Locko Glazers, Inc. of Los Angeles

LOCKO GLAZERS, INC 185 Locko Glazers, Inc. of Los Angeles and International Brotherhood of Electrical Workers , Local Union No. 1710 , AFL-CIO. Case 21-CA-7830 October 16, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On June 28, 1968, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has dele- gated its powers in connection with this case to a three-member 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, the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendation of the Trial Examiner. ORDER Upon the entire record in this case , including my observa- tion of the witnesses including their demeanor , and the briefs filed by the General Counsel and Respondent, I make the following. FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, a corporation, is a subsidiary of Locko Glazers, Inc., and is engaged in the refinishing of baking pans at Compton, California, the only plant involved in this proceeding. Locko Glazers, Inc., a subsidiary of Lockwood Mfg. Co , is engaged in the refinishing of baking pans at plants operated directly or through subsidiaries at Compton, California, Cin- cinnati, Ohio; South Houston, Texas; St. Louis, Missouri, Cortland, New York; Birmingham, Alabama, Detroit, Michi- gan; and Broomall, Pennsylvania. Respondent, Locko Glazers, Inc., and Lockwood Mfg. Co. share the same home offices in Cincinnati, Ohio, and have common administration of business and labor relations poli- cies, and constitute a single employer within the meaning of the Act. These business entities annually sell and cause to be delivered goods valued in excess of $50,000 to customers located outside of the states in which said goods were produced. Respondent is now and at all times material herein has been an employer engaged in commerce and in a business affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local Union No. 1710, AFL-CIO, herein the Union, is a labor organization within the meaning of the Act III. T:1E ALLEGED UNFAIR LABOR PRACTICES The Events and Related Facts Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. i The first sentence of the paragraph prior to the heading entitled "Conclusions of Law" of the Trial Examiner 's Decision contains an in- advertence which is hereby corrected to read "This would be ap- proximately 1 year after the certification was issued " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENEK.KENNEDY, Trial Examiner: This matter was tried in Los Angeles, California, on March 28, 1968.' The issue presented is whether Locko Glazers, Inc., of Los Angeles, here- in Respondent, failed to bargain in good faith by the course of conduct set forth below On or about October 24, 1966, a majority of the then five employees of Respondent designated the Union as their representative of the following described unit appropriate for bargaining: All production and maintenance employees, including material handlers, reglaze operators, shipping and receiving employees and truckdrivers of Respondent's Compton, California, plant; excluding all office clerical employees, guards, watchmen, professional employees and supervisors as defined in the Act. The Union was certified as the exclusive bargaining repre- sentative of such employees, in the unit described above, on November 1, 1966. Several weeks later Union Business Representative Henry Gomez visited the plant without requesting a negotiating meeting. In January or February 1967, Gomez visited Re- spondent's plant and requested that Respondent furnish the 1 The charge was filed on November 17, 1967, and the complaint issued on January 9, 1968. 173 NLRB No. 34 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union employees' job classifications and wage rates.2 The request of the Union in this respect was honored by Respondent. On February 10, 1967, Respondent received, by mail, a contract proposal from the Union. The Union sent it to Neil Piper, Respondent's Manager. He forwarded it to Verton Tewell, Respondent's labor relations and negotiating repre- sentative in Cincinnati, Ohio. Tewell prepared a written counterproposal and mailed it to Gomez along with his letter of March 8, 1967, which stated that he and William Christoffel (Assistant General Manager of Locko Glazers) would be available for meetings any time in the week of March 27, 1967.3 At the request of Respondent, the first negotiating meeting was rescheduled for March 28, 1967, and held on that date Representing Respondent at the two meetings held were Chief Negotiator Tewell, Christoffel, and Neil Piper, Manager of Respondent's plant. The Union's representatives were Business Representatives Robert Pierce and Henry Gomez and employ- ee Hezekiah Pierce. Robert Pierce was the head negotiator and spokesman for the Union. At this meeting, the Union representatives were informed that Tewell was chief negotiator and was responsible for negotiating with the Union on behalf of Respondent. Another negotiating meeting was held on March 30, 1967, and agreement was reached on several items. At the conclusion of this meeting, Tewell exchanged business cards with Robert Pierce and Pierce asked when they could next meet. Tewell said he needed some time to prepare notes and that the Union was to contact Respondent in Cincinnati and also asked the Union to set aside a time for prolonged negotiations in order that Respondent's representatives might avoid unnecessary traveling between Cincinnati and Los Angeles Piper and Chnstoffel supported Tewell's testimony. Gomez and Robert Pierce, on this point, stated that Tewell told them he would be back in Los Angeles in three weeks and that a meeting could be held then. Robert Pierce replied that the Union would be available. Tewell's version is far more credible in the context of events and based on the demeanor of the witnesses it is found to be true. Pierce agreed with Tewell to the extent of testifying that no definite date was set. Although he did add that Tewell stated the next meeting would be on or about three weeks. In accordance with an understanding reached at the March 30, 1967, negotiating meeting, Re- spondent and the Union exchanged data relating to wage rates and insurance. Tewell mailed the data to Pierce while Gomez sent the Union data to Richard Rommel, Respondent's Production Manager in Los Angeles, rather than to Tewell which would have been expected since Rommel was not present at the negotiating meetings and Gomez in his testi- mony acknowledged that Tewell was the negotiating spokes- man for Respondent. On May 9, 1967, Piper sent a memorandum to Tewell advising Tewell that Gomez had called and said the heat was on him (Gomez) to get the contract signed and that Gomez asked Piper to have Tewell write to Gomez or Pierce as to when Tewell would be in Los Angeles. Piper testified in connection with this conversation with Gomez that he returned a telephone call from Gomez and that Gomez had called him to request that Piper arrange a meeting with Tewell. Piper told Gomez that he should go through Tewell In addition, Piper also advised Gomez that he (Piper) would telephone and wnte to Tewell on the question of having a negotiating meeting. In Piper's memorandum to Tewell, he also included a statement that employee Hamblett had told him about a week previously that he (Hamblett) was going to write a letter and have the other fellows sign to drop the Union. Because of the slowness in negotiations, employee Hamblett, in the presence of Respondent's Production Man- ager Rommel, telephoned Gomez in the latter part of May 1967 and told Gomez he was through with the Union and as far as he was concerned the Union no longer represented the employees. The entire complement of the employees in the bargaining unit quit on May 31. Tewell was not contacted again until he received a letter dated October 11, 1967, from Robert Pierce, as follows: On several occasions, I have attempted to contact you through Mr. Neil Piper, your Los Angeles Plant Manager, concerning contract negotiations. I hereby request your attention regarding this matter, and ask that a meeting be arranged as soon as possible.5 Please contact me at Local 1710, International Brotherhood of Electrical Workers, 2203 Venice Boulevard, Los Angeles, California 90006. Telephone No.- 731-2305. It is not clear exactly when Tewell got this letter. Tewell credibly testified he received the letter several weeks after its date, as he was on vacation. His letter to Pierce of November 17, 1967, referring to the request of Pierce in his October 11, 1967, letter establishes he probably received the letter after the expiration of the Union's certification and it is so found.6 During the general period prior to November 17, 1967, Respondent filed a petition to decertify the Union allegedly because it doubted majority representation. Issues and Concluding Findings It has been found that at the negotiating meeting of March 30, 1967, there was no time set for further meetings and that the Union was put on notice that Tewell was to be asked by the Union to have further negotiating meetings initiated and that Tewell did not say he would return to Los Angeles in three weeks. 2 Gomez testified it was in December 1966 that this visit was made. Richard Rommel, Respondent's Production Manager, testified he thought it was around January or February 1967 this visit of Gomez was made. This testimony of Gomez is rejected and it is found that the probabilities support this visit as occurring in January or February 1967. Rommel was a credible witness while Gomez was not In addition to his demeanor , other evidence of the untrustworthy nature of the testimony of Gomez will be indicated herein. 3 Gomez testified erroneously that Respondent furnished this counterproposal at the first negotiating meeting. 4 The record reflects an unusual amount of delay in implementing the role of the Union in representing the Respondent 's employees, considering the fact that the certification was dated November 1, 1966. Gomez testified with apparent deliberate vagueness about the request for a negotiating meeting and the time of the Union 's presentation of its contract proposal. Piper, Respondent 's Plant Manager, said he received the proposed Union contract on February 10, 1967. 5 Piper's testimony reveals he did not attempt to contact Piper at any time. Further the record does not support a finding of any attempt by Gomez to contact Piper after May 1967. 6 Another official of Respondent acknowledged receipt of the letter of Pierce of October 11, 1967, prior to Tewell's receipt of it. LOCKO GLAZERS, INC The General Counsel argues that Respondent was put on notice that the Union representatives misunderstood Tewell's statement (that he would wait for the Union to initiate a request for future negotiations) as indicated by the request for a meeting in Piper's memorandum of May 9, 1967, attributed to Gomez. He thence argues that Respondent had an obliga- tion to initiate steps for bargaining. The obligation presumably would occur before the termination of the certification period, and would exist between May 9 and May 17, 1967. The General Counsel argues that the refusal to bargain occurred within 6 months from filing the charge on November 17, 1967 Under this theory, Respondent was obligated to initiate negotiations between May 9 and 17, 1967. Respondent claims the Union must suggest a specific date, and that the Union must press for a meeting date before the Respondent can be held in violation of the Act. Neither was done here The ultimate issue is one of good or bad faith in collective bargaining. With respect to the question of any obligation attaching to Respondent by Piper's memorandum to Tewell relating that Gomez understood Tewell would be in Los Angeles three weeks after the March 30, 1967, meeting and Gomez' request that Piper have Tewell write to Gomez or Pierce about a meeting date, there are two factors involved which prevent a finding of bad faith. These factors relate to Respondent's action following Gomez' contact of Piper and Piper's memorandum to Tewell of Gomez' request that Tewell write to Gomez or Pierce 1. Piper's testimony is credited to the effect that he told Gomez he recommended that Gomez contact Tewell and that everything goes through him. 2 Respondent was apprised at this time of the likelihood that the Union might no longer represent member employees and could reasonably feel the Union might lose interest in having a contract and hence its bad faith has not been proved as it would be reasonable for Respondent to await further word from the Union, particularly in view of the Union's prior apparent lack of enthusiasm in representing employees of Respondent. See Dunn Packing Company, 143 NLRB 1149. 187 In short where the Union does not directly ask the Employer representative for a meeting, where it does not ask for a meeting on a specific date or dates, where the Union by its delay in acting in its representative capacity has evidenced a lack of interest in representing the employees and where all the employees in the unit quit because of dissatisfaction with the Union, the Employer Respondent cannot be held to have bargained in bad faith in the context of events here related. The next question is, does the letter of Pierce of October 11, 1967, demonstrate bad-faith bargaining by Respondent during the certification year? This would be approximately one year after the charge was filed. The answer here must also be in the negative. Respond- ent's conduct following receipt of the October 11, 1967, letter by Respondent was not relied upon as evidence to support a failure to bargain in May 1967 Even if it were, in my judgment it would not be of enough significance to change the finding relating to the events in May. The October events arguably are of some evidentiary value but in large part would leave at best an equivocal proposition not adequate to sustain the burden of proof required of the General Counsel. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of the Act. 3. The evidence does not establish that Respondent has engaged in conduct violative of Section 8(a)(5) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record, it is recommended that the complaint in this matter be dismissed in its entirety.