F & J Wire Products Co.

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harry R. Pickett and Eva M . Pickett d/b/a F & J Wire Products Co. and Chauffeurs, Salesdrivers, Warehousemen & Helpers, Local No. 572, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 21-CA-7850 February 6, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Co., herein called Respondent . The complaint was issued on January 31, 1968, on a charge filed December 4, 1967, and alleges that Respondent has refused to bargain in good faith with the Union and thereby violated Section 8(a)(5) of the National Labor Relations Act, herein called the Act. A brief has been filed by the General Counsel and it has been carefully considered.' Upon the entire record and my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT On October 23, 1968, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in the other unfair labor practices alleged in the complaint. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated 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 and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Harry R. Pickett and Eva M. Pickett d/b/a F & J Wire Products Co., Long Beach, California, their agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. WEBSTER, Trial Examiner: This case, with all parties represented, was heard in Los Angeles, California, on April 15 and 16, May 14, and August 28, 1968, upon a complaint of the General Counsel and answer of Harry R Pickett and Eva M. Pickett dba F & J Wire Products Respondent is owned by Harry R. Pickett and his wife, Eva M. Pickett, and is engaged in the business of manufacturing wire products. During the calendar year 1967, Respondent sold and shipped products valued in excess of $50,000 to customers located within the State of California and each of said customers sold and shipped products valued in excess of $50,000 directly to customers located outside the State of California. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Salesdrivers , Warehousemen and Helpers, Local No. 572, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Issues The principal issues in'this case are (1) whether or not Respondent agreed to the terms and conditions of a collective-bargaining agreement and then repudiated it, and/or (2) whether or not Respondent bargained in bad faith by offering new contract proposals containing more onerous terms than previously offered. B. Statement of Facts On October 27, 1967, the Regional Director for Region 21 of the Board approved a settlement agreement in Case 21-CA-7763 between Respondent and the Union whereby Respondent agreed to recognize and bargain with the Union as the exclusive bargaining representative of all production and maintenance employees of Respondent, excluding office clerical employees, guards, and supervisors as defined in the Act. Although the General Counsel offered no direct evidence that the Union has at any time represented a majority of Respondent's employees and although a settlement of a case is not an admission or proof of facts, nevertheless, there is a presumption of regularity in the execution of the agreement, as it would have been illegal for Respondent to extend recognition to a union that did not represent a majority of its employees in an 'Counsel for General Counsel filed motion to correct transcript on September 26, 1968. No opposition has been filed. The motion has been duly considered and is granted. 174 NLRB No. 59 F & J WIRE PRODUCTS CO. appropriate bargaining unit. Furthermore, at no time during negotiations did Respondent raise a question as to the Union's majority status nor has it offered any evidence, to refute the presumption of regularity of the settlement agreement.2 Respondent designated attorney Melvin Harris as its agent for the purposes of collective bargaining with the Union. Attorney Harris met with Union Representative Neal Shores on October 30, November 8, 13, and 20, 1967, in contract negotiations. They met with the understanding that any agreements reached by them were subject to the approval of the Respondent and of the employees. At the meeting of October 30, the Union presented its contract proposal. Harris discussed this with the Picketts, and on the basis of that discussion he prepared a counterproposal, which was shown to the Picketts prior to his meeting with Shores on November 8. The meeting of November 8 lasted approximately 7 1/2 hours, and following this meeting Harris prepared a resume of the meeting to clarify what had been accomplished and to show areas of tentative agreement. He then prepared a document that he used as a worksheet for his discussion with Shores at their next meeting on November 13 Harris testified that he did not know whether this document was submitted to the Picketts, but he did have some meetings and telephone conversations with them between November 8 and 13. Following the meeting of November 13, Harris prepared a proposed agreement "as promulgated during out negotiation conference of 11-13-67," and forwarded a copy of it to Shores by letter dated November 16, 1967, wherein he informed Shores, I am forwarding a copy to my clients and have arranged to go over the entire contract with them on Friday, November 17, 1967. If both my clients and the employees approve it as now constituted, we should be able to finalize the entire matter sometime next week. It looks like a very good Agreement, and I have so informed my clients, but I do not know how he is going to react to the "Union Shop Clause" or the "Health and Welfare Clause." Harris met with the Picketts and went over this proposed contract, but they did not approve of certain provisions, and judging from the notes that Harris made in the margin of a copy of the proposal, they wanted numerous changes made in the agreement. Harris informed Shores that the Picketts were not happy with the agreement and would not sign it. He met again with Shores on November 20, and following this meeting, he prepared a draft of a contract representing the results of this meeting, but Harris was unable to obtain the Union's agreement to some of the changes that the Picketts had wanted, one of which was a deletion of a union shop clause. However, Harris delivered and left with Mr. Pickett a copy of this proposed contract. Harris had indicated to Shores that he would try to have the matter completed by November 28, and when he had not heard from the Picketts by November 27, he called Pickett regarding the contract. Pickett had been tied up at the plant and had not spent much time reviewing the proposal; however, he went to Harris' office with the contract. He told Harris that he did not understand the contract thoroughly, but Harris urged him to sign it. According to Harris, Pickett appeared to be agitated and not to be concentrating on his explanations 'N.L R.B v. Local 3, 1 BE W, (C A. 2) 362 F 2d 232, 235; Crown Drug Co., 136 NLRB 865, 869; Shamrock Davy, Inc., 124 NLRB 494. 341 of the contract. Finally, Pickett signed the draft, but stated to Harris that he was not certain in his mind about it and wanted to take it home and digest it more completely and discuss it with his wife. Harris, who testified that he had been putting on a little pressure to try to get the contract matter cleared up, concurred that Pickett should take the contract home, discuss it with his wife, and obtain her signature. Several hours later Pickett brought the contract back to Harris with his signature scratched out and informed Harris that the contract was not acceptable. Harris then had a meeting with the Picketts and drafted another contract proposal in which he incorporated changes that they wanted. When he discussed this with them, he found that there were still some areas of misunderstanding and disagreement. He redrafted the contract to reflect the additional changes they desired. After inserting a few corrections or changes that Harris' secretary had failed to make, both Mr. and Mrs. Pickett signed a copy of the contract. On November 28, 1967, Harris delivered the signed contract to Union Representative Shores and informed him that the signed document was not identical to the agreement promulgated by them during their last conference and contained several changes which he hoped would meet with Shores' approval and that Shores would submit it to his members for their vote. Following this communication to the Union, Respondent and Harris received no further word from the Union on the matter of the contract proposal or contract negotiations. C. Conclusions The General Counsel contends that Respondent has bargained in bad faith (1) by signing and then repudiating a collective-bargaining agreement, and (2) by substituting in its last contract proposal terms that were more onerous than those previously offered. Shores and Harris negotiated with the understanding that any agreement they might reach was subject to the approval of the Picketts and of the employees. Mr. Pickett signed the agreement on November 27 at the insistence of Harris although he had not digested it completely and was not certain as to his agreement with its terms. Although he had authority to sign an agreement on behalf of and to bind Respondent, he wanted to go over the contract with his wife who was a part owner of the business. Harris suggested that he do so and obtain her signature. Within a few hours Pickett scratched through his signature and notified Harris that the contract was not acceptable. Harris then immediately met with the Picketts and drafted a new contract which contained several deletions and other more onerous terms that had not previously been proposed by Respondent. Respondent' s initial proposal submitted on November 8 contained a provision guaranteeing a 40-hour workweek, and this proposal remained in Respondent's subsequent proposals until its deletion from its last proposal of November 27. Also, Respondent's initial proposal and subsequent proposals, until deleted in the November 27 proposal, contained a provision for an extension of the contract to new branches and locations of Respondent, and a provision for a contribution by Respondent of the sum of $2.60 per month per employee to the Union's health and welfare trust fund for prescription drugs. In its November 27 proposal, Respondent added the following more onerous terms: To be eligible for a vacation or a pro rata vacation 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an employee was required to be on Respondent ' s active payroll on his anniversary date of employment ; vacations were required to be taken within the calendar years that said vacations become ': due; in order for an employee to be entitled to holiday pay where he has been absent immediately preceding or immediately following the holiday, his absence has to be excused in, writing ' by Respondent . In Respondent's initial proposal the term of the contract was left blank; in the subsequent drafts the term was 1 year; in the November 27 proposal the term was changed to 3 years without reopening. After bargaining the Union down on the wage rate for shop utility craftsmen (after 90 days ) from its initial proposal to $1.90 on November 20, Respondent further reduced the rate in its November 27 draft to $1.85. From the sequence and turn of events , it is apparent that the Picketts were not giving the time and attention to their collective-bargaining responsibilities that would make it effective or that would manifest any real desire or intent to reach a mutually acceptable agreement . Before and after each contract conference Harris discussed contract terms and proposals with one or both of the Picketts. Although he was not experienced . in the negotiation of labor agreements, he negotiated in good faith, made concessions and obtained concessions , and sought to arrive at contract terms that the Union would agree to and he hoped would be agreeable to the Picketts . He urged Mr. Pickett to sign the draft resulting from his negotiations of November 20, which contained a provision for a union shop but deleted the Union's proposal for contributions to its fund for death , medical and hospital benefits. Then, on November 27, when negotiations were expected to be consummated , the Picketts made significant withdrawals and changes which, if they were to, be made, certainly should have been brought out in earlier stages of negotiations . I find that by this last minute "negotiation in reverse" and by the Picketts' failure either to participate directly in negotiations or to maintain a closer contact with the course of negotiations and to provide their negotiator with more complete instructions and knowledge of their desires, Respondent has engaged in conduct that is disruptive and in derogation of the collective-bargaining process and constitutes a failure to bargain in good faith. The General Counsel also urges that a contract was executed when Mr. Pickett signed the draft submitted to him by Harris following the negotiations of November 20, but I find that when Pickett placed his signature on the draft, he had not fully reviewed and agreed to its terms. When he reviewed it, his signature was quickly scratched through. I cannot find that there has been a meeting of the minds of the parties to the terms and provisions of a collective-bargaining agreement. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent, set forth in section III, above, found to constitute unfair labor practices, occurring in connection with its business operations as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent excluding office clerical employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times' material herein the Union has been the representative for the purposes of collective bargaining of the employees of the Respondent in the unit described in paragraph 3. 5. Since October 30, 1967, Respondent has refused to bargain collectively with the Union as the exclusive bargaining representative of the employees in the above-described appropriate unit, and has thereby engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in a certain unfair labor practice, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and to remove the effects of the unfair labor practice and to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record herein and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Harry R. Pickett and Eva M. Pickett d/b/a F & J Wire Products Co., its officers, agents; successors, and assigns, shall- 1. Cease and desist from: (a) Refusing to bargain collectively with Chauffeurs, Salesdrivers, Warehousemen & Helpers, Local No. 572, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees employed by Respondent excluding office clerical employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfeiing with, restraining, or coercing its employees in the exercise of. rights guaranteed in Section 7 of the Act 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of its employees in the aforesaid bargaining unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an undersl anding is reached, embody such understanding in a written and signed agreement. (b) Post at its Long Beach, California facility, copies of the attached notice marked "Appendix."' Copies of said 'in the event that this Recommended Order is adopted by the Board, the F & J WIRE PRODUCTS CO. 343 notice, on forms to be provided by the Regional Director for Region 21 of the Board, shall, after being duly signed by an authorized representative of Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals enforcing an Order" shall be substituted for the words "a Decision and Order " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith." employees that: WE WILL NOT refuse to bargain collectively with Chauffeurs, Salesdrivers, Warehousemen & Helpers, Local No 572, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of our production and maintenance employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain collectively with the above-named Union, and if an understanding is reached, embody such understanding in a written and signed agreement. Dated By APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our HARRY R. PICKETT AND EVA M. PICKETT d/b/a F& J WIRE PRODUCTS CO. (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5229.