Paramount Plastic Fabricators, Inc.

170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paramount Plastic Fabricators, Inc. and Sheet Metal Workers' International Association Local 170. Case 21-CA-9315 April 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On December 30, 1970, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, granting General Counsel's Motion for Summary Judgment in the absence of an answer to the complaint. The Trial Examiner found on the pleadings 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. The Trial Examiner recommended that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after, the General Counsel filed limited 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 Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the following modification: CONCLUSIONS OF LAW The Trial Examiner's conclusions of law are hereby amended by deleting Conclusion of Law 5 and sub- stituting therefor the following: "5. By unilaterally changing the terms and condi- tions of employment of the employees represented by the Union, and by failing and refusing on and after December 20, 1969, to bargain collectively with the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 9(a) of the Act." THE REMEDY conditions of any such agreement and from refusing, upon request, to bargain collectively with the Union. The General Counsel excepts , inter alia, to the fail- ure of the Trial Examiner to recommend (1) that the employees be made whole for any losses incurred by the Respondent's refusal to honor and enforce its collec- tive-bargaining agreement as well as Respondent's uni- lateral changes in terms of employment following expi- ration of that agreement, including but not limited to discontinuance of its contributions to a Severance & Retirement Pay Plan, and (2) that the Respondent be required to reimburse the Union for dues it failed to withhold and pay over to the Union, as required by the collective-bargaining agreement , on and after Decem- ber 20, 1969. As to ( 1) we shall provide, in accordance with our usual policy, that employees be made whole for mone- tary losses resulting from Respondent 's unilateral changes in terms and conditions of employment, with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. As to (2) in accordance with established policy,' we shall provide that the Union be reimbursed for all dues not checked off if not otherwise collected by the Union, in accordance with requirements of the collective-bar- gaining agreement, with interest at the rate of 6 percent per annum, limited, however, to the period from December 20, 1969, to February 28, 1970, the termina- tion date of that agreement. See Bethelehem Steel Com- pany, 136 NLRB 1500, 1501 , affd. 320 F.2d 615, 619 (C.A. 3). Contrary to the request of the General Counsel, we shall not require application of the Woolworth formula to computation of backpay as such is inapposite to the facts of the case. See Ogle Protection Service, Inc., 183 NLRB No. 68. The General Counsel also excepts to the failure of the Trial Examiner to order the Respondent, if re- quested by the Union, to rescind any changes in terms and conditions of employment which Respondent uni- laterally effected . As such a provision is necessary to insure that Respondent gleans no benefit from reduc- tion in employment terms to the prejudice of bargain- ing unit employees, it will effectuate the purposes of the Act so to provide, and the Trial Examiner's recom- mended Order shall be revised accordingly. The Trial Examiner, in his recommended remedy, ordered the Respondent to give effect to the terms of Respondent's collective-bargaining agreement with the Union for the period of its duration or the duration of any new or modified form thereof agreed on by the parties; upon request, to bargain with the Union; and, if an understanding was reached, to embody it in a signed agreement. He also ordered the Respondent to ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Paramount Plastic Fabricators, Inc., Downey, California, its offic- cease and desist from unilaterally changing terms and Creutz Planting Corporation, 172 NLRB No. 1 190 NLRB No. 29 PARAMOUNT PLASTIC FABRICATORS, INC. 171 ers, agents, successors, and assigns, shall take the fol- lowing action: 1. Cease and desist from: (a) Unilaterally changing the terms and conditions of employment of employees represented by Sheet Metal Workers' International Assocation, Local 170. (b) Refusing to bargain collectively with the above Union as the exclusive representative of all the em- ployees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, to join, or to assist the above-mentioned Union or any other labor organization, to bargain collectively through represent- atives of their own choosing, or to engage in other concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Give effect to the terms of the Respondent's col- lective-bargaining agreement with the above-men- tioned Union for the period of its duration and the duration of any new or modified form thereof agreed on by the parties. (b) Upon request, bargain collectively with the above-mentioned Union as the exclusive representative of all employees in the appropriate unit. If an under- standing is reached, embody such understanding in a signed agreement. (c) Upon request, rescind any unilateral changes in the terms and conditions of employment effectuated by the Respondent on or after December 20, 1969. (d) Make whole all of the employees in the bargain- ing unit for losses incurred as a result of Respondent's unilateral changes in terms and conditions of employ- ment, in the manner set forth under "The Remedy." (e) Reimburse the Union for dues which the Re- spondent failed to deduct from earnings of employees if not otherwise collected by the Union, as required by the collective-bargaining agreement in the manner and for the period set forth under "The Remedy." (f) Post at its plant in Downey, California, copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Direc- tor for Region 21, after being duly signed by the Re- ' 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." spondent's representative, shall be posted by the Re- spondent 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. (g) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT make unilateral changes in the terms and conditions of employment established in the appropriate unit. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Sheet Metal Workers' International Association Local 170, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL give effect to the provisions of our collective-bargaining agreement with the above- mentioned Union from December 20, 1969, until the termination of said agreement; WE WILL also give effect to any new or modified agreement which we and the Union agree to. WE WILL, upon request, bargain collectively with the above-mentioned Union as the exclusive representative of all our employees in the follow- ing appropriate unit: All utility developers, plastic and metal weld- ers and assemblers, mould builders, hand laminators, tank liners, chopper operators, moulders and rollers, gel-coaters, grinders, janitors, helpers, and shipping and receiving employees employed at our plant located in Downey, California. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, rescind any unilateral changes made in terms and conditions of employ- ment. WE WILL make whole employees for any losses suffered as a result of the above-mentioned unilat- eral changes after December 20, 1969, with inter- est at the rate of 6 percent per annum, including dues which we unlawfully failed to withhold and pay to the Union. WE WILL reimburse the Union for dues which we have failed to deduct from earnings of em- ployees if not otherwise collected by the Union, for the period required by the collective-bargaining agreement. PARAMOUNT PLASTIC FABRICATORS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 600, Eastern Columbia Building, 849 South Broadway, Los Angeles, California, 90014, Tele- phone 213-688-5254. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. HEMINGWAY, Trial Examiner: This matter arises on Motion for Summary Judgment for want of an answer to the complaint. The history of the case is as follows: 1. The charge was filed by the above-named Union (herein called the Union) on June 18, 1970, and a copy thereof was served on Respondent on June 19, 1970, by registered mail. 2. On August 14, 1970, the Acting Regional Director for Region 21 of the Board approved a settlement agreement herein under which the Respondent agreed to refrain from a refusal to bargain collectively with the, Union and to perform certain affirmative acts. 3. Thereafter, on October 13, 1970, the said Regional Di- rector vacated and set aside the said settlement agreement for failure of Respondent to abide thereby. 4. On October 21, 1970, the said Regional Director issued a complaint and notice of hearing with Form NLRB 466 attached and served them on the Respondent, the Respond- ent's representative, and the Union by postpaid registered mail. 5. Respondent did not, within 10 days of service of the complaint, file an answer thereto as required by Section 102.20 of the Board's Rules and Regulations, and did not request any extension of time for filing of such answer under Section 102.22 of the Board's Rules and Regulations. 6. On November 24, 1970, the General Counsel filed a Motion for Summary Judgment with the Regional Director and, on the same day, the Regional Director referred said motion to the Associate Chief Trial Examiner in San Fran- cisco for ruling. 7. Said Motion for Summary Judgment having been as- signed to the undersigned for ruling, the undersigned served on Respondent an order to show cause why the aforesaid motion should not be granted, giving the Respondent until December 10, 1970, to show cause. 8. Respondent did not show cause by December 10, 1970, and on December 11, 1970, the undersigned granted the Gen- eral Counsel's Motion for Summary Judgment, notifying the parties that a formal decision would follow. This is the formal decision. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a corporation with a place of business and plant in Downey, California, is engaged in the business of manufacturing fiberglas' reinforced polyester ducts, hoods, and scrubbers. During the 12-month period prior to the issu- ance of the complaint, Respondent sold and shipped goods and products valued in excess of $50,000 directly to custom- ers located outside the State of California. I find that the Board has legal jurisdiction and that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATION Sheet Metal Workers' International Association Local 170, herein called the Union, is a labor organization which, since February 28, 1969, has represented the Respondent's em- ployees in an appropriate unit for the purposes of collective bargaining. III. THE UNFAIR LABOR PRACTICES The Refusal to Bargain 1. The appropriate unit and the Union's majority All utility developers, plastic and metal welders and assem- blers, mould builders, hand laminators, tank liners, chopper operators, moulders and rollers, gel-coaters, grinders, jani- tors, helpers, and shipping and receiving employees employed Respondent at its facility located in Downey, California, con- stitute an appropriate unit for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act. Since February 28, 1969, the Union has, by virtue of Re- spondent's recognition and collective-bargaining agreement, been the exclusive representative for the purpose of collective bargaining of the employees of the unit described above, and has been, and is now, the exclusive representative of all the employees in said unit for the purpose of collective bargaining with Respondent with respect to wages, hours of employ- ment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 2. The request and refusal to bargain A collective-bargaining agreement between the Union and the Respondent, effective March 1, 1969, by its terms, was in effect through February 28, 1970, with provision for auto- matic yearly extension.' On November 24, 1969, the Union So spelled in the complaint. The complaint does not expressly so state, but I infer that the automatic extension operates in the absence of notice of intent to reopen , since other- (Cont.) PARAMOUNT PLASTIC FABRICATORS, INC. 173 served upon Respondent, by certified mail, a letter advising Respondent that it desired to modify or amend the agreement described above. On December 20, 1969, and at all times thereafter, the Union has requested and continues to request that Respondent bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. On and at all times after December 20, 1969, Respondent has refused, and continues to refuse, to bargain collectively in good faith with the Union with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees in the forego- ing unit. But, without prior notification to the Union, Re- spondent did change the terms and conditions of employment of said employees by engaging in conduct which includes, but is not limited to, discontinuance of contributions to the Sever- ance & Retirement Pay Plan established by the collective- bargaining agreement, and refusal to deduct dues from the earnings of said employees and remit these dues to the Union as required by said agreement. I find that by failing to abide by, and give effect to, the terms of said contract on December 20, 1969, and thereafter to the concluding date of said agreement, and by refusing, on and after December 20, 1969, to bargain collectively with the Union concerning the terms of a new or modified agreement, Respondent refused to bargain collectively with the Union, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. 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. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All utility developers, plastic and metal welders and assemblers, mould builders, hand laminators, tank liners, chopper operators, moulders and rollers, gel-coaters, grind- ers, janitors, helpers, and shipping and receiving employees employed by Respondent at its facility located in Downey, California, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 28, 1969, the Union has been, and still is, the exclusive representative of all Respondent's employees in the appropriate unit for the purposes of collective bargain- ing with respect to rates of pay, wages, hours of employment, and other conditions of employment within the meaning of Section 9(a) of the Act. 5. By unilaterally changing the terms and conditions of the Respondent's collective-bargaining agreement with the Un- ion, and by failing and refusing on and after December 20, 1969, to bargain collectively with the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order' omitted from publication.] wise it would be expected that the term of the agreement would have been fixed at two or three years instead of from year to year. ' In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.