Darlington Veneer Co., Inc.

DARLINGTON VENEER COMPANY, INC. 197 Darlington Veneer Company, Inc. and Local Union No. 3043, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case No. 11-CA-1125. March 13, 1959 DECISION AND ORDER On October 6, 1958, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed ex- ceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act as amended (61 Stat. 136), was heard at Darlington, South Carolina, on August 28, 1958, pursuant to due notice, with all parties represented and par- ticipating in the hearing. The complaint, which was issued on October 30, 1957, by the General Counsel of the National Labor Relations Board and which was based on charges duly filed and served, alleged that Respondent had since Febru- ary 26, 1957, refused to bargain with the Union as the exclusive representative of its employees in an appropriate unit, in violation of Section 8(a)(5) and (1) of the Act. Respondent answered on November 18, 1957, denying that it had engaged in unfair labor practices as alleged. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS ; THE UNION AS A LABOR ORGANIZATION The complaint alleges and the answer admits facts which establish that Respond- ent, a South Carolina corporation, is engaged in commerce within the meaning of the Act and that the Charging Union is a labor organization within the meaning of the Act. See also 113 NLRB 1101, 1106-7. II. THE UNFAIR LABOR PRACTICES A. Introduction and background; the issue as litigated The central issue in the present case turns on the question of Respondent's compliance with a Board order and court decree in an earlier proceeding. On August 26, 1955, the Board, 113 NLRB 1101, found Respondent in violation of Section 8(a)(1), (3), and (5) of the Act, and ordered as remedial action (in respects here relevant) that Respondent offer reinstatement to, and make whole, certain discriminatees and that it bargain with the Union in a specified manner. On August 20, 1956, the Court of Appeals for the Fourth Circuit granted enforce- ment, 236 F. 2d 85. The present complaint charged a refusal to bargain on and after February 26, 1957, in that, though Respondent and Union had bargained to a contract subse- 123 NLRB No. 21. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quent to the court decree, the Union had agreed to a 6 months' term only upon the adamant insistence of Respondent. That was not, however, the issue on which the case was litigated. The General Counsel conceded in his opening statement that Respondent's adamant insistence on the 6 months' term was not per se a violation of Section 8(a)(5), that the execution of the contract was a result of collective bargaining, and that it represented pro Canto compliance with the decree, i.e., insofar as Section 8(a)(5) was concerned. His real theory of the case, though not alleged or hinted at in the complaint, was that Respondent had failed to comply with some of the 8(a)(3) provisions of the decree (alleged improper reinstatement of some of the discriminatees) and that, not having fully remedied the effects of its prior unfair labor practices, Respondent was precluded as a matter of law from questioning the Union's majority status, as it did on February 26, 1957, on which date it also forwarded to the Board a petition for an RM election. Though the Trial Examiner suggested that the theory as stated represented a departure in pleading, no motion to amend was made, and the case was fully litigated, without objection, on the basis of the theory announced during the open- ing statement. Though most of the evidence was thereafter taken as an offer of proof, the Trial Examiner urged the parties to make a complete record on the issue of alleged noncompliance and informed them that he would possibly reverse his initial ruling and receive the evidence . The parties expressed satisfaction at the end of the hearing with the record as made. The Trial Examiner now re- verses his former ruling and receives in evidence the testimony offered by the parties under their respective offers of proof, as well as certain exhibits on which ruling was reserved. The evidence showed in brief that from August 21, 1956, to April 14, 1958, the Board, through a succession of different representatives , engaged in compliance negotiations with Respondent which concerned mainly computations being made by Board agents of the correct amount of back wages due the discriminatees, and that it was not until after more than a year of such negotiations and several months after the filing of the RM petition that the fifth (and final ) Board repre- sentative raised the question of alleged improper reinstatement of some of the dis- criminatees . It is on this last alleged item of noncompliance that the General Counsel relied solely to support his contention that Respondent was precluded on February 26, 1957, from raising the question of the Union's majority. B. The negotiations for compliance On August 21, 1956, Richard H. Frahm, acting chief field examiner, wrote Respondent, calling attention to the court's decree and to the items of the Board's order with which compliance was required. On September 19, Frahm wrote again, referring to information he had received concerning partial compliance, requesting verification , and stating that he would assign a field examiner to ascer- tain the amount of back wages. Respondent replied on September 25, informing the Board that notices had been posted and bargaining negotiations resumed with the Union and that it "believe[d] all of the people named on the second page of your notice have been offered reinstatement." Bargaining negotiations between Respondent and Union continued until October 26, when a contract was reached which provided for a 6 months' term. Though the contract was not offered as an exhibit, there was no dispute that it contained a clause (article XXI) which provided for notice of termination or modification after 4 months. See section C, infra. In the meantime, William Magruder (also spelled McGruder in the record), a field examiner, was assigned to the case. He took up with Respondent only ques- tions concerning the amount of the back wages, and on December 19, 1956, he wrote Respondent, submitting tentative computations aggregating $7,825.25. Ma- gruder was subsequently transferred by the Board to another Regional Office, and the case was reassigned to Field Examiner Robert J. Wall. There was no contact with Respondent between Magruder's letter of December 19, 1956, and Wall's first visit on March 7, 1957, and there was none between the latter date and Wall's second visit on July 12. Jack Ramsey, Respondent's president, testified without refutation that Wall talked with him mainly concerning the amounts of the back wages' but that Wall submitted no formal computations as Magruder had, though he "supplied differ- 1 Though Wall tentatively questioned the manner in which Venroe Williams had been reinstated, he agreed, after making an investigation in the plant, that Williams' re- instatement was proper. DARLINGTON VENEER COMPANY, INC. 199 ent ideas" about some of the computations . On July 12 , Wall informed Ramsey that he had completed his computations and that the final back-pay figure was around $6,500 . Though Wall stated that Respondent would receive a final or formal demand based on those computations , none was received, nor were Wall's computations ever submitted to Respondent. Wall thereafter resigned from the Board, and the next contact with Respondent came as a letter from Jerry Stone, an attorney, who requested a meeting con- cerning Respondent's RM petition. The meeting was held around September 4 between Stone and Ramsey, but most of the time was spent in discussing the back- pay matter . Stone put the matter on a plain bargaining basis, informing Ramsey that if Respondent would agree to settle for a flat $5,000 , he thought he could get the approval of the district supervisor. Ramsey-also a bargainer-countered with a suggestion of $4,000, and Stone stated he would try to get approval. There was no further word from Stone ,2 and none of the Board's representatives up to this time had questioned the reinstatement of any of the discriminatees. Nor had Respondent at any time refused to pay any particular amount of back wages, though it had raised questions concerning the amounts of interim earnings of some of the employees. It was the fifth and final Board representative who first questioned the reinstate- ments. C. W. Greene, chief field examiner, visited the plant on October 17, 1957, and discussed with Ramsey both the back -pay matter and the claim that Respondent had not properly reinstated some of the employees . Greene wrote Ramsey on October 29 , that their discussion of the possible settlement of the back wage matter was based on the assumption that Respondent had fully complied with the Board order and court decree , and stated that further investigation indicated that Respond- ent "possibly has failed to comply" in respect to some of the reinstatements, and that "absent immediate compliance," it would be necessary to recommend that the General Counsel initiate contempt proceedings . Greene's letter summarized the information pertaining to some 15 of the discriminatees (including Venroe Wil- liams), purporting to show that they had not been properly reinstated , and called on Respondent to set forth any inaccuracies . Respondent replied on November 5, taking issue with Greene's claim, and stating its position on each of the 15 cases. After some months, Greene wrote Ramsey on March 14, 1958, explaining at length why he was rejecting Respondent's contention that all of the discriminatees had been properly reinstated, in which he resummarized the facts as developed in the investigation of 15 cases,3 and in which he set forth the steps which Respond- ent should take in each case in order to comply with the order . This time the number of proposed reinstatements was reduced to 10. Greene's letter concluded with the suggestion that, pursuant to prior discussions , they confer further on a proposal for settlement. Negotiations continued until April 14 , when a final stipulation and agreement for settlement was reached . Ramsey testified that there were further discussions of the back-pay matters between him and Greene, with "horse-trading back and forth on the dollar amount," and that Greene also asked that Respondent agree to reinstate four employees to be selected by him. Ramsey testified that he did not know the basis of Greene's selection, but that Greene stated that he was giving Respondent "somewhat of a break" in selecting the four whom he chose (Bena- jamin Gurley, William Hudson, Jerome Barker, and Prince Taylor ), because two of them had left town and would probably not come back,4 and that in reality he was requiring Respondent to take back only two employees. Ramsey testified that he consented to Greene 's proposal because the matter had been dragging for so long and because Respondent was anxious to bring it to a conclusion, though he admitted understanding (and so acknowledged in his letter of April 14 to the Board) that the settlement did not include the refusal -to-bargain complaint . The formal stipulation and agreement , which was executed on April 14, also recited Respondent 's acknowledgment that the settlement was to effectu- ate compliance with the Board order and court decree . It provided for pay- ments to 23 discriminatees aggregating $5,823.86, and for an offer of reinstate- ment to Gurley, Hudson , Barker, and Taylor. a Ramsey testified that he later inquired about Stone 's proposal during Greene's first visit ( see infra), and that Greene explained that Stone was in a different department and indicated he felt Stone was "a little out of order" in making such a proposal. 3 This summary omitted James Toney, who was included in Greene 's first letter, but covered the case of Wilds Ezekiel , who was not included in the first letter. b Respondent's offers of reinstatement to Taylor and Barker were addressed to them, respectively, in Baltimore , Maryland , and Philadelphia , Pennsylvania. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As originally drafted, the agreement also contained provisions under which Respondent would, upon filing of a representation petition , consent to an election to resolve the representation question , and the Union would consent, in turn, to a withdrawal of charges in the present case, but those provisions were deleted from the agreement before execution . Ramsey testified that though the consent election was an item of discussion , it was finally dropped. C. The refusal to bargain On February 24, 1957, the Union gave notice pursuant to article XXI of the 'contract of its desire to negotiate changes in the agreement . On February 25, and apparently before receipt of the Union 's letter, Respondent wrote the Union, also pursuant to article XXI, that it was electing to terminate the contract. On February 26, Respondent acknowledged receipt of the Union 's letter, and stated that it had reason to believe that the Union no longer represented a majority of the employees and that it was forwarding to the Board 's Regional Office a petition for an RM election. Respondent has since refused to bargain with the Union in negotiations for a contract , though it met with Parker on a grievance matter some time after the notice of termination. The Union filed its charge on June 11 , 1957, and on September 11 undertook to inform Respondent that it was because Respondent had not complied with the court order that the Board had not acted on Respondent 's RM petition. The Union added that it would have no objection to the Board resolving the representa- tion question after compliance with the oustanding order. Respondent answered on September 19, asserting that it had complied with the order , repeating its claim that "the great majority" of its employees did not wish to be represented by the Union, and suggesting that if the Union thought otherwise, it agree to an election.5 Following Greene's letter of October 29 , 1957 , to Respondent, referred to under section B , supra, the Regional Director, on October 30, dismissed Respondent's RM petition , and issued the complaint herein. The General Counsel offered no evidence as to the Union 's majority as of February 26, 1957, relying on a presumption that the majority as found in the prior proceeding had continued and on his contention that Respondent was pre- cluded from raising a majority question because of its noncompliance with the Board order, i.e., the alleged improper reinstatement of Gurley , Hudson, Barker, and Taylor. Respondent offered unrefuted testimony by Ramsey as to matters and occur- rences on which Respondent predicated its doubt of the Union 's majority. That evidence constituted prima facie adequate basis for assertion of Respondent's doubt, and the only issue herein is whether the General Counsel is correct in his con- tention that Respondent is precluded , under the facts set forth above, from raising the majority question as a defense to the refusal to bargain charge. D. Contentions and concluding findings The contentions and theories of the parties were stated fully during their open- ing, statements and in their oral arguments , and Respondent has filed a short brief in which it simply renews its oral contentions , without citation of authority: Indeed, the parties conceded in argument that there were no cases factually in point with the present one. The General Counsel relied on the elementary prin- ciple of labor law that an employer cannot justify a refusal to bargain on the ground of a loss of majority which was attributable to his own (unremedied) unfair labor practices , citing such cases as Medo Photo Supply Corporation, v. N.L.R.B., 321 U .S. 678, 687, and Frank Bros. Company, v. N.L.R.B., 321 U.S. 702. Respondent , in turn, relied on a line of cases such as Hinde & Dauche Paper Company, 104 NLRB 847; Vulcan Steel Tank Corporation, 106 NLRB 1278; and 5 J. A. Parker testified for the Union to a course of jockeying between Respondent and the Union concerning an agreement to dispose of the representation question by an election, but all the evidence shows is that when the Company was willing the Union was not, and when the Union was willing the Company was not.. For example , the Union was willing to take its chances on an election at the time of the final settlement on April 14, 1958 , but the Company was not. But Parker testified that when the matter was raised again a week or so before the present hearing, the Company was agreeable but the Union was not, because it felt ( in part) that the effects of the settlement had been dissipated. DARLINGTON VENEER COMPANY, INC. 201 Ludlow Typograph Company, 108 NLRB 1463,6 where the Board held the term of a contract (to expire at or before the end of a certification year) to be a bargainable matter; but those cases lost all pertinency when the General Counsel abandoned his original theory and conceded that the contract as negotiated consti- tuted compliance with the Section 8(a)(5) portion of the prior order. The present case resembles most closely Squirrel Brand Co., Inc., 104 NLRB 289, where , following the entry of the usual order to remedy Section 8(a)(5) and (1) violations in an earlier proceeding, the parties bargained to a contract to expire in approximately 6 months. The company thereafter refused to renew that contract or to bargain with the union for a new one , raising the question of the union's majority. The General Counsel, as here, offered no evidence of majority as of the time of the refusal to bargain . The Board rejected the contention that its prior bargaining order was tantamount to a certification to the extent of applying the 1- year presumption of majority status, and held that the function of that order was to require the company to remedy its refusal to bargain as found at the earlier date when the majority determination was made. The Board pointed out that a loss of majority before the company complied with its order would not affect the company's duty to remedy its past refusal to bargain , but held that once the com- pany complied with the prior order by bargaining in good faith and executing the contract with the union, the order had served its remedial purpose. It is true, as the General Counsel pointed out, that the company in Squirrel Brand was otherwise in compliance with the Board 's order at the time it raised the majority question. We turn to the question whether, under the circumstances herein, Respondent's failure to comply was such as to bar it from raising that question. To the suggestion that the manner in which the Board had conducted its com- pliance activities was responsible for Respondent 's failure to effectuate earlier compliance, the General Counsel argued that the Government cannot be guilty of laches. But the question here is not the academic one whether the Board can be barred by laches from proceeding of an unfair labor practice charge; but, whether an unfair labor practice can be created or given validity by the mere withholding or delaying of its compliance mechanisms . And in this connection it is noteworthy that if the General Counsel's theory be correct Respondent would have been precluded from raising the majority question even if the contract term had been for a full year. Though not conceding that the Board agents had been dilatory or negligent, the General Counsel nevertheless disclaimed reliance on Respondent 's failure to com- ply on the back-wage items, thus acknowledging, inferentially at least , the respon- sibility of Board agents in the matter of computations and the submission of a wage bill. Indeed, the General Counsel finally reduced the claim of noncompli- ance on which he relied as precluding Respondent 's defense to the alleged im- proper reinstatement of four employees . We review the evidence briefly to see whether the Board stands on any better ground in the handling of that phase of compliance. The first four representatives of the Board, during compliance activities which extended over some 14 months, raised no question that Respondent had not prop- erly reinstated all the discriminatees, though Wall raised a tentative question as to Venroe Williams which he abandoned after investigation . When the fifth repre- sentative raised the question , the evidence showed a steady retreat in his claims as to which reinstatements had not been properly made. Thus, Greene's first letter claimed 15 improper reinstatements , but he later reduced the number to 10. And his final proposal was that Respondent should offer, reinstatement to four-em- ployees, whom he would select on such a basis that two of them would probably refuse. Greene's bargaining on reinstatements was therefore wholly comparable with that which had taken place on the back-wage items, i .e., from $7 ,825.23 to $6,500 to $5,000 to $4,000 (counteroffer) to the final figure of $5,823.86. The evidence thus confirmed as apt Ramsey's characterization of the negotiations as "horse trading." Nor do Greene's letters support the General Counsel's claim that they show on their face the basis on which Green distinguished between the alleged cases of improper reinstatement or on which he made his final selection of four employees . Indeed, the entire evidence tended to justify Respondent's assertion that, so far as it could determine , the final selections were made at random. 6 But compare American Steel Foundries, 112 NLRB 531, where the Board distinguished the first two of these cases and found the third to be inapposite because it was a representation case. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neither is there merit in the General Counsel's argument that the Board was entitled to rely on Respondent's earlier representation of compliance. Respondent's letter of September 25, 1956, stated only its belief that proper reinstatement had been offered the discriminatees. There is no evidence that the Board's representa- tives accepted that without question, or as an absolute assurance, or that they failed to investigate it. Indeed, it is difficult to see how, in their constant checking and rechecking of the amounts due for back wages, they could have failed to con- sider the questions (ultimately raised by Greene) whether certain of the discrimi- natees had in fact been put on different jobs and at different pay. Furthermore, Ramsey's testimony showed that Wall not only raised the question in one instance, but that he absolved Respondent after further investigation. Thus the evidence showed that so far as compliance with the prior order was concerned, the remedying of the reinstatements stood on substantially the same ground as the payment of the back wages. Both were subject to the Board's check- ing, and both were settled as promptly as the progress of the Board's compliance procedures permitted. Because of the conclusions herein reached, it is necessary to consider the Re- spondent's contentions only briefly. The main burden of Respondent's argument was that, having bargained to com- pliance with the 8(a)(5) portion of the order, it cannot, as a matter of law, be precluded from a full acquittance on that portion of the directive because of the pendency of questions concerning compliance with the 8(a)(3) provisions of the order. Respondent conceded that there are no cases which support that conten- tion , and the Trial Examiner rejects it as a sound principle of law. In the present case, for example, if Respondent had wilfully or deliberately withheld reinstate- ment from the discriminatees pending termination of its short-term contract with the Union, it could well have been precluded from asserting a loss of majority which may have been attributable to those unremedied unfair labor practices. Respondent argued at one point that the only manner by which the Board could seek to remedy the alleged violation was through contempt proceedings in the court of appeals. That contention is rejected; a new Section 10(b) proceeding was plainly an appropriate alternative action. Thompson Products, Inc., v. N.L.R.B., 133 F. 2d 637, 639-40 (C.A. 6); cf. N.L.R.B. v. Reed & Prince Manu- facturing Company, 196 F. 2d 755, 759-60 (C.A. 1). In conclusion, I find on the basis of the entire evidence and for the reasons stated above that Respondent has not refused to bargain within the meaning of the Act. [Recommendations omitted from publication.] Bowman Biscuit Company, Division of United Biscuit Company of America and American Bakery and Confectionery Workers International Union, AFL-CIO, Petitioner. Case No. 30-RC- 1442. March 13, 1959 SECOND SUPPLEMENTAL DECISION AND DIRECTION OF THIRD ELECTION Pursuant to Supplemental Decision, Order, and Direction of Sec- ond Election 1 issued by the Board on October 22, 1958, in the above-entitled proceeding, a second election by secret ballot was conducted on November 7, 1958, under the direction and supervision of the Regional Director for the Seventeenth Region, among the employees in the unit found appropriate by the Board. Upon the conclusion of the election the parties were furnished a tally of ballots. The tally showed that, out of approximately 469 eligible 1 Unpublished. 123 NLRB No. 32.