorable to your
organization.
This proposal was made and is renewed in the sincere belief that in view of all
of the circumstances that it affords the greatest protection to yourselves, to our
employees , and to the Company.
b. Concluding findings
The Board has held , with the approval of the Supreme Court ,8 that a certification
based upon a Board-conducted election must be honored for a reasonable period-
ordinarily 1 year-in the absence of unusual circumstances.
The record in this case is convincingly clear , and the Trial Examiner finds, that after
the union members had voted to accept Respondent 's proposed contract , Respondent
would have executed it, after the verbiage had been agreed upon with respect to the
reopener clause, had not Respondent been confronted with the employees ' decertifica-
tion petition . In other words , Respondent refused to execute its own contract pro-
posal because it bowed to its employees ' "change of mind" regarding their union
affiliations . The choice selected by Respondent was without the pale of the law,
since , as the cases hold,9 the "change of mind" by employees within the certification
year is not the type of unusual circumstances warranting suspension of the 1-year
rule. Respondent , therefore, must be directed to reverse its position to conform to
the requirements of law and be ordered to embody in a written agreement all the con-
tractual terms and conditions to which it agreed at the January 6, 1960 , meeting with
the Union , including a 6-month reopener clause with no -strike no-lockout provisions.
Upon the entire record in the case, the Trial Examiner finds that Respondent's re-
fusal , since February 12, 1960, to bargain collectively with the Union , is violative of
Section 8 (a) (5) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III above, occurring in connection
with the business operations of Respondent described in section I above , have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and such of them as have been found to constitute unfair labor practices, tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, violative of
Section 8(a)(1) and ( 5) of the Act, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that if Respondent had not been confronted with the aforementioned
decertification petition it would have executed the written proposals it submitted to
the Union in December 1959 , which proposals the Union agreed to accept on Janu-
ary 6, 1960, after the verbiage of a reopener clause had been agreed to, the Trial
Examiner recommends that upon the Union 's request, Respondent embody in a
written agreement all the contractual terms and conditions it and the Union agreed
to on January 6, 1960 , including a 6-month reopener clause with no -strike no-lockout
provisions.
8 Ray Brooks v N.L R . 13, 348 U S 96.
9 See , for example , Ray Brooks v N L R B , supra ; Peninsula Asphalt t Construction
Company, 127 NLRB 136; Bluefield Produce f Provision Company, 117 NLRB 1660
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union is, and during all times material was , a labor organization within
-the meaning of Section 2(5) of the Act.
2. Respondent is engaged in, and during all times material was engaged in, com-
,merce within the meaning of Section 2(6) and (7) of the Act.
3. All Respondent's production and maintenance employees at its Pasadena,
California, plant, including movemen, the storeroom clerk, stockroom helpers,
group leaders, tow motor operators, truckdrivers, inspectors, and janitors but ex-
cluding field service, engineering department, time study, production control, office
clerical, and professional employees, management trainees, the plant manager sec-
retary, guards, and supervisors as defined by the Act, constitute, and during all times
material constituted a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. The Union was on February 26, 1959, and at all times thereafter has been,
the statutory representative of all the employees in the above described appropriate
,unit , for the purposes of collective bargaining within the meaning of Section 9(a)
,of the Act.
5. By refusing on February 12, 1960, and at all times thereafter, to bargain col-
'lectively with the above-named labor organization, as the statutory representative
.of the employees in the above-described appropriate unit, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by Section 7 of
the Act and has thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
WE WILL, upon the request of United Automobile, Aircraft and Agricultural
Implement Workers of America, Western Region #6, embody in a written
agreement all the contractural terms and conditions agreed to by us and the
above-named labor organization on January 6, 1960, including a 6-month re-
opener clause with waiver of the no-strike no-lockout provision. The bargain-
ing unit is:
All Respondent's production and maintenance employees at its Pasadena,
California, plant, including movemen, the storeroom clerk, stockroom
helpers, group leaders, tow motor operators, truckdrivers, inspectors, and
janitors but excluding field service, engineering department, time study,
production control, office clerical, and professional employees, manage-
ment trainees, the plant manager secretary, guards, and supervisors as
defined by the Act.
All our employees are free to become or remain members of the above-named
Union or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any labor organization.
HOLLY-GENERAL COMPANY, DIVISION OF SIEGLER CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.