Poly-Urethane Industries, Inc.

POLY-URETHANE INDUSTRIES, INC. 419 Poly-Urethane Industries, Inc. and Roofers Local Union No. 57, of the United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, AFL-CIO. Case 12-CA-5901 January 15, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 19, 1973, Administrative Law Judge Ramey Donovan issued the attached Decision in this proceeding. Thereafter, General Counsel and the Charging Party filed exceptions and supporting briefs. 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. Act"; that a negotiated settlement of the grievance ensued and the terms thereof were approved by the local joint adjustment board existing under the aforesaid contract; that the said settlement terms provided for Respondent's payment of $1,414; that subsequently, the four employees delivered to the Union the appropriate checks for distribu- tion to four affected employees of Respondent; that, subsequently, the four employees having received the aforementioned checks from the Union, the Respondent "notified the four employees that each was expected to return his check to Respondent uncashed, with which instruction each of the four employees complied." The last quoted conduct, including Respondent's acceptance of the returned checks is alleged to constitute an 8(a)(1) violation because it interfered "with employees' rights to have grievances adjusted and to rely upon the Union to seek redress of grievances." i Respondent, in its answer to the complaint, denies the commission of the alleged unfair labor practice and affirmatively pleads that the General Counsel in the complaint is "attempting to enforce an 8(f) contract which it had heretofore held to be unenforceable." The case was tried at Coral Gables, Florida, on June 7, 1973, with all parties represented by counsel. At the conclusion of the trial, the counsel for the General Counsel made oral argument. The other parties did not choose to do so although counsel for the Union did make some brief comments at this juncture.2 Only the Charging Party filed a brief. 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 the complaint herein be, and it hereby is, dismissed in its entirety. DECISION RAMEY DONOVAN, Administrative Law Judge: On January 2, 1973, the above labor organization, Roofers Local Union No. 57, herein the Union, filed a charge against Poly-Urethane Industries, Inc., herein the Respon- dent. The General Counsel of the Board through the Regional Director, Region 12, issued a complaint on May 15, 1973. The complaint alleges a violation of Section 8(a)(1) of the Act in that the Union had filed a grievance "under the provisions of the parties' January 12, 1972, collective-bargaining agreement which was entered into and legitimized by the provisions of Section 8(f) of the 1 After the filing of the charge, the Regional Office investigated it and refused to issue a complaint Briefly stated, the Regional Office gave ay its reasons - after the 8(f) contract was executed, the employees, pursuant to their employer's instructions, signed union cards, thereafter, the employer paid the initiation fees and each month's dues for the employees, with the latter paying nothing, later, the employer gave its unit employees unilateral pay raises and, additionally, the employer never abided by all the terms of the contract, absent uncoerced majority there was no basis for an 8(a)(5) proceeding, and the request for the return of the checks from the employees was not a violation of the Act (Resp Exh 1-a) The foregoing dismissal of the charge was appealed by the Union to the General Counsel of the Board. The Office of Appeals of the General FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent is a Florida corporation with its principal office and place of business in Miami, Florida, where it is engaged in the building and construction industry in the nonretail business of sales and application of chemical insulation products applied t -)walls and roofs of buildings. In the course and conduct of its business, abovemen- tioned, Respondent annually purchases and receives goods, materials, and supplies valued in excess of $50,000 directly from points located outside the State of Florida. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. It. THE ALLEGED UNFAIR LABOR PRACTICE From July 1, 1971, to June 30, 1974, there had been in Counsel sustained the dismissal of the charge in all respects except that it authorized an 8(a)(1) complaint on the employer's conduct in demanding the return of the grievance settlement checks from the employees (Resp Exh 1(c)) The Union filed a motion for reconsideration with the General Counsel on the latter's action in sustaining the Regional Director's refusal to issue an 8(a)(5) complaint After further consideration, the General Counsel adhered to his original position regarding refusal to issue an 8(a)(5) complaint 2 During the course of the hearing, counsel for the parties did explicate their respective positions in the course of objections and motions on evidence and issues 208 NLRB No. 67 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect a contract between The Employing Roofing and Sheet Metal Contractors Association and the Union.3 On January 12, 1971, Respondent signed the contract or a copy of the contract, aforementioned.4 Lane, business manager of the Union, testified that, as far as he knew, Respondent was not a member of the Association but had signed the contract.5 The contract provides that the Employers Negotiation Committee and each signatory employer recognized the Union as the exclusive bargaining agent for all roofers and damp and waterproof workers in the employ of any of the contractors signing the contract and that the Association is the exclusive bargaining agent for all the contractors signing the contract. Inter aba, the contract provides for a grievance procedure for disputes or grievances concerning the interpretation or application of the contract. Such grievances may be filed by an employee, the Employer, and the Union. The first step in the grievance procedure is for the Union or the employee to take up the matter "with the Company." If the matter remains unsettled, the Union or the employee, as the second step, may request the convening of a Joint Board, with equal representatives of the Employers and the Union, "to seek to mediate and settle the dispute." Step 3 provides that the procedure for mediation efforts in step 2 shall not operate to delay the use of step 3 if either party seeks to initiate arbitration by writing to the Federal Mediation Service for a panel of names of suggested arbitrators. "The decision of the arbitrator shall be final." On September 20, 1972, a hearing was held before a local joint adjustment hoard, as provided in the contract, on charges brought by the Union against the instant Respon- dent. Various articles of the contract were cited by the Union as having been violated by Respondent. The Union was represented by Lane, business manager and previously business agent of Local 57. Goodman, secretary-treasurer of Respondent, represented Respondent. At the meeting Goodman announced that he was attending the meeting under protest: that Respondent's "relations with the Union are illegal"; that his presence did not relinquish his legal rights: that he had been informed of the joint board meeting by telephone and "had not seen any specific violations he had been charged with." According to the minutes of the meeting, a discussion followed in which Goodman expressed the view that the Union does not represent "the majority of his people" and that Respondent had "insisted the men join the Local Union." Lane relied on the contract, aforedescnbed. At the end of the meeting the joint board had reached the conclusion that Lane and Goodman "were to meet and further explore settlement terms, which would have to be approved by this committee [Board] if such terms were reached." Thereafter, according to Lane, he and Goodman met 3 It was provided that July I, 1971. was to be the effective date when the contract was signed by the representatives of the Association and the L coon 1 he exact date of such signing does not appear 4 The signature line of the contract is as follows Accepted this 12 day of Jan. 1971 _ By / signature; evidently Wm. Weitzman/ President (Title) Poly-Urethane Inc, (Company) twice and agreed upon a settlement. The Joint Board held a meeting on October 12, 1972. Lane was present for the Union. Goodman was not present and, as far as appears from the minutes, no other representative of Respondent was present. The minutes show that the joint board approved the settlement in the following resolution: Be it hereby resolved that the settlement terms as outlined by Mr. Robert Lane of Roofer Local Union No. 57 be hereby approved. The settlement provided for the payment of $1,414 by Respondent . This sum was to be divided among four employees of Respondent whom I have referred to and named earlier in this decision. The crux of the union grievances against Respondent before the joint board was, according to Lane, the fact that "We saw non-union people doing our work when union people should have done it. . . . The crux of our complaint was that our people should have done all the work that was performed on these jobs." Apparently the settlement figure was arrived at by computing the number of hours worked on the particular jobs that were the subject of the grievance. Lane testified that, subsequently, Respondent delivered to him four checks in the agreed to amounts. Lane states that he told the four employees when he gave them the checks "that there were certain people doing work that they were entitled to do and that they were entitled to be compensated . And the grievance committee [the joint board] felt the same way I did and this is why they received the money." The four employees thanked Lane when he gave them the checks. However, sometime between the time that Respondent delivered the checks to Lane and the time when Lane got in touch with the employees and gave them the checks, Respondent had spoken to the four employees. The four employees, Copertino, Padilla, S. Fuentes, and L. Fuentes were called to Respondent's office. President Weitzman, Goodman, and the four employees were present. Weitz- man told the employees that "In the coming days we were about to receive a check from the union.6 That when that check was in our hands we had to return it to him, we had to, because it belonged to him." Thereafter, Lane contact- ed the employees and gave them the checks as previously described. The employees said nothing to Lane about what Weitzman had told them about the checks. The day after or shortly after they had received the checks from Lane, each of the four employees returned his check, uncashed, to Goodman, secretary-treasurer of Respondent. Conclusion We have, at the inception of this Decision, described the complaint allegations. In statements made at the hearing, counsel for the General Counsel , in essence, affirms that the Union introduced into evidence four union authorization cards signed, respectively , by four employees of Respondent on the following dates. Lionel Fuentes, 2/25/72, AntonioCopertmo, 1/13/72, Blas Padilla, 1/13/72, Sigilfredo Fuentes, 1/ 13/72. b As is clear, the checks were company checks that the Company had given to the Union to distribute to the employees pursuant to the settlement POLY-URETHANE INDUSTRIES, INC. 421 the theory of the complaint is that Respondent interfered with the employees' Section 7 rights by telling the employees to return, and receiving from employees, checks secured for them by the Union as their representative in the settlement entered into with Respondent pursuant to a contract grievance procedure. This theory is valid, accord- ing to counsel for the General Counsel, irrespective of the refusal of the General Counsel to issue an 8(a)(5) complaint allegation because of the Union's lack of an uncoerced majority status. In my opinion, the statement of Respondent's President Weitzman to the ;our employees in October 1972 did not constitute a violation of Section 8(a)(1) of the Act. Weitzman said, in substance, that the employees would soon receive checks from the Union, but when they received the checks, the employees should or must return the checks to Weitzman and the Company because the checks belonged to Weitzman and the Company. The employees, when they received the checks, return them to the Company. I perceive no threat or promise of benefit in Weitzman's statement. He expressed his view or his argument or opinion that the checks belonged to the Company and therefore must be returned to the Company. Such conduct is encompassed by Section 8(c) of the Act.7 If it be said tha, Weitzman's statement was necessarily coercive because of the employer-employee relationship, this argument relies on a premise rejected by Section 8(c). The same contention may be made regarding an employer statement to employees that unions are subversive and corrupt and the employees should not join the Union or sign union cards and should tear up or return any union cards that they had received from the Union because the Union is an unjust and bad institution seeking to extract from the employer what belongs to him as the owner of the factory. It is a reasonable inference that Weitzman's statement about returning the checks because they belonged to him 7 Other than the complaint allegation regarding Respondent's securing of the return of the checks from the employees, there is no independent 8(a)(1) allegation to show illegal antiunion conduct or statements by Respondent. At the hearing, the Union made an offer of proof to demonstrate that, in the past, Respondent had made known to employees its opposition to the Union If this area, not alleged in the complaint, had been opened, it also would have made relevant any evidence possessed by the General Counsel or the Respondent that had led the General Counsel to find administratively that Respondent had paid the union dues of its employees and any evidence that the employees had joined the union at Respondent's insistence as asserted by Respondent before the Association Joint Board. It is unnecessary to speculate whether Respondent would have emerged from the two ci_rrents of evidence as an employer hostile to the union or as an employer assisting and helping the union in any event, on the evidence in the instant record, it cannot be found that Respondent's statement to the employees about returning the checks was accompanied by a threat or promise of benefit or that it was made in a context or background of illegal antiunion conduct or statements by Respondent a "We are not contending that there is any kind of a valid contract or invalid, the papers show that there was an 8(f) contract and I made the statement that the General Counsel's position is that from the circumstances of this case, we feel that the contract was unenforceable . General Counsel's position is that the rights of the employees here flow from the agreement Isettlement agreement] made between the Respondent, Mr. Goodman and Mr. Lane that's what the rights flow from and that is where the violation occurred . General Counsel is not claiming that the rights of these employees flow from any violation of this contract, we're not saying there is a contract in effect or otherwise we would have asked for a 8(a)(5) remedy [and would have alleged an 8(a)(5) violation ]" was based or rationalized on the Company statement to the Joint Board at the September 20, 1972, hearing that it was attending the meeting under protest; that its relationship with the Union was illegal; and, as amplified at that meeting, the Company does not believe the Union represents the majority of company employees and that the Company had "insisted the men join the Local Union." As a consequence, the Company evidently believed or took the position that it was improperly compelled to settle with the Union and pay $1,400 to employees and therefore the employees were not entitled to the checks. I express no opinion on the merits of the foregoing inferred company position. The issue of the contract, or of union majority status, or the proceedings before the joint board, are not presented by the complaint. It is contended, however, that the Respondent did enter into a settlement with the Union and that the checks were paid pursuant to the settlement. Therefore, the argument is, that the employer, in telling the employees to return the checks secured by the Union as representative of the employees, interfered with the Section 7 rights of the employees. The counsel for the General Counsel, as I understand him, in effect, takes the position that regardless of the validity or invalidity of a contract or the status of the Union, it is illegal for the employer to avoid, frustrate, or interfere with the carrying out of a settlement or under- standing, made between an employer and a union, when the settlement or understanding provides for the payment by the employer of money or other benefits to employees of the employer.8 The reality of the situation between the Union and Respondent is that Respondent has not complied with a settlement made with the Union under the aegis of a contract and a contractually established joint board. Presumably, in view of Respondent's contentions or attitude, it could have or might have refused to comply with the settlement by: stating to the joint board and the The complaint allegation , that the union grievance and the settlement thereof were pursuant to a contract "legitimized" by Sec 8(f) of the Act, presumably means that insofar as the contract had come into being and existed under circumstances and conditions described in Sec. 8(f), the contract was not illegal by reason of such circumstances and conditions Perhaps the foregoing type of situation is appropriately described as "legitimization." The complaint, however, does not allege a refusal to bargain, or that Respondent in dealing directly with the employees about the return of the checks was engaged in illegal unilateral conduct in derogation of the union's status as the exclusive collective-bargaining agent, nor does it allege any conduct to be in derogation of the contract and violative of Sec 8(a)(5) of the Act Also, there may be a question of how legitimized a contract is under Sec. 8(f) when the General Counsel had found administratively that union dues had been paid by the Respondent and that the employees had joined the Union at Respondent's direction (Resp Exh I-a, 1-(c)), and. thus, the Union did not represent an uncoerced majority The coerced majority, according to the General Counsel's administrative finding , was the result of Respondent's assistance to the Union by paying dues for employees and so forth as abovementioned Such assistance to a union is normally vulnerable as a violation of Sec 8 (a)(2) of the ALL Whatever legitimization that Sec. 8(f) of the Act extends. does not include a contract made with a union "assisted by any action defined in Sec. 8(a) of this Act as an unfair labor practice." However, I do not regard the Sec 8(f) legitimization or nonlegitimization of the contract as material to a decision on the merits of the instant 8(a)(I) complaint that is before me From statements above quoted, counsel for the General Counsel appears to cast little. if any, reliance upon the contract, in expounding his theory of the 8(a)(1) violation 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union that it would not carry out the settlement; or, by paying the $1,400 with a check or checks unsupported by bank deposits; or, by stopping payment on the checks; or by offering the checks to the Union for the employees but refusing to manually release the checks from its president's hand; or, by giving the checks to the Union for the employees and then telling the employees to return the checks to the employer. Essentially, all the foregoing types of action are acts of noncompliance with the joint board approved settlement A debtor, mortgagee, or similarly situated person does not discharge an obligation to pay by paying with a bad check or by handing over a check and then securing its return before it is cashed. By the same token, the logic of the General Counsel's position is that in all the foregoing courses of action that I have described, the Respondent would have violated Section 8(a)(1) of the Act. If, for instance, the Respondent had told the joint board that it would not carry out the terms of the approved settlement with the Union, it would presumably have interfered with the employees' rights since the Union had negotiated the settlement with the Respondent and the Union represented the employees, albeit its representative capacity was not without some major weaknesses in the eyes of the General Counsel .9 The remedy for the instant alleged violation or for violations of essentially the same nature, that I have described in the foregoing paragraphs, would presumably be an order to cease interfering and, affirmatively, in effect, to comply with the joint board sanctioned settle- ment under the contract by paying the employees the sums specified in the settlement and not again requesting the return of such payments. I find it to be a novel proposition that the Board is the tribunal for the enforcement of awards or settlements of joint boards, arbitrators, or others similarly placed, or that the Board is the prime tribunal for the adjudication of real or alleged breaches of contract and for noncompliance with contract machinery. True, the Board may become involved in contractual aspects when it proceeds under Section 8(a)(5) of the Act but every alleged breach of contract or failure to comply with the award of an intracontract tribunal or arbitrator is not the responsibility of the Board. Arbitral or joint board decisions or awards are presumably to be enforced in the courts, if enforcement is necessary. The foregoing observations are even more pertinent in a situation like that of the instant case, where the General Counsel in discharging his statutory duties had refused to issue an 8(a)(5) complaint because of his findings or conclusions regarding the status of the Union as represent- ative of the employees in its relationship with the employer. If the Contractors Association, the Joint Board, and the Union have a legally enforceable contract, claim, or award against Respondent, and if the Respondent has defensive contentions regarding the contract and so forth, these matters, in my opinion, can appropriately be adjudicated by a court and not by the Board in an 8(a)(1) proceeding. If this is not so, then every alleged breach of contract or alleged noncompliance or interference with awards or decisions where a union and employees are involved can be arguably an 8(a)(1) violation and cognizable by the Board as the prime tribunal for such matters. And further, the Board's role would be limited to enforcement of such decisions or awards by preventing interference or noncom- pliance therewith simply because they were awards or decisions or settlements and irrespective of the legality or illegality of the contract involved or its enforceability by Board action under Section 8(a)(5) of the Act, or the status of the Union as exclusive bargaining representative. The complaint, in my opinion, is not supported by the evidence and dismissal is recommended. CONCLUSION OF LAW Respondent had not engaged in unfair labor practices as alleged in the complaint. ORDER The complaint is dismissed. 9 R J Smith Construction Co, Inc, 191 NLRB 693.