American Standard Companies Inc., American Standard Inc., d/b/a American Standard

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 American Standard Companies, Inc., American Standard Inc. d/b/a American Standard and Glass, Molders, Pottery, Plastics & Allied Workers International Union, AFL–CIO, CLC, and its Local Union No. 7A. Cases 8–CA–33352, 8–CA–33477, 8–CA–33551, 8–CA–33641, 8–CA– 34284, 8–CA–34372, and 8–CA–34809 October 22, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE On May 30, 2008, the two sitting members of the Board issued a Decision and Order in this proceeding, which is reported at 352 NLRB 644 (2008).1 Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the D.C. Circuit, and the General Counsel filed a cross-application for enforce- ment. On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of the Act, in order to exercise the delegated authority of the Board, a delegee group of at least three members must be maintained. Thereafter, the court of appeals remanded this case for further proceedings consistent with the Su- preme Court’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair labor practice and representation cases. 2 Consistent with the Board’s general practice in cases remanded from the courts of appeals, and for reasons of administrative economy, the panel includes the members who participated in the original deci- sion. Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board Members not assigned to the panel had the opportunity to participate in the adjudication of this case at any time up to the issuance of this decision. The Board has considered the judge’s decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and conclu- sions and to adopt the recommended Order to the extent and for the reasons stated in the decision reported at 352 NLRB 644, which is incorporated herein by reference except as modified below. Substitute the following two paragraphs for the third full paragraph at page 645. “We agree with the judge’s conclusion that the parties’ conduct in the late hours of April 30, and early hours of May 1, 2002, establishes that there was no ‘meeting of the minds’ on a successor agreement. It is undisputed that there was no written agreement or signed or initialed document of any kind memorializing the alleged agree- ment between the parties prepared on May 1, contrary to both the parties’ prior practice and the common collec- tive-bargaining practice generally. The Union called a brief strike after expiration of the prior agreement and before the parties agreed to extend the prior contract. The parties agreed to continue negotiating over the out- standing noneconomic issues, and the parties in fact did so in the early morning hours of May 1, when the media- tor was no longer present. Respondent’s corporate vice president, Mo Heshmati, informed employees as they arrived at work the morning of May 1 that negotiations were on-going as no settlement had been reached. Given these various forms of compelling evidence that neither the Union’s nor the Respondent’s principals be- lieved an agreement had been reached, the testimony of the mediator and related evidence that the judge refused to receive would not change our conclusion that the Re- spondent violated Section 8(a)(5) when it refused to con- tinue negotiations in the absence of impasse or agree- ment on May 1, and its related actions after that time. For that reason, we decline to pass on the Respondent’s argument that the judge erred by excluding the evi- dence.”3 3 Fn. 11, id., is incorporated herein in its entirety. 356 NLRB No. 4