Fimbel Door Co., Inc.

FIMBEL DOOR CO 703 Fimbel Door Co, Inc and Fimbel Engineering Corp and Local 275, United Brotherhood of Carpenters & Joiners of America Case 1-CA-10837 June 11, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Joiners of America, here called the Union or the Charging Party The issues are whether the Respondent violated Sec- tion 8(a)(3) and (5) of the National Labor Relations Act, as amended Briefs were filed after the close of the hearing by the Respondent and the General Counsel Upon the entire record and from my observation of the witnesses I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT On February 17, 1976, Administrative Law Judge Thomas A Ricci issued the attached Decision in this proceeding Thereafter, the Respondent and Charg- ing Party filed exceptions and supporting briefs 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 au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Fimbel Door Co, Inc and Fimbel Engineering Corp, Needham, Massa- chusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to over- rule 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 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE THOMAS A RICCI, Administrative Law Judge A hearing in this proceeding was held on December 17 and 18, 1975, at Boston, Massachusetts, on complaint of the General Counsel against Fimbel Door Co, Inc and Fimbel Engi- neering Corp, two technically distinct corporate entities together named as single Respondent The complaint is- sued on August 20, 1975, on a charge filed on June 30, 1975, by Local 275, United Brotherhood of Carpenters & Fimbel Door Company, Inc, and Fimbel Engineering Corp , together as a single employer constituting the Re- spondent in this proceeding, are corporations existing by virtue of the laws of the Commonwealth of Massachusetts With its principal office and place of business in Needham, Massachusetts, the Respondent is engaged in the sale, dis- tribution, service, and installation of overhead doors In the course of its business the Respondent annually receives goods valued in excess of $50,000 from points located out- side the Commonwealth of Massachusetts I find that the Respondent is an employer engaged in commerce within the meaning of the Act II THE LABOR ORGANIZATION INVOLVED I find that Local 275, United Brotherhood of Carpenters & Joiners of America, is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A A Picture of the Case There is a family named Fimbel, father and two sons, who are in the business of manufacturing, selling, and in- stalling overhead doors on a very extensive scale A princi- pal manufacturing plant is located in Nashua, New Hamp- shire, where the records of the entire overall business operation are centered and maintained Selling is done through a number of subsidiary organizations, with outlets in many cities and states, selling is also done through inde- pendent distributing companies, which simply buy the doors and then go about their own affairs The overall op- eration is largely controlled on a day-to-day basis by Paul Fimbel, he is president of six of the eight nominal corpora- tions, officer in the others, used for documenting tax en- tries and other legally required recordkeeping, and, as the record shows clearly, all significant decisions in running the business are made by him One of the functional outlets of the business is located at Needham, Massachusetts, where doors are sold and in- stalled at a price at the construction sites of the purchasers Here, the overall Company has been doing the same busi- ness for well over 20 years, selling the doors made in Nash- ua and installing them with its Needham employees on the buyers' premises It continues doing the same business to- day William Valencia has since 1953 been the manager of this operation in Needham for the Fimbel people, there are employees, some of them working here for more than 20 224 NLRB No 106 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD years, who do the installation work Valencia runs and has always run the business here with no local supervision, he reports only long distance to his Nashua superiors This case is concerned only with this one operation, and only with the employees who work here It has nothing to do with whatever the complex structure of corporate subsid- iaries of the Fimbel family carried on anywhere else Up to the year 1967 the employees were not represented by any labor organization as to their employment here, the total complement was about five or six, three of them old- time friends of Valencia, and two-Joseph Wamboldt and Bernard Snow-members of Carpenters Local 275, the Charging Party now, since sometime during the 1950s In 1967, their employer, using a newly formed corporate name-Fimbel Engineering Corp -signed a collective- bargaining agreement with the Union covering its then in- stallation employees It also hired an additional man, Jo- seph Conant, who became the union steward in the shop The contractual arrangement with the Union was renewed in writing in 1972 and again in 1974, an agreement that remained in effect throughout 1975 By 1972 there were four employees-Wamboldt, Snow, Moore, and Conant That year Valencia, who had been paying the men $8 15 per hour pursuant to the union con- tract in effect, told three of them-Wamboldt, Snow, and Moore-he could no longer afford to pay so much and that they would either work for $6 50 an hour or not at all They agreed to work Valencia said nothing to the union stew- ard, Conant, who continued to receive his regular contract scale Valencia treated Conant differently because as stew- ard he would surely have reported to the Union the Company's violation of the collective-bargaining agree- ment and unilateral dealing with the employees And to further hide from the Union what the employer was doing, Valencia, in his monthly reports to the Union's pension and welfare fund, stated that the three men only worked about 32 hours weekly, while they were in fact doing 40, and thereby made cash contributions that seemingly amounted to the percentage called for by the contract Conant's contribution by the employer, of course, was not only consistent with the contract but also honest In June 1975 Valencia told the three men-Wamboldt, Snow, and Moore-that they would have to agree to work "nonunion," or else This did not mean further reduction in their pay below $6 50, but it did mean discontinuance of any contribution on their behalf to the Union's pension and welfare funds, loss of any other contract fringe bene- fits, and an end to any form of recognition of their union And again the three men agreed This time Conant, too, was told it would have to be $6 50 per hour for him or nothing, and without the Union in the picture He refused to agree and was released The Union filed its charge on June 30, 1975, and the complaint issued on August 20 A month later another change was made in the employment conditions of the three remaining employees The manager, Valencia, was- on paper-made an independent business man, a distribu- tor who buys doors from Nashua, sells them, and himself employs people to install them But as was true during the prior years back to at least 1967, the nature of the business that has been conducted at this location never changed and the character of the work performed by the employees re- mained the same The complaint was amended at the hear- ing in December to call this ostensible "going out of busi- ness" by the Respondent a sham aimed at defeating the complaint by a new route The complaint now contains multiple allegations, vari- ously phrased, but all amount to a principal charge Be- cause it unilaterally negotiated with individual employees, and changed their wage scale, in disregard of their estab- lished collective-bargaining agent, the Respondent is said to have refused to bargain in violation of Section 8(a)(5) of the Act Because it presented the employees with the straight alternative of either working "nonunion" or not at all-with the result that first Conant and then Wamboldt were released, the Respondent is said to have violated Sec- tion 8(a)(3) B The Defense Argument At the hearing only the witnesses spoke for the Respon- dent, and they were two-William Valencia and William Lassins, the accountant who keeps the books at Nashua Theoretically, they were supposed to testify as to what the facts are, what is to be inferred from the factual evidence or what the legal arguments are that are then said to be supported by the facts ordinarily is left to the lawyers to articulate Valencia and Lassins tried to fulfill both purpos- es, and kept talking about two seemingly different subjects, but in truth merged them into one They clarified the first subject, there are three corporate entities involved in this case-the two named Respondents in the complaint (Fim- bel Door Co, Inc, and Fimbel Engineering Corp) and Fimbel Door Corporation The first two function in Need- ham and the third in Nashua According to the witnesses, the only corporation which had anything to do with the Union-and therefore the only "employer" who could pos- sibly stand as an accused respondent now-was Fimbel Engineering They said Fimbel Door Co, Inc, although it did business at the same location, never dealt with the Union, never recognized it as representative of any em- ployees, was never a "union" company They spoke of Fimbel Door Co, Inc, as a total stranger to whatever was going on at Needham at any pertinent time The second factual assertion, stated again and again by both witnesses, is that the employer-whoever it was or whatever its corpo- rate designation at any given moment-sometimes made a good profit from living up to its contractual agreement with the Union and paying the employees "union" wages, and sometimes did not earn enough profit Each witness then explained this was the reason why Fimbel Engineer- ing, or whoever was in charge, decided to ignore the Union, reduce the wages, disregard the contract, and con- tinue the business however the legitimate objectives of any commercial enterprise dictated Although stressing the dis- tinction between one legal corporate entity and another, the posthearing brief of the Respondent still merges the two concepts-corporate structure and economic justifica- tion for bypassing the Union That the basic ground of defense is economic justifica- tion appears clearly from the testimony of both company witnesses In 1967 the Company was doing business in the FIMBEL DOOR CO name of Fimbel Door Co , Inc , it sold and installed doors without a union The manager, Valencia, testified it be- came increasingly difficult to obtain contracts-to sell and install doors-because more and more construction proj- ects were unionized He continued that he therefore was told by his superiors in Nashua-Lassms, the accountant, passing on to him the message as a decision reached by Paul Fimbel-to deal with the Union, Carpenters Local 275 With this Valencia was made president of Fimbel En- gineering, and in its name signed a contract with the Union In 1969 he signed a letter of extension of that agree- ment, still in the name of Fimbel Engineering There is also a letter in evidence, written in March 1972 to Fimbel Engi- neering by the Union, referring to a January 1972 further agreement, and reminding the employer to adhere to wage rates as called for in a 1971 application of the continuing agreement The Respondent concedes these documents prove the existence of a binding contract with Fimbel En- gineering through those years On June 19, 1974, Valencia signed a "memorandum of understanding" with the Union agreeing to abide by the terms of a 1973 contract through June 1975 and thereafter, if the Associated General Con- tractors of Massachusetts and the Union extended their current contract Here Valencia signed Fimbel Door Co, Inc The heart of the case-both in terms of the relevant facts and the dictated answers to whatever questions of law arise-appears in the story of what happened between 1967 and 1975 in the shop Valencia was always the top man in charge, over everything that went on, be it in the name of one corporation or another In 1967 all the employees went on the payroll of Fimbel Engineering, all called "union" workers by the Company witnesses Valencia said that for a few years-1968 and 1969 but not beyond 1970-Fimbel Door Co, Inc, which he called "non-union," did find a few "non-union" contracts, i e, purchasers who bought doors and wanted them installed in nonunion construction projects The Door Company sold the doors and found "independent contractors" to do the installation work The actual work of installing the doors was performed by em- ployees of these contractors, called "outside contractors," "non-union contractors," etc, by Valencia and Lassins The clearest fact shown on this record is that Fimbel Door Co, Inc, after 1967, hired no one as its own employee to install doors i Valencia, of course, continued to take charge of everything, the direct employment of people by Fimbel Engineering, and the selling and contracting out of work by Fimbel Door, Inc He submitted bids forjobs on behalf of both segments of the business, he kept all records, he maintained all stock, he was the sole operating head of the Needham business By 1970 the "Door" portion of Valencia's activities ceased altogether Between 1970 and 1972 nothing hap- pened at Needham other than what selling and installation went on with the use of Fimbel Engineering "union" em- 1 Valencia named a number of installing contractors" who did the instal lation work for Fimbel Door-D C Door, Independent Door Snell Door etc Asked what he meant by `contract labor," Valencia said it was a man who worked for "Himself, he was self-employed " and for whom no social security was paid 705 ployees, the union contract was, in effect, all employees were paid the contract wages, regular contributions were made to the Union's pension and welfare fund, and, so far as appears, all other provisions of the collective-bargaining agreement were observed By 1972 there were four regular employees-Conant, Womboldt, Snow, and Moore And again in 1972 the employer-Paul Fimbel in person in Nashua, according to the testimony of his accountant, Lassins, who worked for him there-began to feel that profits were not high enough From the testimony of Las- sins "we discussed some of the elements, that is Paul Fim- bel and I a general decrease more or less in business I advised him [Valencia] that we would have to do something, take some measures to reduce the cost, labor, overhead That the profit picture was not good " Now Valencia was told to start bidding for "non-union" jobs again He did, and for the purpose of recording such transactions, as distinguished from what Valencia was doing with his other hand, Lassins said it was decided "to reactivate that Company", i e , the old Fimbel Door Co , Inc But there was the matter of finding employees to do the work of installing the doors It will be recalled that back in 1968 and 1969, for his Fimbel Door "non-union" sales Valencia used to resort to "outside contractors " This time he decided to obtain the necessary employees to do the "non-union" work from Fimbel Engineering-the same four men who were doing the "union work" under contract with Local 275 A more correct way of putting this is that Valencia started to hire employees from himself and the phrase alter ego rings out Valencia said that from then on, on the one hand, he bid on sales installation contracts for Fimbel Door, and ful- filled them, while with the other hand he was an indepen- dent contract of labor, arranging, with himself, to have the Fimbel Engineering employees do Fimbel Door's work, but for an overall fixed amount He would have it that the employees never established an employer-employee rela- tionship with his left-or is it right?l-side operation Some work-called union jobs-continued in the name of Fimbel Engineering, and the men did that also Little by little the amount of installation work Valencia called "con- tract work," i e, in his capacity as manager of Fimbel Door, increased and that of Fimbel Engineering, where he functioned simultaneously as manager of Fimbel Engineer- mg, declined It was at the start of this arrangement in 1972 that Valencia told the three men-Wamboldt, Snow, and Moore-as he himself admitted, that they would have to work for $6 50 an hour One other thing is clear, neither Valencia nor anyone else on behalf of Paul Fimbel or any of his many "subsidiary corporations" breathed a word of this unilateral dealing with the employees to any represen- tative of the Union Valencia kept two sets of books, one entitled "Fimbel Door" and one "Fimbel Engineering " All four employees were recorded as working for Fimbel Engineering, and contributions based on a percentage of their earnings were forwarded monthly to the Carpenters' Welfare and Pen- sion Fund All the details of this two-headed operation were regularly forwarded to Nashua, where Lassins kept everthing under control As a witness Lassins was careful to stress the complete legal separation in his books between 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the two Needham corporations, as indeed he kept them very separate from the records of Fimbel Door Corp, the parent and owning company The pretense took another form in 1975 Now it was decided to discontinue the double-entry system of re- cording the employment of the four men Valencia told them their "employer," Fimbel Engineering, was going out of business but they could go to work for Fimbel Door Co , Inc, if they wished The old three-Wamboldt, Snow, and Moore-did do that And Conant, who had been kept in the dark about the side agreement Valencia had made with the other three, now had to be told At this point the em- ployer wanted not only to get all wages down to $6 50, including Conant's, but also to put an end to the pension and welfare contributions But Conant was the known unioneer-the steward When Valencia told him the Com- pany was going to go nonunion, and pay only $6 50 an hour, he balked, had to think it over After consulting Ed- ward Gallagher, the union business representative, he ac- cepted This was when a regular union agent first learned of the Employer's ruse about going "non-union," and he told Conant to play along with the Company while he, Gallagher, checked with his lawyer But when he, Conant, came to work Valencia insisted he sign an agreement to work under the new conditions, without a union This was too much for Conant, and Valencia refused to permit him to work without his signature Analysis, Unfair Labor Practice Findings No matter how diversified the words and names used to describe the actors and the corporations, however oblique- ly the true ideas are suggested, the total defense here amounts to no more than a contention that when an em- ployer feels an economic pinch, or is of the view that his profits are not to his liking, he has the right, independently and without any obligation to consult his employees' exclu- sive majority representative, to lower the wage rates, with- hold fringe benefits previously enjoyed by his employees, disregard all contracts, and just ignore the union This is precisely what the Fimbel people did in this case in Need- ham, starting in 1972 and continuing, with calculated and fraudulent techniques divised to conceal their actions from the established Union, right through 1975 The changes in conditions of employment were unquestionably unilateral, the bargaining agency status of the Union is documented and admitted by the Respondent, and that the reason for all the shuffling of corporate entities and double-entry recordkeeping-euphemistically called "contracting out"-was to get the Union out of the picture, go from "union work" to "non-union" work, could not be clearer out of the mouths of the defense witnesses themselves Somehow the Respondent believes that in America today the question whether employees wish to be represented by a union-the old q c r with now 40 years of history-is to be answered by the employer, and to be determined by his wishes To quote a recent decision approved by the Board "it is too late a day in history to attempt to defeat a refusal to bargain complaint under this statute on the ground that collective bargaining trenches upon the proper interest of management in making money " Flav-O-Rich, Inc, 212 NLRB 930 (1974) I find that for purposes of enforcement of the proscrip- tions of this statute Fimbel Door Co, Inc., and Fimbel Engineering Inc, must be deemed an indivisable employer Marine Welding and Repair and Repair Works, et al, 174 NLRB 661 (1969) It matters not whether the two be called a single employer or alter ego one to the other In fact, I also find that the two, which operate in Needham, are in- separable component elements of the parent company, Fimbel Door Corp, with its seat in Nashua That the Re- spondent as a whole never really thought of the separate corporate names as affecting substantial business matters, is evidenced by more than one revealing detail of record In 1974 and 1975 Conant and Wamboldt were paid a num- ber of times with Fimbel Door Co checks, the Company now said never to have had any employees of its own Neither the accountant's attempt to talk this away on the ground Nashua used a single computer or data processing machine for all the subsidiaries, nor the brief's reference to the paychecks as "foolishness," can change the facts one whit When Valencia signed the last agreement with the Union he did so in the name of Fimbel Door Co He is the highest management person in charge at this location and he did what is normal in such situations He was only two- headed in a figurative sense, actually he had, and has, a single mind It will not do for the Respondent's brief to say this was a "mistake," and to quote Shakespeare out of con- text in exculpation Instead, the contract is what self-orga- nization and collective bargaining is all about In sum, during the past 10 years and more, four different corporate entities have been used at this one location to sell and install doors-always the same kind of business The officers of Fimbel Door Co, Inc and of Fimbel Engineer- ing Inc, indeed of Fimbel Door Corp as well, are virtually the same The still operating sole officer representing that common ownership here always has been William Valen- cia Pension contributions were made in the name of Fim- bel Engineering, while some of the same employees were paid by Fimbel Door Co check The physical plant where this unchanging business has been carried on bears the name Fimbel Door but not Fimbel Engineering The rec- ord shows clearly that decisions to switch work, or employ- ees, from one corporate name to another, to "re-activate" or put to sleep temporarily, one corporation or another, to go "union" or "non-union" from time to time, were always made by Paul Fimbel for all the corporations involved All this constituted one employer, and therefore a single Re- spondent under Board law Harrawood's, Inc, and Harra- wood Brothers, Inc, 193 NLRB 1136 (1971) One of the most pertinent factors considered by the Board in cases of this kind is blatantly revealed in this case In Peter Kiewit Son's, Co and Prairie Construction Co, 206 NLRB 562 (1973), there also were two "companies," one taking "union" contracts and the other "non-union " Unlike here, each hired its own cadre of employees, an element suffi- cient to make that precedent inapposite right there But even apart from that essential distinction, in finding sepa- rate employers there, the Board said "Neither has ever subcontracted work to the other " This is exactly what Va- lencia said he was doing all the time FIMBEL DOOR CO 707 When the Respondent reduced the hourly pay of the three employees in 1972 it was violating both Section 8(a)(3) and (5) of the Act As it continued to do this on January 1, 1975, it violated the same sections again, and continuously thereafter I make no unfair labor practice finding based on what was done before the beginning of 1975 because that occurred more than 6 months before the filing of the charges in this proceeding It does not follow, however, that because the Respondent violated the statute before the 6-month period the repeated offenses thereafter must be ignored Its duty to bargain was no less an obliga- tion in 1975 than it had been earlier The employees were always entitled to the contract wages and to representation by their exclusive bargaining agent, in 1975 no less than in 1972 And of course if the charge was not filed sooner, it was only because the Respondent saw to it that the Union was hoodwinked The Respondent's witnesses admitted the deliberate falsity of its union pension contributions-re- porting about 32 hours weekly for the three men while they were working 40 The payments went to the Carpenters central fund in another city, and only the individual mem- bers were kept informed on a monthly basis about their pension credits Wamboldt, Snow, and Moore had yielded out of need Forced acceptance by employees of coercive conduct by their employer-every violation of Section 8(a)(5) of the Act is automatic violation of Section 8(a)(1) as well-has never served as defense to unfair labor prac- tices I find that by paying Wamboldt, Snow, and Moore in January 1975, and thereafter, at an hourly rate below that provided for in the then current contract with the Union, the Respondent violated Section 8(a)(5) and (3) of the Act The unfair labor practice was a continuing one, unchanged even superficially through September When Valencia told the men in June that the employer-whatever name he used to identify it-was going to go "non-union," he only made the unfair labor practice clearer For whatever amount of work-in honest hours-these three men did, starting in the beginning of January 1975 to the day the Respondent fully complies with the remedial order set out below, they must be paid the difference between what the Respondent in fact gave them and what the collective-bar- gaining agreement with the Union called for When Conant, the steward, was faced with the alterna- tive of either yielding to the unfair labor practice or leav- ing, he was let go The discharge of Conant that day I find to have been a violation of both Section 8(a)(5) and (3) of the Act American Enterprise, Inc, 191 NLRB 118 (1971), Barwise Sheet Metal Co, Inc, A Division of Airtron, Inc, et al, 199 NLRB 372 (1972) September 1975 Served with the complaint in this proceeding, mailed out on August 20, naming Fimbel Door Co, Inc, and Fimbel Engineering Corp, as employer, the Respondent made still another paper change in the name of the ostensible compa- ny employer Lassins testified that in September, because the "picture was turning a head toward the loss factor," his boss in Nashua, Paul Fimbel, decided to "com- pletely get out of retail business" at this location The truth of the matter is that Fimbel, by whatever name, was not losing money and did not go out of business There are records received in evidence indicating that for 1973 the Respondent did $192,000 business at Needham, in 1974 it did $298,000, and for the year ending June 1975 it did $223,000 As far as continuing the retail business is con- cerned, one day it was Fimbel something or other, and the next day it was William Valencia, the manager, using his own name to carry on the very same business, with the same employees, serving the same area and the same cus- tomers' The doors never closed and the employees lost no time from work Valencia now uses a trade name Valco, he paid Fimbel for some old vehicles, and he uses in part the old equipment in the same place The Respondent calls him an independent distributor I agree with the General Counsel that these "comings and goings amount to nothing more than the shuffling of papers amongst some individu- als " One other thing happened in September Valencia, who had been paying Wamboldt $6 50 an hour, now told him he would have to work for only $3 50, Wamboldt re- fused and was discharged There is no escaping the conclusion, on this total record, that the procedure of recording Valencia as an individual and separate employer here was pure deception, still anoth- er paper device aimed at avoiding first, any duty to bargain with the chosen representative of the employees, and sec- ond, the inevitable unfair labor practice charge which had to follow And again, it is immaterial whether Valencia be called a successor under Board law, an alter ego of the Fimbel people, or even an outright purchaser The reason why the Respondent set him up the way it did was to per- sist in its never changing intent to get rid of the Union in its business of selling and installing doors It is now back where it was before 1967, when the business was called Overhead Door Co and there was no union For now al- most 6 years it has taken one step after another to avoid the statutory duty to bargain with its employees' bargain- ing agent It is still doing the same business, at the same location, with the same supervision and essentially the same employees I find that William Valencia, or Valco, as he calls him- self, is still another alter ego of the old Respondent group, no more than an agent of the Fimbel family Wamboldt testified, without contradiction, that on September 1 Va- lencia told him he, as well as Snow and Moore, were "through work as of September 25th " On September 25, still according to Wamboldt's testimony, Valencia offered him work at $3 50 an hour Wamboldt refused this and never returned Snow and Moore did not testify, and there- fore the record does not show whether they are still at work and, if so, at what hourly rate I think the fact Valencia told Wamboldt in September, as the employee also re- called, that "Fimbel was going out of business, and it would then be called Valco door," is meaningless on this total record Valencia was acting as the managerial agent for all the various "Fimbel" companies, and what he in effect did was simply to discharge Wamboldt that day be- cause the man refused to live with a further reduction in pay to $3 50 an hour This was an outright discharge in violation of Section 8(a)(3) of the Act, and I so find 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV THE REMEDY It having been found that the Respondent unlawfully refused to bargain with the Union, and committed other unfair labor practices, it must be ordered to cease and de- sist from such conduct and to take appropriate remedial action The Respondent must bargain with the Union on request, as the statute demands Because it was, and still is, bound by a collective-bargaining agreement with the Union, which it unlawfully unilaterally disregarded, it must be ordered to abide by the terms of that agreement in every respect Conant and Wamboldt were unlawfully discharged in violation of Section 8(a)(3), and must therefore be of- fered reinstatement with full backpay Beginning on Janu- ary 1, 1975, and continuously thereafter, the Respondent's unilateral reduction in the hourly pay, and later failure to pay contractually agreed-upon fringe benefits to employ- ees, became continuing violations of Section 8(a)(3) of the statute with respect to Wamboldt, Snow, and Moore The Respondent must therefore be ordered to reimburse them all for any contractually agreed-upon payments unlawfully withheld from them CONCLUSIONS OF LAW 1 By refusing to bargain with the Union on January 1, 1975, and thereafter, concerning wages, hours, and other conditions of employment in the unit found appropriate herein, the Respondent has violated and is violating Sec- tion 8(a)(5) and (1) of the Act The unit appropriate for the purposes of collective bargaining now is All carpenters and helpers employed by the Respon- dent in service and installation of overhead doors, ex- cluding all other employees, guards, and all supervi- sors as defined in Section 2(11) of the Act 2 By discharging Joseph Conant and Robert Wamboldt for the purpose of implementing its antiunion policy, the Respondent violated Section 8(a)(3) and (1) of the Act 3 By reducing the hourly rate of Wamboldt, Snow, and Moore, from January 1, 1975, and thereafter, and by later denying them the fringe benefits provided for in the cur- rent collective-bargaining contract applicable to their em- ployment, the Respondent has violated, and is continuing to violate, Section 8(a)(1) and (3) of the Act 4 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act 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 ORDER2 The Respondent, Fimbel Door Co, Inc and Fimbel En- 2 In the event no exceptions are filed as provided by Sec 10246 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 gineering Corp , Needham, Massachusetts, its officers, agents, successors , and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against em- ployees because of their union activities (b) Refusing to bargain with Local 275, United Brother- hood of Carpenters & Joiners of America, on request, con- cerning all terms and conditions of employment as the ex- clusive bargaining agent of the employees in the unit here found appropriate (c) Failing to implement and to give full effect to the provisions of the contract in effect between the Respon- dent and that Union (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-orga- nization, to form, join, or assist Local 275, United Brother- hood of Carpenters & Joiners of America, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities 2 Take the following affirmative action necessary to ef- fectuate the policies of the Act (a) Offer Joseph Conant and Joseph Wamboldt immedi- ate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges (b) Make whole Joseph Conant, Joseph Wamboldt, Ber- nard Snow, and James Moore for any loss of pay or any other benefits they may have suffered by reason of the Respondent's discrimination against them (c) Preserve and, upon request, make available to the Board or its agent, for examination and copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Upon request, bargain with the Union as the exclu- sive bargaining representative of all employees in the unit here found appropriate concerning all terms and condi- tions of employment (e) Implement and give effect to all the terms and condi- tions provided in its existing collective-bargaining contract with the Union (f) Post at its place of business in Needham, Massachu- setts, copies of the attached notice marked "Appendix " 3 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by its repre- sentatives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed Reasonable steps shall be taken by it to insure that said 3 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals the words in the notice reading "Posted by Order of the National Labor Relations Board ' shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" FIMBEL DOOR CO 709 notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated Federal law by refusing to bar- gain with the statutory collective-bargaining representative of our employees and that we unlawfully discharged em- ployees to avoid our legal obligation to bargain with their chosen union WE WILL NOT refuse to bargain in good faith, upon request, with Local 275, United Brotherhood of Car- penters & Joiners of America, as the exclusive bar- gaming agent of our employees in the unit described below WE WILL, upon request, bargain with that Union concerning all terms and conditions of employment of all the employees in that unit The bargaining unit is All carpenters and helpers employed by us at and out of Needham, Massachusetts, in service and in- stallation of overhead doors, excluding all other em- ployees, guards, and supervisors as defined in Sec- tion 2(11) of the Act WE WILL offer Joseph Conant and Joseph Wam- boldt immediate and full reinstatement to their former positions, or, if such positions no longer exist, to sub- stantially equivalent positions WE WILL pay Joseph Conant, Joseph Wamboldt, Bernard Snow, and James Moore for any loss of earn- ings and fringe benefits they lost as a result of our discrimination against them, with interest at 6 percent per annum WE WILL implement and give full effect to the provi- sions of the collective-bargaining contract we have with that Union WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to join or assist Local 275, United Brotherhood of Carpenters & Joiners of America, or any other labor organization, and to en- gage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities FIMBEL DOOR CO, INC AND FIMBEL ENGINEERING CORP