Blue Valley Machine & Manufacturing Co., 298 (1969)

Blue Valley Machine & Manufacturing Company and District Lodge 71 , International Association of Machinists & Aerospace Workers, AFL-CIO.

Case 17-CA-3805

December 16, 1969 DECISION AND ORDER

BY MEMBERS FANNING, BROWN, AND ZAGORIA On October 22, 1969, Trial Examiner Robert E.

Mullin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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, and the General Counsel filed an answering 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, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' Section 8(a)(5) of the Act in bargaining with the Union, and whether it engaged in various other acts of interference, restraint and coercion in violation of Section 8(a)(1) of the National Labor Relations Act, as amended.

In its answer, the Respondent conceded certain facts as to its business operations, but it denied all allegations that it had committed any unfair labor practices.

All parties appeared at the hearing and were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally at the close of the hearing and to file briefs. Oral argument was waived by the parties. On September 4, 1969, able briefs were submitted by the General Counsel and the Respondent.

Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, the Trial Examiner makes the following:

FINDINGS OF FACT

1. THE BUSINESS OF THE RESPONDENT The Respondent is a Missouri corporation with a plant in Kansas City, in that State, where it is engaged in the manufacture and distribution of flanging machines and circle shears. During the course of the calendar year 1968, a representative period, it sold products valued in excess of $50,000 directly to customers located outside the State of Missouri. Upon the foregoing facts, the Respondent concedes, and the Trial Examiner finds , that Blue Valley Machine & Manufacturing Company is engaged in commerce within the meaning of Sections 2(6) and (7) of the Act.

   IL THE LABOR ORGANIZATION INVOLVED

   The Respondent concedes, and the Trial Examiner finds, that District Lodge 71 , International Association of Machinists & Aerospace Workers, AFL-CIO (herein called Union or Machinists ), is a labor organization within the meaning of the Act.

   ORDER

   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 Respondent, Blue Valley Machine & Manufacturing Company, Kansas City,

   Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.

   'In adopting the Trial Examiner 's conclusion that Respondent violated Section 8(a)(5) of the Act, Member Zagoria does not rely on the considerations set forth in fn. 21 of the Trial Examiner's Decision.

   TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

   ROBERT E. MULLIN, Trial Examiner: This case was heard in Kansas City, Missouri, on July 9, 1969, pursuant to a charge duly filed and served,' and a complaint issued on May 9, 1969, and amended in minor particulars at the outset of the hearing. The complaint, as amended, presents questions as to whether the Respondent violated 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The Respondent concedes, and the Trial Examiner finds, that all production and maintenance employees at the Respondent's Kansas City plant, including machinists, production machinists, machine operators, assemblers, and utilitymen, but excluding all office clericals, professionals, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.

   On or about February 16, 1968,' when there were 10 employees in the aforesaid appropriate unit and after a third party card check of authorizations, the Respondent recognized the Union as the majority representative.

   Thereafter, over a period of approximately 11 months, the parties met in a series of collective bargaining sessions.

   In July the Respondent filed an RM petition with the Board, requesting that an election be held among the employees in the unit. Later it withdrew this petition. In October, and thereafter, it again questioned the Union's majority. In January 1969, the Respondent put into effect 'The Union filed the charge on February 17, 1969 'Unless otherwise specifically noted , all dates which appear hereinafter occurred in 1968.

   180 NLRB No. 55

   BLUE VALLEY MACHINE & MFG. CO.

   an across the board wage increase for all employees in the unit. Later that month the Union called a strike which lasted until about May 1.

   The General Counsel alleges that the Respondent failed to bargain in good faith on and after October 8, that the wage increase in January was unilaterally and unlawfully granted and that the strike resulted from the Respondent's unfair labor practices. All of these allegations are denied in their entirety by the Respondent.

   2. The Evidence as to the Alleged Violations of Section 8(a)(5); Findings and Conclusions with Respect Thereto 1. The issue as to majority in February 1968

      Late in - 1967 and early in 1968 the Union conducted an organizational campaign among the employees of the Respondent's plant. Marvin L. Tillman, an organizer for the Machinists, testified that in November and December 1967 several of the employees mailed signed authorization cards to the union office. According to Tillman, because some of these cards were not legible and others were not properly witnessed, he contacted the individuals involved, as well as other employees, and secured new authorizations, the execution of which he personally witnessed. Thus, Tillman credibly testified that on various dates between November 27, 1967, and January 31, 1968, he secured signed authorization cards from employees Donald Lugenbeel, Robert F. Hambel, Woodrow L.

      Hackett, Charles O. Holland, Roy E. Butner, W. L.

      Haley, Charles E. McClarnan, Dorsey Edward Campbell,

      Jr., and Omar H. Lugenbeel.

      In a letter dated February 6, Floyd Stone, international representative for the Machinists, wrote Ernest Johnson, president of the Respondent, requesting that the Union be recognized as the bargaining agent for the employees. On the following day, Stone telephoned the plant to ask if the letter had been received. Wayne Willard, vice president of the Respondent, told him that because the letter had been addressed to Johnson, who was then on vacation, it had been returned, unopened, to the sender. Thereafter, in a three party conversation with Willard and Harold W.

      Johnston, secretary-treasurer of the Company, Stone explained the subject matter of the letter and restated for them the Union's claim to represent a majority of their employees. Stone also described the mechanics of a third party card check which the Union proposed as an expeditious means of resolving any doubts about the Machinists' claim.

      As the result of this conversation and several others, the parties agreed to a card check to be conducted on February 12, by the Reverend Ralph E. Hansen, pastor of a church that was located near the plant. On the latter date, Stone and Tillman, on behalf of the Union, and Johnston and Willard on behalf of the Company, arrived at the rectory of Reverend Hansen. After the union representatives had given him the authorization cards and the Respondent' s officials had given him a list of employees in the unit, the minister checked the cards against the latter. Stone credibly testified that after Reverend Hansen had completed this examination of the cards and the employee list, he announced to those present 'it appears that the Union has a majority. ' In a letter dated February 16, Reverend Hansen confirmed in writing that in his card check he had found that a majority of the employees desired that the Union act as their representative.3

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      After their meeting in the church office, the union and company officials returned to Johnston's office at the plant where Stone asked that Johnston sign a statement which would grant the Union recognition. Johnston, however, declined to do so. According to Stone, at this point Johnston told him that he had gone along with the card check only to ascertain how much strength the Union had and, having been satisfied as to that issue, the Union ..can go ahead and have your NLRB election now.' At the hearing Johnston did not contest the accuracy of Stone's account as to what occurred on this occasion.

      According to Johnston, his attitude at that point was based on a misunderstanding as to Board procedures.

      Johnston testified that he subsequently telephoned the Regional Office and secured further information which caused him to conclude that the Respondent should recognize the Union without further ado. In any event, in a letter dated February 16, the Company recognized the Union as the bargaining agent of its hourly paid employees. In the same letter the Company accepted a union proposal for a date on which bargaining conferences might begin.' 2. The bargaining conferences On February 19 the...