The Nelson Co., Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1966

157 N.L.R.B. 1451 (N.L.R.B. 1966)

THE NELSON CO, INC 1451
The Nelson Co., Inc. and Louisville District Council of Woodwork-
ers, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO. Case No 9-CA-3483 Apnl 5,1966
DECISION AND ORDER
On November 16, 1965, Trial Examiner John P von Rohl issued his
Decision in the above-entitled proceeding, finding 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 attached Trial Examiner's Deci-
sion Thereafter, the General Counsel filed limited exceptions with a
supporting brief
Pursuant to the provisions of Section 3(b) of the National Labol
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins]
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds 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 this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner i
[The Board adopted the Trial Examiner's Recommended Order ]
The Board has duly considered the General Counsels exceptions and brief and finds
such exceptions to be without merit Consistent with the Trial Examiner 's finding that
Respondent is not now the employer of the employees at the Bergman Street plant and
that it has no control over the operations of Altuc Inc, we find no merit in the Gen
eral Counsel's contention that Altuc, Inc, is an alter ego of Respondent We also agree
with the Trial Examiner that the successorship issue raised by the General Counsel was
not properly pleaded in this case which names only The Nelson Co as the Respondent
The Respondent having filed no exceptions , the Trial Examiner 's findings of violations
are hereby adopted pro forma
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on February 18, 1965, the General Counsel for the National
Labor Relations Board, by the Regional Director for Region 9 (Cincinnati, Ohio),
issued a complaint on April 9, 1965, against The Nelson Co, Inc, herein called the
Respondent or the Company, alleging that it had engaged in certain unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended, 61 Stat 136, herein called the Act The
Respondent's answer denies the allegation of unlawful conduct as alleged in the
complaint
Pursuant to notice, a hearing was held in Louisville, Kentucky, on June 15, 1965,
before Trial Examiner John P von Rohr All parties were represented by counsel
and were afforded full opportunity to adduce evidence, to examine and cross-examine
witnesses, and to file briefs Briefs have been received from the General Counsel and
the Respondent and they have been carefully considered 1
' The Respondent attached a copy of a two page letter to its brief Assuming that
Respondent thereby intends to offer this document in evidence, such offer is hereby rejected
157 NLRB No 85
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case , and from my observations of the witnesses,
I hereby make the following
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent is a Kentucky corporation with its plant and principal place of
business located in Louisville, Kentucky, where it is engaged in the processing and
manufacturing of various household fixtures and attachments During the 12 months
preceding the hearing herein, Respondent purchased and received goods and supplies
valued in excess of $50,000 directly from points located outside the State of Kentucky
Respondent concedes, and I find, that it has been engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Louisville District Council of Woodworkers , United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, herein called the Union , is a labor organization
within the meaning of Section 2 ( 5) of the Act
III THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated Section 8 (a) (1) and (5) of the
Act by failing and refusing to sign a collective-bargaining agreement, the terms of
which it is alleged were agreed upon at various times between June 26 and Decem
ber 9, 1964 Respondent defends on the ground that (1) it never agreed to an over-
time provision, as submitted in the Union's proposed contract, and (2) it has sold
its plant located at 633 Bergman Street, Louisville, Kentucky, and hence is no longer
the employer of the employees located at this location
On April 8, 1964, the Board certified the Union as the collective-bargaining repre-
sentative of Respondent's maintenance and production employees employed at
Respondent's plants located at 149 East Woodlawn and 633 Bergman Street, Louis-
ville, Kentucky, the saia unit excluding installers, foremen, all office clerical employ-
ees, and all guards, professional employees, and supervisors as defined in the Act
(Case No 9-RC-5728)
Approximately four bargaining sessions were held by the parties during the period
between June and November 1964 2 Thereafter, beginning in November, further
bargaining meetings were held with the assistance of a commissioner of the Federal
Mediation and Conciliation Service The parties to all purposes reached agreement
on the terms of a collective-bargaining agreement on December 9, 1964, for on this
date the commissioner sent a letter to all parties which stated as follows
In accordance with our understanding, I am enclosing a Memorandum of
agreement covering the contract settlement which was reached in our offices
on December 9, 1964 In addition to the enclosed Memorandum, the parties
agreed that Mr Sayers and Mr Porter would meet at the earliest opportunity
in order to formulate contract language effectuating the provisions of this
agreement
The memorandum of agreement enclosed with the above letter pro,, ided as follows
At a joint conference on December 9, 1964, attended by Mr J T Nelson and
Mr Charles Porter, representing the company, and Mr Andrew Sayers, repre-
senting the Union, agreement was reached on a contract between THE NELSON
COMPANY and the CARPENTERS & JOINERS UNION This agreement
is based on the following provisions
1 A one year contract effective December 15, 1964 to December 15,
1965 In the event negotiations for a new contract are not concluded by the
expiration date of this contract, this contract will be automatically extended
for a thirty day period, during which time all the terms and provisions of
the contract will remain in full force and effect The Union agrees that
there will be no work stoppage during this automatic extension
2 The contract will include job classifications, however, the Union agrees
that the company will be free to assign men out of their classification as the
need arises
2 Unless otherwise indicated the facts herein are not in di.piite
THE NELSON CO., INC. 1453
3. The parties agree to a modified union shop, whereby present members
will maintain their membership; any present employee who joins the Union
will maintain membership; and future employees will acquire and retain
membership thirty days after employment (or the effective day of the agree-
inent, whichever is later).
4. Present economic benefits and practices will be incorporated into
appropriate contract language and included in the agreement.
5. Other provisions agreed to between the parties during direct negotia-
tions prior to September 29, 1964, will be incorporated into the contract.
Following receipt of the above letter, Andrew J. Sayers, president and chief nego-
tiator for the Union, reduced a contract to writing and about January 3, 1965,
delivered it to Charles W. Porter, Respondent's attorney, for execution by the Com-
pany. Within a day or two thereafter Porter called Sayers and advised him that there
were three or four omissions or errors in the drafting of the contract. Sayers promptly
obtained the contract from Porter, made the necessary corrections,3 and returned the
corrected agreement to Porter on January 18, 1965. Page 8 of this agreement con-
tained a provision for job classifications and rates. However, the actual classifications
and rates were left blank, the parties having agreed that these were to be inserted by
the Respondent.4 On January 25, Sayers called Porter and asked what progress had
been made with respect to execution of the contract, pointing out that everything was
complete with the execption of page 8 which the Company had been requested to
complete. Porter advised that he would write to James Nelson, the Respondent's
president, and request that the classifications and rates be furnished.5 On January 28,
1965, Sayers received a copy of page 8 in the mail from Porter. This document did
not set out the job classifications and rates, but contained only the following para-
graphs which were inserted at the bottom of the page:
It is agreed that the company will be free to assign men out of their classifica-
tion as the need arises; but no person shall be entitled to either an increase or
decrease in wages by reason of such assignment. The minimum wage rate for
all employees shall be $ per hour. The wages prevailing on December 15,
1964, shall neither be increased or decreased during the life of this contract.
On February 3, 1965, Sayers telephoned Porter to ask about execution of the con-
tract. Porter told Sayers that he had talked to J. T Nelson about the classifications
and rates and the signing of the contract and that Nelson had stated "he would give
it some thought." He also suggested that Sayers call Nelson. Following this sugges-
tion, Sayers called Nelson that same day and again on February 5. Each time he was
advised that Nelson was not in town. Nelson never responded to his message to
return the call.
On February 5, 1965, Sayers wrote Porter, with a copy to Nelson, as follows:
Thank you for the copy of page 8-of the collective bargaining agreement-
which you forwarded to me shortly after my request of January 25th. As I
advised you by telephone this past Wednesday, we have some objection to your
revision of page 8. However, if the company will attest in writing that your
revision accurately reflects the actual past practice of the company, the Union
will go along with it. Monday, Febiuary 8th, will make exactly three weeks
since I turned over three copies of the Agreement to your office. When I asked
you by telephone two days ago (Wednesday, February 3rd) if you had any word
from Mr. Nelson about signing the agreement, you advised me that he had told
you he would "give it some thought." You also suggested that I give him a call.
I did telephone him that day (Wednesday) and again this morning. Both times
I was told that Mr. Nelson is out of town. On both occasions I left my name
and telephone number. Much more than a reasonable period of time has elapsed
for the signing of the agreement, Mr. Porter. We trust we will have some word
from you or Mr. Nelson, no later than Wednesday, February 10, 1965, regarding
same.
Failing thereafter to receive any response from either Porter or Nelson, the Union,
on February 18, 1965, filed the unfair labor practice charge upon which this proceed-
ing is based.
8 The parties were not in disagreement over these corrections.
'This was in accord with paragraph 4 of the memorandum of agreement which pro-
vided that "present economic benefits and practices will be incorporated into appropriate
contract language and included in the agreement."
6 Sayers confirmed the above telephone conversation in a letter to Porter on the same day.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additional Facts; Concluding Findings
As indicated at the outset, Respondent's principal defense is that it never agreed to
any provision for overtime pay. The provision in question, it may be noted, was
contained in the contract which the Union delivered to Porter on January 3; it was
also incorporated in the corrected agreement which the Union submitted to Porter
on January 18.6
I turn now to the question as to whether the parties in fact ever reached an agree-
ment with respect to the overtime provision as thus incorporated in the contract which
the Union submitted to the Respondent. Sayers testified that agreement on this provi-
sion was reached during a bargaining meeting held between the parties on July 22.7
The Respondent's representative and chief negotiator at this meeting, as well as in the
meetings held prior thereto, was James Nelson, secretary-treasurer and production
manager of the Respondent and a brother of Respondent President John T. Nelson-
It may be noted here that James Nelson subsequently left the Company, although the
date of his departure is not reflected in the record. However, James Nelson did
represent the Respondent in all bargaining meetings up to the time of the participation
of the Federal mediation commissioner which began in November 1964.8 Sayers
testified in some detail as to the give-and-take bargaining which took place at the
July 22 meeting with respect to the overtime provision. Thus, Sayers testified that
the Union yielded on two points to which James Nelson objected, these being elimina-
tion of the following underlined words of the Union's written proposal which was then
being considered: (1) All work performed in excess of 8 hours in 1 day should be
paid for at the rate of 11/2 times the regular hourly rate and double time thereafter.
(2) All Saturday work shall be paid for at 1i/2 times the regular hourly rate for the
first 8 hours and double time thereafter. Sayers testified that James Nelson indicated
his final agreement to this overtime provision with the statement, "We'll go along
with it." 9 Not only did Sayers impress me as a truthful and reliable witness, but his
testimony as aforesaid was not controverted by the Respondent'() In further respect
to the July 22 meeting, Sayers added that President John T. Nelson entered the room,
for a short while but that no negotiations took place while he was present. According
to Sayers' uncontroverted testimony, John Nelson took the occasion to indicate that
he was "very much displeased about the whole matter of negotiating with the Union,
this as particularly evidenced by his statement to the negotiating committee that they
might as well strike the plant and get it over with. The negoiations continued after
Respondent's president left the room.
Respondent seems to base its argument that no agreement was reached on the over-
time provision by pointing to the fourth paragraph of the commissioner's memoran-
dum of agreement which states, "Present economic benefits and practices will be
incorporated into appropriate contract language and included in the agreement."
However, and as indicated heretofore, paragraph 5 of the said memorandum of
agreement states: "Other provisions agreed to between the parties during direct nego-
tiations prior to September 29, 1964 will be incorporated into the contract." This
0 This provision (article IV, section 1) provides:
The regular work week of forty (40) hours shall be Thursday through Wednesday
exclusive of Saturday and Sunday. The regular work day shall begin at 7 a.m.
and end at 3: 30 p.m. allowing for a thirty (30) minute lunch period. All work
performed in excess of eight (8) hours in one day shall be paid for at the rate of
one and one-half times the regular hourly rate. Work performed on Sundays shall
be paid for at double the regular hourly rate. Work performed on recognized holi-
days shall be paid in accordance with the provisions of article VI, section 3.
7 According to the credited and unrefuted testimony of Sayers, the overtime provision
was included in a proposed contract which the Union submitted to the Respondent long
before the July 22 meeting.
8 Charles Porter, Respondent's attorney, and John T. Nelson represented the Respond-
ent during negotiations before the commissioner.
O The question as to whether agreement on the overtime provision was reached at the
July 22 meeting is an important one in this case. I consider it quite significant, there-
fore, that Sayers was able to recite in detail the actual bargaining which took place be-
tween the parties on this subject. Testifying first from memory, Sayers on cross-
examination referred to his minutes of the meeting when he testified with respect to the
exact contract language which the Union agreed to delete from its initial written pro-
posal. These minutes were made by Sayers immediately following the meeting and were
predicated on the handwritten notes he took during the course of the meeting.
10 James Nelson did not testify nor did Respondent offer any explanation for not calling
him as a witness.
THE NELSON CO., INC. 1455
latter provision- is in complete accord with Sayers' uncontroverted testimony that
the parties had agreed upon various provisions of the contract prior to calling in the
Federal Mediation and Conciliation Service, this including the overtime provision 11
In sum , and in view of Sayers' credited and uncontroverted testimony, I find that the
Respondent and the Union reached agreement with respect to the overtime provision
at the July 22 meeting and that this agreement was correctly set forth in article 14,
section I, which the Union subsequently submitted to the Respondent on January 3,
1965, and again on January 18, 1965.12
Upon a consideration of all the evidence in this case, I am persuaded and find that
the Respondent's failure and refusal to execute a contract with the Union was in
derogation of its statutory duty to bargain in good faith with the representative of its
employees. That the Respondent did not act in good faith in this matter is evidenced
by the following:
1. At the hearing, President John Nelson testified that he gave "no authority at all
[to James Nelson] to negotiate a contract." He said that he was "off sick" when the
negotiating meeting took place,13 and further, that he "did not want to be concerned"
about the bargaining. Without belaboring the matter at length, I can but regard this
testimony of Respondent's president as nothing more than an excuse or afterthought
to avoid its obligation to reduce the previously agreed-upon contract to writing. There
having been no indication to the Union that James Nelson lacked bargaining authority,
the Union clearly was entitled to assume that he had. This is particularly true since
James Nelson at that time was an officer of the Company. Indeed, any alleged failure
by the Respondent to accord authority to James Nelson would in itself be a violation
of Section 8(a) (5) of the Act.14 But President Nelson's assertion that his brother
lacked bargaining. authority. is completely negated by the undisputed fact that Respond- -
ent in fact ratified the prior commitments of James Nelson at the time the Federal
mediation commissioner entered into the negotiations, this as evidenced. by paragraph
5 of the commissioner's memorandum of agreement, as heretofore set forth.
2. That the Respondent sought to avoid its bargaining obligations is further evi-
denced by the fact that Respondent at no time indicated that there was any dispute
about the overtime provision until after the filing of the charge herein 15 Certainly,
the Respondent had ample time to study the contract which the Union submitted to it
on January 3. Indeed, Porter shortly thereafter called the Union's attention to certain
other "omissions or errors," but made no reference at all to the overtime provision.
The Union thereupon assentedtto the Respondent's suggestions in this regard, and
submitted a corrected contract for Respondent' s signature . Again, Respondent at
this time gave no indication whatsoever that there was any question concerning the
overtime provision. Attorney Porter testified that he transmitted the Union' s latest
"'Thus, Sayers testified:
. . . on July 22 along with other agreement there had been an agreement reached
In direct negotiations between the parties that there would be time and a half for
over eight hours . This disposed of that Item . When we went to Federal Mediation
and I think we had a total of some four meetings with the Federal Mediator when
we did go to mediation the Commissioner wanted to know only those things which
had not been agreed to . Now, this was all pointed out to Commissioner-at the time
and the resulting memorandum of agreement was based from that point. Any pre-
vious agreements certainly had been disposed of. The Commissioner was not con-
cerning himself with any previous agreements that had been reached in direct
negotiations.
12 John Kelsey, Respondent's office manager , testified that he was present at one of
the negotiating meetings ( apparently the one following the July 22 meeting ) and that at
this meeting the parties went over the contract. When asked if overtime was discussed,
Kelsey testified , "Yes, it was read out and was most certainly turned down , In my opinion."
When asked if Sayers said anything , about overtime having been agreed on at the
July 22 meeting, Kelsey said, "To my knowledge, no. As we left the office Mr. Sayers
and Mr . [ James] Nelson and I were the three last ones to;Ieave and there was no dis-
agreement among the three of us in any part of this contract. I can't remember." • To
the extent that this or any other of Kelsey's brief testimony,could be construed that, the
Respondent at this meeting rejected the overtime provision , agreed on at the July 22 meet-
ing, I do not credit it. _
is It is undisputed, however, that he did put in an appearance at the July 22 meeting.
14 Han-Dee Spring & Mfg. Co ., Inc., 132 NLRB 1542. 1 ,
15 Aside from Respondent 's answer in this proceeding, it appears that Porter , made, this
position known to the Union for the first time In a telephone conversation , he had,with
Sayers at some point subsequent to the filing of the charge. 1 ., ,
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract to President Nelson for signing on January 25, 1965. As to the contract
which he submitted to Nelson, Porter testified that he thought it embodied everything
that had been agreed on, but that he made a mistake with respect to the overtime pro-
vision. Whatever this mistake, the fact remains, as heretofore found, that the
Respondent had previously agreed to the inclusion of the overtime provision. More-
over, Respondent's failure to make any communication with the Union after its
attorney purportedly had accepted the Union's latest contract is in itself a manifesta-
tion of bad faith.
The Respondent further defends its refusal to sign the contract on the ground that
on February 4, 1965, it divested itself of the plant located at 633 Bergman Street. The
plant at this location was and is engaged in the operation of anodizing aluminum.
This plant, which began operations in 1956, was not originally owned by the Respond-
ent. It was then incorporated as the Metal Services Company and was owned and
operated by Eugene Tucker, the president. This company encountered financial
difficulties and in 1961 its assets were assigned for the benefit of creditors. The plant
was finally purchased from the assignee by the Respondent in December 1963, and
Tucker at this time was hired by the Respondent to act as manager. Under the
arrangement he was paid on a salary basis only. He has held no stock or other
interest in the Nelson Company. It is undisputed that on February 4, 1965, Respond-
ent entered into a "lease with option to purchase" agreement with a newly formed
corporation known as Altuc, Inc. This agreement gave Altuc a 3-year option to pur-
chase all the equipment and operating supplies at the Bergman Street plant from
Respondent Nelson Company; it further provided for an arrangement whereby the
Respondent agreed to sublease the plant to the Altuc Corporation for a 6-month
period, with options to extend the lease for additional periods.16 Since its inception,
the Bergman Street plant has performed anodizing work for the main plant of The
Nelson Company, although it also had, and still has, other customers. The lease with
option-to-purchase arrangement further provides that Altuc continue to perform "all
anodizing for the Nelson Co. that they are capable of doing."
The president of Altuc, Inc., is the former owner and manager of the plant, Eugene
Tucker, and it appears that he is also the principal 1 7 It is undisputed that
Altuc presently has the same employees, business, and customers as it had while the
plant was operated by the Respondent. However, Tucker, who appeared as a witness,
testified that as president of Altuc he runs the entire operation of the anodizing plant,
that he is solely responsible for hiring, firing, and directing the work of the employees,
and that the employees are paid by the Altuc operation. In short, Tucker testified that
Respondent has no control over the operations or labor relations policy of Altuc, Inc.,
whatsoever.
Notwithstanding the foregoing, the General Counsel contends that the Respondent
should be ordered to execute a contract covering the employees of Altuc, Inc., at the
633 Bergman Street plant. In my opinion there is no merit to this position. From
the evidence presented, it is quite clear that the Respondent is not now the employer
of the employees of the Bergman Street plant and that it presently has no control
whatsoever over the operations of the Altuc Corporation. It would therefore be futile
and meaningless to issue any oider as thus requested by the General Counsel.is
On the other hand, it is undisputed that the Respondent, herein effected the above
transaction without any notice to the Union. It is well settled that unilateral action
of this kind is in derogation of the duty to bargain with the designated collective-
bargaining agent 15 Accordingly, I' find that by disposing of its operations at the
Bergman Street plant without giving the Union notice or opportunity to bargain over
the matter, the Respondent thereby engaged in an independent violation of Section
8(a) (5) and (1) of the Act.20 I also find that Respondent's divesture of the Bergman
Street plant is-not a valid defense to the issue in this proceeding. As heretofore indi-
cated, the Board found the appropriate unit to consist of Respondent's maintenance
and production employees employed at Respondent's plant located at 149 East Wood-
lawn and at 633 Bergman Street. The former is Respondent's principal plant, there
'Olt may be noted that the Respondent does not now own the Bergman Street plant
but subleases it from the Lifetime Lands Corporation.
17 Testimony of John T. Nelson.
18The General Counsel further contends that Altuc, Inc., be held responsible for any
unfair labor practices on the ground that it is a successor to or the alter ego of'Respond-
ent Nelson Company. However, since Altuc, Inc., was not named as a Respondent in'this
proceeding, this contention has not been properly pleaded as an issue in this case.
19N.L.R.B. v. Benno Katz, etc., d/ b/a Williamsburg Steel Products Co, 369 U.S. 736.
20 Tucker testified that negotiations between him and the Respondent wvith' reference to
this transaction commenced on November 15, 1964.
THE NELSON CO., INC. 1457
being only 8 to 10 employees employed by the Altuc Corporation at the Bergman
Street plant. The exclusion of these latter employees would be insubstantial and
would not materially affect the composition of the unit found appropriate by the
Board.21 Indeed, the Respondent concedes the appropriateness of a unit composed
of maintenance and production employees employed at its East Woodlawn plant.22
With the exclusions heretofore named, I find such to be the appropriate collective-
bargaining unit.
In view of all the foregoing, I conclude and find that the evidence amply sustains
the complaint's allegation that Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to sign a collective-bargaining contract, the terms of
which had been previously agreed upon.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section 1, 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 the Respondent has engaged in certain unfair labor practices, it
will be recommended that Respondent be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of the Act. It will be
recommended that, upon request of the Union, the Respondent sign the agreement it
agreed to on or about December 9, 1964, this including the overtime provision as
submitted by the Union in a written contract on or about January 18, 1965. If no
such request is made by the Union, it will be recommended that Respondent be
ordered to bargain collectively, upon request, with the Union as the exclusive repre-
sentative of the employees in the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
Upon the basis of the above findings of fact and the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. The Nelson Co., Inc., is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed at Respondent's plant
located at 149 East Woodlawn Street, Louisville, Kentucky, excluding installers, fore-
men, all office clerical employees, and all guards, professional employees, and super-
visors as defined in the Act, constitute a unit appropriate or the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times since April 8, 1964, the Union has been and is now the exclusive
representative of the employees in the unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about December 9, 1964, and at all times thereafter, to execute
the agreement finally agreed to by the parties on or about December 9, 1964, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a) (5) of the Act.
6. By unilaterally leasing and/or selling its plant located at 633 Bergman Street,
Louisville, Kentucky, on February 4, 1965, Respondent further violated Section
8(a) (5) of the Act.
7. By the foregoing conduct, Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has thereby engaged in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
2% Associated Beer Depots, Inc., 152 NLRB 412, and cases cited in footnote 13 therein.
22 Thus, in its brief Respondent states: "The Nelson Company is willing to sign the
contract if the overtime clause Is corrected to correspond with the oral agreement and if
the contract deletes any agreement pertaining to the Bergman Street plant purchased
by Altuc."
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, I recommend that The Nelson Co, Inc, its officers,
agents, successors , and assigns, shall
1 Cease and desist from
(a) Refusing, if requested to do so by the Union, to sign the agreement reached
with the Union on or about December 9, 1964, or, if no such request is made, refusing
on request to bargain collectively with the Union as the exclusive bargaining repre-
sentative of all its employees in the appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment, and,
if an understanding is reached, embody such understanding in a signed agreement
(b) Making or effecting any changes in rates of pay, wages, hours, or other terms
or conditions of employment of its employees in the appropriate unit without first
giving notice to and consulting the statutory representative of its employees
2 Take the following affirmative action which I find will effectuate the policies of
the Act
(a) Upon request of the Union, sign forthwith the agreement reached with the
Union on or about December 9, 1964 If no such request is made, upon request of
the Union, bargain collectively with it as the exclusive representative of the employees
in the above appropriate unit, if an understanding is reached, embody such under-
standing in a signed agreement
(b) Post at its plant in Louisville, Kentucky, copies of the attached notice marked
"Appendix " 23 Copies of said notice, to he furnished by the Regional Director for
Region 9, shall, after being duly signed by an authorized representative of Respondent,
be posted by Respondent 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 Respondent to insure that said notices are not altered, defaced, or covered
by any other material
(c) Notify the Regional Director for Region 9, in writing, within 20 days from the
receipt of this Decision,24 what steps it has taken to comply herewith
=In the event that this Recommended Order is 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 is 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"
94 In the event that this Recommended Order Is 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, what steps 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 Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL, if requested to do so by Louisville District Council of Woodworkers,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, sign the
agreement reached with the above Union on or about December 9, 1964 If no
such request is made , WE WILL, on request , bargain collectively with the above-
named Union for the unit described herein with respect to rates of pay, wages,
hours of work, and other terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agreement
The bargaining unit is
All production and maintenance employees employed at our plant located
at 149 East Woodlawn Street, Louisville, Kentucky, exclusive of installers,
foremen , all office clerical employees, and all guards, professional employ-
ees, and supervisors as defined in the Act
WE WILL NOT make or effect any change in rates of pay, wages, hours, or other
terms or conditions of employment of our employees in the appropriate unit,
without first giving notice to and consulting with the statutory representative of
our employees
DAYCO CORPORATION 1459
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
employees in the exercise of rights guaranteed them in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in Sec-
tion 8 ( a) (3) of the Act.
THE NELSON Co., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board 's Regional Office, Room 2023,
Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No. 684-3627.
Dayco Corporation , and Its Wholly Owned Subsidiary Howell
Plastics Company, and Cadillac Plastic and Chemical Company,
a Division of Dayco Corporation and the Successor to Howell
Plastics Company and Local Union 580, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, Ind. Cases Nos. 7-CA-5029 and 7-RC-6543. April 5,
1966
DECISION AND ORDER
On December 6, 1965, Trial Examiner George J. Bott issued his
Decision in the above-entitled proceedings, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
alleged in the complaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found that Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of those allegations. The Trial
Examiner further found merit in the objections by the Union to the
election conducted on January 21, 1965, and recommended that the
election be set aside and all proceedings in that case be vacated. There-
after, Respondent filed exceptions to the Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner 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 these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
157 NLRB No. 117.
221-374-66-vol. 15 7-9 3