Van Ben Industries, Inc.

VAN BEN INDUSTRIES - 77 Van Ben Industries, Inc. and Local No. 1445, United Food & Commercial Workers Interna- tional Union, AFL-CIO. Case 1-CA-23338 30 July ][987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 12 May 1987 Administrative Law Judge Harold Bernard Jr. issued the attached decision. The Respondent 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. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Van Ben In- dustries, Inc., Clinton, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Order, Don Firenze, Esq., for the General Counsel. Mitchell W. Goldblatt, Esq., of Brooklyn, New York, for the Respondent. Paul Dufault and David B. Rome, Esq., Boston, Massa- chusetts, for the Charging Party. DECISION STATEMENT OF THE CASE HAROLD BERNARD, JR., Administrative Law Judge. The case was heard on 7 March 1986 in Boston, Massa- chusetts, on complaint alleging Respondent unlawfully refused to recognize and bargain with the Union s the bargaining representative for Respondent's employees, thereby violating Section 8(a)(5) of the Act. On the entire record, including consideration of the briefs filed by the parties, I make the following FINDINGS OFF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent makes products used in national defense for agencies of the United States Government at its Clin- ton, Massachusetts location from which Respondent an- nually ships products valued in excess of $50,000 directly to points outside Massachusetts. As admitted, I find Re- spondent is an employer engaged in commerce within the meaning of the Act, and that the Union is a labor or- ganization as therein, defined. The appropriate bargaining unit, as admitted, and so found, is: All employees employed by Respondent, at the Clinton facility, including production and mainte- nance employees, shipping and receiving employees, and truckdrivers, but excluding office clerical em- ployees, temporary and casual employees, guards and supervisors as defined in the Act. II. THE UNFAIR LABOR PRACTICE The sole issue is whether Respondent lawfully with- drew recognition and refused to bargain with the Union on 28 October 1985 following its employees' repudiation of the Union as their collective-bargaining representative, or whether, instead, Respondent was foreclosed from doing so because a reasonable period of time accorded under Board law for the parties to engage in collective bargaining towards a contract following their earlier set- tlement agreement of an unfair labor practice case in June 1985 had not yet elapsed. Background The Board certified the Union as employees' repre- sentative in Cases 1-RC-16002 and I-RC-16019 in 1979 according to General Counsel's Exhibit 2 and the parties stipulation at hearing. At that time, the Company was Van Brode Milling Co. Inc., and the parties herein intro- duced into this record by stipulation a 1982-1984 collec- tive-bargaining agreement between Van Brode and the Union, as well as a January 1984 memorandum of agree- ment between those parties further covering unit em- ployees' conditions of employment. (G.C. Exh. 4(a) and(b).) The complaint alleged and Respondent admitted that Chemical Compounding Corporation purchased Van Brode's Government division on 24 April 1984. (Union Secretary-Treasurer Paul Dufault testified without con- tradiction at this hearing that Respondent's owner Daniel Kohn is the president of Chemical Compounding Corpo- ration.) Respondent shortly thereafter purchased same. from Chemical Compounding in June 1984 and, as fur- ther admitted, since then and the achievement of substan- tial production by Respondent', at the Clinton facility on 1 August 1984, Respondent engaged in the same business operations, at the same locations, performing the same national defense contracts, with many of the same man- agers and supervisors, and-since I August 1984-has employed a majority of the prior Van Brode Govern- ment divisions operations employees. Further admitted is that Respondent is a successor of Van Brode with re- spect to such operations, and the parties stipulated at this hearing that Respondent had a duty to bargain with the Union with respect to the unit the Union had represented under, the predecessor Van Brode on demand by the Union for such bargaining from and after 24 April 1984, which demand for bargaining was in fact made by the Union on 16 August 1984. The stipulation continues: Respondent refused to rec- ognize the Union. (The record shows, in the form of an exhibit received by stipulation of the parties' settlement 285 NLRB No. 18 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreement discussed further below, and Respondent's answer to complaint, that it refused the Union's request on 24 August 1984, that the Union then filed charges in cases 1-CA-22528, 1-CA-22630, and 1-CA-22800, and that a complaint issued.) The parties agree that they en- tered into a non-Board settlement agreement whereby the Respondent agreed to recognize the Union and that the agreement be received into evidence. The agreement refers to the Union's charges in the cases identified above, and points out that "Whereas the Union and Em- ployer are desirous of settling said unfair labor practice charges, [they agree]: 1. The Union hereby agrees to withdraw or cause to be withdrawn all charges filed in the above cases, with prejudice. [Emphasis added]. 2. Upon approval of the withdrawal of said charges by the Regional Director for Region 1 of the National Labor Relations Board, Van Ben In- dustries, Inc. only will recognize the Union as the sole and exclusive bargaining agent for its produc- tion employees in an appropriate unit." [G.C. Exh. 3, dated June 24, 1981.] The Union's withdrawal request and the Regional Di- rector's approval of same and dismissal of complaint were received by agreement into the record. (G.C. Exhs. 3(b) and(c).) By still further stipulation the parties agreed that thereafter there was a single collective-bargaining session between the Respondent and Union on 23 Sep- tember 1985; that following the meeting a majority of the employees repudiated the Union as their exclusive bargaining representative, Respondent learning thereof on the morning of 28 October 1985 and in the afternoon refusing to recognize the Union further. - The Meeting on 23 September 1985 Union Secretary-Treasurer Paul Dufault along with Business Agent Raymond Stevens met with Respondent's owner and treasurer, Daniel Kohn, for the first and only meeting following their execution of the settlement agreement at the Ritz Carlton Hotel on 23 September for about 4 hours, including a luncheon period. The union representatives presented Kohn with a copy of the old Van Brode agreement, reviewed its provisions part by part and item by item with him, commenting on certain clauses, questioning some, defining what the terms en- tailed and in general presenting the former contract as a basis for negotiations towards a new agreement. Union security, seniority provisions, the vacation clause,' sick leave and other provisions were considered. Dufault tes- tified without significant variation offered by Kohn that the Union was not offering the entire former agreement as is because there were changes the Union wanted-and Kohn said he wanted as well-and that Kohn wanted to get back to the Union on some items. The Union wanted upward wage changes for example, and Kohn wanted a choice to get back to the Union on that, Dufault testi- fied, as to how much the Company could afford. The Union did not present actual figures, informing Kohn they would discuss it further at the next meeting. Kohn recalled the Union was willing to leave wages alone. The parties discussed health and welfare benefits, some recep- tivity surfacing to the idea of the parties going to a union-endorsed fund for such purposes. Kohn proposed limiting vacations to 2 weeks rather than 5 as contained in the former contract, and testified he told the union representatives there was no way he could deal with the lengthy vacation article at that session . In sum, Dufault's description of the meeting appears accurate : It was more of a preliminary meeting-reviewed the old contract, left with a tentatively scheduled further meeting at which Kohn was to come back with proposals and acceptance of the language or rejection of the language and "he was going to make proposals to us and we were going to fur- ther negotiations." The next meeting was scheduled for 18 October but was postponed to 30 October by mutual agreement. As noted the Respondent withdrew recogni- tion on 28 October, refusing further negotiations on learning of the employees' repudiation,of the Union as bargaining representative that morning. Analysis and Conclusion It is settled law that the parties to a settlement agree- ment resolving refusal to recognize and bargain charges filed under Section 8(a)(5) of the Act by providing for a respondent's assumption of the duty to recognize and bargain with a union as the exclusive collective-bargain- ing representative of such respondent's employees are en- titled to a reasonable period of time after the execution of same in which to conclude an agreement, and that during such reasonable period of time, the respondent is precluded from questioning the union's majority status. Pool Foundry Co., 95 NLRB 34 (1951). The principle has been held firmly applicable to non-Board settlement agreements as involved herein. VIP Limousine, 276 NLRB 871 (1985), and Mammoth of California, 253 NLRB 1168 (1981). While Respondent asserts that the Board's decision in Harley-Davidson Co., 273 NLRB 1531 (1985), holding a' successor employer has the right to question a union's majority status at any time should be controlling herein, such decision is inopposite when, as here, the Employer involved entered into a settlement agreement resolving refusal-to-bargain charges, the quid pro quo for the withdrawal of the charges and dismissal of complaint being the Employer's undertaking of the duty to recognize and bargain with the Union for a rea- sonable period of time unlike the situation in Harley-Da- vidson, supra; when the employer, believing he "might be a successor" recognized the union initially, bargained with it and when later faced with proof of employee re- pudiation of the union withdrew recognition. Poole Foundry Co., supra at 36; and, compare NLRB Y. Vantran Electric Corp., 580 F.2d 921 (7th Cir. 1978). The princi- ple that the parties' agreement, supported by important consideration on both sides including the relinquishment of significant rights "if it is to achieve its purpose must be treated as giving the parties thereto a reasonable time in which to conclude a contract," is too readily appar- i Poole Foundry, supra at 36 VAN BEN INDUSTRIES ent a necessary corollary to the parties' agreement to need further explanation, and has been confirmed recent- ly since the Poole decision. VIP Limousine, supra. I find that the period beginning from the time the par- ties settlement agreement was executed and approved by the Board's Regional Director in late June 1985 until the date Respondent withdrew recognition on 28 October 1985, a period of only slightly more than 4 months where only a single, though promising, preliminary meet- ing described above as providing a framework for future negotiations expected and planned to occur soon after the parties first meeting was concluded, did not consti- tute a reasonable time in which to conclude a contract. It is clear that further ongoing negotiations were contem- plated by the parties, who were feeling out each other's positions, that there had not yet been meetings on a reg- ular basis, substantial agreement on many items, or time enough for the further exchange of proposals or conces- sions by either side-negotiations barely had a chance to get off the ground and were in fact at a nascent stage when Respondent severed the relationship without there having been a substantial period of time during which good-faith negotiations could have ensued. While the test is what transpires during the time period under scrutiny, rather than the length of time elapsed, it is readily appar- ent that the fledgling negotiations herein occurred in so short a timeframe and were of such a limited nature re- quiring further time to mature into even a possible agree- ment, that no reasonable period of time for bargaining had elapsed, and thus Respondent was not privileged to question the Union's majority status. VIP Limousine, supra, and cases cited therein. It is therefore concluded that Respondent violated Section 8(a)(5) of the Act on 28 October 1985 when it withdrew recognition from the Union as collective-bargaining representative for its em- ployees. CONCLUSIONS OF LAW 1. Respondent, a successor to Van Brode Milling Co., Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the At. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The employees in the unit described above in sec- tion I in this decision constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material the Union has been and is cur- rently the exclusive collective bargaining representative of the employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By withdrawing recognition from the Union and re- fusing to bargain collectively with it as the exclusive col- lective-bargaining representative of employees in the unit herein found appropriate, Respondent violated Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices have a close, in- timate, and adverse effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. 79 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Van Ben Industries, Inc., Boston, Massachusetts, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain collectively with Local No. 1445, United Food & Commercial Workers International Union, AFL-CIO as the exclusive bargaining representa- tive of its employees in the aforesaid appropriate bargain- ing unit with respect to wages, hours of work, and any other terms and conditions of employment of such em- ployees- (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of any rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, recognize and bargain collectively with Local No. 1445, United Food & Commercial Workers International Union, AFL-CIO as the exclusive repre- sentative of the employees in the bargaining unit found appropriate above, with respect to their wages, hours of work, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. (b) Post at its place of business in Clinton, Massachu- setts, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately 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 the Respond- ent 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. 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. 3 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." 80 DECISIONS OF THE 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 collectively regarding wages, hours of work, and any other terms and condi- tions of employment with Local No. 1445 , United Food & Commercial Workers International Union , AFL-CIO, as the exclusive bargaining representative of our employ- ees in a bargaining unit consisting of: All employees employed by Respondent, at the Clinton facility, including production and mainte- nance employees, shipping and receiving employees, and truckdrivers, but excluding office clerical em- ployees, temporary and casual employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of our employees in the ex- ercise of any rights guaranteed by Section 7 of the Act. WE WILL, on request, bargain collectively with Local No. 1445, United Food & Commercial Workers Interna- tional Union, AFL-CIO as the exclusive representative of the employees in the unit described above, with re- spect to their wages, hours of work, and any other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. VAN BEN INDUSTRIES, INC.