Atlas Glass & Mirror Co.

ATLAS GLASS & MIRROR CO 179 Atlas Glass & Mirror Company and Glaziers Local Union #1776. Case 16-CA-11309 10 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 24 February 1984 Administrative Law Judge Leonard N. Cohen issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a motion to strike the Respondent's exceptions.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Atlas Glass & Mirror Company, Dale City, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following as paragraph 2(c). "(c) Resume making contributions to the pension program as it existed prior to the unilateral discon- tinuance of such contributions on 19 September 1983 for the employees in the above-described unit, make them whole for any losses or expenses they may have suffered as a result of this unilateral change, and pay into the appropriate fund all con- tributions it has failed to pay by reason of the uni- lateral change, in the manner described in 'The Remedy,' as modified by this decision." We grant the General Counsel's motion to strike the Respondent's exceptions to the extent that the exceptions attempt to introduce evidence that is neither in the record nor claimed to be newly discovered 2 We modify the remedy recommended by the judge to provide that the question of whether the Respondent must pay any additional amounts to the pension fund to satisfy our "make whole" remedy will be left to the compliance stage as set forth in Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7(1979) DECISION STATEMENT OF THE CASE LEONARD N. COHEN, Administrative Law Judge. This case was heard before me on January 9, 1984, in Oklaho- ma City, Oklahoma. The complaint which was based on unfair labor practice charges filed on September 26, 273 NLRB No. 26 1983, issued on November 14 and alleges that Respond- ent Atlas Glass & Mirror Company violated Section 8(a)(5) and (1) by unilaterally, repudiating a collective- bargaining agreement in effect between it and Glaziers Local Union #1776. Respondent timely filed an answer in which it denied the commission of any violation of the Act All parties have been afforded full opportunity to appear,. to introduce evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. The General Counsel filed a brief which has been carefully considered. On the entire record of this case and from my observa- tion,of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT I JURISDICTION Respondent is a sole proprietorship with an office and principal place of business in Del City, Oklahoma, where it is engaged in the construction industry as a glazing contractor. During the past 12 months; a representative period, Respondent in the course and conduct of its bUsi- ness operations, purchased and received at its Del City, Oklahoma facility products, goods and materials valued in excess of $50,000 directly from points outside the State of Oklahoma. Accordingly, Respondent admits and I find and conclude that Respondent is now and has been at all times material herein an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Although Respondent did not admit that the Union was a labor organization within the meaning of Section 2(5) of the Act, it did not challenge the stipulated testi- mOny of Business Manager George Hite that he negoti- ates on the Union's behalf collective-bargaining agree- ments with area employers and that the Union admits to membership employees engaged in the glazing craft and processes their grievances. Clearly, the Union meets the statutory definition and I, therefore, find and conclude that it is a labor organization within the meaning of Sec- tion 2(5) of the Act III THE UNFAIR LABOR PRACTICES The facts are not in dispute. On July 29, 1981, Re- spondent by its owner Johnny Gwm and the Union by its business manager Hite entered into a collective-bar- gaining agreement covering Respondent's outside gla- ziers. 2 This agreement which has a term of July 30, 1981 ' Unless otherwise indicated, all dates refer to 1983 During the term of the contract, Respondent employed four regular full-time journeymen glaziers, Junior Logan, Calvin Gwin, the son of owner Johnny Gwin, Allen Bohanon, the son-In-law of Johnny Gwm, and Harold Cox, the working foreman Respondent also employed Brent Cox, Harold Cox's son, as a full-time apprentice glazier On occasion over the last several years, Respondent has employed as many as eight Continued 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to August 12, 1984, provides, inter aim,- for a wage scale, a union shop, a checkoff of union dues, and monthly em- ployer payments to the Union's pension fund. The first hint of a problem occurred in February when Gwin and Hite discussed the Union's plan to attempt to recover some of the work that the Union had lost over the years to nonunion employers. During this discussion, Gwin commented that he hoped that the Union's plan would be successful, for if it were not, Respondent might have to go nonunion. In June, Gwin informed Foreman Harold Cox that Re- spondent was in a money bind and could not continue to meet its payroll. As a consequence, Gwin stated that Re- spondent was going to have to lay 'off everyone for 2 to 3 weeks. While Cox was never recalled, it appears that Respondent recalled its other employees within a few weeks of their initial layoff. On Friday, September 16, Hite happened to visit Re- spondent's shop at Del City. During a brief discussion with Gwin, Hite was told that since the Union's recov- ery program had failed, he could no longer compete with nonunion shops and pay the type of wages called for by the collective-bargaining agreement. Gwin an- nounced, therefore, that commencing the following Monday, September 19, he would open up as a nonunion operation. Hite suggested they take the matter before the Union's executive board in an effort to see if they could not satisfactorily resolve 'it. Gwin did not respond to Hite's suggestion. On Monday, September 19, _Hite again visited Re- spondent's shop and spoke to Gwin. Gwin informed Hite that he was henceforth operating as a nonunion company and then added that Hite had just missed seeing one of his employees who had picked up his tools and quit over this decision. Hite discussed the situation with Gwin for a few minutes longer but, when he was unable to get Gwin to change his mind, he then left the premises. Since that time Respondent has ceased making any pay- ments to the'Union as required by the collective-bargain- ing agreement and has operated without reference to any of its other terms and conditions In its amended answer, Respondent raises two items as affirmative defenses. First, Respondent asserts that the collective-bargaining agreement was in fact breached not by it but by the Union "by means of [the Union's] negli- gently and carelessly furnishing labor and workmen that were unskilled and unwilling to perform the duties by which they were represented that they would furnish by contract to perform glazing work By reason thereof, Re- spondent has been damaged several thousand dollars replacement, materials, rework jobs, loss of business ,rep- utation, and diminishing business relationship." Second, Respondent asserts that the current economic market permitted Respondent's competitors to pay less wages while at the same time providing a better quality and quantity of service, and that as a result thereof, Respond- additional journeymen and/or apprentice glaziers on a temporary basis as required to perform the outside work on a particular jobsite The two full-time shop employees were not covered by this contract and are not part of the appropriate unit ent could no longer continue in business operating under the terms of the collective-bargaining agreement. Respondent called no witnesses nor offered any docu- mentary evidence in support of these or any other de- fenses that it wished to assert before the Board. The evi- dence as developed through the questioning of the Gen- eral Counsel's witnesses Indicates, as to Respondent's first above-cited affirmative defense, that the Union did not refer or otherwise furnish any workmen to Respond- ent. While the collective-bargaining agreement neither contains provisions for an exclusive hiring hall or a refer- ral system, the Union does provide as a service to both individuals and employers an informal referral service. On one unspecified occasion sometime during the life of the contract, Gwin called Hite and asked him for the names of glaziers who were then currently out of work. Hite supplied Gwin with the names of the only three in- dividuals he was then aware were unemployed. Gwin subsequently hired two of the three for an indeterminate period of employment. , At no time during the entire term of the contract did Gwin ever complain to Hite about the quality or quanti- ty of work performed by any employee of Respondent. Hite was told on one occasion by employee Junior Logan that Gwin was having some trouble with the work that some of the people were doing However, Logan neither identified by name nor specified by job duties (inside/outside) who was causing these problems. Harold Cox, the .outside working foreman until June of this year, testified that in late 1982 one employee had left a Job in such bad shape that Cox had to go back to the jobsite and redo the work. 3 Cox further testified that, other than this situation, Gwin had only complained to him about the work of one other employee, that being Junior Logan Cox stated that on several occasions Gwin indicated to him that he felt Logan was taking too long on certain jobs. Logan is still employed by Respondent. With regard to Respondent's second above-mentioned affirmative defense, there is no showing on this record that paying the union wages as called for in the collec- tive-bargaining agreement placed Respondent in a posi- tion „where it could no longer compete with nonunion operations. Gwm's self-serving statements to Cox and Hite to this effect are simply not appropriate substitutes for provable facts Section 8(d) of the Act provides' in pertinent part that where a collective-bargaining contract is in effect, no party shall terminate or modify it unless he or she 'offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications: Gwin's action in simply in- forming the Union on a Friday that it intended to open "non-union" on the following Monday hardly meets this standard. Even if Gwin's naked assertion that economic exigencies forced him to take drastic action to get out from under the suffocating provisions of the collective- bargaining agreement could be proved, it would not excuse Respondent's total and sudden repudiation of its 3 The record does not disclose how this individual came to be hired by Respondent His name was not one of the three supplied by the Union to Respondent ATLAS GLASS & MIRROR CO 181 collective-bargaining agreement 4 By this conduct Re- spondent has unilaterally effectuated changes in the terms and conditions of employment by reducing wages and other fringe benefits, by failing to make deductions for union dues from employees' pay pursuant to the checkoff provisions of the collective-bargaining agree- ment and by its subsequent failure to tender such pay- ments to the Union and by discontinuing Respondent's contributions to the employee pension program. Accord- ingly, I find that Respondent has since September 19, 1983, and at all times thereafter, failed and refused to bargain collectively and in good faith with the Union as the exclusive representative of its employees and that by such refusal Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 8(d) of the Act 5 IV. 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) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Accordingly, having found that Respondent about September 19, 1983, unilaterally reduced wages and other fringe benefits, I shall recommend that it be or- dered to restore these benefits as they existed prior to the unilateral changes and to make unit employees whole for any loss of pay they may have suffered as a result of the unilateral changes, with interest. Having found further that Respondent about September 19, 1983, unilaterally failed to make deductions for union dues from employ- ees' wages pursuant to the checkoff provisions of the contract and subsequently failed to tender such payments to the Union, I shall recommend that Respondent be or- dered to restore making such deductions and payments and that it further be ordered to make the Union whole for any loss of payments due to its unilateral action. Fi- nally, having found that Respondent about September 19, 1983, unilaterally discontinued making contributions to the employee pension program, I shall recommend that It be ordered to restore making such payments and to make whole the unit employees for any losses or ex- penses they may have suffered as a result of the unilater- al change and to pay into the appropriate fund all those contributions it has failed to pay as a result of the unilat- eral change, with interest. Backpay and interest thereon shall be computed in the manner prescribed by Ogle Pro- tection Service, 183 NLRB 682 (1970), and Florida Steel Corp., 231 NLRB 651 (1977). 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 mean- ing of Section 2(5) of the Act. 3. All journeymen and apprentice glaziers employed by Respondent at its Del City, Oklahoma location, ex- 4 Bedford Farmers Cooperative, 259 NLRB 1226, 1236-37 (1982) 5 Valley Mfg, Inc. 264 NLRB No 174 (Sept 27, 1982) (not reported in Board Volume) eluding all other employees, including guards and super- visors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(d) of the Act. 4. Since about July 29, 1981, the above-named labor organization has been, and is now, the recognized and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the act. 5. By refusing about September 19, 1983, to bargain collectively with the Union as the exclusive , bargaining representative of the employees in the aforesaid unit by unilaterally reducing wages and fringe benefits, by failing to make deductions for union dues from employees' wages pursuant to the checkoff provisions of the con- tract and by failing to tender such payments to the Union, and by discontinuing its contributions to the em- ployee pension program, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and Section 8(d) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfer- ing with, restraining, and coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 6 ORDER The Respondent, Atlas Glass & Mirror Company, Del City, Oklahoma, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain collectively with employees of Atlas Glass & Mirror Company as the exclusive repre- sentative of its employees in the unit described below by unilaterally reducing wages and other fringe benefits, by failing to make deductions for union dues from employ- ees' wages pursuant to the checkoff provisions of the agreement and by failing to tender such payments to the Union, and by discontinuing its contributions to the em- ployee pension program. The appropriate unit is all jour- neymen and apprentice glaziers employed by Respondent at its Del City, Oklahoma location, excluding all other employees, including guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which is de- signed to -effectuate the policies and purposes of the Act. (a) Restore the wage rates and other fringe benefits as they existed prior to the unilateral changes on September 19, 1983, to the employees in the aforesaid unit and make them whole for any losses or expenses they may have suffered by reason cif the unilateral changes in the manner described in "The Remedy." (b) Restore `making deductions for union dues from employees' wages pursuant to the ch'eckoff provisions of the collective-bargaining agreement, forward such pay- ments to the Union, and make the Union whole for any loss of payments in the manner described in "The Remedy." (c) Restore making contributions to the pension pro- gram as it existed prior to the unilateral discontinuance of such contributions on September 19, 1983, for the em- ployees in the aforesaid unit, make them whole for any losses or expenses they may have suffered as a result of this unilateral change; and pay into the appropriate fund all contributions it has failed to pay by reason of the uni- lateral change in the manner described in "The Remedy." (d) Presenie and, on request, make available to the Board or its agents for examining and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Del City, Oklahoma facility copies of the attached notice marked "Appendix." 8 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by Respondent's authorized representative, shall be posted by Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places. where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al (f) Notify the Regional Director in writing within 20 days of the date of this Order what steps Respondent has taken to comply 8 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board S' APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency- of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to -post this notice. _ _ _ WE WILL NOT refuse to bargain collectively with Gla- ziers Local Union #1776 as the exclusive representative of the employees in the unit described below by unilater- ally reducing wages and other fringe benefits, by failing to make deductions for union dues from employees' wages pursuant to the checkoff provisions of the collec- tive-bargaining agreement, and by discontinuing contri- butions to the employee pension program. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise-of rights guaranteed them by Section 7 of the Act. We will restore the wage rate and other fringe benefits as they existed prior to our. unilateral changes thereof and make our employees in the unit described below whole for any losses or expenses they may have suffered by reason of our unilateral changes, with interest. WE WILL resume making deductions from employees' wages for union dues pursuant to the checkoff provisions of the collective-bargaining agreement, and WE WILL in the future tender such payments to the Union and WE WILL tender to the Union all paynients we have failed to make. WE WILL resume making contributions to the pension program as they existed prior to out discontinuance thereof and make our employees in the unit described below whole for any losses or expenses they may have suffered as a result of such discontinuance, with interest, and WE WILL pay into the appropriate fund all contribu- tions we have failed to make. The appropriate unit is All journeymen and apprentice glaziers employed by Respondent at its Del City, Oklahoma, location, excluding all other employees, including guards and supervisors as defined in the Act. , ATLAS GLASS & MIRROR COMPANY -