Consolidated Fiberglass Products Co.

I)O DISIONS OF NATIONAL. L.ABOR RELATIONS BOARD Consolidated Fiberglass Products Co., Inc. and Gen- eral Teamsters and Food Processing, Local 87, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 31 - CA-7128 and 31 CA 7383 May 4, 1979 DECISION AND ORDER BY CHIAIRMAN FANNING AND MEMBERS JENKINS ANI) PNFI.I.O On November 17, 1978, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief to which Respondent filed an answer. Respondent also filed exceptions and a supporting brief. 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 only to the extent consistent herewith and to adopt his rec- ommended Order, as modified herein. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(5) of the Act by granting a wage increase effective June 20. 1977, without bargaining about it with the Union. However, we disagree in part with the Administrative Law Judge's evidentiary findings in support of that violation. The Union has been the certified representative of Respondent's production and maintenance employ- ees since March 1977. From June 1973 until June 1976 these employees were covered by a collective- bargaining agreement between Respondent and the Glass Bottle Blowers Association (GBBA). The GBBA filed a disclaimer in the representation case leading to the Union's election victory and subse- quent certification. Respondent's labor relations consultant, Phillip Feick, testified without contradiction that wage in- creases were granted in June 1974 and June 1975 pur- suant to provisions of the GBBA contract. He also testified, again without contradiction, that a 6-percent i Respondent hits excepted to certain credibility findings made by the Ad- ministrative 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 Drs Wall Product.s, Inc, 91 NLRB 544 (1950), enfd. 188 I.2d 362 (3d (Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. wage increase was granted for 1976. Respondent con- tends that the 1976 increase as well as the 1977 in- crease of 5 percent were granted in accordance with a memorandum of agreement between Respondent and the GBBA signed in July 1976 in order to conclude a strike which followed the expiration of the contract. Respondent argues that the pattern of yearly in- creases under the GBBA contract and the 1976 and 1977 increases based on a prior commitment preclude a finding that the latter increase was unilateral, in violation of Section 8(a)(5). The Administrative Law Judge rejected Feick's tes- timony as to the wage history on the basis of what he characterized as a "best evidence" requirement. He held that, since Respondent failed to produce books and records to "corroborate" Feick's uncontradicted testimony, there was a clear failure to establish Re- spondent's claims with respect to the 1974-76 wage increases. The best evidence rule, both at common law and in the Federal Rules of Evidence, does not require that uncorroborated oral testimony be bolstered by writ- ten documents.2 Therefore, we find, based on Feick's uncontradicted testimony, that in June of each of the 3 years preceding the 1977 wage increase Respondent did grant increases and that the 1976 increase was 6 percent. However, notwithstanding this finding, we agree with the Administrative Law Judge that the 1977 in- crease of 5 percent constituted a violation of Section 8(a)(5). The Administrative Law Judge is correct in finding that the memorandum of agreement con- tained key terms which were subject to future nego- tiation. Specifically, the language concerning wages only suggested that the increases should be 6 percent for the first year and 5 percent for the second year of a new contract. But, even if we were to find a contrac- tual commitment for such wage increases, our Deci- sion in American Seating Company3 would control here, as the Administrative Law Judge correctly con- cluded. Since the recently certified Union was not a party to the memorandum we will require full collec- tive bargaining on all mandatory subjects between Respondent and the Union. Otherwise, the policy of "insuring to employees the right at reasonable inter- vals of reappraising and changing, if they so desire, their union representation"4 would be undermined. We also affirm the Administrative Law Judge's finding that Respondent violated Section 8(a)(5) by refusing to discuss wages for 1977. ? Art. X of the Federal Rules of Evidence requires that the proponent of a material writing either produce the original or adequately explain his inabil- ity to do 50 106 NLRB 250 (1953). 'Id at 255 242 NLRB No. 7 10 CONSOLIDATED FIBERGLASS PRODUCTS CO.. INC. The Administrative Law Judge dismissed the alle- gation that Respondent engaged in dilatory tactics with no intention of reaching agreement by failing to offer substantive contract proposals. In the absence of an exception thereto, we adopt this finding. We note, however, that in the remedy section of his Decision the Administrative Law Judge refers, inter alia, to his finding that Respondent violated Section 8(a)(5) by refusing to bargain with the Union on and after Octo- ber 6, 1977. This reference appears to be inadvertent, for the Administrative Law Judge specifically found that, although Respondent violated the Act as found herein, it was responsive in other respects to its bar- gaining obligations. The record supports the Admin- istrative Law Judge's finding that Respondent, both before and after the October 6 negotiating session, offered and was prepared to bargain over substantive proposals concerning such key issues as the term of agreement, union security, dues checkoff, and even wages for years following 1977. We therefore modify the remedy to delete this inadvertence. REMEDY Having found that Respondent violated Section 8(aX5) and (1) of the Act, we shall order it to cease and desist from the unfair labor practices found and from any like or related conduct. We shall also order Respondent to take certain affirmative action. How- ever, nothing contained in our Order will require or authorize Respondent to withdraw or discontinue any wage increase previously granted save that which may be requested by the Union. Moreover, in order to effectuate the policies of the Act our Order will require Respondent to recognize the Union, and, upon request, to bargain with it as the exclusive rep- resentative of all employees in the appropriate unit concerning wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period pro- vided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit.5 Amended Conclusions of Law Substitute the following paragraph as Conclusion of Law 3: See MarJac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Conmany d/bla Lamar Hotel, 140 NLRB 226. 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cen. denied 379 U.S. 817 (1964), Burnet Consiruction Com- pany, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). "3. By refusing to bargain collectively with the Union as the exclusive representative of all of Re- spondent's employees in the appropriate unit, by the following actions: unilaterally granting a wage in- crease effective June 20, 1977: refusing to discuss the subject of wages for 1977; and canceling a negotiating session scheduled for June 14, 1977, because of the Union's announced intention to file unfair labor prac- tice charges, Respondent has engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(a)(5) and (I) of' the Act." ORDIER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Consolidated Fiberglass Products Co., Inc., Bakers- field, California, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Delete paragraph 2(b) and reletter the following paragraphs accordingly. 2. Substitute the attached notice fr that of the Administrative Law Judge. APPENDIX No)II(E To EMPI'()Y Es POSIFTI BY ORDER OF THE NATIONA LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present their evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice. We intend to abide by the follow- ing: WE WILL NOT refuse to bargain collectively in good faith concerning rates of pay, wages. hours. and other terms and conditions of employment with General Teamsters and Food Processing, Local 87, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of the employees in the following appropri- ate unit: All production and maintenance employees, excluding all other employees, office clerical I I DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, professionals, guards and supervi- sors as defined in the Act. WE WILL NOT fail to comply, with reasonable promptness, with the Union's request for bar- gaining dates. WE WILL NOT unilaterally grant wage in- creases to employees in the appropriate bargain- ing unit without notifying and bargaining with the Union. WE WILL NOT cancel a scheduled meeting date because' the Union has informed us that it in- tends to file an unfair labor practice charge against us. WE WILL NOT refuse to discuss the subject of wages with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in their exercise of rights under the Act. WE WILL, upon request, bargain collectively in good faith with the Union as the exclusive repre- sentative of the employees in the above unit con- cerning rates of pay, wages, hours, and other terms and conditions of employment, and em- body any understanding reached in a signed agreement. CONSOLIDATED FIBERGLASS PRODUCTS CO., INC. DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: This case was heard before me on May 16, 1978,' in Bakersfield. Cali- fornia. Case 31-CA-7128 was consolidated with Case 31- CA-7383 in the instant complaint which was issued by the acting Regional Director for Region 31 on November 16. On September 12, Respondent, Consolidated Fiberglass Products Co., Inc., also described herein as the Company, made an informal unilateral settlement of Case 31-CA- 7128 agreeing to bargain with the General Teamsters Union, hereinafter called the Union. On November 9 the Regional Director withdrew his approval of the settlement agreement. The consolidated complaint alleges that Re- spondent violated Section 8(a)(5) and (1) of the Act by nu- merous actions including canceling scheduled meetings; en- gaging in fruitless discussions; failing to offer substantive proposals; unilaterally granting a wage increase without prior notice to or bargaining with the Union; and other acts. The Company's answer admitted jurisdictional facts but denied the commission of any unfair labor practices. Based upon the entire record in this case including the able briefs filed by the parties and my observation of the demeanor of the witnesses, I make the following: I All dates are in 1977 unless otherwise stated. FINDINGS OF FACT 1. JURISDICTION Consolidated Fiberglass Products Co., Inc., is a Califor- nia corporation with its office and principal place of busi- ness located in Bakersfield, California, where it is engaged in the manufacture and sale of fiberglass roofing products. In the course and conduct of its business operations Re- spondent annually purchases and receives goods or services ,alued in excess of $50,000 directly from suppliers located outside the State of California. During the same period the Company sold goods valued at $50,000 to customers lo- cated outside the State of California. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union filed a petition in Case 31-RC-3563 in the following init of employees: All production and maintenance employees excluding all other employees, office clerical employees, profes- sionals, guards and supervisors as defined in the Act. The Union won the election and was certified on March 2, 1977. At the time of certification the unit consisted of 14 employees. The Regional Director noted in the Decision and Direction of Election that the Glass Bottle Blowers Association, hereinafter called the GBBA, filed a disclaimer in Case 31-RC-3563. Respondent urged in the representa- tion case that a memorandum of agreement executed by the Company and GBBA on July 13, 1976, was a bar to an election. The record in the representation case shows (G.C. Exh. 2) that the Company and GBBA were parties to a collec- tive-bargaining agreement which was in effect from June 18, 1973, until June 18, 1976. The original agreement was modified in 1974 and 1975 with respect to wages and cer- tain other terms. It is to be noted that the contract termi- nated on June 18, 1976, at which time a strike took place which itself was brought to a conclusion on July 13, 1976, when Respondent and GBBA signed a document captioned "Memorandum of Agreement" which appears in the record as Appendix A (Resp. Exh. 2). The memorandum states in tem 2: The Company would make language changes in sev- eral parts of the agreement, i.e. by way of example, but not limited thereto, vacations, hours of work and the grievance procedure. These changes would then be submitted to the GBBA for review. Thus. the agreement contemplated further negotiations and changes. The document is silent regarding the term of the agreement. Furthermore, there is no evidence that the Em- ployer ever complied with this portion of the agreement and no collective-bargaining agreement was ever signed. This memorandum also contains an item 3 which states: 12 WEYERHAEUSER COMPANY The wage increase would be 6 percent the first year, 5 percent the second year and 5 percent the 3rd year. This language too seems to contemplate wage increases but does not appear to be an outright agreement to grant such increases. Attention is called to the words, "The wage in- crease would be .... " The word "would" looks to the future. The Employer contends that there is a contract bar to the instant petition because of an agreed-upon contract be- tween the Company and the Glass Bottle Blowers Associ- ation. The Regional Office did not find the agreement as a bar because "a Memorandum of Agreement which has no fixed duration and which contains terms which are subject to change, is a temporary stop gap measure and does not constitute a bar to a petition. Dalmo Victor Company, 132 NLRB 1095 (1961); Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990, 993 (1958)." It should also be noted that the GBBA filed a disclaimer in the representation case proceedings on December 10, 1976, and has disappeared from the scene. B. The Issues Did the Respondent violate Section 8(a)(5) by: I. Engaging in dilatory tactics to avoid reaching agreement with the Union. 2. Refusing to meet with the Union because it filed a refusal to bargain charge against the Respondent. 3. Granting a unilateral wage increase without no- tice to or bargaining with the Union. 4. Respondent's refusal to discuss the subject of wages with the Union. C. Alleged Dilatory Tactics There was a total of six negotiating sessions held by the parties over the period from March 29 to October 6: April 5, May 26, July 20, August 5, September 23, and October 6. Initially it should be noted that the Union received its cer- tification from the Board on March 2. It made its first re- quest for a meeting with Respondent on March 29. Viewed against the statement by the Union that it had established a high priority to expedite meetings and negotiate a contract with Respondent, its own delay of 27 days before contact- ing Respondent for the commencement of collective bar- gaining hardly established a rapid timetable for meetings. Further, when Respondent did hear from the Union it promptly arranged for a meeting to take place on April 5. The Meeting of April 5 The Union and Respondent met for the first time to en- gage in contract negotiations on the morning of April 5. All meetings took place in the office of Respondent's labor rela- tions consultant, Phillip Feick. who is the owner of the Western Employer's Council. At the first meeting, the Union presented what it chose to call written proposals. These proposals consisted of 19 points, most of them one- line statements, for example: 1. Company health and welfare, add dental and vi- sion care. 2. Vacation pay at time of vacation pay 3 weeks after 5 years service. 3. Eight paid holidays. 4. Jury duty. 5. Warning notice: two warning notices before dis- charge, copy to employee and copy to the Union. Must file no later than 24 hours after dismissal or the case is waived. Reprimands subject to grievance procedures. 6. Teamster pension plan 20 cents per hour. 7. Twenty-five percent increase across the board in all classifications. Payroll deductions. 8. Fifty percent premium 12:00 midnight to 7:00 a.m. 9. Special tools, company will furnish. 10. Special clothing, where required, company will furnish. II. Employees working any part of the day in a higher classification will receive that pay rate for that day. 12. Temporary classification move, if employee is not advised by memo of a change in classification he will receive the higher classification for 30 days there- after. 13. Any new classification will be subject to negotia- tions no later than one (I) week after such new, classifi- cation is put into effect. 14. Bidding language to be submitted. 15. If employee is injured on the job, he will receive pay for the entire shift. 16. All Sunday work to be paid at double time. 17. As employees are called in on special assign- ment when that job is finished employee may leave the plant at his option. 18. Grievance language to be submitted. Funeral leave add grandparents. Add one (I) day for each 1000 miles the employee has to travel out of state or excessive distance to attend funeral. 19. Rest periods. Fifteen (15) minutes in the morn- ing and fifteen (15) minutes in the afternoon. On over- time fifteen (15) minutes every two (2) hours. The Union reserved the right to change or modify the proposals. It is to be noted that points 14 and 18, both of which state that bidding and grievance language is to be sub- mitted, never resulted in the submission of any suggested language covering these points by the Union. Those present at the first bargaining session were George Branson, the Union's secretary treasurer, and A. R. (Bob) Chandler, a union business representative representing the Union, and Feick and his assistant James Lloyd, both of Western Employer's Council representing Respondent. The General Counsel's brief states that "The Union presented written proposals, namely, the basic union shop contract that Respondent had had with the GBBA which expired by its terms on June 18, 1976 and a list of proposals intended to modify certain provisions of the union shop contract." The conflict in the testimony with respect to the Union's having allegedly stated that the jumping off place for nego- 13 I)(tISI()NS (OF NAIII)NAL. I.ABO()R RlA I)IONS BOARI) tiations would he the expired contract of (ilBBA and Feick's version swhich is quoted abvIhOe will he resolved in favor of Branson. 'his is so because overall the est ilonv of' Feick was not ver prsuasivels presented. lie seemed to remember vr\ little without constant reference to the notes he took during the course of nregotiations. and even when reading from these notes he did not seem convincing. ralln- son, on the other hand. spoke with ,igor and apparent can- dor. and wherever thllele is a dispute betwoeen the testilnonlI: of Branson and Feick I credit r ranson. Feick did state that there were some problems in coInnec- tion with the old contract hich in his opinion mnade it unwise to use that as a hbasic ianclwork for bargaining he- cause soimen of thle IntIgage wa;ls in polderoLus atnd see nlle to need clarification. f hi is s rcasonable e.planaihn and I credit it. It wits no1 disputed. Respondent's agents did not respond to the 19 points pre- sented to it as "proposals" bhut stated that the proposails woukl be taken under advisement. Respondent's agents also said that the proposals wouldl] have to hc subimitted to their principals. 1). I/ic I-¥r.t ,fVuotallboil ,f'tclin' ! l)pril S According to Fcick, Branson rcrl-cre Ito tile rc VionIus Bottle Blower's contract atnd said "he dtidn't know wilether the company wanted to start from a hase of the pievious labor agreement, or tile labor agreemenit with the Bottle Blowers anld that he was illing to listenl to suggstiltns." No new date for the second neting was deciled 1upol at the meeting of April 5. but Feick allegedll toldt the I lnioil that it would he contacted h3 April 8 to alrlangc for the ncxt meeting. Not having hiartl from Respondent by April 13, the Union wrote Feick a ltter (.('. I'ih. 81 in hich Chandler, union bhusiness epresentative. wrote that the Union woultl not tlclratce dclaxs to "str ing oult negoia- tions,' sating. m/nr alia, the I[nion s as certified oln febihrtl- ary 22 antd had been unabl e to prcetedl ilh n1egotlltitons "for yotur lack of cooperation." 'Ihis wa;s ftiloscii h the Ililon's tfihreat to ile an Ultilr labor prarltic clhiaige withi the N RB i ;uiinie'il leRtlliati; s ho lo: ht gil at I nce. It should e noti It! o the trll), iIne ils ilst etffrt o cornillUlcatc wtth Rt i ts!il, it March 29. ICsponi(IClt was [ot ivol, ed silh I t 2- d dcelas! ,t Ihc lilioti foirnt the time il was cci illed 1 icbrual- 22 unlil Martch 2'9. al which titi ;lil t lor til fllS tilnl- the t I1i CllnulIlltlliCted with Reslollcin d ictlcstilng in inltil ne.tliln lr collec- tive :.lgi ari in plpuse'. ()t Allil I5, [citck pIhoned (handlerl illnl ;t secotid imeet- ing a ts set up l flr April 26. I hcrea'lftei oln Apil 22. itIck wrte ('haillltr .i CttC tiitcelinge the \il 26 mceing he cause Rts,Olltctll' s prlcsidnll. uho) liad e prcssed desile to be present ait the secotid llcctlilll, h1l iut-ocstlt coti- mIilnlIents and suggesti' dtates of 1Ma 24 oT 26 t(,i the nlest meeting. The (I 'llin's resplilse to this chaigc V, is to inlltliatci file a cllge Wsittl ti, N RiB illctgil Responilentfs -reCtsl to hbargaii iin pood ltlh I he charc;l ill (ase 31 ('\ 711 was disnlissed n Ma'i 27 ad ap;lpeal t ts dtisTissil was taken bh tilhc :nii. (lii May 12 hile ninl noltiidl tlhe ('onmpanl conllirling 1\l 2(i lir- thlc seclld i llcctllig. I. 7c' Seco,, d Neotilation ,iecling Mat 26 Ihe ('ompany as represented by Feick and George ('onlc, Respondent's vice-president: Branson and Chan- dler were present for the (Inion. According to the General ('ounsel's brief, at this meeting the poposals presented bh the tinion at the first meeting were tliscussed. Also, the brief goes on to say that Respon- dent allegedll? stated it as not in a position o present counItcproposals that day. Respondent, through Feick. oaily presented Respondent's vacation and holiday poli- cies. Als, Respondent claims it asked the Union about how long a contract it desired. Also. F[eick allegedly told Bran- son that the (BBA contract language would have to be comnpletely reworked. urther, eick reminded the Union that it ait s supposed to submit grievance procedure lan- guage hut it had ino such language at this meeting. A tenta- tive date for an additional meeting was mentioned and June t' wns indlicated as a possible date. Welic h Junlite no contact had taken place. eick called the uniol office and lIctft word that not having heard from tle l:nion cotinimlng the date tf June 9, Feick made an- other husitness appot ntmenllt Ior that dlaf. I)uring the course of a phone conversation Feick had \vill Bir'anson on Jlune 9, a new meeting w.as agreed upon to take place on June 14. Branson notified Feick that the l!nioti intended filing an additional unfair labor practice charge against the ('ompany. This charge. Case 31 ('A 7128. alleges vitlations of Sections 8(a)( 1). (3) and (5) of the Act.? I pll hearlilng th;t the tliilon intended filing addi- tiona;l chairges. :cick responded h sa ing that based upon the nion's intcntion to file all adtlitional charge he (I'eick) withdlrew lhe June 14 meeting date. By so doing. Respondelt clcarl \iolatced Section 8(a)(5) of the Act. ( iencal ( otllscl stitetd that it is settled law that the exis- tencic o a pendlttiig unitair labor pratice charge does not suspelitl the obhlgatioi on tilt parlt of the employer to bar- ain, and tilhe employer may not condition such obligation upon the ibhandlloniment of the Union's unfair labor practice charges pelnding against the emilployer. Royal 7Tpewriler (' plo i . I)i io !a 1.ltion Buyimvx ss SI t'lel, Inc.. Sub- sdltlr' O/ I.illotl Ine/hlrics. lai., band .ition Induv.tries In,., 2I)9 N I R I it)6 ( 1974): Palm B Post- lime Il)ivision o/ I'err P/i( alions Inc.. I 51 N RB 1030 (1965). 1 agree and intl that Respondent violated X(a)(5) of' the Act by cancel- 1ng Its airrangnlent tl, hold a meeting with the Union on lunle 9 because it had been informed that the Union in- tented fihiing charges of refusal to bargain. It is to he notedl that on June 8. the Ulnion. lor the first time dtlemanded that Respondent set firm dates for future inclnlils. A, a;I eotilpiltion observation, the ('ompany had pieC\tIN', .Is , inide n efl'Ort to set firm meeting dates. In tlis coinnecti )ni, oth the ('onmpany and the inion were cqutll ill ault in failing to set up a calenldar oti future dates tot negolUlttiol mneetings. A meeting took place at the ('om- pin>'s plait on June I bhut this meeting had nothing to do ilh negotiations: it took place in connection with some icpiitiands issued tlo eiployees. In the course oif the meet- (1i Juni 2 !ic Reion.l iehr dslmsed Shc 8(.)(31 section oi the hirgc nl d ii Scptnhember 12 npproecd a unil;llcrl scttlement agreemen ait} l¢C~pCl nl the Stti)( pn tion oaind relused I,o Isue .l complaint. 14 (()NSO)I.ID)AIFI) FI:ER(.ASS P'RODL ('IS ('(). IN(' ing certain oral threats were made that the I:nion would use daily filing of unfair labor practice charges and the fil- ing of complaints with the Occupational Safety and Health Administration to force negotiations. After an exchange of correspondence the Union indicated that it could meet on July 20. I)uring the meeting of'July 20 the parties again met in the offices of Western Employers ('ouncil at which time Feick presented written proposals concerning health and welfare, leaves of absence, strikes and lockouts, emplo - ment of workmen, and grievance procedure. The Union made no attempt to discuss the substantive terms of the proposals submitted to it in any way during the course of the meeting at which these proposals were first submitted to them. In general, its position was based on an assertion that it did not intend to bargain with Respondenit on a piecemeal basis. On June 16. the Union was notified of a proposed wage increase to become effective on June 20 fr the production employees of (Conglas. This increase was allegedly based upon the promise of an increase made to those employees on July 13, 1976. The pay raise schedule was in compliance with a promise for a 5-percent increase made at that time. No effort of an kind was made by Respondent to discuss the wage increase with the Union betore it became el'ec- tive, and in fact this increase is a clear violation of Section 8(a)(5 because without prior notice to or hbargaining with the Union. Respondent unilaterally instituted a wage i- crease on behalf of' all employees in the bargaining unit. The granting of a wage increase without bargaining with the Union constituted a repudiation of the Union's status as the collective-bargaining representative of the employees. This wage increase became effective on June 20 at a time when no impasse existed with respect to the issue of wages. In fact, there was no bargaining on the question of wages t any time up until June 20. The Union initially had pre- sented to Respondent a page-and-a-half itemization of 19 points, and included in this group of demands was a state- ment that the Union expected a 25-percent increase to be granted to all employees within the appropriate bargaining unit. But it must be emphasized that there was no bargain- ing of any kind over the subject of wages. either by the Union or by the Company. Respondent asserts that its mio- live for the increase was the existence of a memorandum of agreement with the Glass Bottle Blowers Union which called for increases in wages in 1976, 1977, and 1978 on the anniversary date of the contract. As a result of this memo- randum of agreement. which appears in the record as Re- spondent's Appendix A attached to its copy of the Glass Bottle Blower's agreement, Feick testified that Respondent had given a wage increase to its employees in 1976 pursuant to this memorandum of agreement. Feick further testified that there had been a wage increase in the preceding years to 1976 during the life of the contract, and that the emploh- ees had been promised in writing that the wage increase would be given to them in 1977. Further, Respondent's counsel introduced the memorandum of agreement for the purpose of establishing the criteria under which Respon- dent granted the wage increase of 1977. The Regional l)i- rector for Region 31 found with respect to this nimeoranl- dum of agreement that it was defective on its iace in that the agreement clearly contemplated furtlher neoltilations and changes. he document is silent regarding the term or duration of the agreemeinit. here is no evidence that the emplo)yer ever complied with this portion of the agreemlent and no collective-hbargaining agreement w as eser si ned hy the parties." At the hearing in the instant case Respondent also failed to otler e\ idence w hich proves that a inal agree- mient was reached, and aside from l'eick's testimois that a wage increase was gien ill 1976, there is no evidence that Respondent e er compiled with this agreement. \ detailed explanation ill be made in the instant ecision th re- spect to the hbackgrounlId the mnemoralduil o areenllelit and the adjudicated cases concerning this tpe of actl. itN will be tiOund in/il 1. R.Vp ,,l denru Dcr /An (,/rlul l tilgn I nilura I '/gc Respondent attempts to .1lusti graniting the 'age in- creases of June 2) uilateralls on the ground that the (orm- pan, had made both an oral and \ritten pronse to its employees to grant these irncreases in the course (of negotia- tions with the (ilass Bottle Bloh ers Association the prede- cessor nion It tile lceamsters. In 1976, in order to settle a strike called hb thie (BBA which \was the then-recognieCd union. the ('ornpany agreed on July 13. 1970. in a nliniorandunl of agreement (Resp lxh. 2) to grant a series of' age increases of) 6 percent the first ear. 5 percent the second ear. ,llnd percent the third ,ear he increase grnlted n Jul 2(), 1977. was allegedly ili accordance ith l tile 5-percetil corlmnitllilenl enconlpassed ll the memorandun of' :igreemenll. Respondent's ratitlailc for the unilateral \wage increase is set forth in its hite ;as tilo.s I-he L nion i thc e stiit case iled its ietition for cer- tificati on i Jil I'). 1976. I he Memoriandum of Agreement het ccl Rcsprid ent and the (iBRA repre- senting the nemplo cc asx eii ntelred into on July 13. 1976. An cection on ilhe I Hio'S petition was not held until I hebrutir 177 %.th Ith I iults certified in March 1977. lhc :lgc Inrc.icses piO i,,cd b tile Respondent mi te \lemorjindui \gcCnliuCent pre-existed thie il- ing of thile P'liioill t ( liiituall I ht initial inllrease granted i 170 pIc-C\1stCd tt filiig of a petition by the lnionl. . . lIc increase gianted in 1977 was miercls carinLg out an existilng w orking coindition which pre-cxisted the certification of' thile nion and the coninicemeni of any nicg otialhi,. I hus the ComnpanN did nolt change lll\ s rkilg condlition by granting the raise Ii 1977 and i t liulure of' the C(om- pan) to grant the Usull increase. c COlid hase been held against the Respondent Ais constttthing punitive action aglist thie emploces Ior engaging in union activities. In order for threl- to be a dispa;lagcnlent otf the bar- garilng pr)cess tltIgh a unilItail wage illncrease, there muitst h, , alctul 'hllltlRg ill orkinig conditions. ,\ contiinuation of te status quo during the arrganliig period does not constitute such i dispalragelnent. N( I R v uthler ( t'h au I B,',d t, '. It,' 336 F.2d 214. (Sth ('ir 1964): h'( 'n/l I ( rp 132 N, RB 2()1 (19(61 ): ( i/,tT Boul. I. 127 NRIB 1597 ( 960).) RIesl)ponldenlt i..lelds i l, IiLg ,iLn 1the1' (ilrlitll, dlecisioni of' the cltse o\ 1 . . \ 'n (,, c, Int. 12 1 2d 992 (D.C. 15 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cir. 1975), wherein the court held "that the wage increase granted unilaterally to Louis Jackson was pursuant to a valid pre-existing agreement and therefore the failure of the Company to engage in prior consultation with the Union was not a violation of its duty to bargain under Section 8(a)(5) and (1) of the Act." I find that Respondent's reliance on Gravline is misplaced because the facts of that case are distinguishable from the instant case. Respondent's brief speaks about increases granted by the Company in the years 1974, 1975. and 1976. It is to be noted that there is no record information to indicate that wage increases were granted on a regular annual basis. It is not possible to determine from the language of the GBBA contract, which appears in the record as General Counsel's Exhibit No. 7, what increases if any were granted from June 18, 1973, until 1976. The memorandum of agreement which is dated July 13, 1976, and appears in the record as Appendix A-Respondent's Exhibit 2, covers the period from 1976 through 1978. General Counsel in his brief on page 16, footnote 20, sets forth a long mathematical compu- tation, the conclusion of which is that the actual wage in- creases represent from 35 percent to 39 percent over the "contract rates" in schedule A of General Counsel's Exhibit No. 2 and approximately 25 percent more of an increase in wages than suggested by the 1976 memorandum of agree- ment (Resp. Exh. 2). It is not necessary to deal further with these computations because my conclusion is based on the statement of Board law which follows infra. The Board has squarely faced the question of the effect of certification upon the existing contract in several unfair la- bor practice cases. The Board's leading Decision on this question was ren- dered in America Seating Company, 106 NLRB 250 (1953). The pertinent facts were as follows: Two years after the execution of a 3-year contract be- tween the Employer and the United Auto Workers, the Pattern Makers Union petitioned for an election in a craft unit covered by the UAW contract. The NLRB ruled in the representation proceeding that the UAW contract constituted no bar to an election since 3-year contracts were not customary in the industry. There- after the Pattern Makers Union was certified as the representative of the unit. The Employer insisted that the UAW contract remain in effect as to all employees in the plant, although it agreed to bargain with the Pattern Makers Union in certain limited areas. In the subsequent unfair labor practice proceeding, the Em- ployer maintained that the Pattern Makers, as bargain- ing representative of the craft employees, must admin- ister the substantive terms of the existing contract. It contended that the employees, as principals, were bound by the contract executed on their behalf by their agent, and that a mere change in agents could not ab- rogate the contract. The Pattern Makers took the posi- tion that the certification rendered the contract inoper- ative as to the employees in the unit which it now represented. It urged that the unique functions of a statutory collective-bargaining representative pre- cluded a blind application of common-law agency principles to the problem. The Board ruled that unless the collective-bargaining representative was to be "emasculated" in the exercise of its functions, it had to be permitted to negotiate the terms and conditions of employment. It refused to "hobble" the newly certified collective-bargaining rep- resentative with its predecessor's contract. The Board noted: "[T]he rule urged by the Employer seems hardly calculated to reduce 'industrial strife' by en- couraging the 'practice and procedure of collective bargaining.' the declared purpose of the National La- bor Relations Act, as amended." The Board thus adopted the general proposition that if an existing contract constitutes no bar to an election, then it also is no bar to full bargaining by the new representative. In the course of its opinion the Board said that "A great part of the benefit to be derived from the no-bar rule" would be dissipated unless the new bargaining representative had such power. The Board subsequently reaffirmed its American Seat- ing Decision holding in Ludlow Typograph Co., 113 NLRB 724 (1955), that an employer was required not simply permitted to bargain with a new bargaining rep- resentative over rates of pay, hours, and other matters covered in the unexpired contract with the superseded union. The Board and the courts have made it amply clear that no union other than the duly recognized or certi- fied collective-bargaining representative retains any rights under a collective-bargaining contract. Even a union that is signatory to a contract retains no rights under that contract once it is decertified or otherwise loses its status as collective-bargaining representative., By way of recapitulation, attention is called to General Counsel's Exhibit 2, footnote 2, which states, inter alia, a copy of the memorandum of agreement is attached thereto as Appendix A. The agreement states in item 2: "The com- pany would make language changes in several parts of the agreement, i.e., by way of example but not limited thereto, vacations, hours of work and the grievance procedure. These changes would then be submitted to the Union for review." Thus, the agreement clearly contemplates further negotiations and changes. The document is silent regarding the term of the agreement. There is no evidence that the Employer ever complied with this portion of the agreement, and no collective-bargaining agreement was ever signed. The Board has long held that a memorandum of agree- ment which has no fixed duration and which contains terms that are subject to change is a temporary stopgap measure and does not constitute a bar to a petition. The Regional Director then cites two cases: Dalmo Victor Company, 132 NLRB 1095 (1961): Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990, 993 (1958). The in- stant petition was filed on July 19, 1976, and apparently no final agreement has been reached pursuant to the terms of the strike agreement. Furthermore, the Union filed a dis- claimer in these proceedings with the Regional Director on December 10, 1976. 3Morris. ed., The Developing Labor Law, pp. 350-355. 16 WEYERHAEUSER COMPANY It should also be noted that American Seating is still the law on the propositions quoted above, and further I am bound by Board law. It is therefore clear that by instituting the unilateral wage increase in the instant matter, Respondent, by refusing to discuss wages with the Union and refusing to bargain with the Union, has violated Section 8(a)(5) and (I) of the Act. I so find. It should be further noted that no record evidence was adduced at the trial with respect to the uncorroborated testimony of Feick with respect to the Company's alleged policy concerning the giving of annual wages. Obviously, the best evidence with respect to the wage increases would be Respondent's books and records showing the hours worked, the rates of pay, the total wages due, and the amounts deducted from the employees pay during each workweek. Respondent produced no such record. Although Respondent's president and one of its vice presidents did attend two negotiating sessions, neither officer was called upon to testify. Consequently, the evidence clearly fails to establish the existence of a prior policy or promise to give annual wage increases. Feick stated that by granting the increase in 1976, as set forth in the memorandum of agreement, the subject of wages was closed as to the period from 1976 through 1977. In view of Respondent's position by refusing to discuss wages for the year 1977, 1 find Respondent further violated Section 8(aX5) and (1) of the Act. It is elementary that the subject of wages is a mandatory subject of bargaining. At the request of the Union a Federal mediator, Mr. Collatta, became involved in the negotiations. There seems to have been a mixup about a meeting that had been tenta- tively scheduled for September 9. Feick had a meeting on September 9 in court but he notified Collatta that his assist- ant, Claude Lloyd, had authority to negotiate for Respon- dent and was available. According to the brief of Respon- dent, Collatta apparently took it upon himself to cancel the meeting of September 9 because of Feick's unavailability. Refusing to discuss wages under an erroneous notion that the topic was foreclosed by the operation of the memoran- dum of agreement with the defunct GBBA union does not result in negating the violation of Section 8(a)(5) caused by Respondent's unilateral wage grant which I have found to be violative of Section 8(a)(5). Two meetings were held on September 23 and October 6 under the aegis of the Federal Mediation and Conciliation Service at which no substantive collective bargaining took place. At the September meeting the Federal mediator, Mr. Collatta, requested that the parties prepare their positions on four specific issues: term of agreement, union security, checkoff, and wages. At the session which took place on October 6, Respondent did state its position with respect to these four issues, but the Union did not address itself to these points. The record is silent as to just what position they took at this meeting. In the conference that took place on October 6 the Federal mediator requested that both par- ties prepare a detailed and complete contract for submis- sion to each other at a subsequent meeting which was sug- gested to take place on November 3. Respondent, pursuant to the request of the Federal Me- diator, claims that it prepared and was willing to submit to the Union a complete written agreement at the meeting suggested to take place on November 3 by the Federal me- diator. However, no meeting took place on November 3 and no further contact took place between the parties there- after. The record does contain Respondent's written pro- posal for a complete contract which appears in the record as Respondent's Exhibit B, but this proposal was never de- livered to the Union. According to the testimony of Re- spondent, it was allegedly reported to Respondent that the Union informed the Federal mediator that it did not want to meet with Respondent (although it was willing to do so) but was relying on its pursuit of its legal rights through the machinery of the NLRB. The General Counsel states in his brief that "... Feick told the Union that the employees no longer wanted the Union and therefore the union-security clause was not nec- essary: further, that the Company would not agree with one anyway." "Feick substantially admitted his refusal to dis- cuss union security with the Union and attempted to defend his position by testifying that because there were three at- tempts by Respondent's employees to file decertification pe- titions, Respondent was not in a position to give the ap- proval of a full union-security provision in the labor agreement." In support of the above statement the General Counsel cites pages 124:24-125:7 of the transcript. Feick testified as follows on union security: On union security I reminded Mr. Branson and Mr. Chandler that the employees had filed decertification petitions with the Labor Board. And in fact there had been three such decertification attempts, each time considered untimely for one reason or another by the Board. So with this background, under these circumstances, the Employer believes he was not in a position to give the approval of a full union shop provision in the labor agreement. Feick's statement quoted above is unclear, but it does not unequivocally state that "Feick told the Union the employ- ees no longer wanted the Union .... " As further amplified by Feick that "the Employer believed that he was not in the position to give the approval of a full union-security shop provision in the labor agreement," I note that this state- ment seems to say that there was room for bargaining on the question of union security. This, taken together with Feick's answer on the question of dues checkoff, ". . . I said it was possible we would be giving a dues checkoff: who knew?" fortifies the conclusion that the question of union security was a matter open for negotiation. The General Counsel concludes his argument on this point in the brief by stating, "Further, an employer's prede- termined inflexible position toward union security has been found to be an element tending to prove that an employer was engaged in unlawful surface bargaining." The record does not support this conclusion of the General Counsel that the Employer had an inflexible position towards union security. The other side of the coin deserves mention. The Union never, in its entire bargaining posture, submitted written proposals and implementation of points 14 and 18 which it announced it would do in its list of proposals submitted to Respondent in the initial bargaining conference that took place on April 5. These points concerned the bidding and 17 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievance language which was to be submitted. In my opin- ion its written proposals consist mainly of 19-21 one-liners announcing objectives it sought to obtain. But it never came forward with wording that resembles suggested con- tract language. Also, neither Respondent nor the Union es- tablished definite dates for contract negotiations until the Union belatedly made such a request in its letter to Respon- dent on July 8. Many of the Union's communications were flavored with threats of legal action instead of concrete pro- posals as to time of sessions and substantive terms of a suggested contract. Neither party demonstrated a balanced approach that might have led to mutual accommodation. In this connection it also should be noted that the Federal mediator requested both parties to prepare complete con- tract language as to their respective proposals. Respondent did prepare such a document which, although not delivered to the Union, seemed to be in compliance with the recom- mendation made by the Federal mediator. The Union pre- sented no language of any kind. G. Concluding Findings and Analysis It is clear that Respondent did not present its contract proposals to the Union with alacrity, but it did present a series of seven written proposals in the session which took place on August 5. These proposals are included in the rec- ord as General Counsel's Exhibits 20(a) through (e). The language encompassed the following subjects: probationary period; solicitation for union membership and collection of dues; equal employment of workmen; health and welfare; leave of absence; strikes and lockouts; and a proposal con- cerning grievance procedure. The record does not contain union counterproposals on these or any other topics made by the Union. There is mention in the record that Branson stated he would not negotiate piecemeal, or words to that effect. There were delays caused by Respondent, but overall it does not appear that Respondent engaged in dilatory conduct of a nature that warrants the conclusion that Re- spondent engaged in bad-faith bargaining with no intention of reaching agreement within the meaning of allegation 10(a) of the complaint. In any event, my recommended Or- der will direct Respondent to bargain in good faith, without foot dragging, and embody any understanding reached in a signed agreement. However, it is equally clear, and I find, that Respondent did violate Section 8(aX5) in several important particulars: I. By canceling and/or refusing to schedule a meet- ing with the Union because the Union informed Re- spondent that it intended to file an unfair labor prac- tice charge against Respondent. 2. By unilaterally granting wage increases to em- ployees in the appropriate bargaining unit without no- tifying or bargaining with the Union. 3. By refusing to discuss the subject of wages with the Union. It need hardly be stated that wages are at the heart of the matters that concern employees and are a mandatory subject of collective bargaining. By the same token I do not believe, based on the record before me, that Respondent had no intention of ever reach- ing an agreement with the Union. The Company did en- gage in hard bargaining which it has every legal right to do. This is a far cry from an inflexible position which is de- signed to result in no agreement between the parties. The process of collective bargaining is a two-way street. It ap- pears from the record that Respondent took concrete steps to further bargaining which were not taken by the Union. Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. IV. THE REMEDY Having found that Respondent violated Section 8(aX5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. As I have found that Respondent violated its obligations under the Act by canceling and/or refusing to schedule a meeting with the Union because the Union informed Re- spondent it intended to file an unfair labor practice charge against the Respondent; by unilaterally granting a wage increase to employees in the appropriate bargaining unit without notifying or bargaining with the Union; by refusing to discuss the subject of wages with the Union; by refusing to bargain with the Union on and after October 6, 1977, I shall therefore recommend that Respondent, upon request, bargain collectively with the Union and embody any under- standing reached in a signed agreement. Upon the basis of the foregoing findings of fact and con- clusions, and upon the entire record made in this case, I hereby make the following: CONCLUSIONS OF LAW I. 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. By the totality of its conduct at and away from the bargaining table, Respondent bargained in the enumerated particulars, as found herein, in violation of Section 8(a)(5) and (1) 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: ORDER 4 The Respondent, Consolidated Fiberglass Products Co., Inc., its officers, agents, successors, and assigns, shall: '4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 18 WEYERHAEUSER COMPANY I. Cease and desist from: (a) Refusing to bargain collectively in good faith con- cerning rates of pay, wages, hours, and other terms and conditions of employment with General Teamsters and Food Processing, Local 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of the employees in this appropriate unit: All production and maintenance employees, excluding all other employees, office clerical employees, profes- sionals, guards and supervisors as defined in the Act. (b) Unilaterally granting a wage increase or any other change in terms and conditions of employment of employ- ees in the above unit. (c) Canceling a scheduled meeting with the Union be- cause the Union intended to file unfair labor practice charges against Respondent and so notified it. (d) Refusing to discuss the subject of wages with the Union. (e) In any like or related manner interfering with, re- straining, or coercing its employees in their exercise of rights under the Act. 2. Take the following affirmative action: (a) Upon request, bargain collectively without delay in good faith with the Union as the exclusive representative of the employees in the above unit concerning rates of pay, wages, hours, and other terms and conditions of employ- ment, and embody any understanding reached in a signed agreement. (b) Upon the resumption of bargaining, the bargaining shall continue for I year from the date that good-faith bar- gaining begins. (c) Post at its Bakersfield, California, facility copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Re- gion 3 1, after being duly signed by an authorized represent- ative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 5 In the event that this Order is enforced by a judgment of a Urnited 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." 19