Hartford Glass Co.

HARTFORD GLASS CO. Hartford Glass Co. of Mishawaka, Inc. and Glazier's Local Union No. 1152, a/w International Brother- hood of Painters and Allied Trades of America, AFL-CIO. Cases 25-CA-7148 and 25-CA-7901 June 10, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On January 26, 1977, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed an answering brief and cross-exceptions. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge: These con- solidated cases were heard at South Bend, Indiana, on September 16 and 17, 1976. The charge in Case 25-CA- 7148 (herein sometimes referred to as the original case) and the charge in Case 25-CA-7901 (herein sometimes referred to as the Snook case) were filed respectively on June 13, 1975, and April 22, 1976, by Glazier's Local No. 1152, (herein called the Union). The complaint in the original case, first issued on July 31, 1975, and amended on August 20, 1975, was withdrawn upon approval of an informal settlement agreement by the Regional Director on Novem- ber 5, 1975, and reissued as consolidated with the Snook case on June 30, 1976, following a determination by the Regional Director that the settlement agreement should be 230 NLRB No. 22 revoked for noncompliance with its terms. The consolidat- ed complaint alleges, in sum, that Hartford Glass Co. of Mishawaka, Inc., (herein called the Company or Respon- dent), violated Section 8(aXI) and (5) of the National Labor Relations Act, as amended, by refusing to sign a collective-bargaining contract which was allegedly negoti- ated by a multiemployer bargaining association which represented the Company for collective-bargaining purpos- es, and violated Section 8(aXl) and (3) by refusing, at the conclusion of an economic strike, to reinstate its three glazier employees to their former jobs assertedly (as the Company contended) because the Company had no contract with the Union. The complaint further alleges that following the settlement agreement the Company violated that agreement and Section 8(aX)() and (3) of the Act by failing and refusing to reinstate Donald Snook, one of the three glaziers, to his former position, and by laying off Snook on February 6, 1976. The Company's answer denies the commission of the alleged unfair labor practices. The principal issues in the original case are whether the 1975 contract was negotiated by a multiemployer bargaining association of which the Company was a member, and whether the Company was bound by that contract. All parties were afforded full opportunity to participate, to present relevant evidence, to argue orally, and to file briefs. Upon the entire record in the case and from my observation of the demeanor of the witnesses, and having considered the briefs submitted by General Counsel and the Company, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Company, an Indiana corporation, maintains its principal office and place of business at Mishawaka, Indiana. At all times material the Company has been, and is, engaged in the manufacture, retail and wholesale, sale, distribution, and installation of glass and related products. For the purpose of applying the Board's jurisdictional standards, the Company is a nonretail operation. The T H. Rogers Lumber Cornpany, 117 NLRB 1732, 1733 (1957). General Counsel contends that the Company meets the Board's self-imposed standards for asserting jurisdiction either by virtue of its membership and participation in the association or by its own annual inflow across state lines. The Company denies both assertions, although in its answer to the original complaint it admitted having an annual inflow in excess of $50,000. During 1975, which was the last full calendar year immediately preceding this hearing, and the year in which the original unfair labor practices allegedly took place, the Company purchased and received at its Mishawaka facility goods and materials valued at $54,161.59, which were transported to that facility directly from States other than the State of Indiana. During the 12-month period immediately preceding this hearing, the Company's inflow of such goods and materials amounted in value to $49,763.89. Nevertheless, the Compa- ny's operations, standing alone, by reason of the 1975 volume meet the Board's nonretail standard. Langlade Veneer Products Corp., 118 NLRB 985, 986 (1957). Therefore, it is unnecessary for me to determine whether 103 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board's jurisdiction may be asserted on any other basis. I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the policies of the Act to assertjurisdiction herein. 1. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background: The Nature of the Company's Operations and the History of Alleged Association Bargaining The Company has been engaged in business at the Mishawaka facility since 1959, when it took over the business of a predecessor corporation. Since at least 1955, certain of the Company's employees, herein referred to as "glaziers," have been represented by the Union and covered by a series of collective-bargaining contracts. Their work as defined in article I, section 1, of the current contract (executed by the Company pursuant to the settlement agreement), and substantially as defined in the previous contract which was effective from May 9, 1972, to May 8, 1975, is as follows: Recognition and Jurisdiction of Work. The Employer recognizes the Union as the collective bargaining agent for its employees who are employed by the Employer for the work of installation of all types of glass, mirrors, structural glass, skylight glass, either wire or corrugat- ed: The removal of existing glass and putty: The setting of all plastics or similar products when used as a substitute for glass: Cutting, fabricating and assembly of all nonresidential architectural metal fabricated by the Employer in the shop or on the job (Employer has the right to purchase fabricated metal), the setting of all metal used in connection with store front installations: The setting of all types of tempered glass doors, metal doors, either bolted, welded or otherwise, including all hinges, accessories and hardware: The exterior and/or interior sealing of all glass and panels installed in openings. The assembly and glazing of residential doors and windows performed in the shop shall not be the work of glaziers unless temporarily assigned by the Employer. The manufacturing of and/or assembly of insulated glass units shall not be the work of the glaziers unless temporarily assigned by the Company. The last sentence of section I was initially inserted in the 1969 contract at the request of the Company. Originally, all of the Company's production employees were glaziers represented by the Union, whose normal work, at least for representational purposes, consisted of glazing installation work at jobsites. However, about 1966, the Company began manufacturing insulated glass units known as seal light. Thereafter, an increasing proportion of their work was performed in the shop and comprised work which did not normally come under the Union's jurisdiction. Nev- ertheless, the glaziers were paid union scale and received contractual fringe benefits for all of their working time. The Company also hired nonunion inside or "shop" employees who did not perform unit work. Their wages were considerably less than that of the glaziers, although this was somewhat offset by the fact that, unlike the glaziers, they were normally assured of working a steady 40-hour week. The union contract contains a hiring hall arrangement whereby if additional glaziers are required, the Company must give the Union an opportunity to furnish qualified employees. The Company has from time to time utilized this method of obtaining glaziers. However, as of early 1975, the Company's three glazier employees, Gustaff Cornelis, Eugene Verduin, and Donald Snook, had achieved a certain stability of employment, in large part due to the fact that they were regularly performing both unit and nonunit work. All three men were long-time company employees, Snook having worked at the Misha- waka facility since 1956. In the winter of 1974-75, at a time when work was slow, Company Vice President and Plant Manager Charles Breisch worked out an arrangement whereby the glaziers each worked 3 days per week, for a total of 24 hours, in accordance with a schedule set among themselves which would assure the Company of always having at least one glazier available on any workday. Breisch did this to avoid laying off any of the glaziers. On their off days, the glaziers were free to or sometimes did obtain work with other glazing firms thru the union hiring hall. In early 1975, the work force also included an average of two shop employees, plus Breisch's son, Michael, who began working part time while he was a student, and was now working full time. Two other sons, Timothy and Joseph, also performed part-time work. Since the Company began making insulated glass units, the proportion of nonunit work has gradually increased. By May 1975, about 50 percent of the Company's operations consisted of manufacturing, and the balance was about equally divided between construction work and wholesale distribution. As of September 1976, the manufacture of insulated glass accounted for 55 to 60 percent of the Company's business, with the balance divided between construction work and wholesale distribution. Prior to the strike in May 1975, Snook was spending about 80 percent of his time doing inside, mostly nonunit work; e.g., running and cutting glass, loading or unloading trucks, and answering questions for the office clericals. The other two glaziers spent most of their time on jobsite work, but also performed a substantial amount of nonunit work in the shop. In sum, several developments were taking place which were gradually but nevertheless adversely affecting the status of the glazier employees. The Company was shifting more of its opera- tions into manufacturing, the Company had hired shop employees who were paid considerably less than glazier's rates, and Charles Breisch was seeking to make a place in the business for one son and possibly for his other sons. There are, and have been for many years, about 14 glazing firms within the Union's territorial jurisdiction, including the Company, which are signatory to identical contracts with the Union. The largest of these has some 12 to 14 glazier employees, the next largest has about 5, and the remainder have on the average 3 unit employees or less. Some firms have no employees as such, e.g., they may 104 HARTFORD GLASS CO. consist of a father and son, both union members, who perform the work, and so long as they remain union members, will sign any contract which is negotiated by the larger firms. The number of signatories has fluctuated slightly over the years. Some firms have gone out of business or sold their businesses to firms which did not sign a contract with the Union. There is no evidence to indicate that prior to the present case any of the larger firms terminated their bargaining relationship in any other manner. At least one owner-member went nonunion by resigning from the Union, with the approval of a vote of the membership, and he was thereafter not asked to sign the negotiated contract. The manner in which the contract has been negotiated has for many years followed substantially the same pattern. Prior to the expiration date of each contract (contracts in recent years having had a duration of 3 years) the Union sends a letter to each signatory employer, requesting negotiations for a new contract. One employer then calls a meeting of the employers, who elect a negotiating commit- tee, usually consisting of three employer representatives. The employers also discuss anticipated issues and the position to be taken on those issues.' The committee then meets with the Union and eventually arrives at the terms of a contract. Worda Stanton of Interstate Glass Company, who was chairman of the 1975 negotiating committee, testified that the committee remains in contact with the employers, informs them of developments, and consults with them on the position to be taken in negotiations. His testimony is corroborated by the events which took place in May 1975, for it is unlikely that the employers would have sustained a strike simply on the basis of negotiating positions taken by three of them. When the contract is negotiated the committee informs the employers of its terms, and the Union presents the contract to each employer for its respective signature. There is no evidence that, prior to the present case, any employer has ever signed a contract with the Union which differed essentially from that executed by the other employers. In 1969, the Company refused to sign the negotiated contract unless the (present) last sentence of article 1, section 1, was inserted therein. The Union agreed, the contract was accordingly revised, and as revised was signed by the Union and all of the employers. The matter did not arouse any prolonged, if any, controversy. The Company and Interstate Glass were the only union firms which manufactured insulated glass units, and Interstate employees engaged in that work were represented by the Teamsters Union. During the contract term, employer representatives (usually those who indicate a willingness to serve) serve on the apprenticeship and pension committees established pursuant to the contract. Otherwise, no associa- tion structure exists between contract negotiations. There are no charter or bylaws, dues, officers, or staff or regular meetings. I I do not credit the testimony of Breisch that the committee automati- cally consists of the three largest employers. Breisch admitted in his investigatory affidavit that the 1975 negotiating committee was elected by B. The 1975 Negotiations and Strike, and the Company's Refsal To Sign the Contract and To Reinstate the Glaziers Charles Breisch testified that, at an apprenticeship committee meeting in December 1974, he made certain statements to the union committee representatives, includ- ing Business Representative Theo Hennings, concerning his position with respect to the forthcoming negotiations. Breisch also testified concerning additional statements which he made to the union representatives at an apprenticeship committee meeting in early March 1975. Hennings was not present at this point in the meeting, although Union Secretary-Treasurer Duncan Slates was there. Hennings, although a witness for General Counsel, did not testify concerning any of these alleged statements, and neither Slates nor any other union committee member was presented as a witness. However, Breisch's testimony was so contradictory as to render much of it suspect. Breisch variously testified that he told Hennings in December that he was not going to bargain or be a part of it, that he was not going to be a glazing contractor, and that he was not going to sign another glazing contract because his payroll was exceeding the price of glazing. Breisch testified that at the March meeting that he said he was not going to sign a bargaining contract. However, Breisch made no mention of the December meeting in his investigatory affidavit, and his affidavit version of his statement in March was that he would not sign another union contract until his personal problems were taken care of, meaning that he wanted his son to have the right to work at the trade without becoming a union member. I find Breisch's affidavit version to be a more reliable indicator of the truth than his belated attempts to conform his statements to applicable law. Moreover, as will be discussed, Breisch's subsequent actions were more consis- tent with the affidavit version. On March 5, 1975, the Union sent a letter to each of the signatory employers, informing them that it wished to reopen the contract for the purpose of negotiating changes, including the wage scale. The coincidence in time of the reopener letter and the apprenticeship meeting suggests that Breisch was indicating his position with respect to the forthcoming negotiations. While Breisch had at a previous time or times probably threatened to go nonunion, Hennings did not take these threats seriously, and, as indicated by his subsequent actions and statements, Breisch did not intend this blustering to be his final say in the matter. Within a few days of receiving the Union's reopener letter, the signatory employers held a meeting at the office of PPG (one of the signatories) for the purpose of choosing a negotiating committee and to discuss the Union's anticipated proposals and the employers' position in the negotiations. I do not credit the testimony of Breisch and Stanton that this meeting took place on May 8. The meeting was called as a result of the Union's reopener letter and was held prior to the negotiating sessions between the committee and the Union, which in turn commenced prior the employers. In 1963, Breisch was chairman of the negotiating committee, and he continued to serve on the committee through 1969, although the Company is not one of the three largest firms. 105 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the contract expiration date of May 8. Indeed, Stanton eventually admitted that the meeting took place within a few days of receiving the Union's letter. I also do not credit Breisch's contradictory and inconsistent testimony con- cerning what he said and did at the meeting, nor do I credit Stanton's acquiescence in a leading question by company counsel as to what Breisch said. Rather, I credit Stanton's testimony, in his own words, that Breisch "indicated" to the employers "that he would not serve on the committee because it was his intent to consider withdrawing and no longer continuing as a union shop." (Emphasis supplied.) In view of Breisch's assertions in his investigatory affidavit concerning what transpired thereafter, I further find that Breisch remained and participated in the meeting when the committee was chosen and anticipated union proposals were discussed. In short, Breisch never unequivocally withdrew from multiemployer bargaining. Therefore, at the first negotiating session, when the Union requested to know whom the employer committee represented, commit- tee member Ray Bergazer read off a list of names which included the Company. Breisch deliberately took an ambiguous position. He was aware that his proposal to permit his son to use the tools of the trade without becoming a union member would probably not enjoy much support among the other employers. The smaller firms themselves consisted of working union members, and it is unlikely that the larger firms relished the prospect, in effect, of competing with nonunion labor of a signatory employer. Breisch had also learned from his experience in 1969 that he stood a better chance of getting his way if he waited until a contract was negotiated, and then tried to get the Union to amend the contract. Breisch was no novice when it came to multiemployer bargaining, and he knew perfectly well how to go about withdrawing from such bargaining. Breisch had served as chairman of the employer negotiating committee in 1963, and in that capacity he prepared and sent a letter to the Union setting forth the committee's authority to make binding decisions on behalf of employers "who sign a glazier contract" and who "attend our meeting" to elect the committee. How- ever, in 1975, Breisch chose to play a waiting game. By May 8, 1975, the employer committee and the Union had failed to agree on a new contract. On May 12, the Union struck and picketed the employers, including the Company. The parties continued their negotiations and, on May 16 or 17, reached agreement on the terms of a new 3- year contract. On Saturday, May 17, the Union's member- ship ratified the contract, and Business Representative Hennings instructed the members, including the Compa- ny's three glazier employees, to return to work. However, Breisch refused to take them back, asserting that he had no contract with the Union. Breisch refused to sign the contract unless he and his son were permitted to use the tools of the trade without becoming union members. The Union refused to agree to Breisch's demand and filed the original charge. C. The Settlement and Supplemental Agreement The original case came on for hearing on November 3, 1975. However, the hearing never opened. Instead, at the end of nearly a full day of settlement discussions, the Company and the Union, with the approval of the Board's Regional Director (on November 5), entered into an informal settlement of the unfair labor practice case. The settlement agreement provided, in sum, that the Company would sign and implement the 1975 contract, make whole Snook, Cornelis, and Verduin for their losses caused by their separation from employment, and offer them rein- statement "to their former or substantially equivalent positions of employment." However, Cornelis and Verduin declined reinstatement. The Company also agreed to post the usual notices and, in the usual language, to refrain from violating Section 8(aXl) or (3) of the Act. The settlement agreement contained a nonadmission clause. Concurrently, the Company and the Union, by Breisch and Hennings, respectively, executed a separate document designated as the "supplemental agreement." This supplemental agree- ment stated at the outset that a purpose of the agreement "was to establish an arrangement for the implementation of the referral provisions" of the 1975 contract. However, at the close of the text the agreement was declared to be a part of the unfair labor practice case, and "therefore ... not an admission of the existence or non-existence of any rights except those flowing from the agreement itself. That is, the intention of the settlement agreement is limited to the establishment of obligations under it by the parties to it to enable settlement of the [unfair labor practice case]." Substantively, the supplemental agreement set a schedule of referral fees payable by the Company to the Union in lieu of a union initiation fee and dues for Michael Breisch, provided that Breisch would be covered by the contract pension plan if this were legally permissible, and further provided that both Snook and Michael Breisch would be paid journeyman scale for all work, including nonunit work. The agreement further provided that, when there was unit work for only one of them, such work would be given to Snook, but that Breisch could be assigned to assist Snook for the purpose of training Breisch for glazing work, and that the Union would not object to the assignment of glazing work to Breisch under these terms, or when there was enough glazing work for more than one glazier. The duration of this supplemental agreement was declared to be coextensive with that of the 1975 contract. The supplemental agreement was prepared with the assistance of the Administrative Law Judge who had been assigned to hear the case. The Administrative Law Judge answered questions and attempted to explain the agreement and the Board settlement to the representatives of the parties and to the alleged discriminatees. However, the testimony adduced at the present hearing indicates that there was something less than a uniformity of understanding as to the terms of the agreement on the part of the two individuals most immediately concerned; namely, Charles Breisch and Donald Snook. Snook and Hennings testified that they understood that Snook would get as many hours of work as anyone but Charles Breisch. Breisch testified that he understood that Snook would be put back in substantially the same position that he was prior to the settlement. The significance of the settlement and the supplemental agreement to the Snook case will be discussed in the concluding findings of this Decision. 106 HARTFORD GLASS CO. D. Postsettlement Developments and Concluding Findings With Respect to the Snook Case Donald Snook returned to work for the Company during the week of November 10, 1975. On January 21, 1976, the Regional Director closed the original case, conditional upon continued observance of the settlement agreement. On February 6, 1976, the Company "laid off" Snook, assertedly because of a lack of work due to a sharp decrease in its business. About the same time the Company also laid off shop employee Don Bauer. The significance of the term "laid off" as applied to Snook will be discussed herein. Although the complaint alleges that the Company failed and refused to reinstate Snook "since on or about November 5, 1975," General Counsel conceded at the hearing and in his brief that there was no violation of the settlement agreement prior to Snook's layoff. However, General Counsel contends that the layoff violated the settlement agreement and Section 8(aX)(1) and (3) of the Act. In evaluating the positions of the parties, I have found it both useful and illuminating to prepare a chart which reflects the number of hours worked by each of the Company's employees in each week from September 1, 1975, thru May 28, 1976. The chart is annexed to this Decision as "Appendix A" and reflects information which was obtained from the Company's payroll records and presented in evidence by General Counsel. Michael Breisch, Charles' son, was working full time in the business. Charles' other sons, Timothy and Joseph, were students who worked part time performing nonunit work. Steve Dhorre and Don Bauer were nonunion shop employees. Dhorre began working about a week or two before the strike and Bauer was hired during the summer of 1975. However, prior to the strike the Company usually had two shop employees. Engstrom, Sullivan, and Sawyer were glaziers who were referred through the Union, on a job-by- job basis, pursuant to the collective-bargaining contract. However, shortly before the present hearing, Breisch assigned Engstrom to come in every day until further notice without being called beforehand. At the time of the strike Engstrom had been working for another employer; however, he participated in the strike and picketing. Charles Breisch testified that during the months of November and December 1975 and January and February 1976 the Company's sales volume was well below that for the comparable period I year earlier, that the volume reached a low point in February 1976, and that, although sales volume increased in the following months, the volume nevertheless was below that for the comparable months of 1975. His uncontradicted testimony was corroborated by the Company's records, and by Snook, who testified that work was slow when he returned in November 1975 and remained slow until his layoff in February 1976. Breisch's testimony in this regard, and asserted reason for laying off Snook, is also corroborated by the records reflected in Appendix A. From his return until late January 1976, Snook usually worked about 3 days a week; i.e., as much as he worked before the strike. He worked more in November and less during the weeks of Christmas and New Year. Snook testified that he did less shop work than he had in the past; however, there is nothing to indicate that this reflected anything other than the decline in all work. In the meantime, the Company was gradually cutting the hours of its two shop employees, who normally worked a 40-hour week, although the Company presumably had no reason to discriminate against either of them. During most of December and January they were working 3 days a week. Significantly, the Company never replaced glaziers Cornel- is and Verduin. It should also be noted that full-time work was, in a sense, a compensation to the shop employees for the fact that their wage rates were well below that of the glaziers. By February, the Company was forced to lay off one shop employee, but it still did not have enough work to keep three employees busy on a full-time basis. Breisch could have let go or reduced the hours of his son; however, his reluctance to do so is understandable. A father's desire to advance his son's well being can hardly be construed as evidence of union animus toward another employee. By continuing to work Dohrre on less than a full-time basis, Breisch risked losing his only remaining shop employee, although most of the Company's operations consisted of nonunit shop work. The remaining alternative, and the one which Breisch chose, was to lay off Snook, and thereby convert Snook from a regular, albeit part-time, employee, to one who was available on call, as needed, through the Union. Breisch testified that he gave Snook a written layoff notice in order to give him the option of drawing unemployment compensation as an alternative to working less than 3 days a week on a regular basis. Snook testified that he continued to work for the Company on a referral basis until May 20, when he told Hennings that he could not afford to work only I day a week, and asked to be referred to another employer. In fact, Appendix A indicates that throughout February and March 1976, the Union referred other glaziers (usually Engstrom), rather than Snook, to work for the Company. Business Represen- tative Hennings, although presented as a witness for General Counsel, never explained why this was so. It is unlikely that Hennings would have intentionally refused to refer Snook. Rather, the inference is warranted that Snook himself declined the work (as he admitted doing on one occasion). Indeed, Hennings never explained why he failed to refer Snook rather than Engstrom at any time subse- quent to May 20. Again, the inference is warranted, as Snook himself admitted in his testimony, that he asked not to be referred to the Company. The settlement agreement, i.e., the settlement approved by the Regional Director, provided, in pertinent part, that the Company would offer Snook his former or an equivalent position, and would not discriminate against him because of his union membership or activities. This is the usual and conventional remedy in cases such as this, involving a termination violative of Section 8(a)(3) of the Act. As General Counsel concedes, the Company did reinstate Snook to his former or an equivalent position, and he remained in that position until his layoff. However, a reinstatement under a Board order or settlement agreement is not a guarantee of permanent employment; rather, it is an order or undertaking to eliminate the effect of past discrimination, and a guarantee against further discrimina- tion. Where, as here, the employer adversely changes the status of the discriminatee (or alleged discriminatee), shortly after execution of the settlement agreement, the 107 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change should be examined closely, and viewed with a healthy dose of skepticism. However, animus and a past history of unlawful conduct do not alone prove that the change was unlawful where the evidence indicates that the change was made for legitimate reasons. I have carefully considered the evidence in this case. I have taken into consideration that, were it necessary to decide the original case, I would probably find that the Company unlawfully refused to sign the 1975 contract and unlawfully refused to reinstate the striking glaziers. I have also taken into consideration my findings that Breisch's testimony was less than credible with respect to the circumstances leading to his refusal to sign the contract. I have further taken into consideration a conversation between Breisch and Hen- nings which took place shortly after the settlement agreement was executed, in which Breisch said that he was still mad about the whole matter, and could not agree to drop it, adding that he would tape all future conversations with Hennings and funnel all letters thru his attorney. 2 Nevertheless, I find that, in laying off Snook, Breisch acted on the basis of legitimate economic motives, and, therefore, that he did not violate the terms of Board settlement agreement or the Act. There remains for consideration, the question of whether the supplemental agreement or statements made by the Admisistrative Law Judge at the time the settlement was negotiated warrant a different finding. I find that they do not. First, the supplemental agreement was not a part of the Board settlement agreement which disposed of the pending unfair labor practice case. In this regard the supplemental agreement was internally inconsistent. At one point the agreement purported to be a modification or amendment of the 1975 contract. At another point the supplemental agreement purported to be a part of the settlement of the unfair labor practice case. In fact, the supplemental agreement was not a part of the settlement agreement because the supplemental agreement was neither incorpo- rated by reference into the settlement agreement, nor was it approved by the Regional Director, who alone had the authority, on behalf of the Board, to approve any informal settlement which terminated the unfair labor practice proceeding. Although the Administrative Law Judge lent his assistance to the parties in settling the case, the hearing had not opened. Therefore he had no responsibility for the terms of the settlement, and his statements could not be taken as constituting any action on behalf of the Board, either interpreting or approving the settlement agreement or the supplemental agreement. Moreover, as will be discussed, the supplemental agreement purported to give Snook, in one respect, better working conditions than he had enjoyed prior to the strike. Therefore, the supplemen- tal agreement purported to give Snook more than the reinstatement provided in the settlement agreement. The latter remedy was the conventional and usual reinstate- ment which is designed to restore the alleged discriminatee to the conditions which he would have enjoyed but for the 2 I credit Hennings' testimony concerning the conversation. Breisch's version was somewhat different from that of Hennings. He testified that he said nothing about his feelings toward the Union. However, he did not expressly deny saying that he was still mad and unwilling to drop the matter. discrimination against him. Consequently, public policy dictates that a private agreement or possible verbal understanding which purports to give him greater rights should not be construed to be a part of a Board settlement unless expressly incorporated in the settlement as approved by the Regional Director. Such was not the case here. In sum, the supplemental agreement was a private agreement between the Company and the Union, and a violation of that agreement, even as verbally interpreted by the Administrative Law Judge, does not constitute a violation of the Act or a breach of the Board settlement. While the private parties, or some of them, may have been motivated to go along with the Board settlement because of the supplemental agreement, that motivation does not warrant setting aside the settlement. The Regional Director's action in approving the settlement constituted a vindication of both public and private rights and his action cannot be set aside merely because of a mistaken assumption on the part of some parties as to what that settlement provided. Second, the supplemental agreement, insofar as pertinent to Snook, covered only the assignment of unit work as between Snook and Michael Breisch. Cornelis and Ver- duin, who may be viewed as disinterested parties in the Snook case, testified that the Administrative Law Judge told the parties that Snook would work as many hours as anyone but Charles Breisch. However, the Administrative Law Judge's statement cannot be interpreted as giving Snook any right not provided for in the written language of the settlement agreement and the supplemental agreement. There is, after all, still such a thing as the parol evidence rule. Cf. N.LR.B. v. GulfAtlantic Warehouse Co., 291 F.2d 475, 477 (C.A. 5, 1961). Prior to the strike, Snook did not enjoy the privilege of working as many hours as any other employee. Indeed, it is difficult to see how General Counsel can contend that the Administrative Law Judge's state- ment constitutes a part of the Board settlement, while at the same time conceding that the settlement was not violated between November 5, 1975, and February 6, 1976, notwithstanding that Michael Breisch was usually working more hours than Snook during that period. As for the supplemental agreement, the evidence does not show that Michael Breisch was assigned unit work at the expense of Snook, or that the terms of the supplemental agreement were violated in any other particular. Therefore, even if the supplemental agreement constituted a part of the Board settlement, the evidence fails to show any breach of that agreement. Finally, the supplemental agreement is of doubtful validity. As the Company and the Union, pursuant to the terms of the Board settlement, were parties to a multiem- ployer contract, it is questionable whether they could bilaterally enter into an agreement which modified or supplemented the union-security and referral provisions of the 1975 contract. At best, the supplemental agreement, even if valid, might warrant a reopening of the 1975 contract by reason of the most favored nation clause (art. XII, sec. 2) of the 1975 contract. I find it unnecessary to As indicated, I have some reservations about Breisch's veracity in other matters; however, I have no similar basis for questioning the testimony of Hennings. 108 HARTFORD GLASS CO. resolve these questions. However, I do find that, in the circumstances of this case, it would not effectuate the policies of the Act to give such a questionable agreement the full force and effect of a Board settlement. In sum, I find that the Company did not breach the settlement agreement or violate the Act as alleged in the Snook case. Therefore, I am recommending that the settlement in the original case be reinstated and the complaint dismissed. Wooster Brass Co., 80 NLRB 1633, 1635 (1948). 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 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings and conclusions and recommended Order herein shall, as provided in Sec. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint at any time on or after November 5, 1975, or breached the settlement agreement in the original case. 4. It would effectuate the policies of the Act to reinstate the settlement agreement in the original case. 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: ORDER3 1. The settlement agreement approved by the Regional Director in Case 25-CA-7148 is reinstated. 2. The complaint is dismissed in its entirety. 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. APPEDILX A HOURS WORKED Michael Steve Don Ueek of Brasach Dhorre Bauer Breinach 1975 9/5 -" 9/11 9/19 9/26 10/3 10110 10117 10/24 10/31 11/7 11/14 11/21 11/28-i 12/4 12/12 12/19 12/24-H 12/31 -H 1976 1/16 1/23 1/30 2/6 layoff 2/13 2/20 2/27 3/5 3/12 3/19 3/26 4/2 4/9 4/16 41/23 4130 51/7 5/14 51/21 5/28-H 32 48-1/4 40 55-1/ 2 48-1/4 48 -3/4 40-1/2 48-1/2 48 48-1/4 40 40 32 33-1/2 40 41 -1/2 32 23-1/2 32 40 40 40 40 40 40 40-1/2 40-1/14 43-1/14 40 42 40-114 39-1/12 40-1/4 40 41-1/2 40 40-1/12 32-1/2 40 32 48-1/4 40 48 48-1/4 48-3/4 48-1/2 32 48-1/4 49 40 40 32-1/4 32 24-1/2 24 24 24 24 24 24 24 24 32 32 40-1/4 40-1/14 43-1/4 40 42 40 40 40 40 41-3/4 40 40-1/2 40-1/2 -32 32 48-1/4 40 48-1/12 48 48-1/4 48-1/2 48-1/2 48-1/4 45 40 40 32-1/4 32 24-1/4 24 24 24 24 24 24 24 16 Donald Ryan Sullivan Snook Enastromn or Sawyer J-10 T-8 T-8 T-8 J-8 J-4 J-4 314 J-7 3/4 24 40 31-1/2 33-1/2 24 23-3/4 18-1/2 18-1/4 24 22-1/12 23 15-1/2 15-1/2 8 T-16 T-16 T-8 T-31-1/2 24-1/4 8 8 8 31-1/4 16 40-1/2 8-1/2 8 8 16 24 4 8 8 Su-8 Su-8 Sa-8 19-1/2 e/ k. dates usually indicate Friday., vbtich are regular payday-. "IH" indcites that there wma a holiday during the uqek. "T" and "J" refer to Timothy or Joseph Breisch respectively, and "Su" and "Sa" refer to Roger Sullivan or Roger Sawyer, respectively. 109