The Rittling Corp., 355 (1973)

The Rittling Corporation and Local 335, International Union of Electrical, Radio and Machine Workers,

AFL-CIO-CLC. Case 3-CA-5016

April 30, 1973 DECISION AND ORDER

BY CHAIRMAN MILLER AND MEMBERS FANNING

AND PENELLO

On December 29, 1972, Administrative Law Judge Almira Stevenson issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a brief in support thereof.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order.' 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 Administrative Law Judge and hereby orders that the Respondent, The Rittling Corporation, Buffalo, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to abide by its collective-bargaining agreement with the Charging Party at the Respondent's new plant located at Gowanda, New York; by unilaterally changing the terms and conditions of employment at that plant; and by refusing to recognize the Charging Party as the representative of the employees at the Gowanda plant.

For the reasons set forth below, I find that the Respondent violated Section 8(a)(5) and (1) of the Act.

Upon the entire record,' including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent,

I make the following:

AND

CONCLUSIONS OF LAW

1. JURISDICTION The Respondent, a New York corporation, at all times material herein has maintained its principal office , place of business, and manufacturing facilities at 252 Amherst Street, Buffalo, New York, and, since about the middle of September 1972, has operated and maintained a manufacturing plant on Commercial Street in Gowanda , New York.

The Respondent is engaged at said plants in the manufacture, sale, and distribution of baseboard heating, radiators, and related products.

During the past year, the Respondent purchased pipes and other metal products and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported to the aforesaid plants directly from States other than New York. The Respondent admits, and I conclude, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

It. LABOR ORGANIZATION i The General Counsel excepted to the failure of the Administrative Law Judge to specifically require in her recommended Order that the current collective-bargaining agreement between the Respondent and the Charging Party be retroactively applied to the employees in the Respondent's Gowanda plant. Since such a requirement is already included in the section of her decision entitled 'Remedy' and that section is incorporated by reference into the recommended Order and notice , which we have adopted , we find no ment in the General Counsel 's exception.

DECISION

STATEMENT OF THE CASE

ALMIRA ABBOT STEVENSON, Administrative Law Judge:

This case was heard at Buffalo, New York, on November 2, 1972. The charge was filed by the Union August 23, 1972, and served on the Respondent August 24, 1972. The complaint was issued September 26, 1972, and amended at the hearing.

The issue is whether the Respondent violated Section The Charging Party, herein referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act.

111. THE UNFAIR LABOR PRACTICES The Respondent has been in business in and around Buffalo, New York, since at least 1947. As indicated, it manufactures heating and ventilating equipment such as baseboard heaters and radiators . Charles P. Rittling is the president; Robert M. Hodgson is a factory manager.

In 1950, the Respondent moved its manufacturing plant to Hamburg, New York. In April 1962, the Union was certified by the Board as the exclusive representative of the Respondent's production and maintenance employees. The t The General Counsel's motion for correction of errors in the official report of proceedings is granted , in the absence of objection. Although the stenographic transcript contains additional errors not included in the motion,

I do not deem it necessary to correct them as the true meaning is obvious.

2 Except as indicated, the facts are undisputed 203 NLRB No. 59 parties executed their first collective-bargaining agreement on June 20, 1962, and have been parties to successive agreements since that time. Their most recent contract was executed July 7, 1970, effective for a term of 3 years. All of the contracts have contained union-shop and checkoff provisions. All have also contained the following provisions:3

Art. XIV, Sec. 15.4 In the event the Company should move its plant or establish plants in other geographical areas, senior employees shall have preference over all other job applicants for any vacant positions.

Art. XXX. Functions of Management. Sec. I .. .

The Company shall be the exclusive judge of all matters pertaining to . . . the location of plants ... .

At the request of the Union, the unit was described in the first collective-bargaining agreement, covering 1962-64, as follows:

Art. I, Sec. 2. The term 'employee' as used in this Agreement refers to and includes all production and maintenance employees of the Company at its factory at 357 Pleasant Avenue in the Village of Hamburg, Erie County, New York, excluding office clerical employees and all guards, professional employees and supervisors as defined in the Act.

In March 1963, union officials learned that Rittling was attempting to acquire land adjacent to its Hamburg plant for purposes of expansion. Although the Union and the employees attempted to aid the Company in this endeavor, by the fall of 1963 it became apparent that adjacent land could not be acquired. The then international representative of the Union, Harry Shaw, therefore asked Charles Rittling about the Company's future plans. Rittling assured Shaw that he would not abandon this area, where his roots were.

He said he was looking at possible sites in Buffalo and that the Company would locate somewhere in Erie County.

Shaw suggested that the contract be modified by changing the recognition clause accordingly in order to give security to the employees. Rittling agreed, and the parties executed an October 21, 1963, 'letter' modifying the 1962-64 contract as follows:

Art. 1. Sec. 2. The term 'employee' as used in this Agreement refers to and includes all Production and Maintenance employees of the company at its factory in Erie County, New York, excluding office clerical employees, and all guards, professional employees and supervisors as defined in the Act.

Thereafter, the Respondent leased a plant at 252 Amherst Street, Ene County, Buffalo, New York, and, in early 1964, began operations there, manufacturing the same products with the same machines and practically the same methods.

The plant was located 6 to 8 miles from the Niagara County line.

Meanwhile, William Gaden succeeded Harry Shaw as international representative of the Union, and negotiations i All collective-bargaining agreements between the parties also contained, in art. XI, sec. 1(d), a provision that the arbitrator had no authority to add to, subtract from, or modify any provision of the agreement. Contrary to the Respondent, I do not consider that provision relevant to the issue in this case It is a common practice to restrict arbitrators' authority in such a manner.

4 Sec 15 of art XIV was renumbered as sec 17 in the 1964 and subsequent contracts began for a new collective -bargaining agreement . The initial sessions were held at the Hamburg location , and the final sessions at the Amherst Street location. In response to the Union's proposal that art. I be conformed with the October 21, 1963, letter of agreement, the recognition clause of the 1964-66 contract, executed June 19, 1964, provided as follows:

Art. 1. Sec. 2. The term 'employee' as used in this agreement refers to and includes all production and maintenance employees of the Company in the County of Erie, State of New York, excluding office clerical employees and all guards, professional employees and supervisors as defined in the Act.

A 3-year 1966-69 agreement contained the same recognition provision as the prior contract.

The next, and current, collective-bargaining agreement was negotiated for the Union by International Representative Russell Freund. As indicated, it is effective for 3 years from the date of execution, July 7, 1970. Art. I, sec. 2, is the same as the similarly numbered clause in the 1964 and 1966 agreements.

On May 15, 1972, a committee of Local 335 officials met with Charles Rittling and discussed rumors that the plant would be moved again. Rittling told them he had no definite news for them, but when the time arrived he would inform the employees of the move to be made. On May 29 , Rittling met with International Representative Freund . Rittling told Freund that he anticipated moving the plant, and was considering several possible locations in Buffalo and Cheektowaga, as well as Gowanda. He said that Gowanda had strong economic advantages for the Company, but there were insurance problems to be solved. Rittling said he would let Freund know when a decision was made. Rittling stated...

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