Square Tube Corp.

National Labor Relations Board - Board Decisions

Nov 10, 1964

149 N.L.R.B. 608 (N.L.R.B. 1964)

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Square Tube Corporation and International Union , United
Automobile, Aerospace and Agricultural Implement Workers
of America (UAW), AFL-CIO. Case No. 7-CA-4659. Novem-
ber 10, 1964
DECISION AND ORDER
On August 18, 1964, Trial Examiner Reeves R. Hilton issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in unfair labor practices,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel. [Chairman McCulloch and
Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.1
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that Respondent, Square
Tube Corporation, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order.
1 The Respondent ' s letter, dated October 28 , 1964, requesting permission to amend its
exceptions and brief and referring to a letter of the Union , dated October 16, 1964, not
contained in the record , is denied as the matters there presented are not material to any of
the issues in this proceeding.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed by International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW), AFL-CIO, herein
called the Union, the General Counsel of the National Labor Relations Board,
through the Acting Regional Director for Region 7, issued a complaint, dated
May 4, 1964, alleging that Square Tube Corporation, herein called the Respondent
or the Company, has engaged in and is engaging in certain acts and conduct
in violation of Section 8(a)(5) and (1) of the National Labor Relations Act,
as amended (29 U.S.C. 151 , et seq. ), herein called the Act. The Respondent's
answer admits certain allegations of the complaint but denies the commission
of any unfair labor practices.
149 NLRB No. 55.
SQUARE TUBE CORPORATION 609
Pursuant to notice a hearing was held before Trial Examiner Reeves R. Hilton
at Lapeer, Michigan, on July 7, 1964, at which time the parties were afforded
full opportunity to be heard, to introduce relevant evidence, to present oral argu-
ment, and to file briefs. About August 7, I received briefs from counsel for
all parties, which I have considered fully.
Upon consideration of the entire record,' I make the following: -
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS
The Respondent, a Michigan corporation, maintains its office and place of
business in Marlette, Michigan, where it is engaged in the manufacture, sale,
and distribution of fabricated steel products and related products. During the
fiscal year ending March 31, 1964, the Respondent's out-of-State sales amounted
to more than $80,000. The Company admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue
The principal issue is whether the Union's notice of modification served upon
the Company 60 days prior to the expiration of their agreement was in compliance
with the terms of the contract and Section 8(d) of the Act.
B. The facts
The facts, which are undisputed, are as follows:
On September 16, 1962, the Union, following a Board-conducted election, was
certified as the exclusive bargaining representative for all production-labor em-
ployees at the Company's plant, with the usual exclusions.
Thereafter the parties entered into negotiations with Tracy Doll, International
Representative, and a shop committee, composed of two employees, representing
the Union and John Jezierski, secretary and general manager, representing the
Company. These negotiations resulted in an agreement which was signed by
Jezierski on behalf of the Company, and by Doll, the shop committee, and
Ken Morris on behalf of the Union. Morris was, and is, a member of the
Union's executive board and coregional director of region 1, which includes
the location of the Company's plant.
The agreement became effective December 17, 1962, for a period of 1 year,
"and for successive yearly periods thereafter unless terminated, modified or
amended by the parties hereto." The agreement further provides:
Either party desiring to terminate, modify or amend this Agreement on
its expiration date shall give the other party notice in writing at least
sixty (60) days prior to the termination date or sixty (60) days prior to
any subsequent expiration date.
Doll, who maintained his office at the Union's headquarters in Detroit, was
responsible for servicing the agreement, as well as agreements with other employ-
ers in the area. In the early part of October 1963, Doll conferred with Morris
regarding the agreement and they decided it should be modified. Upon instruc-
tions from Doll, one of the office staff completed the Union's form notice of
modification or termination, captioned "60-day Notice to Employer," advising
'On July 22, 1964, a hearing was held upon the Regional Director's petition for In-
junctive relief under Section 10(j) of the Act, Jerome H. Brooks, Acting Reg. Dir. v.
Square Tube Corp., U.S.D.C. for the Eastern District of Michigan, and an order was issued
granting the relief prayed. (56 LRRM 2981.) Counsel for the Charging Party sent me a
copy of the transcript of this hearing As the district court hearing was held subsequent
to the close of this hearing, and as there is no stipulation that such transcript be made a
part of this record, I do not accept the transcript as part of this record and I have not
considered or relied upon that transcript in making my findings and conclusions.
770-076--65-vol. 149-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company of the Union 's desire to modify the current agreement and request-
ing a meeting for the purpose of negotiating modifications , described therein
as contract modifications and economic demands. The notice states it is being
given pursuant to the terms of the Act and sets forth the name of Amalgamated
Local Union No. 213 , UAW (herein called Local 213), as the party to the
agreement . 2 After the form had been completed Doll had it signed by Kirk
Perley, Sr., president of Local 213 . He then discussed the notice with Morris
who approved it and directed his secretary to stamp his signature thereon, which
she did. The notice is dated October 11, was mailed that day, and the Company
concedes it was received on or about October 14.
Notices were also mailed to the Federal Mediation and Conciliation Service
and the Michigan State Mediation and Conciliation Service on October 11, al-
though the notices are dated November 11. These notices were signed by Doll
and contain the names of both the Union and Local 213.
Doll heard nothing from the Company , so in the latter part of November
or early December he telephoned Jezierski twice but was unable to speak with
him on either occasion and Jezierski did not return his calls.
On December 4, Doll wrote the Company that he and the shop committee
were anxious to meet with it for the purpose of negotiating amendments to
the agreement and requested that the current agreement remain in effect until
the negotiations had been completed.
Doll received no word from the Company, so on December 17 he telephoned
Jezierski who told him the matter had been referred to Attorney Killeen. Doll
then called Killeen who expressed the opinion that since the 60-day period had
expired the contract had renewed itself. On the same date, Killeen sent a letter
to Doll reaffirming his position that the contract had been renewed for 1 year. Kil-
leen also requested a copy of the Union 's notice to the Company and, upon
receipt thereof, he stated he would make arrangements to meet with Doll.
On January 2, 1964, Doll sent a copy of the notice to Killeen, together
with some 16 proposed changes to the contract , and suggested a meeting be
held during the week of January 13.
By letter dated January 10, Killeen advised Doll that the Company has never
had an agreement with Local 213, that this was one of the issues in the 1962
negotiations and when the Company insisted the International Union was the
certified bargaining representative the Union agreed and the subject was dropped.
Killeen pointed out that the Company had not received any notice from
the "Union" as defined in the contract and in the Act, therefore the contract
by its terms automatically renewed itself and is not now open for negotiation.
However, as the Company wished to grant general and individual wage in-
creases to the employees in the unit , "on a strictly voluntary basis," the Company
was willing to discuss these increases with the Union and suggested a meeting be
held on January 21.
On January 21, Doll and the shop committee met with Killeen and Jezierski. At
that time Jezierski handed Doll a memorandum setting forth his proposed wage
increases , which he offered to discuss . Actually, there was little, if any, discussion
on the memorandum , although Doll promised to submit the proposal to the
employees and advise the Company of their decision regarding the increases.
Doll also requested the Company to bargain on the contract modifications pre-
viously submitted, but the company representatives refused to discuss any subject,
other than its own wage increases . Neither party altered its position so the
meeting ended inconclusively and without any arrangements for a future meeting.
By letter dated February 4 , Doll informed the Company that he had held
a meeting of the employees and they voted to reject the Company 's offer of
wage increases and instructed the Union to take such action as might be necessary
to require the Company to bargain on modifications to the contract . Doll con-
cluded by stating the Union was filing unfair labor practice charges against
the Company.
On March 17 Jezierski wrote Doll to advise him that since the employees
had rejected the Company 's proposed wage increases , it was putting them into
effect on March 23.
The present charge was filed on April 2, 1964.
2 Local 213 is located in Marlette and its membership includes the employees covered by
the agreement herein.
SQUARE TUBE CORPORATION 611
Concluding Findings
The duty "to bargain collectively" enjoined by Section 8(a)(5) is defined
by Section 8(d) as the duty to "Meet . and confer in good faith with
respect to wages, hours, and other terms and conditions of employment." The
proviso to Section 8(d) also provides "that where there is in effect a collective
bargaining contract . no party to such contract shall terminate or modify
such contract, unless the party desiring" the change observes the following
procedures: (1) serves written notice upon the other party of such desire 60
days prior to the expiration date of the contract or prior to the time it is
proposed to make such changes; (2) offers to meet and negotiate in respect
to the proposal; (3) notifies the Federal Mediation and Conciliation Service and
appropriate State agencies "within 30 days after such notice," if no agreement
has been reached by that time; and (4) continues the contract in full force, "without
resorting to strike or lockout . for period of sixty days after such notice,"
or until the contract has expired. Employees "who engage in a strike" during
the 60-day period lose their status as "employees," unless subsequently reem-
ployed. Clearly, Section 8(d) was designed to provide a cooling-off period during
which a labor organization is forbidden to strike to enforce its demands to modify
or terminate the contract.3 Of course, there is no strike, or even a threat thereof,
in the present case.
Here, the Company attacks the validity of the 60-day notice of modification
solely on the ground that it was given by Local 213, which was not a "party"
to the agreement. The Company does not claim that the notice was untimely
or that it was in ambiguous terms. Nor does the Company argue that the notice
was prejudicial to any of its substantive rights under the agreement. Unquestion-
ably, the Company fully understood the plain intent and purport of the notice
and its claim that the notice was legally insufficient is bottomed on a highly
technical proposition. In an attempt to support its position the Company relies
upon the decisions in Non-Corrosive Products Company of Texas (116 NLRB
1027) and Rumford Chemical Works (115 NLRB 1260), in which the Board
held that the contract in each case was a bar to a representation proceeding. In
the Non-Corrosive Products case, the Board held an employer association's notice
to terminate the association wide contract was not sufficient to also terminate
the separate contract of a nonmember employer which was identical and had
been signed in accordance with the practice of nonmembers in the area to adopt
the contract pattern established by the association. The Board found that the
petitioning employer was not bound as a member of the contracting association
and there was nothing to indicate that the association had authority to act
for the employer. In the Rumford case, the Board held that a notice by a
unit of a local, which local was signatory to the agreement with the employer of
the unit employees, was insufficient to terminate the agreement since the local had
final and exclusive authority as bargaining representative to terminate the agree-
ment and the unit sent the notice unilaterally, without the consent or approval of
the local. The Board also found that notice to modify prior contracts had origin-
ated from the local, not from any unit thereof. I do not consider the foregoing
cases as authority for the Company's position for they are not only distinguishable
on factual bases, but also turn on the lack of any authorization or approval
from the party to the contract to the individual giving the notice.
Closely analogous to the present facts is Duval Sulphur & Potash Co., (116
NLRB 1073, footnote 3), a representation case. There two of the local unions
involved asserted that an International Representative's timely notice to terminate
their agreements was insufficient and not binding on them because he had
no authority to act on their behalf. The Board rejected these contentions because
the International representative had negotiated the contracts, had signed one
of them and had represented the locals at a representation hearing, and, therefore,
he had "at least apparent authority" to give effective notice of termination. Ac-
cordingly, the Board held that his notice was sufficient to terminate the contracts.
Here, as in the Duval case, the notice was approved and signed by Morris,
who was a signatory, on behalf of the Union, to the agreement. Thus, the notice
on its face shows that if Morris was not in fact acting on behalf of the Union,
he was plainly approving and authorizing Local 213 to send the notice on
3 Procter & Gamble Independent Union of Port Ivory, N.Y. v. Procter & Gamble Hann-
faoturing Company, 312 F. 2d 181, 188 (CA. 2) ; United States Gypsum Company, 90
NLRB 964, footnote 11.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its behalf. Considering all the circumstances, I find and conclude that the notice
herein was in conformity with the terms of the agreement and the provisions
of Section 8(d), and therefore constituted adequate and sufficient notice of the
Union's desire to modify the terms of the agreement .4 Since the Company admits
that it has refused to bargain collectively with the Union on its proposed contract
modifications on and after about October 11, 1963. I find and conclude that the
Company thereby engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
As a corollary to this finding, I find that by unilaterally granting wage in-
creases about March 23, 1964, to the employees in the unit, the Company thereby
violated Section 8 (a) (5) and (1) of the Act.5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring
in connection with its operations set forth in section I, above, have a close,
intimate, and substantial relation 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.
V. THE REMEDY
Having found the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Square Tube Corporation is an employer as defined in Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2(6) and
(7) thereof.
2. International Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, is a labor organization as defined
in Section 2(5) of the Act.
3. All production-labor employees at the Respondent's Marlette, Michigan,
plant, but excluding office clerical employees, professional employees, guards,
and supervisors as defined in the Act, constitute a unit appropriate for bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein the Union has been, and now is, the exclusive
representative of all the employees in the appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively with the Union on and after about
October 11, 1963, and by unilaterally granting wage increases to employees
employed in the appropriate unit, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law,
and pursuant to Section 10(c) of the Act, I recommend that Square Tube Corpora-
tion, its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Refusing to bargain collectively with International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-
CIO, as the exclusive representative of all its employees in the unit found to.
be appropriate in regard to modification of its existing collective-bargaining agree-
ment with the said Union, or by unilaterally granting wage increases to employees
within the unit, or otherwise changing the terms and conditions of employment
of the aforesaid employees without prior consultation and bargaining with the
aforesaid Union.
(b) In any like or related manner interfering with, restraining , or coercing
its employees in the exercise of the rights guaranteed them in Section 7 of
the Act.
' For the same reasons, I find no merit in the Company's contention that the notices to
the Federal and State agencies were defective and that they were prematurely served.
5 N.L.R B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co , 369 U.S. 73r,;
Southern Coach A Body Company, Inc, 141 NLRB 80.
SQUARE TUBE CORPORATION 613
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with International Union , United Auto-
mobile, Aerospace and Agricultural Implement Workers of America (UAW),
AFL-CIO, as the exclusive representative of all its employees in the unit found
appropriate with respect to modification of the existing agreement , including
wage increases and related matters, and , if an understanding is reached , embody
such understanding in a signed agreement.
(b) Post at its plant at Marlette, Michigan , copies of the attached notice
marked "Appendix." 8 Copies of the notice , to be furnished by the Regional
Director for Region 7, shall , after being signed by the Respondent 's representa-
tive, be posted by it immediately upon receipt thereof and be maintained by it
for a period of 60 consecutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure 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 receipt of this Decision and Recommended Order, what steps the Respond-
ent has taken to comply herewith.?
It is further recommended that unless on or before 20 days from the date
of the receipt of this Decision and Recommended Order, the Respondent notifies
the said Regional Director in writing that it will comply with the above Recom-
mended Order, the National Labor Relations Board issue an order requiring
it to take such action.
0 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order "
7 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, as to what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board,. and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with International Union,
United Automobile, Aerospace and Agricultural Implement Workers of Amer-
ica (UAW), AFL-CIO, as the exclusive representative of all our employees
in the appropriate unit described below with respect to modification of our
existing agreement with the said Union, or by unilaterally granting wage
increases to employees within the unit, or otherwise changing the terms
and conditions of employment of the aforesaid employees, without prior
consultation and bargaining with the aforesaid Union.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed them in Section
7 of the Act.
WE WILL, upon request, bargain collectively with the said Union as
the exclusive representative of all employees in the appropriate unit with
respect to modification of the existing agreement, including wage increases
and related matters, and, if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is:
All production-labor employees at our Marlette, Michigan, plant, but
excluding office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
SQUARE TUBE CORPORATION,
Employer.
Dated------------------- •By-------------------------------------------
(Representative) (Title)
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No.
963-9330, if they have any question concerning this notice or compliance with
its provisions.
Unit Manager, Citronelle Unit and District 50, United Mine
Workers of America. Case No. 15-CA-2358. November 10,
1964
DECISION AND ORDER
On August 19, 1964, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Chairman McCulloch and
Members Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudical error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
James R. Webster, in Mobile, Alabama, on January 20 and March 24 and 25,
1964, on complaint of the General Counsel as amended at the hearing, and
on answer of Unit Manager, Citronelle Unit, herein called Respondent. The
complaint, which was issued on November 29, 1963, upon a charge filed on
September 27, 1963, alleges that the Respondent violated Section 8(a)(1), (3),
and (4) of the National Labor Relations Act, as amended. Briefs have been
filed by the General Counsel and by the Respondent, and they have been carefully
considered.
Upon the entire record in this case and from my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is engaged in the management, operation, and development of
Citronelle Field, an oilfield near Mobile, Alabama, on behalf of, and pursuant
149 NLRB No. 66.