Industrial Wire Products Corp.

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Industrial Wire Products Corporation and United Electrical, Radio and Machine Workers of America (UE). Case 21-CA-11450 November 8, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 1b, 1973, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Industrial Wire Products Corporation, Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, substituting the attached notice for that of the Administrative Law Judge. i The General Counsel's exceptions relate only to the Administrative Law Judge's failure to name United Electrical , Radio and Machine Workers of America, Local 1421, United Electrical, Radio and Machine Workers of America (UE), as a labor organization, or one of the labor organizations, with which Respondent should be required to bargain. We note the United Electrical, Radio and Machine Workers of America (UE) and its Local 1421 was certified as the representative of Respondent's employees on January 25, 1968. The Board's Decision in the prior case Indistnal Wire Products Corporation, 177 NLRB 328, enfd. 455 F.2d 673 (CA. 9), indicates that Local 1421 was the labor organization which was bargaining with Respondent, and the Board's Order in the case ran to Local 1421. On February 7, 1972, the Court of Appeals for the Ninth Circuit enforced the Board's Order, and on July 14, 1972, the court entered its final Judgment and Order, in language virtually identical to that of the Board, and the court's order also ran to Local 1421. On July 20, 1972, Respondent signed the June 19, 1968, agreement. The agreement was, by its terms , between the Respondent on the one hand and the Union and Local 1421 on the other hand. On November 16, 1972, Patrick Chaplin, field organizer for the Union, wrote to the Respondent requesting it to comply with its obligation to meet and bargain with Local 1421. On December 14, 1972, Respondent replied by letter to Local 1421, refusing to bargain with Local 1421 for the alleged reasons set forth in the letter . It appears from the record in this case and the Board's Decision in the prior case that the Union and Local 1421 have acted essentially as a single entity in their dealings with Respondent. Since the General Counsel requested that the Board's Order against the Respondent should be in the name of the International and Local 1421, and as the Respondent has not objected to this request, and based on the above information, the Board's Order is hereby modified to reflect that the International Union and its Local 1421 is the exclusive bargaining representative of Respondent's employees. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, meet with and bargain collectively in good faith with United Electrical, Radio and Machine Workers of America, Local 1421, United Electrical, Radio and Machine Workers of America (UE) as the exclusive collective-bargaining representative of all the employees in the appropriate unit and, if an understanding is reached, embody such under- standing in a signed agreement. The appropriate unit is: All production and maintenance employees, shipping and receiving employees, and truckdrivers, excluding all office clerical employees, salesmen, guards, watchmen, and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively with the Union as the exclusive bargaining representative of the employees 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 guaranteed by the National Labor Relations Act. INDUSTRIAL WIRE PRODUCTS CORPORATION (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 compli- ance with its provisions may be directed to the Board's Office, 849 South Broadway, Eastern Co- lumbia Building, Los Angeles, California 90014, Telephone 213-688-5200. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Los Angeles, California, on May 31, 1973, 207 NLRB No. 21 INDUSTRIAL WIRE PRODUCTS CORP. 97 based on charges filed December 19, 1972, and a complaint issued April 5, 1973, alleging that Respondent violated Section 8(a)(5) and, (1) of the Act by refusing to bargain with the Union. Respondent and the General Counsel have, filed briefs. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is engaged in the manufacture and fabrica- tion of wire products at its principal place of business at Los Angeles, California. It annually purchases and receives products valued in excess of $50,000 from points outside the state of California. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The charging party, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. H. TILE UNFAIR LABOR PRACTICES A. The Facts The Union was certified as the representative of Respondent's employees on January 25, 1968. Following a series of negotiating meetings, the Union and Respondent, on June 19, 1968, agreed to a contract.' Respondent refused to execute this contract, whereupon the Union filed unfair labor practice charges with the Board. The Board, on June 30, 1969, issued a Decision and-Order, finding that Respondent had violated Section 8(a)(5) and (1) by bargaining in bad faith and by refusing to sign and put into effect the agreed-upon contract. The Board ordered Respondent, inter alia, to: Upon request . . . forthwith execute the contract agreed to on June 19, 1968, and put into effect its provisions for a three-year term, from January 25, 1968, or, of no such request is made, bargain collectively with [the Union] as the representative of the employees in the above unit and, if an understanding is reached, embody same in a signed agreement. The order also required Respondent to make the employ- ees whole for any. losses suffered as a result of its refusal to sign the agreement, provided that the Union requested Respondent to sign the contract. Respondent refused to abide by the-Board's order, and enforcement proceedings commenced. On February 7, 1972, the Court of Appeals for the Ninth Circuit enforced the Board's order (455 F.2d 673), and on July 14, 1972, the Court denied Respondent's motion for reconsideration, and entered its final Judgment and Order, in language virtually identical to that of the Board. On July 20, 1972, the Union having elected the first option, to have Respondent sign the June 19, 1968, agreement, Respondent did so. Respondent also indicated its willingness to comply with the Court's decree with respect to its backpay obligations. Because of the complex- ity of determining the amounts due, there was no final determination of these amounts until some time in November 1972, and the former case was "closed" on April 25, 1973. About November 14, 1972, Union Repre- sentative A. Smith called Company Counsel Marlett and requested bargaining with the Company "in accordance with the Court order." Some discussion was had between Marlett and Smith relative to whether the Court order required the Company to bargain, Smith claiming that it did, and Marlett taking the contrary view. On November 16, Union Field Organizer Patrick Chaplin wrote Marlett, requesting bargaining, and confirming Smith's telephone conversation. Marlett, on behalf of Respondent, replied by letter of December 14, 1972, declining to bargain on the grounds that the Union elected to have the 1968 contract signed, and therefore made the election, pursuant to the Court's decree, not to require bargaining, that the Company had "terminated" the 1968 agreement by letter of November 20, 1970, and, finally, that "we have reasons to believe that your Union no longer represents a majority of the employees." Although this letter goes on to state that "we are not refusing to bargain collectively, but we do question your rights to demand further collective bargain- ing," Respondent conceded at the hearing, and in its answer, that it would not bargain with the Union, and its defenses before me are essentially the grounds set forth in the December 14, 1972, letter to the Union. Respondent had, on November 20, 1970, after issuance of the Board's Order in the earlier case, and while that Order was pending before the Ninth Circuit on the Board's Petition for Enforcement, written the Union to terminate the June 19, 1968, agreement. Respondent stated in that letter that it "has not and does not concede that the subject agreement is a validly existing contract between you and said corporation," but gave the notice of termination subject to the agreement being "ultimately determined to be a valid existing contract." The Union replied on November 25, 1970 that it wanted to meet and confer, that it still represented the Company's employees, but felt it must have assurance "that the Company will bargain in good faith as required by law." (As noted above, the Board had already found that the Company's earlier bargaining had not been in good faith.) Respondent's reply of December 11, 1970, to the Union's letter reiterated the Company's view that there was no valid existing contract, that whether or not the Company was correct was still in litigation, and that "Under these circumstances of impass (sic), after extensive good faith bargaining, the company requests that you set forth the purposes of further meetings and what can be accomplished thereby." Apparently, there was no response to this letter. B. Discussion Respondent's principal defense to its refusal to bargain with the Union on and after November 16, 1972, is the language of the Ninth Circuit's decree of July 14, 1972. As noted above, the decree provides that Respondent, at the Union's option, either execute the contract of June 19, ' This finding, as well as a finding that Respondent bargained in bad faith during the negotiations, was made by the Board in its Decision and Order of June 30, 1969, reported at 177 NLRB 328, enforced by the Ninth Circuit, at 455 F.2d 673, on February 7, 1972. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1968, "and put into effect its provisions for a three-year term," or bargain with the Union, and that Respondent, if the Union requested that the contract be executed, reimburse the employees for any loss of benefits which would have accrued to them under the contract. Because the language of the decree gave the Union a choice between signing the old contract or bargaining for a new one and the Union elected the former, Respondent argues that the Union could not thereafter require bargaining for a new contract for that would be permitting the Union to "have its cake and eat it too." Respondent's other arguments, both clearly depending on the Union's having exercised the "choice" of having the Company sign the 1968 contract,2 are that the contract of 1968 had terminated "and the Union abandoned its rights and the employees," and that the Company had a good-faith doubt of the Union's continued majority status, based on objective considerations. Perhaps the Court's decree should have been couched in different terms from the Board's order, in view of the fact that the latter issued when the contract had more than a year and a half to run, and the former after its initial expiration date. But, for a variety of reasons, the wording of the Court's decree and the Union's choice of option one do not, as Respondent would have it, automatically legalize Respondent's refusal to bargain for a new contract. The shortest answer to Respondent's contention is that the instant case is governed by criteria developed by the Board and affirmed by the courts, and whether or not a violation of Section 8(a)(5) occurred in November 1972 does not depend on whether the Court of Appeals had ordered the Company to bargain. The General Counsel is not trying a contempt case before me, his theory is not that Respondent violated the Court's decree when it refused to bargain in 1972, but that it violated the Act. Surely there was no intention by the Board or the Court of Appeals to divest the Union of its representative status if it chose to have the contract signed and thereby gain for the employees those benefits negotiated years before but never paid by the Company because it was claiming that no contract was ever agreed upon. Yet, to accept Respondent's argument would be to say that upon the signing of that expired contract, the Union no longer enjoyed any status whatsoever-it was no different at best from an outside union seeking to establish itself as the employees' exclusive bargaining representative. As the Court of Appeals for the Seventh Circuit said in N.L.R.B. v. John S. Swift Co., 302 F.2d 342, 346, 347 (1962), "We find no merit in the Company's contention that it is not obligated to bargain further with the Union because our enforcement decree . . . omitted an express command that it do so. . . . in limiting our decree to enforcement of the Board's order against the Company to furnish the data we did not negate the Company's obligation to further bargain with the Union for a reasonable time. Duties enjoined by law, and the existence of which are not an issue in the proceeding before us, are not negated by an enforcement decree which omits to recite them-much less by a decree which implicitly recognizes them."3 Although the precise facts of Swift are substantially different from those here, the principle is the same. Here, as there, the absence of a specific order that the Company bargain could have no effect on the Company's obligations under the Act. Here, as there, the Court was at least implicitly recognizing the Union's continuing status as the employees statutory bargaining representative. The Company, in effect, reads the Court's two options as not only mutually exclusive at the moment of the Union's exercising its choice-to have the contract of 1968 signed or to bargain for a new contract-but as negating any further obligation to bargain thereafter. But if the Union was the statutory bargaining representative the moment before the Company, on July 20, 1972, signed the 1968 agreement (as, of course, it was, or the Court could hardly have given the Union the second option), it is difficult to see, with nothing having changed, how it suddenly ceased being so. Indeed, not until the 60 day notice posting period ended, 2 months later, could it even be said, at the earliest, that the unfair labor practices had been remedied.4 In these circumstances, with the Union at most having enjoyed approximately a 4-month period of representative status pursuant to the January 1968 certification-the period between that certification and June 1968 can hardly be counted as "enjoyment" in view of the Board's conclusion, affirmed by the Court of Appeals„ that the Company's "bargaining" then was not in good faith-I am not sure that the Company was in any position to question the Union's exclusive representative status 4 months later. But assuming it had the right to do so, it would have to be in accordance with settled Board law. See Taft Broadcast- ing Co., 201 NLRB 801. Thus, to justify its refusal to bargain in November 1972, the Company had the burden of showing that it had a good-faith doubt, based on objective considerations, of the Union's continuing majori- ty status. The facts adduced by Respondent in this respect do not even begin to meet that burden. Thus, Respondent's general manager testified that the Union, between July 20, 1972, and November 16, 1972, never asked the Company to enter the premises to meet with the employees, or for the right to collect dues, or to post notices on the bulletin boards, or for the addresses of new employees, or for an employee seniority list, or to process any grievances. The general manager also testified that to his knowledge, employees have shown-no interest in the Union, and that they have not approached him to indicate that they want the Union. He added that the employees did not come to him and tell him they did not want the Union any more. The above factors, taken singly or together, do not constitute "objective considerations" sufficient to justify a refusal to bargain in any situation where an incumbent union is involved, let alone in the circumstances of the instant case.5 Finally, Respondent argues that the Union "abandoned its rights and the employees." This contention rests on 2 That is, had the Union exercised option 2, then the Court decree itself the ground that the union no longer represented a majority. required the Company to bargain in good faith for a new contract. 4 Arguably, as the actual payments to the employees for loss of benefits 3 In Swift a decree had issued enforcing an earlier Board order requiring was not completed until about December 1972, full compliance was not the Company to furnish certain data for the Union. Subsequent to achieved until then. "complying" with that decree, the Company refused to bargain further on 5 1 did not permit Respondent to adduce evidence concerning the INDUSTRIAL WIRE PRODUCTS CORP. 99 Respondent's having given the November 20, 1970, notice to terminate the contract, and the subsequent failure to the Union to demand any bargaining or any other rights until its request of November 16, 1972. Of course, as already extensively noted, Respondent was still resisting the Board's June 1969 order when-it sent the November 1970 letter, and continued to resist that order for another 20 months, when the Ninth Circuit issued its decree. This hardly constitutes an "abandonment" of the Union's rights in the matter. At most then, we have a 4-month period of alleged "inactivity" on the part of the Union. For 2 of these months, the Company was posting the notice required by the Court's decree. For the entire 4 months, "negotiations" regarding the amounts of backpay were being held. Furthermore, the Union could well, and with much merit, have assumed that the signing of the 1968 contract, in the circumstances, carried with it the yearly extensions of the contract provided by its terms-despite the Company's "notice" to terminate of November 1970-as the Company was "terminating" what it contended did not even exist. But both these considerations aside, I would not view a 4- month delay by the Union in requesting bargaining as of any significance in view of the 4-1/2 year period between the certification of the Union in January 1968, and the employees first enjoyment of any fruits of that certification in July 1972. For all the foregoing reasons, I find that Respondent violated Section 8(a)(5) and (1) of the Act by refusing, on and after December 14, 1972, to bargain with the Union. CONCLUSIONS OF LAW By refusing to bargain with the Union, in the unit found appropriate by the Board, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. Angeles, California, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment with United Electrical, Radio and Machine Workers of Ameri- ca (UE), as the exclusive bargaining representative in the appropriate unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of all employees in the following appropriate unit: All production and maintenance employees, shipping and receiving employees and truckdrivers, excluding all office clerical employees, salesmen, guards, watchmen, and supervisors as defined in the Act, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in Los Angeles, California, copies of the attached notice marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by Respondent's representative, be posted by it 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 ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith. THE REMEDY Having found that Respondent has refused to bargain collectively it will be recommended that Respondent be ordered to cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act. In view of the Board's earlier finding, affirmed by the Court of Appeals, that Respondent refused to bargain in good faith, and the further fact that Respondent deprived its employees of the effective services of their selected bargaining agent for virtually the entire period of time since the initial certification of the Union, I shall also recommend that the initial year of certification begin on the date Respondent commences to bargain in good faith with the recognized representative in the appropriate unit. Mar Jac Poultry Co., Inc. 136 NLRB 785; Bierl Supply Company, 179 NLRB 741. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 Respondent, Industrial Wire Products Corporation, Los Union's majority status prior to the entry of the Court decree, as the Union was manifestly the statutory exclusive bargaining representative at least up to that point. Franks Bros. Co. v. NLRB. 321 U.S. 702, 705. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. 7 In the event that the Board's 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, meet with and bargain collectively in good faith with United Electrical, Radio and Machine Workers of America (UE) as the exclusive collective-bargaining representative of all the employees in the appropriate unit and if an under- 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing is reached will embody such understanding in a signed agreement. The appropriate unit is: All production and maintenance employees, shipping and receiving employees and truckdri- vers, excluding all office clerical employees, salesmen, guards, watchmen, and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively with the Union as the exclusive bargaining representative of the employees 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 guaranteed by the National Labor Rela- tions Act. Dated By INDUSTRIAL WIRE PRODUCTS CORPORATION (Employer) (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 849 South Broadway, Eastern Columbia Building, Los Angeles, California 90014, Telephone 213-688-5200.