H. C. Lien Rubber Co.

H. C. LIEN RUBBER CO. H. C. Lien Rubber Co. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W., Local 509. Case 21-CA-11602 November 13, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On July 11, 1973, Administrative Law Judge David E. Davis issued the attached Decision in this proceeding. Thereafter, Respondent filed 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. The Administrative Law Judge found, and we agree, that Respondent's unilateral grant of a general wage increase greater in amount than that it offered the Union was a violation of Section 8(a)(5) and (1). N.L.R.B. v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 745 (1962); N. L. K B. v. Crompton-Highland Mills, 337 U.S. 217. Although the notice of such increase, effective the pay period commencing January 4, was posted on the employee bulletin board on January 11, 1972, the credited evidence shows that Respondent never notified the Union and that the Union's negotiator, Elbert E. Petersen, first had knowledge of the increase from the ' Federal mediator on February 22, 1973. The charge was filed shortly thereafter, on March 2. Furthermore, assuming, as alleged by Respondent, that by virtue of the statement to Unit Chairman Gonzales the Union had effective notice of the proposed increase the day before it was granted, the i day which elapsed prior to the Respondent's implementation of its proposal was hardly sufficient to enable the Union adequately to consider it and engage in any meaningful bargaining. 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, H.C. Lien Rubber 233 Co., Los Angeles, ,California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Administrative Law Judge: This proceeding was tried before me at Los Angeles, California, on May 7, 1973, pursuant to a charge filed on March 2, 1973,1 and a complaint issued on April 13, 1973, alleging that H. C. Lien Rubber Company, herein called Respon- dent, engaged in violations of Section 8(aX5) and (1) of the Act in that on or about January 11, 1973, Respondent, without notification to the Union or bargaining with the Union, changed the terms and conditions of certain employees of Respondent who were represented by the Union in an appropriate collective-bargaining unit. Res- pondent in its answer, filed on April 18, 1973, admitted certain allegations of the complaint but denied it had engaged in any unfair labor practices within the meaning of the Act. All parties appeared and were afforded full opportunity to be heard and to examine and cross-examine witnesses. Both the General Counsel and Respondent filed briefs. Upon the entire record and my observation of the demeanor of the witnesses when they testified, I make the following: Findings and Conclusions I. BUSINESS OF RESPONDENT; LABOR ORGANIZATION INVOLVED Respondent is a California corporation with its principal place of business located in Los Angeles, California, where it is engaged in the manufacture and sale of molded rubber goods. It annually purchases and receives products valued in excess of $50,000 from suppliers located outside the State of California or from California suppliers who receive products from outside the State of California. In addition, Respondent annually sells and ships goods and products valued in excess of $50,000 directly to customers located outside the State of-California. Accordingly, I find that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that assertion of jurisdiction herein would effectuate the policies of the Act. I further find that the Union is a labor organization within the meaning of Section 2(5) of the Act. I The charge was filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. U.A.W., Local 509, herein called the Union. 207 NLRB No. 26 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE UNFAIR LABOR PRACTICES A. Preliminary Findings As the answer admits the pertinent allegations of the complaint which. establish the following, I find that: 1. All production and maintenance employees of Respondent's facility at 1171 East 63rd Street, Los Angeles, California, excluding all office clerical employees, watchmen, guards, professional employees, 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. 2. On June 16, 1972, a majority of the employees of Respondent in the unit described above, by a secret-ballot election conducted under the supervision of the Regional Director for Region 21 of the National Labor Relations Board, designated and selected the Union as their representative for the purposes of collective bargaining with Respondent, and on June 26, 1972, the Regional Director for Region 21 certified the Union as the exclusive collective-bargaining representative, by virtue of Section 9(a) of the Act, of all the employees of Respondent in the unit described in the above paragraph. 3. Since June 26, 1972, the Union- has been ` -the representative for the purposes of collective bargaining of a majority of the employees in the above-described unit and, by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment. 4. Since on or about July 1972, 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 referred to above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of said employees. 5. Warren H. Lien is, and has been at all times material herein, president of Respondent, acting on its behalf, and is, and has been at all times material herein, a supervisor within the meaning of Section 2(11) of the Act and an agent of Respondent within the meaning of Section 2(2) and (13) of the Act. B. The Evidence At the outset of the hearing it was stipulated by way of a written document2 that on the pay period ending January 11, 1973, all the employees in the above-described unit received a wage increase of 3-1/2 percent amounting to 9 cents per hour. Elbert E. Peterson, vice president and service representa- tive of the Union, testified that since October 1972 be had full responsibility for the negotiation of a collective- bargaining agreement for Respondent's employees in the unit represented by the Union; that negotiations with Respondent had commenced sometime in June 1972; that there had been approximately 20 negotiation sessions without an agreement having been reached; that he attended about 16 of these meetings ; that Respondent was represented at these sessions by Richard D. Cords, a management consultant in labor relations , and a Mr. Froelich, vice president of Respondent; that initially the Union was represented by International Representative Clarence Wright, later by International Representative Robert Davis ; that in addition an employees' committee consisting of Joe Gonzales, Roy Bradley, and Tyson Harvey, sat in on the negotiations so that they could administer the agreement and adequately represent the employees in the initial stages of grievances once an agreement was reached ; that in August the Union presented Respondent with a proposal that the employees be granted a 10-percent wage increase; and that Respon- dent's representatives stated that such an increase could not be granted because of the wage freeze in effect which limited wage increases to 5-1/2 percent. Discussions concerning wages continued at other subsequent meetings. At the negotiation meeting of October 31, 1972, the Union modified its wage proposal to 5-1/2 percent . Respondents countered by offering a 5-cents-per-hour wage increase. Peterson then testified that at no time did he agree to the wage increase granted by Respondent on January 11, 1973; that there was a negotiation session on January 6, 1973, which was attended by Gonzales, Bradley, Cords, Froelich, David Mejia,, financial secretary of another local of U.A.W., and himself; that at the January 6, 1973 , meeting the Union was still proposing a 5-1/2 percent increase; that there were further negotiation sessions on February 6, 13, and 22, 1973; that wage increases were discussed at each of these meetings ; that Respondent did not propose a cost of living increase for the employees at any of the meetings; that Cords on February 22, 1973, gave the Union a final contract proposal which was to be submitted to the membership; that the proposal to be submitted was for a wage increase of 5 cents per hour ; that it was on `February 22, 1973, that he (Peterson) first learned of the January 11, 1973, wage increase from a conversation he had with the Federal Mediator; and that on March 1, 1973, he discussed this with Cords ; that after ascertaining from Cords that Respondent had granted the employees a wage increase on January 11, 1973, he asked Cords if he had in any way communicated with the Union or himself concerning the wage increase and Cords replied that he had not. Peterson further testified that the Union received no communication or notification of the wage increase prior to its implemen- tation ; that Gonzales had no authority to bargain or commit the Union to any matter in negotiation with Respondent; and that Gonzales at no time informed' the Union concerning the wage increase or of any company proposals concerning a wage increase. Joe Gonzales, called by the General Counsel, testified that he was employed by Respondent as a pressman; that he was elected as chairman of the plant negotiating committee; that he attended all the negotiation sessions; that he did not have, nor was Respondent ever told, that he (Gonzales) could bargain with Respondent on behalf of the Union ; that on one occasion after one of the meetings, Cords asked him if he understood what Respondent had 2 G.C. Exh. 2. H. C. LIEN RUBBER CO., offered; that he replied in the affirmative, that this was the only occasion anyone from the. Company discussed wage increases for the, employees with him; and that he learned about the wage increase, by reading the notice3 on the bulletin board on January 10 or 11, 1973. Continuing his testimonial account, Gonzales stated f that prior to the bulletin notice he had never been informed by anyone concerning the wage increase which amounted to 9 cents per hour; and that during the 4 years he had worked for Respondent he had never received a cost-of-living wage increase. On cross-examination, Gonazles stated that he did not remember any conversation with Warren Lien concerning a wage increase on or about January 9, 1973.4 Basil R. Bradley, called by the General Counsel, testified he had been employed by Respondent for about 2 years as a millman and that he was on the Union's negotiating committee; that he attended all the negotiation sessions and had never heard Respondent suggest or propose a cost of living increase; and that the first he knew of the increase which was paid, on January 11, 1973, was the notices he read on the bulletin board. On cross-examination,, Bradley testified that the employ- ees went on strike on, March 12, 1973, and are still on strike; and that the current union representative negotiat- ing on behalf of the Union is a man by the name of Santos. Warren H. Lien, called by Respondent, testified that he was general manager and president of Respondent since 1968; that in January 1973 he gave an increase to Respondent's production and maintenance employees; that the increase was designed to accomplish two objec- tives, first to give the employees a cost of living increase and secondly to alleviate an absentee problem; and that to achieve these objectives a 10-cents-an-hour wage decrease was instituted and a 6-hour-a-week bonus was granted for 40 hours of work. As a result the employees could earn an additional $2 per week by working 40 hours and thereby earn the cost of living increase; 6 he testified that in January 1973 he read in "The Wall Street Journal" that as of December 1972 the cost of living had increased 3-1/2 percent and he decided to put that amount into effect. As the first workweek in January 1973 was January 4 through January 10 or 11, Lien testified he attempted to discuss the matter with Gonzales; that he was unable to contact Gonzales until January 9 at which time "I discussed with him this particular subject matter. And I requested of him` that he communicate this with his committee and the necessary people at the Union." Lien further testified that Froelich informed him that "we had permission from the Union to talk directly to Joe"; that he (Lien) had not sat in on any of the negotiating sessions but had delegated that function to Cords and Froelich; and that he had received a letter from the Union in August informing him that Gonzales was the unit chairman. Recalling his conversa- tion with Gonzales on January 9, Lien testified as follows: As I can best recall the actual conversation, I told Joe that the cost of living had in fact gone up during 1972. 3 G.C. Exh. 4. 4 Questioned further by the undersigned, Gonzales stated that Lien never talked to hun about wages. Despite some equivocation by Gonzales, I am inclined to credit his testimony in this regard. 235 And that the figures had been published-three, and a half percent. And that the, company intended to give all employees a cost of living increase unless we heard differently from the Union, since - we were required to talk to them. We would put into effect the cost of living increase that we were discussing-of three and a half percent -unless we heard differently from the Union. Lien then testified that Gonzales said "O .K."; that he heard nothing from Gonzales or anyone else and as a result posted the notice 7 on January 10. Lien, testifying further, admitted that he knew the Union had been certified as the collective-bargaining representa- tive of the employees in June 1972 and that in January 1972 there was no collective-bargaining representative of the employees. Richard D. Cords, called by Respondent, testified that he is a management consultant in labor relations ; that he has been in private practice 'since 1961 ; that he was the chief negotiator representing Respondent in its negotia- tions with the Union since the first negotiation meeting, July 26, 1972; and that he has attended every negotiation session and that there was a meeting on August 2, 11972. Cords then testified as follows concerning this meeting: We were talking about a particular article of negotiation called "Union Representation ," and my notes read "Section one. Company has no objection to this if the Union will try to break up the committee as to classifications." - 'In other words, we didn't want all of the representa- tives of the bargaining committee to be from a single classification. And Clarence Wright says, "We will try to cooperate. You 'can talk to Chairman of Committee, re: anything pertaining to the shop and working conditions, rates, classifications, etcetera."" Q. And who was the Chairman of the Committee? A. Joe Gonzales. Q. And did he have the title of Unit Chairman? A. Yes, he was referred to as the Unit Chairman of the bargaining committee. Q. All right. Was there any other conversation, or conversations, that day relative to Mr. Gonzales? A. My- Q. Or the authority of Mr. Gonzales? A. My notes don't indicate so, no., Testifying concerning the meeting of August 17, 1972, Cords testified that Peterson at that meeting said, "Notifi- cation to the Chairman of the bargaining committee or any member of the committee is the same as notification to the Union"; that his notes indicate in parenthesis, "this means notification to the chairman or other member is O.K. of all leaves of absences granted under this section." Cords further testified that on September 19, 1972, when Robert Davis,- International representative, and Peterson were present, he said to the union representatives, "To confirm once again what Clarence Wright, Harold Cle- 5 G.C. Exh. 4. 6 It is admitted that absences on the part of any employee could result in that employee receiving a wage decrease 7 G. C. Exh. 4. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men`s, and Pete Peterson said, that with regard to anything that has to do with the operation of - the plant, the Company can talk to Joe Gonzales as Chairman of the negotiation committee." Davis agreed and Cords said, "We are contemplating some shift hours and personnel changes for today. We told Joe about that last week." Peterson replied, "Yes, Joe told me about this and talking to Joe about things like that is O.K." Cords also testified that at a meeting on April 9, 1973, in discussing grievance proce- dure, Cords asked what is Joe's position as committee chairman, referring to the provision in the grievance procedure reading, "Committee man may be present at such meeting if the employee so requests." Santos, who was then active as chief negotiator for the Union, said "Joe Gonzales represents the Union and the Employees the same as I do." Cords further testified that at the May 2, 1973, meeting he had the following interchange with Santos after the Federal Mediator asked when the Company granted the 3-1/2 percent increase: coRDs: On January 10th, effective: The payroll period of January 4. sANTOS: We didn't know about it. coRDS: The Company notified Joe Gonzales and told him to tell you. sANTOS: Yes, I know that. Analysis and Conclusions Respondent in its brief presents the contention that Lien, having granted a cost of living increase in 1972 had made a determination to grant a cost of living increase in January 1973. The argument then goes on to say that Lien, by consulting "The Wall Street Journal" in December 1972, concluded that the increase should be 3-1/2 percent. Thereupon Lien decided to put it into effect for the pay period commencing January 4. Having made this determi- nation, Lien sought out Gonzales who was not available for discussion until January 9, 1973, at which time Gonzales was requested to communicate "the discussion and negotiations" with his committee and the necessary people and the Union. The wage increase was paid to the employees on January 10 and 11, 1973. Counsel argued that the foregoing absolves Respondent from the allegation that Respondent unilaterally granted the wage increase and thereby violated Section 8(a)(5) and (1) of the Act. I do not agree. On the contrary, I find that the unlawful refusal to bargain in this case is so clear that no purpose would be served by a prolonged discussion of the evidentiary details in support of the allegation. It must be plain that Lien's alleged notification to Gonzales" that he was going to put the wage increase into effect, unless Gonzales reported the Union's opposition, hardly meets the most rudimentary elements of collective bargaining. Additionally, Lien and Respondent must be charged with the knowledge and awareness that the negotiations were being conducted by the Union and that the chief negotiator at all previous negotiation sessions was the particular International representative present. The eviden- ce shows that Gonzales and the other members of the plant committee were at all times present in an advisory capacity and took no part in the actual negotiations. Whatever authority Gonzales and the committee would have was intended to accrue only after an agreement was reached and included processing of grievances and plant condi- tions, not negotiations. I find that the circumstances demonstrate that Respon- dent, while refusing to grant more than a 5-cent increase per hour to the Union in numerous negotiating sessions, instituted on January 4, 1973, a unilateral wage increase of 9 cents per hour in derogation of the Union's status as the exclusive bargaining representative of Respondent's em- ployees. By this conduct Respondent violated Section 8(a)(5) and (1) of the Act. I so find. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in 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. The following employees of Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees employed at the Employer's facility located at 1171 East 63rd Street, Los Angeles, California; excluding all office clerical employees, watchmen, guards, professional employees and supervisors as defined in the Act. 4. At all times since June 26, 1972, the Union has been and is the exclusive representative of all employees within the above appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unlawfully and unilaterally granting a wage increase to the employees in the above appropriate unit on January 4, 1973, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Such affirmative action will include the requirement that, upon request, Respondent bargain collectively in good faith with the Union as the exclusive representative of its employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed, written agree- ment.9 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: 8 Assuming Lien's testimony to this effect is credited. However, I fully 9 Nothing in this Decision shall be construed to require Respondent to credit Peterson's testimony and reject testimony that is contrary. withdraw the wage increases found herein to have been granted unlawfully. H. C. LIEN RUBBER CO. 237 ORDER 10 H. C. Lien Rubber Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with International Union, Aerospace and Agricultural Imple- ment Workers of America, U.A.W., Local 509, as the exclusive representative of its employees in the following appropriate unit with respect to rates of pay, hours of employment, and other terms and conditions of employ- ment: All production and maintenance employees employed at the Employer's facility located at 1171 East 63rd Street, Los Angeles, California; excluding all office clerical employees, watchmen, guards, professional employees and supervisors as defined in the Act. (b) In any like or related manner interfering with the efforts of the above-named labor organization to bargain collectively on behalf of the employees in the above- described unit. 2. Take the following affirmative actions which will effectuate the policies of the Act: (a) Upon request, meet and bargain with the above- named labor organization as the exclusive representative of all of its employees in the above-described appropriate bargaining unit with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and embody any understanding reached in a signed, written agreement. (b) Post at its place of business in Los Angeles, California, copies of the notice attached hereto as "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 21, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken by 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 this Order, what steps Respondent has taken to comply herewith. 10 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. It 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 After a trial at which all sides had the chance to give evidence, it has been decided that we, H. C. Lien Rubber Company, have violated the National Labor Relations Act, and we have been ordered to post this notice and comply with its terms. The National Labor Relations Act gives you, as employees, certain rights, including the right to self- organization and to bargain collectively through a repre- sentative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT unilaterally grant wage increases to our employees in the bargaining unit described below. WE WILL, upon request, bargain in good faith with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W., Local 509, as the exclusive bargaining repre- sentative of all employees in the unit described below; and shall embody in a signed agreement any under- standing reached. The bargaining unit is: All production and maintenance employees employed at the Company's facility located at 1171 East 63rd Street, Los Angeles, California; excluding all office clerical employees, watchmen, guards, professional employees and supervisors as defined in the Act. H. C. LIEN RUBBER COMPANY (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5229.