Superior Fireproof Door & Sash Co., Inc.

National Labor Relations Board - Board Decisions

Apr 1, 1960

127 N.L.R.B. 1 (N.L.R.B. 1960)

Superior Fireproof Door & Sash Company, Inc. and Architec-
tural and Engineering Guild, Local 66, American Federation
of Technical Engineers, AFL-CIO. Case No. 2-CA-5485.
April 1, 1960
DECISION AND ORDER
On October 27, 1959, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.'
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 Leedom and Members
Rodgers and Jenkins].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings,' conclusions,
and recommendations 3
1 Inasmuch as the record and exceptions and brief adequately present the issues and
positions of the parties, the Respondent 's request for oral argument is denied
3 The Trial Examiner, in the fourth paragraph of the section of his Intermediate Report
entitled "The unfair labor practices ," stated that the Union 's contract with Aetna Steel
Products Corp . was executed in March 1959 . This agreement was, in actuality , executed
in March 1957
3 We find without merit the Respondent 's allegations of bias on the part of the Trial
Examiner There is no basis for finding that bias or partiality existed because the Trial
Examiner resolved important factual conflicts arising in this proceeding in favor of the
General Counsel 's witnesses . As the Supreme Court has stated, . . . Total rejection
of an opposed view cannot of itself impugn the integrity or competence of a trier of
fact." N L R.B v . Pittsburgh S S. Company , 337 U . S. 656 , 659 (1949 ). Moreover, as
it is the Board 's established policy not to overrule a Trial Examiner 's resolutions as to
credibility except where , as is not the case here, the clear preponderance of all the
relevant evidence convinces it that the resolutions were incorrect , we find, contrary to the
Respondent 's contention , no basis for disturbing the Trial Examiner's credibility findings.
Standard Dry Wall Products , Inc., 91 NLRB 544, enfd . 188 F. 2d 362 ( CA. 3). In
addition , we find no basis in the record for the Respondent 's contention that the Trial
Examiner harassed one of the witnesses who testified at the hearing
In affirming the Trial Examiner 's finding of 8(a)(1) and (5) violations herein, we do
not rely upon the telegram , allegedly received by the Respondent , from the district
director of the New York State Board of Mediation
127 NLRB No. 3. 1
560940-61-vol. 127-2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Relations Board 'hereby orders that Superior Fireproof Door & Sash
Company, Inc., New York, New York, and Scranton, Pennsylvania,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Making unilateral changes in wages and other terms or condi-
tions of employment, promising and granting 'benefits to employees
and otherwise inducing and assisting them to renounce Local 66 as
their bargaining representative and to organize or affiliate with a rival
labor organization, circumventing Local 66 and bargaining directly
with employees in units represented by Local 66, insisting on the
method of selection or eligibility of union-shop stewards, insisting
that Local 66 give union withdrawal cards to employees outside the
certified bargaining units, refusing to recognize and meet with Local
66, and otherwise failing to bargain collectively in good faith with
Local 66 as statutory bargaining representative of employees in the
appropriate units.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Architec-
tural and Engineering Guild, Local 66, American Federation of
Technical Engineers, AFL-CIO, or any other labor organization, to
bargain collectively through Local 66, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act, or to refrain from
any or all such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment in the manner and to the extent
authorized in Section 8(a) (3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 66 as the exclu-
sive representative of all its employees in the appropriate units con-
cerning rates of pay, wages, hours of employment, or other conditions
of employment, and embody any agreement reached in a signed
contract.
(b) Post at its New York and Scranton operations copies of the
notice attached hereto marked "Appendix." 4 Copies of said notice,
4In 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."
SUPERIOR FIREPROOF DOOR & SASH COMPANY, INC 3
to be furnished by the Regional Director for the Second Region , shall,
after being signed by Respondent 's representative , be posted by Re-
spondent immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily 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 Second Region in writing,
within 10 days from the date of this Decision and Order , what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 bargain upon request in good faith with Architectural
and Engineering Guild, Local 66, American Federation of Tech-
nical Engineers , AFL-CIO, as the exclusive representative of all
employees in the following bargaining units iin respect to rates
of pay, wages , hours of employment , or other conditions of em-
ployment, and, if an understanding is reached , embody such an
understanding in a signed agreement . The bargaining units are:
All technical employees of our engineering department in
our New York operation including estimators , technical
clerks, designers, draftsmen , listers, schedulers, hardware
coordinators , and other technical employees doing similar
work regardless of classification , excluding all other em-
ployees, specifically office clerical employees, production em-
ployees, salesmen , mechanics , teamsters, guards, and super-
visors as defined in the Act.
All technical engineering employees of our engineering
department in our Scranton , Pennsylvania , plant including
draftsmen , designers , listers, schedulers , hardware coordi-
nators, leadmen (also known as squad leaders whose duties
are strictly in the technical direction of technical engineering
employees ) and blueprint operators , and other technical em-
ployees doing similar work regardless of assigned title or
classification , excluding all other employees and specifically
office clerical employees, production employees, mechanics,
teamsters , guards, and supervisors as defined in the Act.
WE WILL NOT bargain directly with our employees , make or
promise to make unilateral changes in wages or other terms or
4 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
conditions of employment, assist and otherwise induce employees
to resign from Local 66 by promises of benefit or otherwise, insist
on method of selecting shop stewards, or that Local 66 give with-
drawal cards to individuals leaving the bargaining units, other-
wise fail to bargain in good faith with Architectural and En-
gineering Guild, Local 66, American Federation of Technical
Engineers, AFL-CIO, or in any like or similar manner interfere
with, restrain, or coerce our employees in the exercise of their
rights of self-organization, to form, join, or assist the above-
named labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities, except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the Act, as
modified by the Labor Management Reporting and Disclosure
Act of 1959.
SUPERIOR FIREPROOF DOOR & SASH COMPANY, INC.,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly designated
Trial Examiner in New York, New York, and Scranton , Pennsylvania , on various
dates beginning March 30, 1959 , and ending May 21 , 1959, on complaint of the
General Counsel (dated October 30, 1958) and answer of Superior Fireproof Door
& Sash Company, Inc ., herein called the Respondent . Motions to dismiss the
complaint are disposed of in accordance with the findings and conclusions hereinafter
set forth.
Upon the entire record in the case,' and from my observation of the witnesses
and a consideration of briefs submitted by the parties, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation located in New York City and Scranton,
Pennsylvania, where it is engaged in the manufacture , sale, and distribution of hollow
doors, bucks, and related products. During the past year Respondent made out-
of-State shipments valued in excess of $200,000. Respondent admits, and I find,
that it is engaged in commerce within Section 2 ( 6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Architectural and Engineering Guild , Local 66, American Federation of Tech-
nical Engineers , AFL-CIO, herein called Local 66, is a labor organization within
Section 2 ( 5) of the Act.
'Including a stipulation dated June 4 and 5, 1959, and attached Schedule "A."
SUPERIOR FIREPROOF DOOR & SASH COMPANY, INC 5
III. THE UNFAIR LABOR PRACTICES
Respondent is a member of Hollow Metal Door and Buck Association, Inc.,
herein called the Association . Following representation petitions filed by Local 66,
and consent elections being held thereon , Local 66 was certiified by the Board on
July 5, 1956 , as statutory bargaining representative for separate units of technical
employees at Respondent 's New York operation and at the plants of five other
Association members? These were separate certifications . Local 66 was certified
for a similar unit at Respondent 's Scranton plant on January 7, 1957. The parties
understood at the time that negotiations would be on an Associationwide basis
but that each employer would bargain individually on wage matters.
Local 66 submitted identical contract proposals to Respondent and to the other
interested employers in July 1956 , and negotiations began on August 30. Subse-
quent meetings in 1956 were held on October 2, 10, 18, and 24 and November 1,
1956. Representing the employers were officers and other representatives of inter-
ested employers as well as their attorney , Sidney O. Raphael , who also is Respond-
ent's attorney of record in the instant case; Local 66's representatives were its business
manager, J. Lawrence Raimist, and shop representatives of various interested con-
cerns. Dissatisfied with the turn of negotiations at the November 1 meeting, Raimist
announced at this meeting that he was invoking the separate certifications and that
all further bargaining with the respective employers would be deemed to be on an
individual employer basis . The New York State Mediation Board was brought
into negotiations , and Respondent and other employers met with Local 66 at the
Mediation Board offices under Mediation Board auspices on December 5, 1956.
Raimist again informed the parties , as he had advised them on November 1, that
meetings were on an individual employer basis even though several employers were
present. State Mediator Howard Gamser stated at the December 5 meeting that he
would call the next meeting.
Local 66 was meanwhile certified on January 7, 1957, for Respondent 's Scranton
unit, as stated above, and it submitted contract proposals for such unit to Respondent
later that month, these proposals being the same as those submitted for the New
York unit.
Aetna Steel Products Corp . is a member of the Association and its representatives
attended some of the aforementioned negotiating meetings before November 1.
Aetna did not participate in any joint -employer meetings with Local 66 after Novem-
ber 1; instead , as Respondent knew at the time, Aetna entered into individual
negotiations with Local 66 and , in March 1959 , it executed the so-called Aetna
contract with Local 66.3 This collective -bargaining contract contained a "favored
nations" clause providing that "Anything to the contrary notwithstanding, no other
Employer in the Hollow Metal Door & Buck Industry shall be accorded terms and
conditions in a collective bargaining agreement which are more favorable than
those contained herein ; including classifications and minimum rates of pay. The
foregoing , however, shall not apply to general wage increases and rates of pay."
Mediator Gamser convened the next negotiating meeting on March 29, 1957,
which Local 66, Respondent , and some other Association members attended. (Un-
less otherwise stated, all events hereinafter recounted occurred in 1957.) Local
66 proposed the Aetna form contract at this meeting as a pattern for negotiations.
Further meetings between Local 66 and the collective group of employers were held
on April 4 and 11, and May 1 and 13; Attorney Raphael submitted complete
counterproposals in behalf of the employer group at the May 1 meeting. These joint-
employer negotiations broke down on May 13, and that was the last such meeting
between Local 66 and the joint-employer group.
Local 66 and Respondent began individual negotiations on May 20, covering the
separate bargaining units at Respondent's New York and Scranton operations.
Respondent 's principal bargaining representatives were Attorney Raphael and Re-
spondent President Irving Schaffer as well as Irving Oxman from the Scranton
plant; 4 representing Local 66 were Raimist and two employee committeemen, Kay
and Feiner , of the New York operation . The parties had further meetings on May
i Triangle Steel Products Co , Inc, City Steel Door Corp, Pioneer Fireproof Door
Corp , World Steel Products Corp , and Williamsburg Steel Products Co. A refusal-to-
bargain proceeding involving the last named concern is presently before the Board on
exceptions to an Intermediate Report in Case No 2-CA-5368.
3 Other individual members of the Association have since executed collective-bargaining
agreements with Local 66.
4 Oxman was assistant to Scranton ' Superintendent Heinz Kielmeyer and was second
highest in the hierarchy of that plant which comprised approximately 250 employees.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
27 and 31 and June 3, 6, 7, 10, and 14. Raimist attempted to arrange further
meetings through Raphael and the State mediation board, but Respondent in effect
rejected such overtures, and Schaffer finally advised Raimist on July 15 that Re-
spondent would not negotiate further with Local 66, stating that Local 66 no longer
represented Respondent's employees.
The parties discussed Local 66's contract proposals at the May 20 meeting; they
agreed on some items, compromised some items, and disagreed on others. Minimum
wage rates were not discussed because of the parties' disagreement on job classi-
fications, which first had to be determined. During working hours sometime between
May 20 and the next bargaining session on May 27 Respondent distributed to all
its New York technical employees a document entitled "Additions to be added or
incorporated into the proposed agreement"; immediately after working hours that
same day Respondent President Schaffer and August Boegner (the latter is Respond-
ent's chief draftsman) called a meeting of the unit. Schaffer discussed each of the
proposals at this meeting and he advised the employees what their classifications
and wages would be thereunder and he also discussed a wage progression system
contained in the document. Respondent had not previously submitted this document
to Raimist and at the May 27 negotiating session Raimist objected to Respondent's
action in calling the meeting and discussing the aforementioned document with
the employees before even submitting such document to the Umon.5
The parties continued to meet on various dates through June 14, as stated above,
and there appears to have been some give-and-take by both sides. Among various
demands, Respondent continued to insist that the contract provide that union-shop
stewards be selected only from Respondent's "senior" 6 employees and that Local 66
give union withdrawal cards to employees in the certified units upon promotion to
sales or supervisory positions outside the units.
There was talk of possible strike action at the June 14 bargaining session and the
parties tentatively arranged a meeting for the next day. This meeting on June 15
(Saturday) was not held. The New York employees walked out without notice at
noon on June 17, whereupon Schaffer advised Local 66 that "this shall necessarily
change our position in bargaining with you, and we must necessarily question your
right to bargain for these or any employees within the bargaining unit." The
employees sought to return on June 18, but were locked out, whereupon they filed
unfair labor practice charges alleging a discriminatory lockout. The lockout was
settled through the intervention of the New York State Mediation Board, with
Respondent reinstating the employees on June 24 conditioned upon their withdrawing
the mentioned charges.7
Raimist made various attempts after June 17 to resume negotiations with Respond-
ent, as already indicated, and Schaffer finally informed Raimist on July 15 that
Respondent would no longer negotiate with Local 66.8
Various employees in the New York unit had meanwhile become dissatisfied
with Local 66's representation because of a failure of the parties to arrive at a
contract and a contributing factor being weekly contributions they were making
to a union strike fund in behalf of another unit on strike against another member
of the Association; these employees- discussed among themselves the desirability of
resigning from the Local 66 and having it decertified as their bargaining representa-
tion: Eight of these men held a dinner meeting after working hours on July 11,
to which they invited Schaffer and Chief Draftsman Boegner. The shop committee
members of Local 66 were not invited, and did not attend. Acting as spokesman
for the group at the meeting, employee Armand Grasso told Schaffer of their dis-
satisfaction, as related above, that they would like to form their own "Guild" after
decertification of Local 66 and that they wanted to know the Company's proposals
and whether Schaffer had any ill will against them for their June 17 walkout.
Schaffer replied that he did not care whether or not the employees remained in Local
66 and that' he would grant the same terms he had offered to Local 66. Schaffer
then discussed all such proposals and specified each employee's wage rates and
proposed increases. Although Schaffer had insisted during his negotiations with
Local 66 that Respondent would discontinue yearly bonuses if he granted wage
increases, Schaffer told the employees at the July 11 meeting that he would probably
continue the bonus payments even with wage increases; although during negotiations
51 do not credit Schaffer's testimony that he had previously informed Raimist of such
contemplated action and that Raimist had, in effect, told him to proceed.
9 This was a job and salary classification.
7 The lockout is not covered by the instant complaint.
8 According to Raimist's credible testimony denied by Schaffer. Upon a consideration
of Schaffer's testimony and my demeanor observations of him, I do not find Schaffer to
be a trustworthy witness.
SUPERIOR FIREPROOF DOOR & SASH COMPANY, INC 7
Respondent had insisted on so-called "equal seniority" in layoffs respecting its opera-
tions in New York, Scranton, and Chicago, Schaffer at this July 11 meeting offered
"supersemonty" in such regard to the New York employees as against Respondent's
Scranton and Chicago employees; and, in specifying the increases each employee
would receive, at this meeting Schaffer announced an amount as to three employees 9
which exceeded what he had stated during negotiations.
Schaffer informed the employees at this July 11 dinner meeting that he would put
into effect the job classifications and wage scales as soon as the men resigned from
Local 66 and he also stated that he would sign a contract with the men after they
had Local 66 decertified as their bargaining representative. Schaffer further stated
that if the employees wished, they could use the services of Respondent's attorney
to organize their own "guild." Grasso, in the presence of Schaffer and Boegner, then
openly polled each of the employees and all present indicated their desire to resign
from Local 66.10 Schaffer advised the employees on the method of resignation,
whereupon some employees wrote out their resignations at this same meeting and
other employees signed such resignation letters in Respondent's office the next day.
None of the employees had resigned from Local 66 before the meeting.
Grasso had brought a NLRB decertification form to the July 11 meeting, and
either Grasso or another employee filled out the form at the meeting. In Schaffer's
and Boegner's presence at the meeting, the employees signed a document to accom-
pany the decertification petition which document authorized an employee committee
(consisting of Giasso and two others) to represent them. Grasso mailed the decertifi-
cation petition to the Board's Regional Office the next day, to have it returned
because improperly completed. With Boegner's approval on July 16, Grasso visited
the Board's office during his working hours and without punching out, in connection
with the decertification matter. During working hours later that day Grasso openly
circulated a new petition to be signed by the technical employees, the petition stating
that the signatories no longer wanted Local 66 to represent them; Grasso had this
petition typed in Respondent's office by one of the office clericals.
During the week ending July 13, Respondent meanwhile gave wage increases to
11 of approximately 13 employees in the New York unit; it shortly gave raises to the
other two employees and it made further increases in 1958. Respondent also made
substantial bonus payments to these employees in 1957 and 1958, and the record
further shows that Respondent had given three increases in January and March 1957
during the period of negotiations. All of these increases were made without notice
to Local 66, and it is recalled that Respondent had taken the position during nego-
tiations that it would grant no bonuses if it agreed to wage increases.
We turn now to concurrent events at Respondent's Scranton plant where in
January 1957, it is recalled, Local 66 was certified as bargaining representative for
a technical unit of approximately 15 employees. There was another bargaining unit
at this plant, consisting of more than 200 production employees, who were repre-
sented at material times here by Local Union No. 2350, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, a labor organization herein called
Carpenters Local 2350. Production employee Joseph McGrath was Local 2350's
chairman or president from 1955 until succeeded by production employee Sam
Wansack on July 15, 1957. Local 2350 began negotiating a new contract with
Respondent in April 1957, and at the same time, as McGrath had advised Superin-
tendent Kielmeyer, McGrath started to organize the employees within Local 66's
unit. During working hours in the period between April and July 1957 and in the
presence of Supervisors Hobbs and Mynyk,ii McGrath repeatedly went into the
drafting room and spoke with the technical employees in behalf of Local 2350 and
he distributed Local 2350 application cards and signed up employees on these
occasions. I find that Kielmeyer was aware of and permitted these activities despite
the fact that Respondent has a plant rule prohibiting union activities during working
hours.
Respondent had laid off three drafting room employees sometime in June 1957.
Several technical employees, including Local 66 Committeeman Fred Foster, met
e Grasso, Capobianco, and Swedish
io Grasso testified that the employees agreed to accept Schaffer's proposal because "we
could get as much without the Union and without dues and assessments."
"Various employees referred to Hobbs and Mynyk as supervisors. Superintendent
Kielmeyer testified that Hobbs and Mynyk have similar authority, that they interviewed
job applicants, that they recommended wage increases for employees, and assigned work
to employees. Oxman, the second in charge in the Scranton plant, advised employees
that they should present their grievances to Hobbs. I find that Oxman, Hobbs, and
Mynyk are supervisors within the meaning of the Act.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several times later that month with Superintendent Kielmeyer concerning these laid-
off employees, and at one of the meetings Kielmeyer advised the employees that he
would recall these men if they would join Local 2350.
The plant was shut down for vacation early in July 1957; when it reopened, tech-
nical employees Ratzel and Onofrey called upon Superintendent Kielmeyer and
inquired about additional vacation time. Kielmeyer replied that the men would
receive such additional benefit if they would join Local 2350. Kielmeyer also men-
tioned at the time that the technical employees would obtain further monetary
benefits under Local 2350's contract if they joined Local 2350, and he also mentioned
that the employees had not received any benefits through Local 66. A few days
later, Kielmeyer summoned Ratzel and Onofrey to accept a telephone call from
Respondent's New York office to the effect that the New York unit had dropped out
of Local 66. (Kielmeyer testified that Respondent has a plant rule, which it strictly
enforces, prohibiting telephone usage except for business and emergency purposes
and that only Mynyk and H9bbs and one Ross were permitted, under the rule, to
accept incoming calls from New York.) The call on this occasion was placed by
Respondent's New York office and was from New York employee Grasso, whose
activities in this connection have already been recounted; Grasso informed Ratzel
and Onofrey that the New York employees had resigned from Local 66 and had
received more money from Respondent than Local 66 could have obtained for them
and Grasso suggested that the Scranton unit also talk to President Schaffer con-
cerning wages and related matters.
Kielmeyer testified that a group of approximately six technical employees came to
him following the lockout at the New York operation and indicated that they had not
heard from Raimist and could not reach him and that they were confused and
wanted more money. Kielmeyer had several meetings in July and August with this
group during which he told them that if he were in their position he would join
Local 2350 because, among other things, Local 2350 had a pension plan and a
"better" hospitalization plan than Local 66. Kielmeyer discussed wage increases
with the group and he told them on one such occasion what increases each man
would receive. At one of these meetings with this group, Kielmeyer summoned
employee Wansack, Local 2350 president, to discuss Local 2350 with the men.
Kielmeyer left the meeting, and Wansack thereupon spoke to the group during work-
ing hours concerning the advantages of joining Local 2350.
During the morning of July 16, Local 2350's outgoing president, McGrath, and
its new president, Wansack, advised Superintendent Kielmeyer that Local 2350 had
planned an organizational meeting for the technical employees to be held at a local
hotel at 4:30 that day, which was the normal quitting time at the plant. Interna-
tional Representative Raymond Genetti of the Carpenter's International Union was
scheduled to address the meeting, and Wansack asked Kielmeyer to release the draft-
ing employees at noon that day so that they could attend the meeting. Kielmeyer at
first refused. McGrath then told Kielmeyer that the employees would not attend
the meeting unless given time off; Kielmeyer thereupon agreed to excuse the
technical employees for the stated purpose if Local 2350 would reimburse the em-
ployees for working time lost, which Wansack agreed to do.12 Wansack and McGrath
then went into the drafting room during working hours and advised the personnel
there that they could have the afternoon off in order to attend the mentioned
meeting. All technical employees, including Supervisors Mynyk and Hobbs, accord-
ingly punched out at noon and later attended the meeting on which occasion
Genetti attempted to persuade employees to join Local 2350. Local 2350 paid the
employees their equivalent wages for the afternoon.
On or about July 20, several adherents of Local 66 prepared a letter of resignation
to be sent to Local 66 and they submitted a copy thereof to Kielmeyer. Schaffer
summoned employees Ratzel and Foster, both of whom had signed the letter, and
he stated his objection to that part of the resignation letter which indicated that the
men were resigning from Local 66 because they now were in the minority and feared
a discharge unless they resigned Schaffer told the employees that the letter could
be used in an unfair labor practice proceeding against Respondent 13 and that they
should file their own charges against him if they were so inclined, and he told them
to rewrite the letter without the aforesaid explanation, which they did.
Late in July, Local 2350 lost the union pledge cards signed by technical employees,
and President Wansack distributed new cards during working hours for signature
IsKielmeyer testified that he agreed to release the employees in order to remain on
good terms with Local 2350 during then pending contract negotiations with Local 2350.
A' Charges in the instant case were served upon Respondent a day or two earlier.
SUPERIOR FIREPROOF DOOR & SASH COMPANY, INC 9
by these employees. Employee Onofrey went to Kielmeyer after receiving such
card from Wansack and he told Kielmeyer in effect that he was not going to sign
the card unless he received a wage increase. Kielmeyer told Onofrey that every-
thing would work out satisfactorily and that Onofrey should sign the card, and that
he, Kielmeyer, would give Onofrey a $5 increase no later than August 12. (This
August 12 date apparently related to the anticipated execution date of a contract
with Local 2350.) Onofrey received the increase.
During the week ending July 13 Respondent gave wage increases to its Scranton
technical employees; and it gave them another increase on August 12; it also had
given increases to three employees during the period of negotiations earlier that
year. Several employees met with Kielmeyer in or about September in regard to
further wage increases. Kielmeyer told them at the time, according to employee
Edward Plauga's credible testimony, that "his [Kielmeyer's] lawyer told him not
to go any further, that he had already gotten too far, and that . . . the only way
I can give [wage increases] to you is if the Labor Board is going to decertify Local
66." Kielmeyer then offered to pay the travel costs for two employees to visit the
Philadelphia Regional Office of the Board to file such decertification petition and
he further stated that he, Kielmeyer, would also punch the timecards and pay the
wages of two employees while on such trip to Philadelphia. Respondent gave
further increases to the Scranton employees in January and February 1958, and it
granted still further increases later that year and in 1959. Respondent also made
substantial bonus payments to all its Scranton technical employees in 1957 and in
1958. As in New York, all these aforementioned increases were made without
notice to Local 66.
Further Findings and Conclusions
Mindful of the respective certification dates for the New York and Scranton units
and viewing the whole 14 of Respondent's conduct respecting Local 66, both before
and after Schaffer's final refusal on July 15 to meet further with Local 66, I find
that Respondent failed to bargain in good faith with Local 66 from the outset of
negotiations and that such conduct achieved its ultimate purpose when Respondent
cut off negotiations and in effect withdrew recognition from Local 66. The record
thus establishes, among other aspects of Respondent's conduct in undermining the
representative status of Local 66 during a certification year,15 that Respondent bar-
gained directly with employees in circumvention of Local 66, that Respondent gave
better terms to employees than it had offered to Local 66, that Respondent in-
sisted on contract provisions relating to internal union matters, that Respondent
made changes in wages and working conditions without notice to Local 66, that
Respondent questioned Local 66's representative status and then refused even to
meet with Local 66, that Respondent permitted the wholesale use of its premises
and other facilities during working hours for activities against Local 66 and in
behalf of a rival labor organization, that Respondent counseled with employees and
offered to defray the expenses of employees in securing a decertification of Local
66, and that Respondent sought to induce and did induce employees to resign from
Local 66 and also to affiliate with a rival organization by promising and granting
wage increases and other benefits and also by promising to rehire laid off employees.
See Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678; N.L.R B. v.
Crompton-Highland Mills, Inc., 337 U.S. 217.
Respondent attempts to explain this case in terms of Local 66's own conduct,
and it refers particularly to the 'aforementioned 1-day strike, to the employees' dis-
satisfaction with Local 66's bargaining efforts, to the "favored nations" clause in
the Aetna agreement, and also to a claimed bargaining impasse on and after June 14.
A bona fide impasse does permit an employer to take certain necessary action,
otherwise prohibited as unilateral conduct, to enable him to continue operations;
but such impasse does not justify superior terms than were offered to the bargaining
representative or refusals to continue bargaining or buying off the employees with
promises of and the granting of monetary and other benefits or participating in and
otherwise assisting in efforts to overthrow the statutory bargaining representative;
even to justify the limited unilateral action permitted during an impasse, the impasse
must be bona fide,16 which the claimed impasse was not in this case. It is true, as
11 See NLRB. v. Henry Heide, Inc., 219 F. 2d 46, 49-50 (C.A. 2), cert. denied 349
Ti S 952
15 Ray Brooks v. N.L.R.B. 343 U S. 96; N.L R.B. v. Henry Heide, Inc., 219 F. 2d 47-48
(CA 2) ; Stoner Rubber Company, Inc, 123 NLRB 1440.
1e N L R B. v. Andrew Jergens Co , 175 F. 2d 130, 136 (CA. 9), cert denied 338 U S.
827, 882.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends , that employees became disenchanted with Local 66. Such
discouragement resulted from Local 66's lack of bargaining success, and on this
record it may not be gainsaid that the breakdown in negotiations was at least sub-
stantially , if not entirely , attributable to Respondent 's conduct under consideration
here. In any event , even a defecting unit does not excuse a refusal to bargain
during a certification year or otherwise justify Respondent 's other aforementioned
conduct.
There is an evidentiary conflict concerning the circumstances of the 1-day strike,
with Raimist denying responsibility therefor . Even were I to find, which I do not,17
that Raimist did pull out the men on that occasion , such fact could hardly justify
or otherwise mitigate Respondent 's activities . It appears in regard to the "favored
nations" clause , that Respondent 's counsel ( who also represents the Association and
Aetna ) had advised Raimist that such clause would not interfere with a contract
negotiated by the instant parties ; and the record of negotiations shows Raimist's
willingness to accept various terms less favorable to Local 66 than those in Aetna's
contract , and it also appears that Local 66 has since executed contracts with other
Association members, containing less favorable provisions than in the Aetna
agreement.
Referring to the circumstances that the certification year for the New York unit
ended on July 5, 1957, and that there were mass resignations from Local 66 of
employees in such unit , hi Respondent further asserts that it had valid basis for
doubting the continuing majority of Local 66 after the certification year and that
it was therefore privileged "to revise" its bargaining position and, in effect, to
ignore Local 66 as exclusive bargaining representative . Respondent cites as sup-
porting authority a recent decision in Stoner Rubber Company, Inc, 123 NLRB
1440. The Stoner case involved the propriety of questioning a union's representa-
tive status and of certain unilateral wage increases 2 months after termination of
a certification year at a time when a strike was in its fifth month and during the
last 3 months of which the Union in question had not even communicated with the
employer, in addition to which, among other circumstances found by the Board,
"the Respondent [ Employer] gave no indication of bad faith prior to taking this
[unilateral ] action and committed no unfair labor practices." [ Emphasis supplied.]
The factual difference makes the Stoner case wholly inapposite here . Whatever
defections in Local 66 did occur were, I find, a result of Respondent 's own lack of
good-faith bargaining, and Respondent may not be permitted to reap the benefits
of its action by challenging Local 66's continuing majority status after the certifica-
tion year in the New York unit.19 See Medo Photo Supply Corporation v. N.L.R.B.,
321 U S. 678 , 687; Franks Bros . Company v . N.L.R.B ., 321 U.S. 702, 703-704.
1 accordingly conclude that Respondent has violated Section 8(a)(5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of Respondent set forth in section III, above , occurring in connection
with its operations described in section I, above, have a close, intimate, and sub-
stantial 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 that Respondent has engaged in and is engaging in certain unfair
labor practices affecting commerce , it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act, including a requirement that Respondent bargain in good faith with Local
66 in behalf of the respective units in New York and Scranton . See the Franks Bros.
and other aforecited cases.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, 'I make the following:
17 I consider Raimist a credible witness.
Is It is recalled that there were no such resignations until the meeting with Schaffer
on July 11.
19 Respondent further asserts that , despite the separate certifications , the New York
and Scranton units should be regarded as one unit and that its argument based on the
Stoner case similarly applies to the Scranton employees . So to regard both groups and
Respondent 's actions respecting both groups has the effect , in my opinion and I so find,
of heightening and not lessening the impact of Respondent 's unlawful conduct at both
operations.
LAUNDRY, CLEANING & LINEN WORKERS UNION 11.
CONCLUSIONS OF LAW
1. Architectural and Engineering Guild , Local 66 , American Federation of Tech-
nical Engineers , AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
2. All technical engineering employees of Respondent 's engineering department in
its New York operation including estimators , technical clerks, designers , draftsmen,
linters , schedulers , hardware coordinators , and other technical engineering employees
doing similar work regardless of assigned classifications , excluding all other employ-
ees, specifically office clerical employees , production employees , salesmen , mechanics,
teamsters, 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.
3. All technical engineering employees of the Respondent 's engineering depart-
ment in its Scranton, Pennsylvania, plant, including draftsmen, designers , listers,
schedulers, hardware coordinators , leadmen ( also known as squad leaders whose
duties are strictly in the technical direction of technical engineering employees)
and blueprint operators , and other technical engineering employees doing similar
work regardless of assigned title or classification excluding allPother employees and
specifically office clerical employees , production employees , mechanics , teamsters,
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. On July 5, 1956 , and January 7, 1957, respectively, and at all times thereafter,
Local 66 has been and still is the majority representative of the employees in the
above-described appropriate units for purposes of collective bargaining in respect to
rates of pay , wages , hours of employment , or other conditions of employment.
5. Respondent has failed to perform its obligation to bargain in good faith with
Local 66 in and since January 1957 , as to each bargaining unit, and has violated
Section 8(a) (5) and ( 1) of the Act by the following conduct:
(a) Insisting that shop stewards be chosen from among "senior" employees and
that Local 66 give union withdrawal cards to employees promoted to positions
outside the aforementioned units.
(b) Promising and granting unilateral wage increases and other changes in work-
ing conditions during a certification year and otherwise while Local 66 was the
statutory bargaining representative.
(c) Bargaining directly with employees during a certification year and otherwise
while Local 66 was the statutory bargaining representative and offering employees
better terms than those it offered to Local 66.
(d) Questioning Local 66 's representative status and refusing to recognize or
otherwise negotiate with Local 66 during a certification year and otherwise while
Local 66 was the statutory bargaining representative.
(e) Urging , aiding, and inducing employees by promises and grants of economic
benefits, to renounce Local,66 and also to affiliate with a rival organization to Local
66 during a certification year and otherwise while Local 66 was the statutory bar-
gaining representative and also permitting and assisting in such activities during
working hours.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Laundry, Cleaning & Linen Workers Union , Local 218, Laundry,
Dry Cleaning & Dye House Workers International Union
and Apex Linen Service of Chattanooga . Case No. 10-CC-435.
April 5,1960
DECISION AND ORDER
Upon charges duly filed on October 9, 1959 , by Apex Linen Service
of Chattanooga, herein called Apex , against Laundry, Cleaning &
Linen Workers Union, Local 218 , Laundry, Dry Cleaning & Dye
127 NLRB No. 5.