Top Mfg. Co., Inc.

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Top Manufacturing Company, Inc. and Carpenters Local Union 1959, United Brotherhood of Car- penters and Joiners of America, AFL-CIO. Case 21-CA-17944 May 9, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE Upon a charge filed on June 22, 1979, by Car- penters Local Union 1959, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (herein called the Union), and duly served on Top Manufacturing Company, Inc. (herein called Re- spondent), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, on July 16, 1979, issued and served on Respondent a complaint and notice of hearing. The complaint alleged that Respondent had en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. In substance, the complaint alleges that Respondent refused to bargain with the Union when it bargained directly concerning a pending grievance with an employee in a collec- tive-bargaining unit represented by the Union and when it subsequently entered into a settlement agreement for the grievance with that employee, without notifying the Union or giving it an oppor- tunity to be present at the settlement discussion. On July 25, 1979, Respondent filed an answer in which it denied the commission of any unfair labor prac- tices. On November 16, 1979, the parties executed a stipulation of facts and a motion to transfer pro- ceedings wherein they waived a hearing before an administrative law judge and agreed to submit the case to the Board for findings of fact, conclusions of law, and a Decision and Order, based on a record consisting of the stipulation of facts and at- tached exhibits. On January 18, 1980, the Board ap- proved the stipulation and ordered the case trans- ferred to the Board, granting permission for the filing of briefs. Thereafter, the General Counsel and Respondent filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the following findings and conclusions: 249 NLRB No. 55 FINDINGS OF FACT I. JURISDICTION Respondent is now, and at all times material has been, a corporation engaged in the manufacture of Formica countertops and operating a facility locat- ed at 5825 Ordway Drive, Riverside, California. In the normal course and conduct of Respondent's business operations, it sells and ships goods and products valued in excess of $50,000 directly to customers located outside the State of California. The parties stipulated, and we find, that Respond- ent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts At all times since at least 1976, and continuing to date, the Union has been the collective-bargaining representative of the following unit of Respond- ent's employees at its Riverside, California, facility: All mechanics, layout utility men, heavy ma- chine operators, fiber glass operators, fitters, finishers, glue press operators, assemblers, sol- derers, machine tailers, glue applicators, ship- ping clerks, machine operator assistants, mate- rial handlers, and product and custodial cleanup men; excluding office clerical, admin- istrative, professional and supervisory person- nel as defined in the Act.I Alex Aguilar was an employee in the above-de- scribed unit until Respondent discharged him on May 21, 1976. The Union timely grieved Aguilar's discharge pursuant to the grievance and arbitration provisions of the collective-bargaining agreement then in effect. This grievance was ultimately sub- mitted to arbitration. On October 12, 1976, an arbitrator issued an opinion and award finding that Respondent had discharged Aguilar without just cause and requir- ing Respondent to reinstate the employee and to compensate him for lost earnings. On March 28, 1978, the United States District Court for the Cen- tral District of California entered an order granting i' he oard has previously found that Respondent violated Sec 8(a)(5 ) and (1) of the Act by sithdrawing recognition from and refusing to bargain with he Unioll on and after August 5, 1976 liop :Munufactur- ig C'(omrnpu . Inc., 230 NI.RI 937 (1977), enfd 594 2d 223 (9th Cir. 1979) TOP MANUFACTURING COMPANY. INC. 425 the joint motion of the Union and Aguilar for sum- mary judgment enforcement of the arbitration award. Respondent's subsequent appeal of the dis- trict court's order is currently pending before the United States Court of Appeals for the Ninth Cir- cuit. In the wake of the arbitrator's award, Respond- ent and the Union periodically exchanged certain correspondence concerning Aguilar's grievance and the amount of backpay at issue. This corre- spondence culminated in an October 16, 1978, letter from Respondent's counsel to the Union's counsel. The letter reaffirmed a prior offer by Re- spondent to settle Aguilar's backpay claim against it for $5,000, subject to the condition that Aguilar waive his right to reinstatement. The letter further stated: "This offer will remain open through and including October 30, 1978, and will be automati- cally withdrawn if not accepted before that time. Please understand that this is an offer to compro- mise which is not to be used in any subsequent liti- gation to prejudice the position of either party." The Union did not respond to Respondent's offer. On December 21, 1978, Respondent, having still failed to comply with the arbitrator's award, con- tacted Aguilar directly in a letter offering to settle his grievance on the same terms set forth in Re- spondent's October 16 letter to the Union. On Feb- ruary 9, 1979, Respondent's representatives met di- rectly with Aguilar, who thereupon signed a "Full Release" wherein he agreed to settle his entire claim against Respondent in exchange for $5,500. The Union did not attend the February 9 meeting, nor did it have the opportunity to do so. It re- ceived no advance notification of the meeting or its purpose. In a letter dated February 9, 1979, Agui- lar informed the Union that he had contacted Re- spondent and directly settled all of his claims. Aguilar's letter constituted the Union's first notice that settlement discussions had taken place between Respondent and Aguilar. B. Contentions of the Parties The General Counsel contends that Respondent acted in derogation of the Union's status as Agui- lar's exclusive collective-bargaining representative and in violation of Section 8(a)(5) and (1) of the Act. In particular, the General Counsel argues that Respondent acted unlawfully both when it contact- ed and directly bargained with Aguilar concerning his grievance and when it subsequently entered into a settlement agreement with him without af- fording the Union the opportunity to be present, as required by the second proviso to Section 9(a) of the Act. In its defense, Respondent contends that its set- tlement negotiations with Aguilar were the result of the Union's failure to reply to Respondent's pre- vious settlement offers. It further contends that the settlement agreement at issue is "fair and regular" and that Respondent's actions in seeking such an agreement have been consistent with the Board's statutory policy of encouraging the peaceful resolu- tion of labor disputes. C. Analysis and Conclusions It is well-established Board law that an employer violates Section 8(a)(5) and (1) of the Act by fail- ing to notify and to bargain with a collective-bar- gaining representative before making a direct and unilateral offer to unit employees concerning a ma- terial change in their terms and conditions of em- ployment. 2 It is equally well established that an employer violates the same statutory sections by adjusting employees' grievances without permitting their collective-bargaining representative an oppor- tunity to be present at such adjustment, as required by the second proviso to Section 9(a) of the Act.3 Respondent herein admittedly communicated its settlement offer directly to Aguilar on December 21, 1978, without notifying the Union. In so doing, Respondent acted in open derogation of the Union's role as Aguilar's representative throughout a history of grievance, arbitration, and judicial en- forcement proceedings dating back to the employ- ee's discharge on May 21, 1976. Compounding its misdeed, Respondent then met with Aguilar and, again without notifying the Union or assuring its statutory right to be present, adjusted his grievance by executing the February 9, 1979, "Full Release" agreement. Based on the aformentioned precedent, Respondent's actions constituted clear violations of the Act. Contrary to the contention made by Respondent in its defense, the Union's failure to reply to its Oc- tober 16, 1978, settlement offer did not justify Re- spondent's subsequent direct dealings with Aguilar. Although a waiver of bargaining rights may under certain clear and unequivocal circumstances occur by express agreement of the parties or by union in- action after receipt of notice of an employer's in- tended action, no such waiver can be divined from the record of negotiations in this case. There is no evidence that Respondent ever notified the Union of a desire to communicate its settlement offer di- rectly to Aguilar and that Respondent would regard the Union's failure to respond to the Octo- 2 See. e g, Houston Shopping News Co., d/b/a Naylor Type & Mats. 223 NLRB 1133 (1976); Carnation Company. 172 NLRB 1876 (1968) 3 The Dow Chemical Company, 227 NLRB 1005 (1977): Lee Dan' Products, Inc., 181 NLRB 1047 (1970); Bethlehem Steel Company, et al., 8) NLRB 341 (1950). 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber 16 letter as an expression of tacit consent to direct communications with the grievant. The Union, having secured a judicial order enforcing Aguilar's arbitration award, was entitled to insist on Respondent's full compliance and to rely on Re- spondent's own written statement that failure to accept the settlement offer by October 30, 1978, would only mean the automatic withdrawal of the offer. In sum, we find that the Union did not waive its statutory bargaining rights with respect to the Aguilar grievance at any time during the course of its negotiations with Respondent about that griev- ance. We further find that Respondent may not defend the conduct at issue in this proceeding by relying on the Board's policy of encouraging the private resolution of labor disputes. An agreement negoti- ated and executed in a manner contrary to the Act warrants no deference from the Board. Having failed to accord the Union its statutory bargaining rights in reaching the purported "Full Release" set- tlement agreement, Respondent cannot now justify the unlawful means utilized by reference to the end achieved. The alleged fairness and adequacy of Re- spondent's agreement with Aguilar is irrelevant to the alleged illegality of Respondent's conduct vis-a- vis the Union. Based on the foregoing, we find that Respondent violated Section 8(a)(5) and (1) of the Act when it unilaterally contacted and communicated a settle- ment offer to Aguilar in its December 21, 1978, letter, without notice to the Union and in deroga- tion of its status as a collective-bargaining repre- sentative. We also find that Respondent violated Section 8(a)(5) and (1) by adjusting Aguilar's griev- ance through the execution of the February 9, 1979, "Full Release" agreement, without honoring the Union's statutory right to be present at such adjustment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action to effectuate the purposes of the Act. 4 CONCLUSIONS OF LAW 1. Top Manufacturing Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Carpenters Local Union 1959, United Brother- hood of Carpenters and Joiners of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All mechanics, layout utility men, heavy ma- chine operators, fiber glass operators, fitters, finish- ers, glue press operators, assemblers, solderers, ma- chine tailers, glue applicators, shipping clerks, ma- chine operator assistants, material handlers, and product and custodial cleanup men; excluding office clerical, administrative, professional and su- pervisory personnel as defined in the Act, consti- tute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since at least 1976, the above-named labor or- ganization has been, and now is, the exclusive rep- resentative of all employees in the aforesaid appro- priate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally contacting and bargaining di- rectly with a unit employee in derogation of the labor organization's status as exclusive collective- bargaining representative, and by adjusting a unit employee's grievance without giving the same bar- gaining representative an opportunity to be present at such adjustment, Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Top Manufacturing Company, Inc., Riverside, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Continuing or giving effect to the February 9, 1979, purported "Full Release" settlement of the grievance claims of Alex Aguilar. I The General Counsel has requested that a broad cease-and-desist order be issued against Respondent. Pursuant to principles recently ar- ticulated in Hickmott Foods. Inc., 242 NLRB No. 177 (1979), however, we find that narrow injunctive language is adequate to remedy the viola- tions found herein. TOP MANUFACTURING COMPANY, INC. 427 (b) Dealing individually with any of its employ- ees in the collective-bargaining unit represented by Carpenters Local Union 1959, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, in derogation of that labor organization's status as the employees' exclusive collective-bargaining rep- resentative. (c) Adjusting bargaining unit employees' griev- ances without giving the Union an opportunty to be present at any such adjustment. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights protected under Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Post at its place of business in Riverside, Cali- fornia, copies of the attached notice marked "Ap- pendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to Employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. a In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (b) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT continue or give effect to a purported "Full Release" settlement of the grievance claims of Alex Aguilar, which was executed on February 9, 1979, without giving Carpenters Local Union 1959, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, its statutory opportunity to be present at the adjustment of a grievance. WE WILL NOT deal individually with our employees concerning their terms and condi- tions of employment in derogation of their ex- clusive collective-bargaining representative. WE WILL NOT adjust bargaining unit em- ployees' grievances without giving Carpenters Local Union 1959, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, an opporunity to be present at the adjust- ment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. ToP MANUFACTURING COMPANY, INC.