R.E.C. Corp.

R E.C. CORP. R.E.C. Corporation and District Lodge No. 15, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 2-CA- 20864 17 December 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 24 July 1985 Administrative Law Judge James F. Morton issued the attached decision. The General Counsel filed exceptions and a supporting brief. 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, R.E.C. Corporation, Mount Vernon, New York, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Insert the following as paragraphs 2(b) and (c) and reletter the subsequent paragraph. "(b) Give retroactive effect to the collective-bar- gaining agreement referred to above, and reimburse employees for any wages or benefits owed thereun- der as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), plus interest as computed in 1 We note that, contrary to the judge, the record does not indicate that the Union intended to pursue its contractual remedies concerning the Re- spondent's failure to make pension plan contributions when the Union ob- tained a signed agreement. The General Counsel now seeks the finding of a separate violation of Sec S(a)(5) and (1) of the Act based on the Respondent's failure to make contractually required pension contributions The failure to implement the pension plan provision was not alleged as a separate violation in the complaint, argued as such at the hearing, nor urged as a separate viola- tion in the General Counsel's brief to the judge. See Harvard Folding Box, 273 NLRB 1031, 1033 (1984). Therefore, we adopt the judge's refusal to find this violation. 2 To remedy the Respondent's unlawful failure to execute the contract, the judge ordered the Respondent to execute the contract but failed to provide make-whole relief It is established Board policy to require retro- active implementation of a collective-bargaining agreement which an em- ployer has unlawfully refused to execute Monument Printing Co, 231 NLRB 1215 (1977) See also John Morrell & Co, 268 NLRB 304 (1983), Granite State Distributors, 266 NLRB 457 (1983), Gollin Block & Supply Co, 243 NLRB 350 (1979). The Supreme Court has approved the Board's provision of make-whole relief to remedy a refusal to sign and execute an agreement reached between contracting parties See NLRB v. Strong Roofing & Insulating Co., 393 U S. 357 (1969). We shall amend the recommended Order and notice accordingly. 1107 Florida Steel Corp., 231 NLRB 651 (1977), and pay into employee benefit funds any additional amounts as prescribed in Merryiveather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). "(c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively in good faith with District Lodge 15, International Association of Machinists and Aerospace Workers, AFL-CIO by refusing to sign the collective-bar- gaining agreement to which the Union and the Company agreed. WE WILL NOT engage in any like or related con- duct in derogation of our statutory duty to bargain in good faith with the Union. WE WILL, on request by the Union, forthwith execute the collective-bargaining agreement to which the Company and the Union agreed on 20 December 1984. WE WILL give retroactive effect to the collec- tive-bargaining agreement referred to above and we will reimburse employees for any wages or ben- efits owed thereunder, plus interest. R.E.C. CORPORATION Josephine S. Miller, Esq., for the General Counsel. Mr. Robert S. Brinker, president of R.E.C. Corporation, on its behalf. Mr. Joseph P. Armao, business representative of District Lodge No. 15 on its behalf. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The complaint alleges that R.E.C. Corporation (Respondent) has violated Section 8(a)(1) and (5) of the National Labor Relations Act, by having refused to sign a renew- 277 NLRB No. 120 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD al contract it negotiated on 20 December 1984 with Dis- trict Lodge- No. 15, International Association of Machin- ists and Aerospace Workers, AFL-CIO (the Union). The complaint separately alleges that Respondent has unlaw- fully conditioned its signing the renewal agreement on its first receiving a "letter of retirement" signed by the Union's chief steward, termed its shop chairman. Re- spondent's answer avers that the letter of retirement was a` "side agreement"; its brief characterizes the letter as part of a "-package deal." Respondent contends that the Union has not complied with that "side agreement" and that, thus, Respondent lawfully has refused to honor the Union's request that it sign the renewal collective-bar- gaining agreement. The hearing was held on 10 May 1985 in New York City. On the entire record, including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respond- ent, I make the following FINDINGS OF FACT 1. JURISIDICTION The pleadings establish and I find that Respondent is a New York corporation engaged at its facility in Mount Vernon, New York, in the manufacture and nonretail sale of industrial fasteners and that Respondent's oper- ations annually meet the, Board's nonretail jurisdictional standard. II. THE UNION I find, also based on the pleadings, that the Union is a labor organization as defined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union has represented Respondent's production and maintenance employees for about 40 years. The most recent signed collective-bargaining agreement had been extended, in written correspondence between the Union and Respondent, to 1 December 1984. When agreement was not reached on that date, the approximately 15 unit employees went on strike. A negotiating session held on 11 December 1984 did not result in an agreement. The parties met again on 20 December 1984 under the auspic- es of a Federal mediator. The events on 20 December are critical to the issues in this case. B. The 20 December Meeting 1. The contract items discussed There were five contract proposals unresolved as of 20 December. They were: (1) the effective dates of the re- newal contract, (2) the amounts of the annual wage in- creases, (3) the dates for those wage increases, (4) the pension plan contributions, and (5) the number of holi- days. The Union's negotiating committee was headed by its business representative,- Joseph Armao. He was assisted by the shop chairman, Luther Benton, and a unit em- ployee, Thomas Chambers. The Union's committee arrived at Respondent's plant about 9:30 a.m. on 20 December and went to the em- ployee's locker room. Respondent's president, Robert Brinker, was in his office then. The Federal mediator went back and forth between those locations with pro- posals and counterproposals. At one point that morning, Brinker asked the mediator to find out if the Union had any objection to his (Brinker's) meeting privately with shop chairman Luther Benton. That meeting was arranged. The testimony was in conflict-as to when that meeting occurred in relation to the progress of the contract negotiations. Brinker testi- fied that the meeting was held before the parties reached accord on the contract terms. The Union's business agent, Armao, testified that it took place after agreement on the five contract items was reached. It is unnecessary to resolve that credibility issue, as it is apparent from the subsequent developments that both sides are in accord that the private meeting between Brinker and Shop Chairman Benton was not about contract terms and, for the reasons set out under the analysis subsection below, there is no probative evidence establishing that the Union was bound by any of the matters discussed in that private meeting. Were it necessary to resolve the credi- bility issue, I would find that the Brinker-Benton meeting occurred before final agreement on the contract terms, as that is the import of the testimony of Thomas Chambers, one of the members of the Union's negotiating committee and, for that matter, also of Benton's.I 2. The Brinker-Benton meeting The mediator relayed to the Union Brinker's request for a private meeting with Benton; Armao stated he had no objection. Benton then met privately with Brinker. There is a conflict in their respective accounts. Benton testified as follows. He has worked for Re- spondent for 29 years and has been the Union's shop chairman at Respondent's facility for the last 25 years. The meeting he had with Brinker on 20 December began with Brinker's statement that he wanted Benton to retire. Benton asked why. Brinker replied, "[N]ever mind about that." Brinker was "pushing [Benton] strong" to retire. Finally, Benton agreed to sign a letter to be prepared by Brinker to the effect that Benton would retire about the time Benton was scheduled to take his summer vacation. Benton then left and returned to the locker room. There, he informed Armao that Brinker pressured him into agreeing to sign a retirement letter and that he, Benton, did so because "we couldn't settle the strike" otherwise. Brinker's account about meeting with Benton is as fol- lows. He had heard rumors that Benton planned to retire, and, as he considered Benton to be a nonproductive em- ployee, he determined that he might be able to secure a contract settlement by using the money saved by Ben- ton's retirement to "sweeten the pot" in negotiations. 1 As discussed elsewhere, Benton testified that he gave in to Brinker'- demands that he retire and that he did so because he believed that, other wise, the strike would go on. R.E.C. CORP. Brinker then asked to meet privately with Benton. He and Benton met and talked in the hall. Brinker then dip- lomatically inquired into the rumor and received assur- ances from Benton that he, Benton, would retire and would sign a letter to that effect. Benton then left to return to the locker room. It is unnecessary to decide which account is more probably true as neither side contends that Brinker and Benton were discussing contract terms and as both sides agree that Benton did tell Brinker he would sign a retire- ment letter. Were it necessary to resolve credibility, I would credit Benton's account as it is likely that Benton would have asked Brinker why Brinker brought up the subject of retirement and as Brinker acknowledges that he had not, until the hearing before me, disclosed his reason to anyone. Further, it is unlikely, as Brinker's ac- count would have it, that the discussion was cordial, par- ticularly when it involved an inquiry, near the end of a 3-week strike, as to when the shop chairman would be leaving Respondent's employ. The tenor of the respec- tive accounts of Benton and Brinker, as given before me, confirms my belief that that meeting was hardly a cor- dial one. 3. The accord on the contract terms Brinker testified before me that, when he learned from Benton that Benton would retire in mid-1985, he (Brinker) calculated that Respondent would save $6000 10 $10,000 thereby in view of his observation that Benton was a nonproductive employee. Brinker further testified that he was then able to use that projected savings to "sweeten the pot" in contract negotiations. I have very strong reservations about the validity of that account in view of the hostile nature of the meeting between ]Brinker and Benton, as his testimony was unsupported by any documentary evidence, as there is no corrobora- tive evidence that Benton was "nonproductive" and as it appears that Benton had never been told that. It is un- necessary for me to discredit Brinker's assertion why he had pursued the matter of Benton's retirement as both sides agree that Brinker never in any way indicated to the Union that his discussion with Benton had any rela- tionship to the give-and-take of contract negotiations. Rather, Respondent's contention, as discussed below, is that the Union failed to have Benton submit the retire- ment letter and that this was a sufficient basis for Re- spondent to reject the Union's request for a signed col- lective-bargaining agreement. Were it, however, essential to decide the validity of Brinker's asserted basis for meeting with Benton, I would reject it for the reasons rioted above. In any event, about 11 a.m., Respondent transmitted to the Union, via the mediator, a typed proposal. The union committee informed the mediator that it would accept that proposal if Respondent would make the 1986 and 1987 wage increases effective on 1 October instead of 1 December. The mediator went back to Brinker. He agreed to the 1 October dates. The mediator and Brinker then walked together to the employee locker room to meet with the Union's committee. There, Brinker and Armao looked at the document containing the revisions, 1109 as agreed, and they verified that the expired contract would be renewed with the,feillowing changes:2 Duration: 12/21/84 to 9/30/87 Wages: 12/12/84-30-cent-per-hour increase 10/1/85-25-cent-per-hour increase 10/l/86-25-cent-per-hour increase Health: 10/l/84-$133 monthly cost per employee 10/1/85-$150 monthly cost per employee 10/1/86-$167 monthly cost per employee Pension: 10/1/85-$3.20 per shift There are two credibility issues about the ensuing events. These relate (1) to whether a discussion about Benton's retirement letter took place before or after the parties initialed a document containing the contract changes listed above, and (2) to the substance of their discussion on the subject of the retirement letter. Respondent President Brinker testified that after he and Armao had acknowledged that the above contract changes were agreed on, he told Armao that he was sure that the Union was aware that Benton had agreed to retire on 1 June 1985 and that Benton also had agreed to send him (Brinker) a letter to that effect. Brinker further testified that Armao responded that he was aware of the discussion Benton had had with him and that Armao then assured him that Benton would send that letter. At that point, according to Brinker, he and Armao initialed the document containing the contract changes. There is no reference in that document to Benton's retirement or to any letter to be signed by Benton. Armao testified that Brinker, on entering the locker room with the mediator, asked if Benton had told him about the discussion Benton had with Brinker. Armao testified further that he replied simply that Benton had mentioned it. Benton testified that when Brinker came to the locker room to initial the contract changes, Brinker mentioned that he, Benton, had agreed to retire. Benton testified that was all that was said then respecting his earlier dis- cussion with Brinker. The Union's other committeeman, Thomas Chambers, testified that when Brinker came to the locker room, the contract changes were initialed and Brinker asked about the retirement letter. Chambers had no clear recollection of details. I am not disposed to credit Brinker's account that Armao assured him that Benton would sign and submit a letter confirming his intent to retire 6 month hence. The very subject was obviously a sore point with the Union and it is unlikely that it would readily offer assurances thereon, as Brinker's account would have it. It is more likely that Armao was upset that Brinker had, at such a delicate time in the negotiations, broached the subject of the Union's longtime shop chairman leaving Respond- ent's employment. In these circumstances, it is also likely that Armao would have responded, in answer to Brinker's question, only that Benton had informed the 2 The holiday provision would remain unchanged 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union of the discussion he had had. I credit Armao's ac- count about the substance .of conversation he had with' Brinker. The contract changes were initialed by Brinker and Armao. In assaying the informal setting, the lack of clar- ity in the various accounts, the unlikelihood that the par- ties acted as formally as Brinker's account suggests, or in such a premise sequence as Armao 's account indicates, I find that Brinker and Armao initialed the contract changes virtually simultaneously with Armao's answer- ing Brinker that Benton had told him about his earlier discussion with Brinker. C. Subsequent Events,- Respondent's Refusal to Sign The Union's membership ratified the agreed-on con- tract changes and the strike ended. Shortly thereafter, Benton decided that he would not retire and he has re- fused to sign any letter stating that he planned to retire on about 1 June 1985. On about 24 December 1984 and repeatedly since, the Union has requested Respondent to sign a renewal col- lective-bargaining agreement, embodying the changes from the prior contract as agreed on 20 December 1984. Respondent has rejected all such requests and, has stated, it will continue to do so until Benton submits to it a signed "retirement letter." Respondent President Brinker, acknowledged that the matter of the retirement letter "was never a contract proposal." Except for pension fund contributions, Respondent is complying with the re- newed contract provisions. D. Analysis There is no question but that Respondent and the Union had reached agreement on 20 December 1984 on wages, hours, and all other terms and conditions of a re- newal contract. There is no question either that Re- spondent has refused to honor the Union's request that it sign a collective-bargaining agreement which embodies those provisions. There is no question also that Benton stated on 20 De- cember, albeit reluctantly, that he would sign a letter to the effect that he intended to retire on about 1 June 1985 and that he has since declined to do so. Lastly, I have found that the Union' s business repre- sentative Armao was aware that Benton had told Brinker, just before final agreement was reached on 20 December on the contract terms, that he would sign a "retirement letter." Respondent's president, who has represented Respond- ent in this proceeding and who was its sole witness, ini- tially contended that Respondent could refuse to sign the renewal collective-bargaining agreement because the Union did not have Benton sign his "retirement letter." The testimony he offered at the hearing tracked that contention. At oral argument, he declined initially to characterize his contention in legal concepts, saying in effect that it made no difference if it could be viewed as an implied agreement or a condition precedent or other- wise, as Respondent simply could refuse to sign the agreement until Benton signed a "retirement letter." In the course of oral argument, he changed that contention to assert that Armao had, on 20 December, expressly stated that the terms of the collective-bargaining agree- ment were not to become operative until Benton signed the letter. There is no evidence in the record to support that contention, as the General Counsel then observed. In any event, Brinker filed a brief with me on behalf of Respondent but did not refer therein to that contention. I therefore infer that Respondent is no longer asserting that there was an express agreement on the Union's part that the contract terms would be held in abeyance until Benton signed a retirement letter. Alternatively, I would reject any such contention as there is no evidence to sup- port it. Respondent's bare contention is that it can lawfully refuse to sign the renewal contract until Benton signs his "retirement letter." There is no merit to that view. In that regard, the Board has made it clear that a respond- ent has a considerable burden to sustain before the Board will invoke the extraordinary sanction of withholding otherwise appropriate relief in a bargaining situation. See Philadelphia Ambulance Service, 238 NLRB 1070 (1978), and cases cited therein at fn. 1. Cf. North Shore University Hospital, 259 NLRB 852 (1981). There appears to be no justification which would relieve Respondent of its obli- gation to sign the contract. It argues that the retirement letter was a "side agreement" and placed in evidence a document signed by the Respondent and the Union clari- fying language of a prior contract. Respondent referred to that document as a "side agreement." It may be that Respondent is contending that, based on custom and past practice, the "retirement letter" is an integral part of the renewal contract and that Benton's refusal to execute that letter abrogates the entire agreement. The short answer to such an argument is that the evidence is clear- ly lacking to support it. Insofar as Respondent's argu- ment may be construed as an assertion that Benton's promise to Brinker constituted a modification of the agreed-on contract terms, as evidenced by the initialing of the document containing the contract changes, I would find that that argument would be barred by oper- ation of the parol evidence rule in that Respondent thereby would seek to change the very term of the con- tract-one of the critical contract issues resolved in the 20 December memorandum encompassing the written changes. Cf. R.J. G. Leasing Corp., 262 NLRB 373, 379 (1982). It may be that Brinker or Respondent has some cause of action vis-a-vis Benton or that Benton might have as- serted that Brinker's pressing him to resign emanated from retaliatory motives based on Benton's leadership of the strike. I do not comment on the merits of either pros- pect. It is sufficient for my purposes to find that Re- spondent's reasons for refusing to sign the renewal agree- ment afford it no lawful basis to do so. The Board has held that an employer violates Section 8(a)(1) and (5) of the Act in refusing a request to execute a contract and by, instead, raising objections which included at least one item which had never' been advanced as a contract pro- posal. In so holding, the Board observed that such an ob- jection may not serve to becloud the fact that there was an agreement; it held that the employer there violated R.E.C. CORP. the Act by failing to execute the contract agreed on. See Trojan Steel Corp., 222 NLRB 478 (1976). On that same premise, it is apparent in the case before me, that Re- spondent's insistence on receiving Benton 's signed "re- tirement letter" before it would execute the contract it had reached with the Union constitutes a violation of Section 8(a)(1) and (5) of the Act. There is no contention before me that Respondent's failure to make pension plan contributions separately vio- lates the Act nor is there any request for remedial relief thereon. Rather, there is evidence in the record indicat- ing that the Union intends to pursue its contractual reme- dies as to that matter when it obtains a signed agreement. On that basis, I will prescind from making any findings or recommendations as to Respondent 's obligations to make pension fund contributions. The General Counsel contends that Respondent has separately violated Section 8(a)(1) and (5) and Section 8(d) by having insisted on bargaining on a nonmandatory subject, i.e., that Benton sign a "retirement letter ." There is no evidence that Respondent is requesting bargaining thereon. The evidence is that Respondent wants no fur- ther discussion-it wants Benton's letter, period. No useful purpose is served by conjuring up abstruse con- cepts when the issue presented is clear and the answer equally clear, as discussed above. 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. At all times material, the Union has been and con- tinues to be the exclusive representative of Respondent's employees in the following appropriate bargaining unit within the meaning of Section 9(a) of the Act: All production and maintenance employees em- ployed by the Respondent at its Mount Vernon, New York plant, excluding all office clerical em- ployees, guards and supervisors as defined in the Act. 4. By failing and refusing to execute the collective-bar- gaining contract between the Union and Respondent, as agreed on 20 December 1984, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, which unfair labor practice affects commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having been found that the Respondent has unlawfully refused to bargain with the Union by failing and refusing to sign a collective-bargaining contract agreed to be- tween the Union and Respondent, I shall recommend that it cease and desist therefrom and take certain affirm- ative action to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, R.E.C. Corporation, Mount Vernon, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively in good faith with District Lodge 15, International Association of Machin- ists and Aerospace Workers, AFL-CIO as to wages, hours, and other terms and conditions of employment covering the appropriate unit, by refusing to sign the col- lective-bargaining contract on which Respondent and the Union has agreed. (b) Engaging in any like or related conduct in deroga- tion of the statutory duty to bargain in good faith. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request by the Union forthwith execute the contract upon which agreement was reached with the Union on 20 December 1984. (b) Post at Mount Vernon, New York plant, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 8 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. 4 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 Nation- al 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 "