Aaron Brothers Company

National Labor Relations Board - Board Decisions

Sep 19, 1979

245 N.L.R.B. 29 (N.L.R.B. 1979)

AARON BROTHERS COMPANY
Aaron Brothers Company, a Division of Chromalloy
American Corporation and Teamsters Automotive
Workers Union, Local No. 495, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 21-CA- 17396
September 19, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On June 21, 1979, Administrative Law Judge Rich-
ard J. Boyce issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
American Corporation (Respondent)' has violated Section
8(a)(5) and (1) of the National Labor Relations Act (Act).
Post-trial briefs were filed for the General Counsel and for
Respondent.
I1. JURISDICTION
Respondent operates a chain of retail art supply stores.
Its annual revenues exceed $500,000, and it annually causes
materials and supplies of a value exceeding $50,000 to be
transported across state lines. The complaint alleges. the
answer admits. and it is found that Respondent is an em-
ployer engaged in commerce and operations affecting com-
merce within Section 2(2). (6), and (7) of the Act.
Ill. LABOR ORGANIZATION
It is undisputed that the Union is a labor organization
within Section 2(5) of the Act.
IV. ISSUES
The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the Act by including its union represented
employees in a companywide wage increase effective Octo-
ber 5, 1978, and by generally refusing to bargain with the
Union on and after November 9.
The answer denies any wrongdoing.
V. THE ALLEGED UNFAIR LABOR PRACTICES
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Aaron Brothers Company,
a Division of Chromalloy American Corporation,
City of Commerce, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
DECISION
1. STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Los Angeles, California, on
April 17, 1979. The charge was filed on November 29, 1978,
by Teamsters Automotive Workers Union, Local No. 495,
International Brotherhood of Teamsters, Chauffeurs, and
Helpers of America (Union). The complaint issued on Feb-
ruary 7, 1979, was amended during the hearing, and alleges
that Aaron Brothers Company, a Division of Chromalloy
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
A. Facts
On September 4, 1975, following a Board election,2 the
Union was certified as the bargaining representative of Re-
spondent's employees in this unit:
All warehouse employees, including truckdrivers
employed by Respondent at its store located at 940
Orange Drive, Los Angeles, California; but excluding
all other employees, including office clerical employ-
ees, guards, and supervisors as defined in the Act.
Respondent thereafter refused to bargain with the Union to
test the validity of the certification. By Decision dated April
30, 1976, the Board ordered Respondent to bargain. See
Aaron Brothers Corp., 223 NLRB 1179 (1976). This Order
was enforced by a decision of the Ninth Circuit, which is-
sued on October 21, 1977. See N.L.R.B. v. Aaron Brothers
Corp., 563 F.2d 409 (9th Cir. 1977).
Respondent and the Union met for the first time to nego-
tiate a contract on March 30, 1978. They met again on
April 17. By letter of April 20, 1978, Respondent's spokes-
man, John Fretwell, informed the Union that Respondent
would be moving its warehouse facility, which was the lo-
cus of unit work, from 940 Orange Drive, Los Angeles, to a
location in City of Commerce. The letter did not divulge a
date for the move or any other particulars.
I Respondent's name appears as amended at the heanng.
2Case 31-RC-3083.
245 NLRB No. 8
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a May 11 bargaining meeting, which was the first fol-
lowing Fretwell's letter, Fretwell was unable to provide any
details about the proposed move but did venture that the
new facility "more than likely" would require additional
employees. Finally, during a meeting on June 15. particu-
larization about the move still lacking, the Union's spokes-
man, John Krasnick. suggested that negotiations be sus-
pended until September 15. Krasnick's stated reason was
that the move by then would be completed, and the nature
of the new operation would be known.' Fretwell agreed. In
late August Fretwell informed Krasnick that construction
of the new warehouse was going "very slowly" because of a
cement shortage, and they agreed to resume negotiations on
November 9 instead of September 15.
By notice dated September 22, 1978. Respondent notified
its employees companywide, including those in the bargain-
ing unit, that they would be receiving an hourly wage in-
crease of 19 cents, effective October 5. The Union first
learned of the increase during the November 9 bargaining
meeting when Fretwell gave Krasnick a copy of the em-
ployee notice. Fretwell told Krasnick that he had asked
that the increase be withheld from the unit employees and
was "embarrassed" that it had not. He voiced agreement
with Krasnick's accusation that the inclusion of the unit
employees in the raise was an unfair labor practice. With
that, Krasnick proposed that the new wage levels be used as
a base for the continued negotiation of the wage issue. Fret-
well declined, explaining that he was without authority to
offer anything additional. Krasnick countered that he
would have to file an unfair labor practice charge in that
event, and Fretwell said that he would not blame Krasnick
if he did.' The present charge resulted.
'Krasnick is credited that uncertainty about the move was his stated and
true reason for seeking a suspension of negotiations. Fretwell's testimony
that Krasnick cited "pressing business, personal and otherwise" is rejected.
Not only did Robert Snyder, Respondent's vice president of personnel, tes-
tify that Krasnick suggested the delay "hoping that that would give us ade-
quate time to make our move," but, as discussed in the succeeding footnote,
Fretwell revealed himself during the course of his testimony as eminently
capable of self-serving falsehood. Finally, Krasnick's version, corroborated
in significant part by Snyder, is the more plausible.
4 This is Krasnick's credited version of the conversation. Fretwell con-
ceded in his testimony that, with one exception, Krasnick's version was "sub-
stantially accurate." Fretwell denied that Krasnick proposed using the new
wage levels as a base for continued bargaining. This discrepancy is resolved
in Krasnick's favor because his overall demeanor was more convincing than
Fretwell's; his testimony on this point and generally carried greater substan-
tive plausibility than Fretwell's in instances of conflict; and, as will be devel-
oped, Fretwell testified on one occasion with such palpable falseness as to
cast serious doubt on his credibility in any case of conflict.
Thus, Fretwell testified that while he voiced agreement with Krasnick that
inclusion of the unit employee in the raise was an unfair labor practice, etc.,
he in fact had recommended the raise and saw no need to give the Union
prior notice because he doubted that the Union represented the employees or
that it was "sincerely working" to obtain a contract for them. His majority
doubts assertedly were based on employee turnover and growth of the com-
plement since the election in 1975. Fretwell's story continued-and this is
where his testimonial unreliability reached full bloom-that he misrepre-
sented his position to Krasnick regarding the raise to "soften up the impact"
and "ease" Krasnick's situation.
Fretwell, in short, is disbelieved that he took one position in the inner
councils of management and expressed another to Krasnick. It is concluded
that his position as stated to Krasnick had been his internal position as well.
Snyder's attempted corroboration of Fretwell, by testifying that Fretwell had
recommended the raise for unit employees, failed its purpose, given the rank
unbelievaiblity of that which it purported to corroborate.
The notice announcing the October 5 raise referred to
"the company's policy to annually review your wage rates."
The last previous companywide raise went into effect on
June 9, 1977. and was 16 cents per hour. The employee
notice on that occasion attributed the raise to "a banner
year" in 1976 and called for "greater effort" from the em-
ployees "in order for the corporation to be able to continue
this policy in years ahead." The last general raise previous
to that was 13 cents per hour and became effective on Au-
gust 3, 1976. The notice accompanying that raise urged
"continued cooperation and production. as well as your
loyalty-so that we may continue to be in a position to
annually review your wages."
The 1976 general increase was preceded by one of 20
cents per hour. effective on July 8, 1975. and was heralded
by an employee notice asking that they "continue to work
together so that more pay increases will be forthcoming in
the future." There is no evidence of general increases in
years before 1975. Robert Snyder, Respondent's assistant
vice president of personnel, testified that the general raises
from 1975 through 1978 occurred as "a pattern from June
to October" because of economic considerations. He elabo-
rated that, summer being a slow season, Respondent prefers
to grant increases in the early fall, "when business started to
pick up again."
Respondent began transferring unit employees to the
new City of Commerce facility at 1270 South Goodrich
Boulevard in late August, and the move was largely com-
pleted by mid-September. Twenty-three of 27 unit employ-
ees at the old facility transferred to the new. By November
17 the new facility had a complement of 40 nonsupervisory
warehouse employees; by December 14 the number had
grown to 42; and by April 15, 1979, it had expanded to 52.
Snyder testified that Respondent projects a nonsupervisory
warehouse complement of about 80 within I year or 2. The
old facility had 60,000 square feet of warehouse area, the
new 175,000. The nature of the warehouse operation is
about the same at the new as at the old facility.
B. Conclusions
It is concluded that Respondent violated Section 8(a)(5)
and (I) as alleged by including the unit employees in the
October 5 wage increase without first notifying the Union
and giving it a chance to bargain over the change and by
thereafter refusing to entertain wage negotiations, as shown
by Fretwell's remarks to Krasnick in the November 9 meet-
ing.
Rejected out of hand is Respondent's contention that the
move to the new location and the attendant changes in
complement size, etc., relieved Respondent of its bargaining
obligation. Change in locus of unit work is of no particular
moment in circumstances such as the present, and there
easily was sufficient carryover of unit personnel relative to
the overall complement at the new location' and sufficient
continuity in the nature of the operation generally to insure
I For this purpose, "the appropriate point of analysis is ordinarily the date
the new facility opened and began full operations." See Laneri Industries,
et al. v. N.L.R.B., 578 F.2d 1223, 1226 (7th Cir. 1978). Subsequent enlarge-
ments of complement, actual or projected, thus are irrelevant, at least in the
present circumstances.
30
AARON BROTHERS COMPANY
continued unit appropriateness and preserve the bargaining
obligation. See Lammert Industries v. N.L.R.B., 578 F.2d
1223 (7th Cir. 1978); Republic Engraving and Designing
Company, a Division of Nutten Inc.. et al., 236 NLRB 1150,
1154 (1978). See also Western Distributing Co. d/h/a West-
ern-Davis Company, Inc., 236 NLRB 1224, 1226 (1978).
Also rejected is the contention that union lassitude in bar-
gaining licensed Respondent's conduct. There is nothing to
suggest that the Union ever abandoned its role as bargain-
ing representative or acquiesed in Respondent's conduct.
Finally, Respondent's contention that the wage increase
was permissible as a continuation of a pattern of such in-
creases dating back to 1975 is rejected. As stated in Allis
Chalmers Corporation, 237 NLRB 290, 291 (1978):
[UJnilateral actions are violative even when they are
made pursuant to an established company policy, if
they are taken without affording the representative an
opportunity to bargain.'
CONCLUSIONS OF LAW
I. By instituting the wage increase of 19 cents per hour,
effective October 5, 1978, for those of its employees repre-
sented by the Union without first notifying and affording
the Union a chance to bargain concerning that increase, as
found herein, Respondent violated Section 8(a)(5) and ()
of the Act.
2. By refusing on and after November 9, 1978, to negoti-
ate wage changes with the Union beyond that unlawfully
instituted on October 5, as found herein. Respondent fur-
ther violated Section 8(a)(5) and (I).
ORDER 7
The Respondent, Aaron Brothers Company, a Division
of Chromalloy American Corporation, its officers, agents,
successors, and assigns shall:
1. Cease and desist from:
(a) Instituting wage increases or other changes in the
.terms and conditions of employment of the employees in
the unit described below without first consulting with and
giving Teamsters Automotive Workers Union, Local No.
495, International Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America a chance to bar-
gain concerning those changes.'
(b) Refusing to negotiate wage changes beyond that it
unlawfully instituted on October 5, 1978, or otherwise fail-
ing to meet and negotiate with the above Union as the
representative of its employees in this appropriate unit:
I This is not to imply acceptance of the factual premise underlying Re-
spondent's argument-namely, that the record establishes a definable pat-
tern to annual increases.
7 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusion and Order, and all objections thereto shall be
deemed waived for all purposes.
'Nothing herein shall be construed, however, as requiring Respondent to
rescind any wage increase heretofore granted. See Lammert Industries, 229
NLRB 895 (1977).
All warehouse employees, including truckdrivers, em-
ployed by Respondent at its warehouse facility located
at 1270 South Goodrich Boulevard, City of Commerce.
California: excluding all other employees, including of-
fice clerical employees, guards, and supervisors as de-
fined in the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in their exercise of rights
under the Act.
2. Take this affirmative action:
(a) Notify and, upon request, bargain with the above
Union before making any changes in the wages, hours.
and/or other terms and conditions of employment of the
employees in the above unit.
(b) Upon request, bargain collectively with the above
Union as the exclusive representative of its employees in
the above unit concerning their terms and conditions of
employment and if an agreement is reached embody it in a
signed document.
(c) Post as its warehouse facility in City of Commerce,
California, the attached notice marked "Appendix.'? Cop-
ies of the notice, on forms provided by the Regional Direc-
tor for Region 21, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained for 60
consecutive days thereafter in conspicuous places, including
all places where notices to employees customarily are
posted. Reasonable steps shall be taken by Respondent to
insure that the notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 21. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I In the event that this Order is enforced b) a Judgment of a Urunted States
Court of Appeals. the words in the notice reading "Posted by Order of the
National 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Los Angeles, California, on April 17.
1979, in which we participated and had a chance to give
evidence, resulted in a decision that we had committed cer-
tain unfair labor practices in violation of Section 8(a)(I)
and (5) of the National Labor Relations Act, and this notice
is posted pursuant to that decision.
WE WILL NOT institute wage increases or other
changes in the terms and conditions of employment of
the employees in the unit described below without first
consulting with and affording Teamsters Automotive
Workers Union, Local No. 495, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, a chance to bargain concerning
those changes.
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WI.l. NOI refuse to negotiate wage changes be-
yond that we unlawfully instituted on October 5, 1978,
or otherwise fail to meet and negotiate with the above
union as the representative of our employees in this
appropriate unit:
All warehouse employees, including truckdrivers,
employed by Respondent at its warehouse facility
located at 1270 South Goodrich Boulevard, City of
Commerce, California; excluding all other employ-
ees, including office clerical employees, guards, and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in their exercise of
rights under the Act.
WE WILL notify and, upon request, bargain with the
above union before making any changes in the wages,
hours, and/or other terms and conditions of employ-
ment of the employees in the above unit.
WE WILL, upon request, bargain collectively with the
above union as the exclusive representative of our em-
ployees in the above unit concerning their terms and
conditions of employment; and, if an agreement is
reached, embody it in a signed document.
AARON BROTHERS COMPANY, A DIVISION OF
CHROMALLOY AMERICAN CORPORATION
32