Architectural Woodwork Corp.

930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Architectural Woodwork Corporation and Millmen's Local Union No. 724 Carpenters District Coun- cil of Houston and Vicinity, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, CLC. Case 23-CA-9925 24 June 1986 DECISION AND ORDER BY MEMBERS DENNIS, BABSON, AND STEPHENS On 11 December 1985 Administrative Law Judge Hutton S. Brandon issued the attached deci- sion. The General Counsel and the Respondent filed exceptions and supporting briefs. 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 briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. i We correct the following inadvertent errors in the judges decision. In par 2 of the section entitled "Conclusions," the judge stated that the Respondent "passed the ball" to employees on 22 October, but earlier in his decision the judge correctly identified the date as 29 October In the last sentence in par 7 of the same section, the judge stated that the Re- spondent's expressed good-faith doubt arose in a context free of unlawful conduct It is clear from other portions of the judge's decision, however, that the judge concluded that the Respondent 's asserted doubt did not arse in a context free of unlawful conduct Par 2 of the section entitled "The Remedy," the judge erroneously stated that the General Counsel alleged only one 8(a)(5) violation As the General Counsel's exceptions assert, the complaint also alleged that the Respondent violated Sec 8(a)(5) by soliciting employees to file a decerti- fication petition. We need not address the exception because the judge found the conduct in question violated Sec 8(a)(1) and the finding of an additional violation would not affect the remedy. 2 The judge found that on 22 October 1984 Bernard Sampson, the Re- spondent's president, told unit employees in the context of telling them why he had filed the RM petition that Respondent had not bargained with the incumbent Union and was not going to bargain with it, the Re- spondent would abide by a contract with the Union if employees voted to go union, thereby implying that the Respondent would discontinue its practice of paying rates in excess of the contract rates some employees enjoyed, the Respondent would be competitive with anything the Union could give them, and, further, the Respondent would compete better if it were nonunion because there would be no wage cuts or dues checkoff and there would be merit increases On 29 October Sampson told the em- ployees that the Respondent 's RM petition was going to be dismissed and if they wanted an election they were to call a Board agent whose tele- phone number the Respondent would provide Shortly thereafter an em- ployee filed a decertification petition We agree that all the circumstances here warrant the conclusion that the Respondent violated Sec 8 (a)(1) by encouraging and soliciting em- ployees to decertify the Union. In this regard we particularly note that the Respondent's 29 October entreaty to employees, in the wake of the Board's dismissal of the Respondent's RM petition, that it was up to them to file a decertification petition, followed closely on the heels of the Re- spondent 's 22 October remarks that, inter alia, it was losing millions of dollars in contracts to outside shops who were nonunion, that it would not bargain with the Union, and its implication that some employees' wages would be reduced Therefore, the Respondent's asserted doubt of the Union's majority status was invalid because it arose in a context of unfair labor practices, and the Respondent's subsequent unilateral change in overtime policies violated Sec 8(a)(5) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Architectur- al Woodwork Corporation, Houston, Texas, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order. In light of the finding that the Respondent's doubt of majority relied on a decertification petition that was unlawfully induced , Members Babson and Stephens find it unnecessary to pass on the judge's conclu- sion that, even absent the unlawful solicitation, that petition plus lack of majority membership in the Union would not form an adequate basis for good-faith doubt of majority Member Dennis finds it unnecessary to pass on whether Thomas Industries, 255 NLRB 646 (1981), and Dresser Indus- tries, 264 NLRB 1088 (1982), were correctly decided Robert G. Levy, II, Esq., for the General Counsel. Chapman Smith and Ted Wold, Esqs. (Baker and Botts), of Houston, Texas, for the Respondent. Victor Bieganowski, of Houston, Texas, for the Charging Party. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. This case was tried at Houston, Texas, on 24 October 1985. The charge was filed by Millmen's Local Union No. 724 Carpenters District Council of Houston and Vi- cinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, CLC (the Union) on 10 January 1985 and the complaint was issued on 13 August 1985. The primary issues are whether Architectural Wood- work Corporation (Respondent or the Company) (a) en- couraged or solicited its employees to file a petition to decertify the Union in violation of Section 8(a)(1) of the National Labor Relations Act (the Act) and (b) unilater- ally, without notice to or bargaining with the Union, im- plemented a change in its overtime payment policy in violation of Section 8(a)(5) and (1) of the Act. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the oral argument by the General Counsel and the brief filed by Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Texas corporation with its principal office and place of business located in Houston, Texas, where it is engaged in the manufacture and sale of vari- ous types of woodwork products and related items. During the 12-month period preceding issuance of the complaint, Respondent had gross revenues in excess of $500,000 from the sale of products and services and during the same period of time purchased and received at its Houston facility goods and materials valued in excess of $50,000 directly from points located outside the State of Texas. Respondent admits , and I find, that it is an employer within the meaning of Section 2(2) of the 280 NLRB No. 108 ARCHITECTURAL WOODWORK CORP. Act, engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. LABOR ORGANIZATION Respondent further admits in its answer, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Material Facts The bulk of the material facts in this case are not in significant dispute . The record does not reflect the cir- cumstances under which Respondent initially recognized the Union, but it executed its first agreement with the Union on 14 April 1978 in the following unit admitted by Respondent to be an appropriate unit for collective- bargaining purposes: All crew leaders, journeymen, sundrymen and ap- prentices of the machine , cabinet, upfitting, metal and finishing departments employed by the Em- ployer at its 3000 Yellowstone Street, Houston, Texas, facility, excluding all other employees, office clerical employees , draftsmen, guards, watchmen, and supervisors as defined in the Act. Two successive collective-bargaining agreements in the foregoing unit were negotiated with the last agreement being effective from 1 September 1981 to 1 September 1984.' By letter dated 25 May and executed by Bernard Sampson, Respondent's president, Respondent notified Adolph Little Jr., the Union's business agent, that Re- spondent wished to terminate its agreement with the Union. Little by letter dated 29 May notified Sampson that the Union wished to modify the agreement by nego- tiating wages, hours, and working conditions, and asked that Sampson contact him at his earliest convenience to set a date for meeting . The record shows no further communication between the parties until 12 July. Sampson testified that , about 12 July, he received a notice of a call form from a secretary indicating that he had received a call from Little on 12 July at 8:30 a.m. Sampson related he returned the call and in the ensuing conversation told Little that he doubted the Union's ma- jority status. Moreover, after having his recollection re- freshed by notes made contemporaneously with the dis- cussion with Little, Sampson testified that he also told Little that he did not intend to negotiate with the Union, that neither the Houston Woodworkers Association, an employer bargaining group, nor Raymond Brochstein, an official in Respondent's parent company, represented Re- spondent in bargaining with the Union. Rather, Sampson told Little that Respondent represented itself. Little in his testimony related that he could not recall talking to Sampson around 12 July and denied that Sampson had ever told him that he doubted the Union's majority status. Although Sampson's recollection was understandably hazy in view of the lapse in time since the telephone conversation, Sampson impressed me as I All dates hereinafter are in 1984 unless otherwise specified 931 sincere and generally reliable . I credit him when he con- tradicts Little who was contradicted by his own testimo- ny given at a representation hearing involving Respond- ent in November , discussed below. In the instant case while denying that he had called Sampson in July, in the representation case he testified he may well have spoken to Sampson then. Moreover, Little identified notes he had made showing his calls to Respondent , one of which coincides with the date and time of the notice of call form received by Sampson from his secretary . The cir- cumstances thus tend to support Sampson's testimony that he talked to Little around 12 July. The fact that Little made subsequent calls to Respondent and spoke to other of Respondent's agents regarding forwarding of union dues checkoffs does not detract from Sampson's testimony or the conclusion reached here that Sampson was more credible. In addition, that Sampson told Little that Respondent did not intend to bargain with the Union is substantiated by the Union's filing of a charge with the Board on 30 July, Case 23-CA-9792, in which the Union alleged Re- spondent violated Section 8(a)(5) of the Act by refusing to bargain collectively with the Union on and after 1 July. The Union followed the filing of the charge with a letter to Respondent dated 3 August in which it request- ed unit and bargaining information from Respondent. Re- spondent, through a letter of its attorney to the Regional Director dated 29 August, replied to the Union' s unfair labor practice charge contending that only 9 of Respond- ent's 52 employees were members of the Union, that 5 employees had resigned from the Union since April, and that in view of that and the other bargaining history re- lated, Respondent had a good-faith doubt as to the con- tinuing majority status of the Union. By letter dated 21 September, the Region dismissed the charge in Case 23- CA-9792 explaining: As a result of the investigation , it does not appear that further proceedings on the charge are warrant- ed. In view of the status of the negotiations when the charge was filed and absent evidence of conduct away from the bargaining table that would indicate bad faith on the part of the Employer, any assess- ment of the Employer's approach to bargaining at this time would be premature . I am, therefore, re- fusing to issue a complaint in this matter. While the record is unclear, the basis for the dismissal of the unfair labor practice charge seems to suggest that the Union was premising its 8(a)(5) contention on a theory that Respondent was bound by bargaining by some multiemployer group . This hypothesis is supported by a letter from the Union to Respondent dated 21 Sep- tember in which it stated that the Union was advising Respondent that it did not timely withdraw from the Houston Woodworkers Association collective-bargaining negotiations which began on 11 July and therefore it was the Union's position that Respondent was bound by such collective-bargaining negotiations which began on 11 July. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The contract with the Union having expired on 1 Sep- tember, Respondent on 17 October filed an RM petition with the Board, Case 23-RM-416. Following filing of the petition, Sampson received a number of questions from employees regarding the ef- fects of an election. He wrote a number of these ques- tions down, decided on answers for them, and then in a meeting with employees about 22 October, he answered the questions and made other comments . Thus, Sampson testified herein that at the meeting he told employees the purpose of filing the petition was to get "the matter" with the Union resolved. He said they would decide whether they were union to clear the atmosphere. He went on to state that they were losing millions of dollars in contracts to outside shops who were nonunion. How- ever, he added that he told the employees they could vote yes or no, that it made no difference to him, that if they voted to go union, Respondent would abide by the union contract. In his talk to employees and in his asser- tion that the Company would go by the union contract if the Union were elected, Sampson admittedly did not refer to Respondent's practice of paying some of its em- ployees rates in excess of the union contract in an effort to secure and retain highly qualified and skilled people. Rather, Sampson testified he told the employees that he would abide by the contract as it related to overtime and whatever the contract was settled for, Respondent would abide by it. Sampson testified that he told the employees he had always taken care of them, had given them bo- nuses, and barbecues, even though these things were not called for in the contract. He also asked the employees to trust him. Sampson answered affirmatively to a ques- tion by the General Counsel whether he told the em- ployees on 22 October that as far as Respondent was concerned, it had not bargained with the Union and was not going to bargain with the Union. This was apparent- ly a reference to Respondent 's intent not to renegotiate the recently expired collective-bargaining agreement. Asked if he explained to the employees why he was not going to bargain with the Union, Sampson responded: Again, it is-all goes back to what I said before, that I felt-because of the non-union shops taking our work, being installed by union carpenters. We were losing an awful lot of work here. It was hurt- ing our factory. That was about it. Asked for further recollections, Sampson said he would have to refer to his notes . Those notes, received in evi- dence as Respondent's Exhibit 12, list five points made by Sampson as follows: 1. Very competitive markets-bid against non- union shops in town and out of town. 2. Only 9 men in union. 3. Get straight once and for all have an election. 4. We want you to vote to follow us, not union. 5. 1 will take care of you-as I always have no wage cuts, layoffs. We will be competitive w/anything union will give you. The questions and answers prepared by Sampson in his talk to employees prior to the meeting on 22 October are set forth below: 1. Can men stay even if shop wins? Yes, nobody has to be in or out of union to have a job here. 2. By going non-union , how will A WC compete better? No wage cuts. (1) Non-union carpenters [Flexibility, more people to do things better] (2) Non-union people outside (3) Union is forcing this election (4) No checkoff on dues (5) No paperwork (6) Carpenters force their members to take 15 percent cut in wages (7) Men will get raises according to merit. 3. If men vote to go into union, and union cuts wages, men will have to take cut or loss in benefits. 4. B.S. is 62, what happens if he retires-will Raymond [Brochstein] overrule him. 5. How often can union force another election. At least 1 year. 6. If men are unhappy (later) after AWC wins election-how long can they wait to call another election for union at least one year. Union will start negotiate w/Smith when to have an election-could be 3 to 6 weeks after 11-1-84. 7. Union cannot come into plant . Can they call Larry Martinez outside or in the office. Yes. By letters dated 26 and 29 October, Respondent through its attorney sought to justify Respondent's filing of the RM petition referring to the Union's letter of 3 August seeking bargaining information and its letter of 21 September contending Respondent had unlawfully withdrawn from the Houston Woodworkers Association. These letters also included correspondence reflecting at- tempts of three employees to withdraw from their union membership. Although not clear from the record, it appears that the Regional Office was threatening to dismiss the RM peti- tion for a lack of showing of a valid basis for Respond- ent's doubt of the Union 's majority status in light of the recently expired collective -bargaining agreement. In any event, on 29 October, having received word from his at- torney that the RM petition was going to be dismissed, Sampson had another meeting with his employees at which time he announced that the RM petition had been denied, that Respondent had no other route to go , that it was up to the employees, that if they wanted an election, they were to call the National Labor Relations Board and specifically ask for Robert Markey and that Plant Superintendent Bob Yeager had Markey's phone number. One of Respondent's employees, Robert Ogg, did in fact file a decertification petition on 5 November, Case 23-RD-559. On 6 November Respondent withdrew the petition in Case 23-RM-416 . However, according to a stipulation of the parties, Respondent on 7 November filed another petition with the Board, Case 23-RM-419. That petition was dismissed by the Region on 16 No- ARCHITECTURAL WOODWORK CORP. vember and a request for review of that dismissal by the Board was denied by the Board on 15 January 1985. In the meantime, on 8 November, Respondent posted a change in its overtime policies. Respondent's practice on paying overtime as set forth in the last collective-bar- gaining agreement with the Union .provided for payment to employees at overtime rates for any hours worked "before regular starting time or after regular quitting time." The 8 November notice provided that all employ- ees had to work a total of 40 hours a week before they could receive any overtime. On 21 November a hearing was conducted on the peti- tion in Case 23-RD-559. A direction of election in that case issued on 19 December. An election was scheduled for 17 January 1985. The Union filed the charge in the instant case on 10 January 1985. The election was-held as scheduled although the ballots were impounded and remain impounded as a result of the instant litigation. B. Arguments of the Parties The complaint alleges, and the General Counsel argues, that Respondent in its meetings with employees on 22 and 29 October violated Section 8(a)(1) of the Act through the remarks of Sampson allegedly encouraging and soliciting employees to file the decertification peti- tionn' The complaint further alleges that Respondent also unilaterally changed the method of computing overtime for its employees without bargaining with the Union. More specifically, the General Counsel argues that in light of the contract between Respondent and the Union, the Union was entitled to a presumption of a continuing majority status. In view of that presumption, Respondent was obligated to deal with the Union as the collective- bargaining representative in the absence of a good-faith doubt of the Union's majority status based on objective considerations. According to the General Counsel, Re- spondent acted in derrogation of its obligation to deal with the Union by suggesting to employees to do that which Respondent could not do, i.e., raise a question concerning representation. Moreover, while still obliged to deal with the Union, Respondent breached that obli- gation by unilaterally changing the way overtime was computed. Respondent argues on the other hand that Sampson in his discussion with the employees merely indicated that employees had the option of voting if they chose to vote. In the absence of any coercion and unlawful solicitation, he could provide the names and addresses of those to contact to secure an election. Respondent claims there is no evidence that it circulated the decertification petition or even assisted in its preparation. Moreover, according to Respondent, there was absolutely no coercion in Sampson's remarks. Under these circumstances, Re- spondent asserts that Respondent did not violate Section 8(a)(1) of the, Act. With respect to the unilateral change in overtime com- putation and the 8(a)(5) allegation, Respondent asserts that it had a reasonable doubt of the Union's continued majority representation status based on sufficient objec- tive considerations. However, Respondent only lists two such considerations, (1) the fact that only about 9 of 46 employees were members of the Union, and (2) the rep- 933 resentation petition filed by Ogg. Respondent asserts that under these circumstances, it was free to make unilateral changes without violating Section 8(a)(5) of the Act. C. Conclusions Considering first the alleged unlawful encouragement and solicitation of the decertification petition, on the ad- mitted facts Sampson told employees on 22 October why he had filed the initial RM petition making it clear that Respondent's continuation as a "union employer" was causing Respondent to lose millions to outside nonunion shops. These assertions seriously undermined any con- temporaneous statements of Sampson to the effect that he did not care which way the employees voted on the union issue. Even the apparent impartiality of his ex- pressed intent to adhere to any union contract which might flow from the Union's election carried with it the implication that those employees receiving the higher- than-contract rates would not continue to receive that benefit. Sampson's reminder of what Respondent had previously done for the employees outside the contract requirements and his request that employees trust him also belied his disinterest in the outcome of any election. So too did his promise to be competitive with anything the Union could give the employees. Sampson's listing of the reasons the Company could be more competitive re- flected in his questions and answers at the 22 October meeting conveyed to the employees the clear impression that they would be better off without the Union to rep- resent them. Sampson's remarks then essentially consti- tuted a campaign speech against the Union at a time when, as discussed infra, Respondent could not lawfully make such a campaign speech. His remarks, I conclude, were clearly calculated to persuade employees against union representation and in favor of a "trust me" ap- proach. It was with Sampson's efforts to persuade ringing in their ears that the employees heard his announcement 1 week later on 29 October that Respondent could not secure an election and that if employees wanted one they would have to file a petition themselves. Under other circumstances, such an announcement even with an offer to provide a Board agent telephone number might be considered innocuous and benign. Certainly the Board has previously held that while employers may not solicit employees to withdraw from their union membership, they may bring to employees' attention their rights to resign from the union and revoke union-checkoff author- izations so long as the communications are free of threat- ened coercion or promises of benefit. See Ace Hardware Corp., 271 NLRB 1174 (1984); Perkins Machine Co., 141 NLRB 697 (1963); Cyclops Corp., 216 NLRB 857 (1975). See also Times-Herald, 253 NLRB 524 (1980). Clearly, simply supplying employees with the address and/or telephone number of the Board's Regional Office would not alone constitute unlawful encouragement or solicita- tion of employees to file a decertification petition. Tartan Marine Co., 247 NLRB 646, 656 (1980). In the circum- stances of the instant case, however, in light of Samp- son's 22 October remarks, his 29 October announcement and offer to provide a telephone number for a Board 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agent cannot be considered as wholly innocuous. Rather, in context, it was more in the nature of a request. Samp- son on 22 October had started the "ball rolling" for an election, and on 22 October he simply "passed the ball" to the employees. It could be no surprise then that em- ployees in fact filed the RD petition with the Board slightly more than a week later. Accordingly, I am con- vinced that Respondent's conduct did constitute encour- agement and solicitation of employees to decertify the Union. By this conduct, I find that Respondent did vio- late Section 8(a)(1) as alleged. With respect to the 8(a)(5) allegation, it is clear that Respondent first announced its professed doubt of the Union's majority status on 12 July, a time within, albeit barely, the 6-month period prior to filing and service of the charge. Thus, the limitations period under Section 10(b) of the Act does not preclude examination of Re- spondent's obligation to bargain with the Union at the material times herein or consideration of the validity of Respondent's "good faith doubt" defense. After the expiration of a collective-bargaining agree- ment, an incumbent union is accorded a presumption of its continued majority status as exclusive bargaining rep- resentative of the employees in the bargaining unit. See Club Cal-Neva, 231 NLRB 22 (1977); Guerdon Industries, 218 NLRB 658, 659 (1975); Barrington Plaza & Tragniew, Inc., 185 NLRB 962 (1970), enf. denied on other grounds 470 F.2d 669 (9th Cir. 1972). The presumption may be rebutted by evidence that the union lost its majority status or by evidence presented by the employer of a good-faith doubt of the union's majority status based on objective considerations supporting that doubt. Terrell Machine Co. v. NLRB, 427 F.2d 1088 (4th Cir. 1970), enfg. 173 NLRB 1480 (1969); Guerdon Industries, supra. When a reasonably founded good-faith doubt is claimed, such doubt must be raised in the context free of unfair labor practices. Nu-Southern Dyeing & Finishing, 179 NLRB 573 (1969), enfd. in part 444 F.2d 11 (4th Cir. 1971). It is clear that the Union in the case sub judice was entitled to a presumption of majority status in view of the contract with Respondent which expired on 1 Sep- tember. There was no evidence presented in the instant case to establish that the Union in fact lacked majority support among Respondent 's employees. As already indi- cated, however, Respondent relies here on two grounds as a predicate for its claimed doubt of the Union's major- ity status. The first is that only 9 employees out of 46 were members of the Union. However, the Board has long held with court approval that majority support is not to be confused with majority union membership. Thomas Industries, 255 NLRB 646 (1981); Petroleum Con- tractors, 250 NLRB 604 (1980); Barrington Plaza & Trag- niew, 185 NLRB 962 (1970). And in Terrell Machine Co. V. NLRB, supra, the Fourth Circuit Court of Appeals said (at 1090): A showing that less than a majority of the em- ployees in the bargaining unit were members of the union or paid union dues [is] not the equivalent of showing lack of union support. Manifestly . . . many employees are content neither to join the union nor to give it financial support but to enjoy the benefits of its representation. Nonetheless, the union may enjoy their support, and they may desire continued representation by it. Accordingly, lack of majority membership will not sup- port Respondent's asserted doubt of the Union's majority status. Respondent's second ground for doubting the Union's majority status is based on the filing of the RD petition. That basis I find also will not support a good-faith doubt. Even without regard to whether the RD petition was filed in a context free of unfair labor practices, there is absolutely no evidence on this record that the petition to Respondent's knowledge was supported by a majority of its employees. In Dresser Industries, 264 NLRB 1088 (1982), the Board stated (at 1088): The filing of a decertification petition, standing alone, does not provide a reasonable ground for an employer to doubt the majority status of a union. A decertification petition may be properly filed with the Board on the basis of a representation, evi- denced by authorization cards or other signatures, that 30 percent of the unit employees desire such an election. On its face, the petition indicates nothing more than the disaffection of a minority of unit em- ployees. Absent evidence (not proffered here) that a majority of the employees supported the petition, such a petition in no way reflects, or purports to re- flect, the sentiment of the unit majority. Even assuming that the petition did have majority em- ployee support and Respondent was aware of the degree of that support, as already found, the petition was not raised in a context free of unfair labor practices. I have already found that Respondent unlawfully solicited and encouraged the filing of the decertification petition. It follows that Respondent's expressed good-faith doubt arose in a context free of unlawful conduct. Considering all the foregoing, and the record as a whole, I find no legitimate basis for Respondent's claimed good-faith doubt of the Union's majority status. The Union's presumed majority status continued at all times material. Respondent, therefore, was not entitled to change terms and conditions of employment for bargain- ing unit employees without notice to, and bargaining with, the Union. It admittedly did neither before it changed the method of computing overtime for bargain- ing unit employees in November. Accordingly, I find Respondent violated Section 8(a)(5) and (1) of the Act in this regard as alleged. CONCLUSIONS OF LAW 1. Respondent Architectural Woodwork Corporation is an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Sec- tion 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. By urging, encouraging, and soliciting its employees to file a petition to decertify the Union, Respondent en- ARCHITECTURAL WOODWORK CORP gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unilaterally instituting and implementing a change in its overtime policies without notice to or con- sultation with the Union in the unit set forth below in paragraph 5, Respondent did engage in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The appropriate collective-bargaining unit is: All crew leaders, journeymen, sundrymen and ap- prentices of the machine, cabinet, upfitting, metal and finishing departments employed by the Employ- er at its 3000 Yellowstone Street, Houston, Texas, facility, excluding all other employees, office cleri- cal employees, draftsmen, guards, watchmen, and supervisors as defined in the Act. 6. The unfair labor practices found above in para- graphs 3 and 4 constitute 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 certain unfair labor practices, I find that it is necessary to order it to cease and desist and take certain affirmative actions designed to effectuate the policies of the Act. The only 8(a)(5) violation urged by the General Coun- sel being Respondent's unilateral change of the overtime policies, it shall be ordered that Respondent bargain on request with the Union concerning overtime and make any unit employee whole for any loss of wages or other benefits caused by its failure to adhere to the overtime provisions under the collective-bargaining agreement which expired on 1 September 1984. Backpay shall be made in a manner consistent with Board policy as stated in Ogle Protection Service, 183 NLRB 682 (1970), with in- terest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). On the foregoing findings of fact, conclusions of law, and on the entire record, I issue the following recom- mended2 ORDER The Respondent, Architectural Woodwork Corpora- tion, Houston, Texas, its officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully encouraging and soliciting its employ- ees to file a petition to decertify Millmen's Local Union No. 724, Carpenters District Council of Houston and Vi- cinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, CLC. (b) Refusing to bargain with the above-named Union as the exclusive representative of the employees in the 2 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 935 bargaining unit by unilaterally modifying its overtime policies provided for under the overtime provisions of the collective-bargaining agreement between Respondent and the Union which expired 1 September 1984. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as exclusive representative of the employees in the following appro- priate unit concerning overtime: All crew leaders, journeymen, sundrymen and ap- prentices of the machine, cabinet, upfitting, metal and finishing departments employed by the Employ- er at its 3000 Yellowstone Street, Houston, Texas, facility, excluding all other employees, office cleri- cal employees, draftsmen, guards, watchmen, and supervisors as defined in the Act. (b) Adhere to the overtime provisions of the collec- tive-bargaining agreement with the Union in effect prior to 1 September 1984. (c) Make whole the unit employees for any loss of wages or other benefits caused by its failure to adhere to the overtime provisions of the applicable collective-bar- gaining agreement since 1 September 1984 in the manner set forth in the remedy section of the decision. (d) Preserve and, on request, make available to the Board or its agents for examination 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 facility in Houston, Texas, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 23, 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 said notices are not altered, defaced, or covered by any other materi- al. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 2 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 " 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Millmen's Local Union No. 724, Carpenters District Council of Houston and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, CLC as the exclusive collective-bargaining representative of the employees in the bargaining unit by unilaterally changing the overtime provisions in effect under the collective-bargaining agreement with theUnion prior to 1 September 1984. WE WILL NOT encourage or solicit employees to de- certify the Union and revoke the Union's authority to bargain on behalf of our employees in the appropriate unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of the employees in the follow- ing appropriate unit: All crew leaders, journeymen, sundrymen and ap- prentices of the machine, cabinet, upfitting, metal and finishing departments employed by the Em- ployer at its 3000 Yellowstone Street, Houston, Texas, facility, excluding all other employees, office clerical employees, draftsmen, guards, watchmen, and supervisors as defined in the Act. WE WILL make whole the unit employees for the loss of wages or other benefits suffered as a result of our uni- lateral modification of the overtime provisions of the col- lective-bargaining agreement in effect prior to 1 Septem- ber 1984. ARCHITECTURAL WOODWORK CORPORA- TION