Torin Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1984

269 N.L.R.B. 433 (N.L.R.B. 1984)

TORIN CORP.
Torin Corporation and International Union, United
Automobile, Aerospace, and Agricultural Imple-
ment Workers of America, UAW, Local 507.
Case 39-CA-744
28 March 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 30 September 1982 Administrative Law
Judge James F. Morton issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel and the
Charging Party filed cross-exceptions and support-
ing briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Torin Cor-
poration, Torrington, Connecticut, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I The judge's Conclusion of Law 3 should read, in pertinent part:
. . Respondent thereby violated Section 8(a)(1) of the Act."
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
complaint in this case issued on September 4, 1981; it al-
leges that Torin Corporation (herein called Respondent)
violated Section 8(a)(1) and (5) of the National Labor
Relations Act (herein called the Act). In particular, the
complaint alleges that, although Respondent had recog-
nized the International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America,
UAW, Local 507 (herein called the Union) as the exclu-
sive bargaining representative of the production and
maintenance employees at three of Respondent's facilities
in Torrington, Connecticut (comprising its Still River
Division), Respondent (a) unlawfully refused to recog-
nize Lillian Raymond as the Union's recording secretary
and to honor any written requests submitted by the
Union because she signed them and (b) promulgated and
enforced a rule barring retired employees from its prem-
ises in order to keep Lillian Raymond from posting
269 NLRB No. 50
union notices on the Union's bulletin boards inside Re-
spondent's facilities. Respondent does not dispute the fac-
tual assertions in the complaint. All parties agree that
there is little dispute about the salient facts and that the
issues in this case are predominately legal issues. The
hearing was held before me in Hartford, Connecticut, on
June 9, 1982.
On the entire record, including my observation of the
demeanor of the witnesses and upon careful consider-
ation of the briefs by the parties, I make the following
FINDINGS
I. THE BUSINESS OF RESPONDENT
Based on the pleadings, I find that Respondent is an
employer within the meaning of Section 2(2) of the Act
and that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
Il. THE UNION'S STATUS
The pleadings also establish and I find that the Union
is a labor organization as defined in Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent manufactures air fans at facilities in Tor-
rington, Connecticut, where the Union has for many
years represented a unit of production and maintenance
employees.
In 1979 Respondent and the Union had apparently
reached agreement as to the terms of a renewal contract.
When the contract was drawn up and submitted by Re-
spondent to the Union for signing, however, the Union
contended that the document did not reflect the agree-
ment reached. Lillian Raymond was at that time em-
ployed by Respondent and was the president of the
Union. She led the unit employees out on strike then.
That was the first strike ever conducted at Respondent's
facilities. Respondent viewed her then and still views her
as a "trouble-maker" who often took "a position that
doesn't fit the mainstream of labor-management rela-
tions." The 1979 strike was settled and various related
unfair labor practice charges filed then were disposed of
before formal resolution as to their merits. In October
1980 Raymond applied for disability retirement, asserting
that she was being unduly harassed into a nervous state
by Respondent. Her application was approved. She re-
signed as the Union's president and then retired. She was
at that time president of a plant credit union. She has
continued in that post and, in that capacity, has used an
office located in the front of one of Respondent's build-
ings where its administrative offices were also located.
As president of the credit union, she also was allowed to
use the conference room. In May 1981, she ran for the
post of recording secretary of the Union and, despite the
fact that she had retired from Respondent's employ, she
was elected. The Union's recording secretary had virtu-
ally always performed the function of posting union no-
tices on the Union's bulletin boards at Respondent's facil-
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity and the function of signing "zip sheets." Zip sheets
are written requests by the Union to Respondent for per-
mission to have employees excused from work to per-
form union business.
B. The Events in May and June 1981
The Union's president in 1981, Fred Sidelinger, in-
formed Respondent's director of personnel, William
McClane, in May 1981 that Lillian Raymond was back
as a union officer, as its recording secretary. He told
McClane that she would post the Union's notices and
process the zip sheets. McClane told Sidelinger that he
considered her to be a "trouble-maker," and "instigator,"
"agitator," a "rabble-rouser" and that she would not be
allowed onto Respondent's premises to conduct union
business as she was not an employee or a full-time paid
International representative of the Union. A reading of
the transcript may indicate that McClane was highly agi-
tated when he referred to Raymond in the terms quoted
above. McClane impressed me as one who is considerate
of others and reserved in his demeanor. In referring to
Raymond as he did, he was in my judgment stating in a
matter-of-fact manner the corporate view that Respond-
ent had of Raymond.
The Union decided to test Respondent's resolve. Ray-
mond saw McClane in June 1981 and informed him that
she, as the Union's recording secretary, wanted to post
union notices, pertaining to an election of a steward, on
the Union's bulletin board in the plant. She was not al-
lowed to do so. Instead, she was told by McClane that
she was welcome in the plant as an officer of the credit
union or as a retiree but not as a union official.'
On one occasion the Union was conducting a meeting
of its officers in a conference room at Respondent's
premises. Raymond was not allowed there by Respond-
ent; as noted above, she has been permitted to use that
room in her capacity as president of the credit union, an
entity unconnected with the Union.
It is undisputed that Respondent has refused to accept
any zip sheets signed by Raymond as recording secretary
for the Union and that it, instead, has honored them
when signed by other union officials.
C. Analysis
The General Counsel asserts that Respondent's actions
toward Raymond as the Union's recording secretary
have interfered with the Union's right to select its agents
and that Respondent thereby has interfered with "the
rights of employees to select, with their discretion and
without employer interference [the Union] for the pur-
pose of collective bargaining."2 The General Counsel
and the Union have pointed out, too, that an employer
cannot lawfully refuse to meet with an nonemployee des-
' I based this on crediting the testimony of the General Counsel's wit-
neses which was in good part uncontroverted and also corroborated by
accounts of other witnesses that retired employees have had ready access
to the plant.
The General Counsel cited Racine Die Casting Co., 192 NLRB 529
(1971), and Lufkin Telephone Exchange, 191 NLRB 856 (1971), for that
proposition.
ignated by the incumbent labor organization to be its
representative in processing a grievance.3
Respondent asserts that the cases relied on by the
General Counsel and the Union have nothing to do with
the facts of this case. Respondent contends that those
cases pertain to a refusal by an employer to meet with a
union's designated representative to negotiate a contract
or to process a grievance and that they do not relate to
the issue posed in the instant case-whether Respondent
unlawfully denied Raymond the right of access to its
plant or her requests on behalf of the Union that employ-
ees be excused from work. Respondent would require
that the General Counsel establish that the Union had no
other reasonable means of communicating with the unit
employees and that Raymond was performing more than
a ministerial act in signing the zip sheets before a viola-
tion can be found. Respondent thus contends that a bal-
ancing test should be used.4
At the hearing, the General Counsel indicated that Re-
spondent's conduct toward Raymond constituted an un-
lawful unilateral change but did not pursue that argu-
ment in its brief .
Respondent's construction of the cases cited by the
General Counsel is unduly restrictive. More significant
to me is the fact that, in the instant case, Respondent has
always given the Union access to its facility. Thus, the
right of access is not at issue; rather, the question is
whether Respondent can lawfully veto the Union's
choice of the representative designated to enter on Re-
spondent's premises or to perform even ministerial func-
tions. The Board cases make it very clear that an em-
ployer has to have a valid reason before it can lawfully
refuse to accept a union's designation of an individual as
its agent in dealing with that employer. Thus, in Native
Textiles, supra, the Board expressly noted that the right
of employees to designate and to be represented by rep-
resentatives of their own choosing is a basic statutory
policy and a fundamental right guaranteed them under
Section 7 of the Act. It is not a right to be readily limit-
ed. In Native Textiles, the Board went on to state that
"an employer [in] refusing to recognize a designated rep-
resentative of its employees, especially for a matter of
such obvious importance to employees as processing
grievances . . . [interferes] with a basic statutory right of
employees ..... "In the instant case, the unit employ-
ees had elected Raymond to union office. The cases
make it clear that, if the Union empowered that office
with the functions of grievance processing, Respondent's
contention would clearly lack merit. That Raymond per-
forms other essential functions for the Union in carrying
out its responsibilities in representing the unit employees
can be no valid basis upon which the Respondent would
be privileged to interfere with a basic statutory right. Re-
s Native Textiles, 246 NLRB 228 (1979); KDEN Broadcasting Co., 225
NLRB 25, 35 (1976); Racine Die Casting, supra, and Lufkin Telephone,
supra.
Respondent suggests that the principles set out in Sears Roebuck &
Co. v. Carpenters, 436 U.S. 180, 205 (1978); NLRB v. Babcock A Wilcox
Co., 351 U.S. 105, 112 (1956); S. B. Thomas, Inc., 256 NLRB 791 (1981),
are applicable.
5 In that regard, Respondent notes that the change was brought about
by the Union in allowing a nonemployee to run for office.
434
TORIN CORP.
spondent, by barring Raymond from posting union no-
tices in her capacity as recording secretary of the Union
and in refusing to honor "zip sheets" signed by her in
that capacity, interfered with the statutory right of the
employees represented by the union to select her as a
union official in dealing with Respondent.
Respondent further argues that the Board is obligated
to consider a variety of factors and to weigh these in de-
ciding whether Raymond's right of access is, on balance,
superior to Respondent's private property rights. Thus,
Respondent would have me consider the specific con-
tract language, the provisions of the Union's constitution
and bylaws, the harm if any done the unit employees by
requiring the Union to use someone other than Ray-
mond, and other factors. While I do not agree with that
view, I will note, for purposes of review, that, were a
balancing test to be applied, I would give controlling
weight to the fact that Respondent, in barring Raymond
from performing her union duties, was motivated by in-
vidious reasons-its perception of her while in its employ
as one who was too active a union member and, on that
premise, I would find that, on balance, the General
Counsel should prevail.
I shall however dismiss the 8(a)(5) allegation as there
is no evidence that Respondent's refusal to recognize
Raymond resulted in an impairment of the grievance
procedures or otherwise constituted bad-faith bargaining.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. Respondent interfered with, restrained, and coerced
its employees with respect to their right to freely choose
their representative for purposes of collective bargaining
and Respondent thereby violated Section 8(a)(l) of the
Act.
4. The evidence fails to establish that Respondent did
not bargain in good faith with the Union. Therefore, the
allegation that Respondent violated Section 8(a)(5) of the
Act must be dismissed.
5. The unfair labor practices found in paragraph 3
above affect commerce within the meaning of Section
2(6) and (7) of the Act.
Based on the foregoing findings of fact, conclusions of
the law, and the entire record in the case, I issue the fol-
lowing recommended 6
ORDER
The Respondent, Torin Corporation, Torrington, Con-
necticut, its officers, agents, successors, and assigns, shall
6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1. Cease and desist from
(a) Refusing to allow Lillian Raymond onto its prem-
ises to perform her responsibilities as the recording secre-
tary of International Union, United Automobile, Aero-
space, and Agricultural Implement Workers of America,
UAW, Local 507 (herein called the Union) or refusing to
honor zip sheets signed by her in that capacity.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees respecting the rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action to effectuate
the purposes of the Act.
(a) Post copies of the attached notice marked "Appen-
dix"7 at its Still River Division facilities in Torrington,
Connecticut. Copies of that notice on forms provided by
Regional Director for Region 39, after being signed by
Respondent's authorized representative, shall be immedi-
ately posted upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the allegation in the
complaint that Respondent violated Section 8(a)(5) of the
Act is dismissed.
I If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to allow Lillian Raymond onto
our premises when she is performing her responsibilities
as recording secretary of International Union, United
Automobile, Aerospace, and Agricultural Implement
Workers of America, UAW, Local 507 and WE WILL
NOT refuse to honor zip sheets signed by her as the
Union's recording secretary.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees with respect to
their rights under Section 7 of the National Labor Rela-
tions Act.
TORIN CORPORATION
435