Young Metal Products Co.

National Labor Relations Board - Board Decisions

Mar 30, 1967

163 N.L.R.B. 699 (N.L.R.B. 1967)

YOUNG METAL PRODUCTS CO.
marked "Appendix." Copies of said notice, to be
furnished by the Regional Director for Region 30, after
being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be 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
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 30, 744
North Street, Milwaukee, Wisconsin, in writing, within 20
days from the date of this Recommended Order, what
steps the Respondent has taken to comply therewith.10
11 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."
1° 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."
Young Metal Products Company, and
International Brotherhood of Boilmakers,
Iron Shipbuilders , Blacksmiths , Forgers
and Helpers , Lodge 1012 , AFL-CIO. Case
14-CA-3985.
March 30,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On December 22, 1966, Trial Examiner Owsley
Vose issued his Decision 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 attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision, and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
699
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Young Metal
Products Company, Granite City, Illinois, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This proceeding was
heard in St. Louis, Missouri, on August 23,1966, pursuant
to a charge filed on June 2, 1966, by the Charging Party,
hereinafter called the Boilermakers, and a complaint
issued on July 12, 1966, and amended on July 18, 1966.
The case involves the question whether the Respondent,
hereinafter called the Company, engaged in interference,
restraint, and coercion in violation of Section 8(a)(1) of the
Act by posting a notice prohibiting all "union talk" in the
plant.
Upon the entire record, and after due consideration of
the briefs filed by Respondent and the General Counsel, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company, which has its principal office and place
of business in East Chicago, Indiana, operates, among
others, a plant at Granite City, Illinois, where it is engaged
in the manufacture of nestable corrugated metal pipe for
the United States Department of Defense. Eighty-five
percent of its finished products are shipped directly to
Vietnam, by air, if possible. The rest is sent to army depots
to be sent to Vietnam later on. During the year ending
June 30, 1965, a representative period, the Company had
shipped to its Granite City plant from out-of-State sources
more than $50,000 worth of raw materials.
Upon these facts, I find, as the Company admits, that it
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths , Forgers and Helpers,
Lodge 1012 , AFL-CIO , hereinafter called the
Boilermakers , is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In a prior decision involving the Company 's Granite City
plant, the Board found , in summary , as follows (157 NLRB
408): The Company hired its first employees on July 23,
1964, and the four employees hired that day were assigned
to cleaning up the plant in preparation for the installation
163 NLRB No. 117
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the machinery which would be used to manufacture the
Company's finished products . The four employees hired
were sent to the plant by a representative of the
Boilermakers , and were at the time of hiring, or shortly
thereafter became, members of that Union . The same day
the four men were hired , the Company granted the
Boilermakers ' request for recognition , after having the
bargaining authorization cards of the four men checked by
the mayor of Granite City. Later that same day, July 23,
1964, the Company agreed with the Boilermakers on the
main points of a contract , and on July 25 the contract was
signed . The contract included a union-security provision
covering all of the Company ' s Granite City employees.
Thereafter , both the Company and the Boilermakers
threatened employees with discharge for not paying
Boilermakers initiation fees and monthly dues. Two
employees were discharged by the Company, upon
demand of the Boilermakers , assertedly for
nonobservance of the union -security provision of the
contract.
The Board in its earlier Decision concluded that the
Company's recognition of the Boilermakers was
premature and was unlawful assistance to and support of
the Boilermakers in violation of Section 8(a)(2) and (1) of
the Act ; that the Company by entering into a contract
containing a union-security provision with the
Boilermakers at a time when it was not the employees'
lawful representative , and thereafter enforcing the
unlawful contract , including discharging two employees
upon the demand of the Boilermakers , had violated
Section 8 (a)(2), (3), and (1) of the Act; that said Union, by
entering into, enforcing , and demanding the discharge of
employees pursuant to the union -security provision of the
unlawful contract , had violated Section 8(b)(2) and (1)(A).
In this prior Decision , which was handed down on
March 7, 1966 , the Board ordered the Company, among
other things, to cease recognizing the Boilermakers until it
had been certified by the Board , to cease giving effect to
its July 25 , 1964 , contract with the Boilermakers, and to
cease its other unfair labor practices . Affirmatively the
Company was directed , inter alia , to reinstate the two
discharged employees with backpay,t to post notices
indicating a willingness to comply with the Board's Order,
to report on its compliance with the Board ' s Order to the
Regional Director, and, jointly and severally with the
Boilermakers , to reimburse all employees for all dues and
fees paid over to the Boilermakers pursuant to the union-
security provision of their unlawful contract . The Board
ordered the Boilermakers, inter alia, to cease acting as the
collective-bargaining representative of any of the
Company's employees , to cease giving effect to the
July 25, 1964 , contract with the Company , and to cease its
other unfair labor practices . The Boilermakers were also
ordered by the Board , jointly and severall y with the
Company, to reimburse all employees for all dues and fees
paid over to it pursuant to the union - security provision of
the unlawful contract , to notify the Company that it had no
objection to the reinstatement of the employee whom it
demanded the Company discharge and, jointly and
severally with the Company , pay backpay to this em-
ployee, and to post appropriate notices and furnish the
requisite compliance.
' With respect to one of the two discharged employees, the
Company's backpay liability was made joint and several with the
Boilermakers.
Neither the Company nor the Boilermakers has posted
the notices required by the Board's March 7, 1966,
Decision and Order or in other respects with said Decision
and Order.
B. The Company's Posting of a Rule Prohibiting All
"Union Talk" in the Plant
On or about May 25, 1966, Thomas Sills, the assistant
manager of the Granite City plant, posted on the plant
bulletin board the following notice:
NOTICE TO EMPLOYEES
There has been too much talking about unions in the
plant.
From now on any employee found talking about
unions any place in the plant will be disciplined.
We don't like to prohibit employees from talking,
especially during break time but all the union talk is
causing a problem. If you want to talk about the union
that's your business but do it after work.
/s/ Thomas Sills
The notice remained posted on the bulletin board for
almost a month and then disappeared. There is no
evidence as to who was responsible for removing the
notice.
C. The Company's Defenses; Conclusions
The Company asserts that the union talk in the plant
prior to invoking its new rule was seriously impairing plant
production and was adversely affecting its shipments to
the Defense Department, which were mainly to Vietnam,
and that it put the prohibition against union talk into effect
in an effort to improve its production and expedite
shipments to the war area. These circumstances, the
Company contends, bring its conduct in this case within
the exception to the rule stated by the Board in the Walton
case.2 In its brief, pages 4-5, the Company quotes from the
Board's decision in the Wa. ton case, as follows:
. as we interpret these decisions of the Supreme
Court, they establish the following rules of law with
respect to employer no-solicitation rules:
1. No-solicitation or no-distribution rules which
prohibit union solicitation or distribution of union
literature on company property by employees during
their nonworking time are presumptively an
unreasonable impediment to self-organization, and
are therefore presumptively invalid both as to their
promulgation and enforcement; however, such rules
may be validated by evidence that special
circumstances make the rule necessary in order to
maintain production or discipline.
In support of its defense, the Company points to the
testimony of Assistant Plant Manager Sills that 85 percent
of the Company's production or corrugated metal pipe is
sent to Vietnam, by air where possible.
Assistant Manager Sills also testified that he had
received the no-union-talk notice in the mail from the
2 Walton Manufacturing Company, 126 NLRB 697, enfd 289
F 2d 177 (C A 5)
YOUNG METAL PRODUCTS CO. 701
Company's East Chicago, Indiana, office, after having had
a telephone conversation with Oscar Nelson, the manager
for the Company of both the East Chicago and Granite
City plants. Nelson's headquarters are at East Chicago.
Sills testified concerning his conversation with Nelson as
follows: "He wanted to know if there had been any talk
about the unions and I said yes. He wanted to know why
my production was down and I told him...." After an
objection was made and overruled, Sills testified that he
gave Nelson his opinion , but the matter was let drop at this
point and Sills did not state the nature of his opinion.
Sills further testified that an article in the Granite City
Press discussing the Board's March 7, 1966, decision
against the Company and the Boilermakers, particularly
the provision requiring the reimbursement of "dues,
initiation fees, plus interest is what started the talk in the
plant." According to Sills, "the boys came in to me
wanting to know if they was going to get their money back,
if we was going to recognize the same seniority." An
assistant steward for the Boilermakers came into his
office, Sills further testified, and "wanted to know if we
was going to keep the contract we had or if we was going to
the Steelworkers." Sills explained that he could not
answer "because that is not [his] privilege." There was
also considerable discussion about Boilermakers'
reinstatement fees, so Sills testified.
In support of its assertion of low production in the
period prior to the promulgation of its new rule, the
Company introduced into evidence, as Company
Exhibit 1, a production summary giving certain figures
concerning the number of feet of various sized pipe
produced in each of the first 3 weeks in May, June, July,
and August, 1966. The summary purports to show a
substantial increase in production commencing the second
week in June 1966, which was shortly after the notice of
the no-union-talk rule was posted.
While the Company relies on Company Exhibit 1 to
show the comparative production figures both before and
after the promulgation of the no-union-talk rule, on its face
the exhibit is incomplete. It fails to show the production in
the fourth week of each of the months. Since production
changed noticeably from one week to the next, it might be
that the picture would be changed considerably were the
figures for the production in the fourth week in each
month given. Also, the inclusion of the production figures
for only the first 3 weeks in May to show the levels of
production before the promulgation of the rule appears to
be too short a period, particularly in view of the fact that
the "union talk" admittedly was prompted by the news of
the Board's decision in the earlier case, which came out in
_ mid-March 1966.
Furthermore, the testimony of Sills, through whom
Company Exhibit 1 was received in evidence, raises
further questions concerning the weight which can be
given to the figures given in the exhibit. Although Sills
testified that he had checked the Company's production
records on the evening before the hearing , it is apparent
from his testimony as a whole that he did not personally
check the figures himself. Thus when asked whether the
figures represented the Company's production for one
shift per day, Sills answered at first, two shifts a day, then
stated that he could not say for sure, but that he believed
that the figures represented one shift per day's production,
and "would have to check it to make sure." After thinking
the matter over, Sills concluded that "it can't be two
shifts, there is not enough footage here," but he was
unable to state which shift the figures represented. The
Company operated not only two shifts, but three, on
occasion. In view of the foregoing facts and considerations
the incomplete figures given in Company Exhibit 1 cannot
be relied upon as furnishing an accurate measure of the
Company's total production in the periods before and after
the promulgation of its no-union-talk rule.
The only other evidence in the record concerning the
alleged low production in the period in question consists of
oblique references by Assistant Manager Sills to lower
production which he made when questioned at the hearing
about discussions which he had had with his superior,
Plant Manager Nelson.
Sills admitted that other factors wholly unrelated to
union talk can cause a drop in production at the plant.
Among these are machinery breakdowns and absenteeism
among the employees.
In my opinion, the Company has failed to carry its
burden with respect to proving the essential facts
underlying its defense in this case. Not only has the
Company failed to adduce convincing evidence of a drop
in production after the Board's Decision in the earlier
case, but also it has failed to establish that the asserted
decreased production is reasonably attributable to the
union talk in the plant.
Finally, assuming that production did drop materially in
the period in question, the Company has failed to show
how talking about unions during the employees' free time
in the plant has a tendency to disrupt production during
working time in a plant producing large metal culverts. It
would seem that tal''.ing politics or baseball might have an
equal tendency to disrupt production, but such talk was
permissible, even during working hours, as far as the
Company's no-union-talk rule was concerned.
Furthermore, it is not unreasonable to attribute any drop
in production to the Company's failure to comply with the
Board's Order in the earlier case. As Assistant Manager
Sills' testimony clearly indicates, the discussions which
were prevalent in the plant after the issuance of the
Board's decision in the earlier case concerned, among
other things, the reimbursement of Boilermakers' dues
which had been checked off from their wages, continued
recognition of the Boilermakers, and the question of their
seniority rights in light of the Board's earlier Decision and
Order. Had the Company posted the notice directed by the
Board's Order in the earlier case, the employees would
have had their answer to these questions and much of the
discussion, which the Company urges prompted it to
invoke its new rule, would have been avoided. Since it was
the Company's failure to observe its obligations under the
Board's earlier Decision which gave rise to much of the
union talk upon which it relies as the basis for putting the
rule into effect, it cannot now with good grace urge that the
excessive union talk justified its action in this regard.
Relying on N.L.R.B. v. Babcock & Wilcox Co., 351 U.S.
105, 112, the Company argues that a balancing of the
competing interests of the Company in expediting the
production of war materials, on the one hand, and the
employees in the exercising of their right to communicate
with one another about union matters on their own time,
on the other hand, "must heavily weigh in favor of the"
Company's action in initiating the new rule. However, this
argument wholly overlooks that it was the Company's
conduct in disregarding the Board' s Decision and Order in
the earlier case which gave rise to much of the union talk
against which its new rule was aimed. In these
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, particularly, any balance struck should
favor the employees. While the needs of the Vietnam war
are vital, they should not be achieved at the expense of the
destruction of rights guaranteed by Congress without
express congressional sanction.3
For the foregoing reasons I conclude that the Company
has failed to establish in this case the special
circumstances necessary to validate its rule prohibiting all
union talk in the plant, including breaktimes, and find, in
accordance with the contention of the General Counsel,
that the Company by promulgating and enforcing its no-
union-talk rule so as to prohibit union talk in the plant
during nonwork times has placed an unreasonable
impediment in the way of employees exercising their
rights of self-organization, in violation of Section 8(a)(1) of
the Act.
CONCLUSIONS OF LAW
1. By promulgating, maintaining , and enforcing a rule
prohibiting employees from discussing union matters
during nonworking time and in nonwork areas of the plant,
the Respondent has interfered with , restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, thereby engaging in an
unfair labor practice within the meaning of Section 8(a)(1)
of the Act.
2. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice by promulgating , maintaining, and
enforcing an invalid no-union -talk rule, my Recommended
Order will direct the Respondent to cease and desist from
such unfair labor practice and to take certain affirmative
action to effectuate the policies of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, the
Trial Examiner hereby issues the following:
RECOMMENDED ORDER
The Respondent, Young Metal Products Company,
Granite City, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining, and enforcing a rule
prohibitng employees from discussing union matters in the
plant during nonworking time or in nonworking areas.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.'
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.'
3 Fabri - Tek, Incorporated v N L R B, 352 F 2d 577 (C A 8),
upon which the Company also relies, is clearly distinguishable on
the facts That case involved the wearing of union buttons during
working hours in a plant manufacturing very complicated
magnetic memory devices for computers The work was all done
by hand and required a high degree of concentration by the
individual workers In contrast , the instant case involves a rule
prohibiting union talk on the employees ' own time The workers
were laborers engaged in the production of heavy metal pipe,
using heavy machine presses What would distract workers in a
computer factory would not necessarily disturb production in a
pipe factory at all
4 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 "
5 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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT promulgate , maintain , or enforce a
rule prohibiting employees from discussing union
matters in the plant during nonworking time or in
nonwork areas of the plant.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7 of the
Act.
YOUNG METAL PRODUCTS
COMPANY
(Employer)
rights guaranteed in Section 7 of the Act. Dated By
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at its Granite City, Illinois, plant the attached
notice marked "Appendix." Copies of said notice to be
furnished by the Regional Director for Region 14, after
being duly signed by an authorized representative of the
Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and maintained by it for
a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
(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 provisions , they may communicate
directly with the Board's Regional Office, 1040 Boatmen's
Bank Building, 314 North Broadway, St. Louis, Missouri
63102, Telephone 622-4167.