Hillcrest Furniture Mfg. Co., Inc.

DECISIONS O() NA IIONAI. LABOR RELATIONS BOARD Hillcrest Furniture Manufacturing Co., Inc. and Up- holsterers' International Union of North Amer- ica, AFL-CIO. Cases 21-CA-I 8400 and 21 CA-1 8960 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) Ml NItHIRS JENKINS ANI) P1 NI I(O Upon charges duly filed by Upholsterers' Inter- national Union of North America. AFI.-CIO(). hereinafter referred to as the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a con- solidated amended complaint and notice of hearing, dated May 22, 1980, against Hillcrest Furniture Manufacturing Co., Inc., hereinafter referred to as Respondent. The consolidated amended complaint alleges that Respondent has engaged in certain unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges and consolidated amended complaint and notice of hearing were duly served on the parties. Respondent filed an answer to the consolidated amended complaint, denying that it committed any unfair labor prac- tices. Thereafter, the parties entered into a stipulation of facts and jointly petitioned the Board to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and order. The parties stipulated that they waived a hearing before an ad- ministrative law judge, the making of findings of fact and conclusions of law by an administrative law judge, and the issuance of an administrative law judge's decision. The parties also agreed that no oral testimony was necessary or desired by any of the parties, and that the charges and amended charges, the order consolidating cases, consolidated amended complaint and notice of hearing, the answer to the consolidated amended complaint, and the stipulation of facts, including the exhibits attached thereto, constituted the entire record in the case. On July 30, 1980, the Board issued its order ap- proving the stipulation and transferring the pro- ceeding to the Board. Thereafter, the General Counsel filed a brief in support of its position. Re- spondent and the Union did not file briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. 253 NLRB No. 9 The Board has considered the stipulation, includ- ing the exhibits, the brief, and the entire record in this proceeding, and hereby makes the following: FINDING;S O1: FACT I. I l BUSINIESS 1O RI.SI'ONI)INI Respondent has at all times material herein been a California corporation engaged in the business of manufacturing furniture. During the past year, a representative period, in the normal course of its business operations, Respondent purchased and re- ceived goods and products valued in excess of S50,000 directly from suppliers located outside the State of California. The parties have stipulated, and we find, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. H LI t.ABOR OR(ANIZA ION INVOVI ) Upholsterers' International Union of North America, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. HI. UNFAIR I AHBOR PRACTICES A. Fcts On August 24, 1979, a secret-ballot election was conducted under the supervision of the Regional Director for Region 21 of the National Labor Re- lations Board in the following appropriate unit: All full-time and regular part-time production and maintenance employees, including seam- stresses, cutters, upholsterers, floorpersons, springers and framers, truck drivers, and ship- ping and receiving employees, excluding all other employees, all office clerical employees, salespersons, watchmen, professional employ- ees, guards, and supervisors as defined in the Act, as amended. A majority of Respondent's employees in the above-described unit designated and selected the Union as their representative for the purposes of collective bargaining, and, on January 9, 1980, the Board certified the Union as the exclusive collec- tive-bargaining representative of the employees in the unit. On or about March 13, 1980, Respondent, through admitted Supervisor Robert D. Leventhal, met with the Union for the purpose of collective bargaining. However, on or about April 8, 1980, Respondent, through Leventhal, canceled a meet- ing with the Union which had been scheduled for the following day for the purpose of bargaining. 72 HIllCREST FRNITURE: MANU'FACTURIN(i C)., INC Since that time, Respondent has refused to bargain with the Union. On January 14 and March 14, 1980, the Union requested Respondent to furnish it with the names, addresses, job classifications, and pay rates of its employees, but Respondent has refused to do so. During the second week of November 1979, Re- spondent laid off unit employees Jose Luis Oren- dian, Maria Morales, Raul Espinoza, Jaime San- chez, Irene Suarez, Alberta Martinez, Salvador Martinez, Lazaro Lujan, Sixto Solario, Mario Capito, Leticia Munoz, Eleuterio Reyes, Jorge Valdez, Herbert Castro, and Walter Castro. During March and April 1980, Respondent laid off all of its employees, and, during the third week of April 1980, Respondent discontinued its operations. Re- spondent laid off the employees and discontinued its operations without notifying or bargaining with the Union. The General Counsel concedes that Re- spondent was motivated solely by economic con- siderations in discontinuing its operations. B. Contentions of the Parties As noted, neither Respondent nor the Union filed briefs. The General Counsel contends that Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain on April 8, by unilaterally laying off employees in November 1979 and in March and April 1980, and by refusing to furnish the Union with information relevant for collective- bargaining purposes. The General Counsel also contends that Respondent violated Section 8(a)(5) and () by failing to afford the Union an opportuni- ty to bargain about the effects of the discontinu- ance of operations on the employees. C. Conclusions We find initially that, since August 24, 1979, the Union has been the exclusive representative of all the employees in the above-described unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. We also note that it is well established that, absent compelling economic considerations for doing so, an employer acts at its peril in making changes in terms and conditions of employment during the period that objections to an election are pending and the final determination has not been made.' Therefore, by unilaterally laying off unit employees in November 1979, Respondent violated Section 8(a)(5) and (1) of the Act. It is also well established that an employer vio- lates the Act by refusing to furnish a union with in- ' Mike O'Connor Chevrol/-Buick-GMC Co., Inc., 201 NL.RH 701, 7()3 704 (1974) formation relevant for collective-bargaining pur- poses.2 Consequently, we also find that Respondent violated Section 8(a)(5) and (1) by refusing the Union's requests on January 14 and March 14, 1980, to provide the names, addresses, job classifi- cations, and pay rates of its employees. Further, we find that Respondent violated Section 8(a)(5) and (1) by canceling a meeting with the Union sched- uled for April 9, and by laying off all the employ- ees during March and April 1980. We also note that it is well established that an employer violates the Act by terminating its oper- ations without affording a union an opportunity to bargain over the effects of such closing on the em- ployees. By so terminating its operations in the in- stant case, Respondent violated Section 8(a)(5) and (l). IV. TIlE EFFECT OF 'I'H. UNFAIR LABOR PRACTICE S UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead, and have led, to labor disputes bur- dening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact, conclusions, and the entire record, we make the following: CONCI USIONS OF LAW 1. Hillcrest Furniture Manufacturing Co., Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Upholsterers' International Union of North America, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees, including seamstresses, cutters, upholsterers, floorpersons, springers and framers, truck drivers, and shipping and receiving employees, excluding all other employees, all office clerical employees, salespersons, watchmen, profes- sional employees, guards, and supervisors as de- fined in the Act, as amended, constitute a unit ap- propriate for collective bargaining pursuant to Sec- tion 9(b) of the Act. 4. At all times since August 24, 1979, the Union has been the exclusive representative of the em- See, eg, Wellman Indutrtei. Inc. 248 N RHB 325 (1940). Harve'v W'agtl Hi7,/ Icn d/h,,a larvev Reor rr lotc & Ilarvevr In, 236h NlRH 1670, 194(1978) 73 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees in the above-described unit for the pur- poses of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to provide the Union with infor- mation relevant for collective bargaining, by unilat- erally laying off employees in November 1979 and in March and April 1980, by canceling a meeting with the Union, and by discontinuing operations without affording the Union an opportunity to bar- gain over the effects of such discontinuance on the employees, Respondent has violated Section 8(a)(5) and () of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1), we shall order that Respondent cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. We shall also order that Respondent bargain with the Union over the effects upon its employees of the discontinuance of its operations. It is clear, however, that a bargaining order alone cannot fully remedy the unfair labor practices committed by Respondent because, as a result of Respondent's failure to bargain with the Union about the effects of discontinuing operations, Respondent's employ- ees were denied an opportunity to bargain through their exclusive representative at a time when such bargaining would have been meaningful. Meaning- ful bargaining cannot now be assured until some measure of economic strength is restored to the Union. Accordingly, in order to effectuate the pur- poses of the Act, we shall accompany our order to bargain with a limited backpay requirement de- signed both to make whole the employees for losses suffered as a result of the violation and to re- create in some practicable manner a situation in which the parties' bargaining position is not entire- ly devoid of economic consequences for Respond- ent. We shall do so in this case by requiring Re- spondent to pay backpay to its employees in a manner similar to that required in Transmarine Navigation Corporation and its Subsidiary, Interna- tional Terminals, Inc., 170 NLRB 389 (1968). As in Transmarine, we shall require that the backpay for those employees be not less than the amounts they would have earned during a 2-week period of em- ployment. 3 a Despite his dissent in Transmarine, Member Jenkins notes that the remedy there has been accepted by the courts and the Board and, since some type of remedy for the misconduct is needed, he is therefire willing Accordingly, we shall order Respondent to bar- gain upon request with the Union about the effects on its employees of the discontinuance of its oper- ations; and to pay these employees amounts at the rate of their normal wages when last in Respond- ent's employ from 5 days after the date of this De- cision until the occurrence of the earliest of the fol- lowing conditions: (1) the date Respondent bar- gains to agreement with the Union on those sub- jects pertaining to the effects of Respondent's dis- continuance of its operations; (2) a bona fide im- passe in bargaining; (3) the failure of the Union to request bargaining within 5 days of this Decision, or to commence negotiations within 5 days of Re- spondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount each would have earned as wages from the time Respondent discontinued its operations to the time each secured equivalent employment elsewhere, or the date on which Respondent shall have offered to bargain, whichever occurs first; provided, how- ever, in no event shall this sum be less than such employees would have earned for a 2-week period at the rate of their normal wages when last in Re- spondent's employ. Backpay shall be based upon earnings which the laid-off employees would nor- mally have received during the applicable period, less any net interim earnings, and shall be comput- ed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon computed in the manner provided in Florida Steel Corporation, 231 NLRB 651 (1977). 4 Having found that Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union with information relevant for collective bargaining, we shall require Respondent to furnish the Union with such information. We shall also require Re- spondent to mail an appropriate notice to the Union and to all the employees who were laid off in March and April. Such notice shall be in both English and Spanish, in light of the substantial number of Spanish-surnamed employees.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Hillcrest Furniture Manufacturing Co., Inc., Los to join in the Decision here. Underwood Hair Adaption Process. Inc.. 242 NLRB 1017 fn. 6 (1979); Uncle John's Pancake House, 232 NLRB 438, fn. 7 (1977). 4 See, generally, lois Plumbing d Heating Co.. 138 NLRB 716 (1962) ' See Fun Striders, Inc., 250 NLRB 520, fn 2 (1980). 74 HILLCREST FURNITURE MANUFACTURING CO.., INC. Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain with Uphol- sterers' International Union of North America, AFL-CIO, with respect to rates of pay, wages, and other terms and conditions of employment, in- cluding the effects on its employees of its decision to terminate its operations. (b) Laying off employees without prior notice to or consultation with the Union. (c) Refusing to furnish the Union with informa- tion concerning the names, addresses, job classifica- tions, and pay rates of unit employees. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with Up- holsterers' International Union of North America, AFL-CIO, as the exclusive representative of the employees in the above-described bargaining unit, with respect to rates of pay, wages, and other terms and conditions of employment, including the effects on the employees of the decision to termi- nate its operations, and reduce to writing any agreement reached as a result of such bargaining. (b) Make whole its employees by paying those employees who were laid off in March and April 1980, when it terminated its operations, in the manner set forth in the section of this Decision and Order entitled "The Remedy." (c) Preserve and furnish the Union with the in- formation sought by the Union concerning the names, addresses, job classifications, and pay rates of unit employees. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Mail an exact copy of the attached notice marked "Appendix" 6 to the Union and to all the employees who were laid off in March and April 1980. Copies of said notice, in English and Spanish, on forms provided by the Regional Director for " In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the NAtional Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Region 21, after being duly signed by Respondent's authorized representative, shall be mailed immedi- ately upon receipt thereof, as hereinabove directed. (f) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail and refuse to bargain with Upholsterers' International Union of North America, AFL-CIO, with respect to rates of pay, wages, and other terms and con- ditions of employment, including the effects on our employees of our decision to terminate op- erations. WE WILL NOT lay off employees without prior notice to or consultation with the above- described Union. WE WILL NOT refuse to furnish the above- described Union with information concerning the names, addresses, job classifications, and pay rates of unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights guaranteed under Section 7 of the Act. WE WILL, upon request, bargain collectively with the above-described Union as the exclu- sive representative of our employees in the ap- propriate unit, with respect to rates of pay, wages, and other terms and conditions of em- ployment, including the effects on our employ- ees of our decision to terminate our operations, and reduce to writing any agreement reached as a result of such bargaining. WE WILL make whole our employees in the appropriate unit for any loss of pay they may have suffered as a result of the termination of our operations for the period decided by the National Labor Relations Board, with interest. WE WILL preserve and furnish the above-de- scribed Union with the information sought by the Union concerning the names, addresses, job classifications, and pay rates of unit em- ployees. HILLCREST FURNITURE MANUFAC- TURING CO., INC. 75