Frick Co.

1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only after they had been refused employment for a nondiscriminatory cause which the Union was well aware of. This does not rise to the stature of a mixed-motive discharge which is stressed herein by the General Counsel . In view of all the fore- going considerations , it is accordingly recommended that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The operations of Respondent, Corbin-Dykes Electric Company, affect com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local No . 570, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a) (3) and 8(a) (1) of the Act. RECOMMENDATIONS In view of the foregoing findings of fact and conclusions of law, it is recommended that the complaint be dismissed in its entirety. Frick Company and Plumbers and Steamfitters Local No. 52, AFL-CIO. Case No. 15-CA-2077. April 10, 1963 DECISION AND ORDER On December 19, 1962, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that Re- spondent 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 Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The General Counsel later filed a supplemental brief. Respondent thereupon filed a reply brief to the supplemental brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. 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 entire record in this case, including the Intermediate Report, the exceptions, and briefs, and hereby adopts the findings, conclusions, and recom- mendations I of the Trial Examiner. [The Board dismissed the complaint.] I In view of our dismissal of the complaint herein, we find It unnecessary to consider, and do not adopt, either footnote 12 of the Intermediate Report, or the finding that if the Union had been the statutory representative of the employees when the oral contract was made, Respondent's subsequent conduct would have violated Section 8(d). 141 NLRB No. 109. FRICK COMPANY 1205 INTERMEDIATE REPORT The original charge herein was served upon the Respondent on May 3, 1962,1 and an amended charge was so served on June 20. The complaint issued on August 31, and a hearing was held before Trial Examiner Sidney Sherman on October 30, at Montgomery, Alabama.2 The only issue litigated was whether Respondent had violated Section 8(a)(5) and (1) of the Act by modifying or terminating an alleged contract with the Union, without complying with certain requirements of Section 8(d) of the Act. After the hearing, briefs were filed by the General Counsel and the Respondent. Upon the entire record 3 and my observation of the witnesses, I adopt the follow- ing findings: 1. THE BUSINESS OF THE RESPONDENT Frick Company, herein called the Respondent, is a corporation with a principal place of business at Waynesboro, Pennsylvania. It is engaged in the manufacture, sale, distribution, and installation of refrigeration, air-conditioning, farm, and saw- mill, equipment. Respondent annually ships products valued in excess of $50,000 to points outside the State of Pennsylvania. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Plumbers & Steamfitters Local No. 52, AFL-CIO, herein called the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally modifying or terminating its contract with the Union, allegedly executed on or about March 16, 1962, without complying with the require- ments of Section 8(d)(1), (3), and (4) of the Act. Respondent defended on the ground (1) that there was no contract in effect at the time of the acts complained of, and (2) that, if there was such a contract, it was an illegal, prehire contract. Sequence of Events The Respondent, sometime prior to March 16, contracted to install refrigeration equipment in a building under construction in Montgomery, Alabama, which build- ing was designed to house the meatpacking plant of a firm described in the record as "Frosty Morn Meats." This job will be referred to hereinafter as the Frosty Morn job. Walker, one of Respondent's "erectors," was assigned to supervise the job. On March 16 Walker approached Courtney, the Union's business agent, and during the ensuing conversation it was orally agreed that the Union would supply Respondent with employees and that Respondent would pay the same rates as were currently being paid by other employers under contract with the Union. It was also agreed that Courtney would submit for Walker's consideration, as soon as copies were available, a written contract embodying the terms of the agreement recently negotiated by the Union with area employers. Such a written contract was in fact submitted by Courtney during the last week in April and was signed by Walker on April 27. However, in the meantime, the following had occurred: The Union began to supply men on March 19 and by March 30, 11 had been referred at Walker's request and hired by him. All were union members or appli- cants for membership. The hourly rate paid these employees was the agreed wage of $3.50 to nonsupervisory employees and $3.75 for foremen. On March 30, Walker complained to Courtney about the slow progress of the job and observed that the work could be done more cheaply by laborers, but agreed with Courtney that the hiring of laborers would involve a breach of "the Union contract." Walker then warned Courtney that if production did not improve the job would have to be "closed down." Courtney offered to supply apprentices, who, under the Union's 1 All events hereinafter related occurred in 1962, unless otherwise stated 8 The hearing was held open to permit the parties to submit a stipulation as to certain aspects of Respondent's business operations. Such stipulation was submitted on Novem- ber 10, and has been received in evidence as Trial Examiner's Exhibit No. 1. On Novem- ber 19, I issued an order closing the hearing. 8 The transcript of testimony taken herein is hereby ordered corrected in the following respect : On page 35, line 9, change "besides" to "in lieu of." 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD area contract, could be paid considerably less than the $3.50 rate that Respondent was paying to its journeymen employees.4 Walker accepted this offer and on April 3 and 4 hired two apprentices referred by Courtney. However, on April 6, Walker, without any prior notice to Courtney, discharged all the employees on the job, and on April 9 hired a new crew through sources other than the Union. He paid the new employees rates varying from $1.25 to $4 per hour. Walker admitted that the employees receiving the $1.25 rate were performing the same work as some who had received the $3.50 rate before April 6. This was the situation when Respond- ent on April 27 executed the union contract referred to above. In executing such contract, Walker agreed to, and did, rehire 6 of the 13 men discharged on April 6. He also agreed, several weeks later, as a result of negotia- tions with the Union, to rehire the remaining seven former employees as needed, but none of them was actually rehired. The job was completed in mid-September. Discussion At the hearing the General Counsel disclaimed any contention that the mass dis- charge of April 6 was motivated by antiunion considerations, and no evidence was offered to rebut Walker's testimony that the only reason for the April 6 action was the poor performance of the employees .5 The General Counsel also disclaimed at the hearing any contention that the Respondent's action violated Section 8(a) (5) of the Act on the basis of the rule approved by the Supreme Court in the Katz decision,6 namely, that, even in the absence of a contract, any unilateral changes in terms of employment are inconsistent with the duty to bargain with the statutory representa- tive of the employees. The General Counsel chose to rely rather on the narrow ground that the Respondent's action in terminating all the employees on April 6 and in hiring a new crew on April 9 at different rates of pay, in different job categories, and from nonunion sources constituted a termination or modification of the exist- ing, oral contract between the parties, and violated Section 8(a)(5) and (1) of the Act because Respondent concededly did not give any advance notice of such action to the Union or to the Federal Mediation and Conciliation Service, as required by Section 8 (d) (1), (3), and (4) of the Act. The Respondent contends that (1) there was no contract, oral or written, prior to April 27; and (2) even if there were, such a contract would not afford a basis for finding a violation of Section 8(a)(5), as it would be an unlawful, prehire agreement. As to (1), it is undisputed that on March 16, Walker orally agreed to pay $3.50 per hour to journeymen plumbers and pipefitters supplied by the Union and $3.75 per hour to foremen, and to pay an assessment to the Union's apprenticeship fund, and that Courtney agreed to refer men, as requested. I find moreover that Walker regarded all the provisions to the Union's current contract as binding upon him. Courtney credibly testified that on March 16 he showed Walker the contract that had expired on February 1, and explained to him that the current contract contained the same provisions, except for certain changes in wage rates (not here relevant)? Moreover, Walker admitted that on March 30 he concurred in Courtney's state- ment that the hiring of laborers would violate "the union contract," 8 thereby acknowl- edging the binding effect of at least one of the nonwage provisions of the contract; 9 4 Walker testified that the rate for apprentices was $1 50 per hour, whereas Courtney gave it as $1.34 The contracts in evidence fix the rate for apprentices at 40 percent of "journeymen pay," which, based on a journeyman rate of $350, would amount to $140 an hour. 5 Walker's testimony to that effect was supplemented by statements in a pretrial affi- davit, which was adopted by him at the heating, and which was therefore admitted in evidence by me without limitation B N.L R B v. Bonne Katz, etc, d/b/a Williamsburg Steel Products Co, 369 U.S. 736 See Exchange Parts Company, 139 NLRB 710. ° Walker's testimony on this point is equivocal At times he categorically denied hav- ing seen the 1960 contract, at other times he stated merely that he did not recall having seen it. 8 Presumably Courtney's claim of a contract violation had reference to a provision (sec- tion 3, par c of the 1960 contra(t, art 3, see. 3 of the 1962 contract) limiting the use of laborers on a job 9 Walker explained that, in admitting to Courtney that the hiring of laborers would vio- late "the union contract," he meant only that it would be contrary to "the usual contract that I had previously signed with other locals." I do not credit this attempt by Walker to attribute to his words an esoteric meaning, which admittedly was not communicated to Courtney. Nor, in view of the foregoing acknowledgement by Walker of the binding effect F RICK COMPANY 1207 and by implication of all the other provisions of the contract. Accordingly, it is clear that the Respondent's action in paying different rates to its new crew, in hiring laborers to perform work reserved under the contract to journeymen plumbers and pipefitters, and in recruiting employees without the aid of the Union, constituted at least a modification of its oral contract, and therefore violated Section 8(d) and Section 8(a)(5) of the Act, provided that the Union was at the time the statutory representative of the employees. If it was not such representative, Respondent had no duty to bargain with it under Section 8(a)(5) of the Act, and the provisions of Section 8(d), which merely purport to define the obligations imposed by Section 8(a) (5), would not apply here. This brings us to Respondent's second defense, which is, in effect, that, in view of the alleged illegality of the March 16 contract, the Union was not the statutory representative. The Respondent does not dispute that between March 19, when the first employees reported for work, and April 6, the Union represented a majority of Respondent's employees. Moreover, the fact that Respondent, as has been found, contracted with the Union creates a presumption that the Union also represented a majority of the Respondent's employees on March 16, when the contractual relation was established. However, the presumption is rebuttable, and is rebutted here by the admitted fact that Respondent had no employees on March 16, and that the March 16 contract was, therefore, a prehire contract. Under the law as it existed prior to the enactment in 1959 of Section 8(f) of the Act, a prehire contract would constitute unlawful assistance to the union involved, in violation of Section 8(a)(2) and (1) of the Act, and the conventional remedy for such violation would be to re- quire the respondent employer to cease giving effect to such contract, and to cease recognizing the other party to the contract, until certified by the Board.10 Thus, in the Bernhard-Altmann case, supra the Supreme Court stated: The law has long been settled that a grant of exclusive recognition to a minority union constitutes unlawful support in violation of [Section 8(a)(2)], because the union so favored is given "a marked advantage over any other in securing the adherence of the employees." (p. 738) Elsewhere in the same opinion, the Supreme Court referred to the impact of the contract on employee freedom of choice, in the following terms: In their selection of a bargaining representative, § 9(a) of the Wagner Act guarantees employees freedom of choice and majority rule. . Bernhard- Altmann granted exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the nonconsenting majority. There could be no clearer abridgment of § 7 of the Act, assuring employees the right to "bargain collectively through representatives of their own choosing...." It is a logical corollary of the foregoing principles that where, as here, an em- ployer recognizes and deals with a union that represents no employees, such recogni- tion abridges the freedom of choice of any employees subsequently hired, and their subsequent designation of, or adherence to, the union cannot be regarded as an un- coerced choice. Indeed, in the Bernhard-Altmann case itself, the Supreme Court dealt with this very question of the weight to be given to a post-recognition designa- tion of a union for purposes of determining its majority status. In that case, the parties on August 30, 1957, signed "a memorandum of understanding" whereby the employer recognized the union as the exclusive representative, and agreed to cer- tain improvements in working conditions. The union had not in fact at that time been selected by a majority of the employees in the unit. However, by October 10, 1957, when the parties executed a more formal contract, embodying the terms of the August 30 memorandum, the union had been designated by a majority of the employees, and it contended that its majority status should be determined as of October 10, rather than August 30. The Supreme Court dealt with this contention as follows: As the Court of Appeals indicated, the recognition of the minority union on August 30, 1957, was "a fait accompli depriving the majority of the employees of their guaranteed right to choose their representative." . . . It is, therefore, of the Union's contract, do I credit his denial that lie had any authority to enter into a contract with the Union on March 16. The force of such denial is weakened, in any event, by his admission that he was authorized to agree to the Union's wage rates and to the use of the Union as a source of manpower 10 See Bernhard-Altmann Texas Corporation, 122 NLRB 1289 , enfd sub nom Inter- national Ladies' Garment Workers' Union, AFL-CIO v N L R B , 280 F 2d 616, affd 366 U S 731. 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of no consequence that petitioner may have acquired by October 10 the neces- sary majority if, during the interim , it was acting unlawfully. Indeed, such acquisition of majority status itself might indicate that the recognition secured by the August 30 agreement afforded petitioners a deceptive cloak of authority with which to persuasively elicit additional employee support ." (p. 736) It follows from the foregoing that the Union at no time prior to April 27 repre- sented an uncoerced majority of the Respondent 's employees , and that Respondent was therefore under no duty to bargain with it or to perform the incidental obliga- tions imposed by Section 8(d) of the Act , unless the provisions of Section 8(f) of the Act can be deemed to validate the Union's majority status. Section 8(f), enacted in 1959, reads in pertinent part as follows: It shall not be an unfair labor practice ... for an employer engaged primarily in the building and construction industry to make an agreement covering em- ployees engaged (or who, upon their employment , will be engaged ) in the build- ing and construction industry with a labor organization of which building and construction employees are members . because ( 1) the majority status of such labor organization has not been established under the provisions of Section 9 of this Act prior to the making of such agreement ... . The General Counsel contends that the foregoing language has the effect of validating the instant prehire agreement and the Union's majority status during the term of such agreement . However, the Respondent contends that Section 8(f) is not applicable here because it is expressly limited to agreements by employers "engaged primarily in the building and construction industry" [emphasis supplied], and the Respondent is not so engaged . In support of this contention , the Respondent cites a stipulation by the parties from which it is clear that the Respondent's major source of revenue is derived from the manufacture and sale of refrigeration equip- ment, and only a negligible part of its total gross income (0.95 percent in 1962) was derived from the actual installation of refrigeration equipment , such as was in- volved in the instant case. If, then , the proportion of total gross income derived from installation or construction work is a proper criterion here, it is clear that the Respondent is not primarily engaged in the building and construction industry. It seems clear, in any event, in view of the obvious preponderance of its manufac- turing operations , that, whatever criterion is applied , the Respondent could not be found to be engaged primarily in construction work. The General Counsel concedes in his brief that Respondent is not engaged pri- marily in the construction industry, if one considers only the Respondent 's opera- tions "as a whole." However, the General Counsel contends that the applicability of Section 8(f) should not depend upon an appraisal of an employer's entire opera- tions but only of the particular contract in issue, which in this case was a contract for the performance of work exclusively related to construction . However, the vice of this argument is that it reduces to a nullity the limitation in Section 8(f) upon the type of employer covered by that provision , for it is difficult to imagine any contract with a building trades union "covering employees engaged (or who, upon their employment, will be engaged ) in the building and construction industry " which would not be a contract for the performance of work primarily , if not exclusively, related to construction. Accordingly, adoption of the Generai Counsel 's view would render valid under Section 8(f) any contract with a building trades union for work to be done on a construction job regardless of the nature of the employer's business. It is a well settled rule of statutory construction that Congress will not be presumed to have intended a vain act. It is also a familiar canon that a statutory provision, which, like Section 8(f) creates an exception to the general scheme of a statute, will be strictly construed . Both these rules militate against acceptance of the General Counsel's construction, and I reject it.il Accordingly, I find-that Section 8 (f) is not applicable here because the Respond- ent is not primarily engaged in the building or construction industry , that the Union did not represent a majority of Respondent's employees on March 16 , that under the rule of the Bernhard-Altmann case supra, any majority acquired by it after that 11 Search of the legislative history of Section 8(f) fails to reveal any support for the General Counsel's construction. The General Counsel contends further that there is no good reason for limiting the benefits of Section 8(f) to employers primarily engaged in construction. However, the obvious explanation for this limitation seems to be that Congress desired to afford relief only to those employers who needed it most. In any event, this contention might better be addressed to Congress than to the Board. NEW YORK TYPOGRAPHICAL UNION NO. 6, ITU 1209 date may not be treated as a valid basis for according it bargaining rights, and that the Respondent therefore owed the Union no obligation to comply with the require- ments of Section 8(a)(5) or Section 8(d) of the Act . It will therefore be recom- mended that the complaint be dismissed.12 RECOMMENDED ORDER It is hereby recommended that the complaint herein be, and it hereby is, dismissed. ^ Even if it were found that Respondent violated Section 8(a) (5) by modifying or ter- minating its oral contract without giving appropriate advance notice, one may well ques- tion whether the policies of the Act would be effectuated by a remedial order. Here is an employer who, far from seeking to avoid its obligations under Section 8 ( a) (5), sought out the Union and took the initiative in offering to sign a contract , even though the Union at that time represented none of its employees. And, even after it became disenchanted with the caliber of employees referred to it by the Union, to the point where it became neces- sary to dispense with their services , the Respondent acted only after consulting the Union and testing the solution proposed by it (the hiring of apprentices ). Moreover, notwith- standing the foregoing events, the Respondent did not hesitate , a few weeks later, to sign a written contract with the Union , although it again represented none of its employees at the time of execution , and the Respondent promptly rehired the more efficient of the dis- charged employees , agreeing to rehire the rest as needed. General Counsel, apparently recognizing the Respondent's almost pathetic eagerness to enter into collective-bargaining contracts , does not seek any remedy in the form of an order to bargain , but seeks only an award of backpay to those employees discharged on April 9 , to the date of their rehire or, for those not rehired, to the date of completion of the Frosty Morn job ( in September). While the Board has granted such a backpay remedy for violations of Section 8(a) (5), such an award has been merely incidental to an order of reinstatement , issued in support of an order to bargain about the job tenure of terminated employees . Town & Country Manufacturing Company, Inc., 136 NLRB 1022; Fibreboard Paper Products Corporation, 138 NLRB 550. However, as the Frosty Morn has been completed , no such bargaining order would be appropriate here, and none is sought by the General Counsel. Accord- ingly, any award of backpay here, unrelated to an order to bargain about the job tenure of the beneficiaries of such award , would not fall within the rule of the cases cited above, and would appear to be without any other precedent . If the Respondent has been guilty of any offense, clearly it was not so heinous as to warrant the invocation of a novel and un- precedented remedy. If there is any disposition to make the punishment fit the crime, the Board, even if it were to find a technical infringement of the statute, should withhold any remedy here. New York Typographical Union No. 6, International Typo- graphical Union, AFL-CIO and Gavrin Press Corporation, d/b/a Gavrin Business Forms Company, Inc. Case No. 2-CC- 759. April 10, 1963 DECISION AND ORDER Upon an unfair labor practice charge and an amended charge filed by Gavrin Press Corporation, d/b/a Gavrin Business Forms Com- pany, Inc., herein called Gavrin, against the Respondent, New York Typographical Union No. 6, International Typographical Union, AFL-CIO, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region, issued an amended complaint dated November 15, 1962, alleging that the Re- spondent had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (ii) (B) and Section 2(6) and (7) of the Act. Copies of the charges, 141 NLRB No. 108.