Dawson Metal Products, Inc., 191 (1970)

DAWSON METAL PRODUCTS, INC.

Dawson Metal Products, Inc. and Local Lodge 1316,

International Association of Machinists & Aerospace Workers, AFL-CIO. Cases 17-CA-3686 and 17-RM-397

June 10, 1970 DECISION AND ORDER

BY MEMBERS FANNING, MCCULLOCH, AND BROWN On April 21, 1969, Trial Examiner Richard D.

Taplitz issued his Decision in the above-entitled proceeding, finding that 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. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Finally, the Trial Examiner found that certain conduct of Respondent after the petition in Case 17-RM-397 was filed interfered with the election, and recommended that the election be set aside and the petition dismissed. Thereafter,

Respondent filed exceptions to the Trial Examiner's Decision, a supporting brief, and a supplemental 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 threemember 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below,

We agree with the Trial Examiner's findings that Respondent violated Section 8(a)(1) of the Act by unlawful interrogation, promises of benefits, threats, and telling an employee that Respondent would not hire individuals with union backgrounds.

' Thus, the Trial Examiner found and the record shows that Foreman Rogers threatened employee Anderson with respect to the consequences of his union support, Pfant Superintendent Paufie and Foreman Rogers promised benefits to Anderson and employee Jackson if the Union were rejected, Foreman Rogers and Paulie coercively interrogated employees Anderson, White, Jackson, McAllister, and Neftzger, and Personnel Manager Kuhlmann stated repeatedly to his secretary that Respondent would not hire union sympathizers ' On June 12, 1969, Respondent filed a motion to reopen the record and receive in evidence a letter dated May 27, 1969, purportedly signed by a number of Respondent's employees, stating that they did not want to be 191

We also agree that Respondent's refusal to bargain on and after August 27, 1968, with the Union which represented a majority of Respondent's employees in the appropriate unit violated Section 8(a)(5) of the Act.

On June 16, 1969, the Supreme Court of the United States issued its decision in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, affirming generally the Board's use of authorization cards in determining a union 's majority status, and the Board's power to issue a bargaining order based upon such showing, where the employer's unfair labor practices had a tendency to undermine the union 's majority and impede the election process.

In the light of the standards set forth in the Supreme Court's decision in Gissel, we find that by refusing to bargain with the Union and by engaging in a series of unfair labor practices to undermine the Union's majority status, Respondent violated Section 8 (a)(5) of the Act. In so finding, we note that the unit is small , the unlawful conduct was engaged in by the plant superintendent and personnel manager as well as by a foreman,' and the first election was so close that the shift of but two votes could have produced a union victory. In these circumstances, we find that the coercive effects of Respondent's unfair labor practices cannot be eliminated by traditional cease-and-desist remedies and were of such a nature as to make a fair election doubtful, if not impossible. Consequently, we find that the purposes of the Act can better be effectuated by reliance on the employees' desires as expressed by signed authorization cards than on the results of a rerun election, and that issuance of a bargaining order is appropriate.' 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 orders that Respondent, Dawson Metal Products, Inc.,

Camdenton, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as modified below.' represented by the Union The General Counsel filed an opposition to the motion The motion is denied Assuming that the proffered evidence would show that the Union no longer represented a majority in the appropriate unit, Respondent cannot , in view of its serious unfair labor practices, rely on the Union's loss of majority status as a justification for its refusal to bargain To do so 'would, in effect, be rewarding the employer and allowing him 'to profit from [his] own wrongful refusal to bargain - N L R u v Gissel Packing Company, supra 'In fn 17 of the Trial Examiner's Decision substitute the word 'Judgment' for 'Decree' wherever it occurs 183 NLRB-No. 25 if IS FURTHER ORDERED that all alleged violations not herein found, as well as the petition in Case 17-RM-397, be, and the same hereby are, dismissed.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

RICHARD D. TAPLITZ, Trial Examiner: This is a consolidated proceeding on a complaint of unfair labor practices, as amended at the hearing, against Dawson Metal Products, Inc., herein called Respondent, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, and on objections to the conduct of an election in which Respondent's employees participated, which objections involve in part the same alleged misconduct of the Respondent set forth in the complaint.

In Case 17-CA-3686 a charge was filed on October 1, 1968,' against Respondent by Local Lodge 1316, International Association of Machinists & Aerospace Workers, AFL-CIO, herein called the Union. The complaint issued on November 19 and as amended at the hearing alleged that Respondent through its agents interfered with its employees' rights guaranteed in Section 7 of the Act by the use of threats of harm and promises of benefit related to union activities, by interrogation of employees, by creating the impression of surveillance, by blaming the Union for its failure to grant pay raises, and by informing employees that job applicants were being rejected because of their union connections.

In addition the complaint alleged that Respondent unlawfully refused to bargain with the Union as the representative of its production and maintenance employees. In its answer Respondent denied the commission of any unfair labor practices.

In Case 17-RM-397 Respondent filed a petition on September 3 seeking an election in a unit of its production and maintenance employees. Pursuant to a Stipulation for Certification Upon Consent Election executed by all the parties, an election was held on September 25 among Respondent's production and maintenance employees at its Camdenton,

Missouri, plant. The employees cast 13 votes for the Union and 15 against the Union. There were no void or challenged ballots. Thereafter on September 27 the Union filed timely objections to the conduct of the election. After investigation of the objections the Regional Director for Region 17 of the Board concluded that the objections included , All dates are in 1968 unless otherwise specified 'Both General Counsel and Respondent filed motions to correct the transcript of the record. Neither objects to the motion of the other except in one limited particular Respondent objects to that part of the General Counsel's motion that would change the name 'Order' to 'OrdellJones' on page 215, line 4 of the transcript Except as to that one item to which there is an objection , both motions are granted. The corrections are set matters which were also the subject matter of the complaint in Case 17-CA-3686 and that substantial and material issues of fact and law had been raised by the objections which could best be resolved on the basis of record testimony. Accordingly, by order dated November 21, the Regional Director consolidated Case 17-RM-397 with Case 17-CA-3686 and further ordered that, after hearing, ruling, and decision by a Trial Examiner,

Case 17-RM-397 be transferred to and continued before the Board in Washington, D.C.

A hearing was held before me in Camdenton,

Missouri, on January 7 and 8, 1969, in which all parties were given full opportunity to participate, adduce evidence, examine and cross-examine witnesses, and argue orally. Thereafter, briefs, which have been carefully considered, were filed on behalf of the Respondent and the General Counsel.

Upon the entire record2 in the case and from my observation of the demeanor of the witnesses, I make the following:

FINDINGS OF FACT

1. THE BUSINESS OF RESPONDENT Respondent, a Kansas corporation, maintains an office and factory at Camdenton, Missouri, herein called the plant, where it is engaged in the business of manufacturing various metal products. In the course of its business at the plant Respondent annually sells goods valued in excess of $50,000 directly to customers located outside the State of Missouri and annually purchases goods and services valued in excess of $50,000 directly from sources outside the State of Missouri.

   The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

   2. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer as amended at the hearing admits, and I find that...