Acme Wire Works, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1977

229 N.L.R.B. 333 (N.L.R.B. 1977)

ACME WIRE WORKS, INC.
Acme Wire Works, Inc. and Shopmen's Local Union
No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO and Local 810, Steel, Metals, Alloys and
Hardware Fabricators and Warehousemen, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Party to the Contract. Case 29-CA-4866
April 28, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On January 19, 1977, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent and the
Party to the Contract filed exceptions and supporting
briefs, and the General Counsel filed a brief in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Acme Wire
Works, Inc., Brooklyn, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
I Respondent and the Party to the Contract have excepted to certain
credibility findings made by the Administrative 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 (C.A. 3.
1951). We have carefully examined the record and find no basis for
reversing his findings.
DECISION
STATEMENT OF THE CASE
ROBERT A. GiLNNASI, Administrative Law Judge: This
case was heard before me on September 7, 1976, in
Brooklyn, New York, upon a complaint which issued on
April 20, 1976, alleging that Respondent violated Section
8(aX5) and (1) of the Act by its untimely withdrawal from
multiemployer bargaining and thereafter refusing to abide
by the agreement reached by its bargaining agent, Wire
Works Manufacturers Association, and the Union;'
Section 8(aX3), (2), and (1) of the Act by recognizing and
entering into a collective-bargaining agreement with Local
810, Steel, Metals, Alloys and Hardware Fabricators and
Warehousemen, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (hereafter Local 810), which agreement requires
membership in Local 810 as a condition of employment,
notwithstanding that Local 810 did not represent a
majority of employees in the appropriate multiemployer
bargaining unit; and Section 8(a)(3) and (1) by failing and
refusing to reinstate striking employees upon their uncon-
ditional offer to return to work after a strike against
Respondent. The Respondent denied the critical allega-
tions in the complaint, and Respondent and the General
Counsel filed briefs.
Upon the entire record, including my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent is a corporation organized under the laws of
the State of New York and at all times material has
maintained its principal office and place of business in the
Borough of Brooklyn, city and State of New York, where it
is engaged in the manufacture, sale, and distribution of
various metal and wire products.
Wire Works Manufacturing Association, Inc., herein
called the Association, is a membership corporation
organized under the laws of the State of New York and at
all times material has engaged in the function of negotiat-
ing and executing bargaining agreements with labor
organizations and in administering said agreements on
behalf of its members located and operating in the city and
State of New York. During the past year, prior to the
issuance of the complaint, the employer-members of the
Association, collectively, in the course and conduct of their
business operations, purchased and caused to be transport-
ed and delivered to their various New York State locations,
wire, metal, and other goods and materials valued in excess
of $50,000. Such materials were transported and delivered
to said plants in interstate commerce directly from other
States of the United States. Accordingly, I find that the
Association, and each of its employer-members, including
Respondent, are, and have been at all material times
Shopmen's Local Union No. 455, International Association of Bridge.
Structural and Ornamental Iron Workers, AFL-CIO.
229 NLRB No. 57
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein, employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
Shopmen's Local Union No. 455, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, and Local 810, Steel, Metals, Alloys and
Hardware Fabricators and Warehousemen, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For many years the Union has represented the produc-
tion and maintenance employees of the employer-members
of the Association and has negotiated collective-bargaining
agreements with the Association. The most recent contract
with the Association expired on June 30, 1975. Also on that
date the Union's contracts with two other associations of
employers, Allied Building Metal Industries, Inc. (Allied),
and the Independent Association of Steel Fabricators, Inc.,
as well as a group of about 60 independent companies with
whom the Union bargained separately, expired.
In April 1975, the Union notified the Association of its
desire to negotiate a new contract to replace the one that
was expiring on June 30, 1975. In May 1975, the Union
informed the Association by letter that it wished to know
who the Association would be representing in the upcom-
ing negotiations. It also told the Association that if it had
any new members the Union would "need confirmation
from them that your association is authorized to represent
them." In response to the Union's letter, the Association
forwarded a list of the employer-members of the Associa-
tion that it would be representing in the upcoming
negotiations. Included in that list was Respondent, which
has been a member of the Association since at least 1964.
The first negotiating session between the Union and the
Association was held on June 16, 1975. By that first
meeting or by the next one, which was held on June 24 or
26, 1975, the Association had the Union's proposals for a
new contract. There was little discussion of these proposals
at either of the first two bargaining sessions. The proposals
sought in very general terms increases in wages and
contributions to fringe benefit funds covering the employ-
ees.
The first two bargaining sessions were primarily con-
cerned with a discussion of the industry in general. The
employer-members of the Association pleaded that their
economic situation was bad. More specifically, at the
second June bargaining session, there was discussion on
the subject of providing better schooling for wire workers.
Also discussed at some length was the Association's desire
to reduce certain vacation benefits. The Association also
raised the issue of whether the Union would permit the
employer-members of the Association to purchase certain
prefabricated panels. In addition, at this second negotiat-
ing session, the Union asked the Association to make a
wage proposal. The Association stated it had no wage
proposal to make at that time, and that there was no sense
in making any economic offer until the Union completed
negotiations with the Allied employers. Association repre-
sentatives also stated that most of their employer-members
would be closed for the first 2 weeks in July. It was agreed
that Union Representative William Matienzo would
contact Association representatives towards the middle of
July.
Respondent's representative, J. P. Batthaney, was pre-
sent at both of the June 1975 negotiating sessions. He
participated in the discussions that occurred at both of
these meetings. Neither the Respondent nor the Associa-
tion suggested that Respondent was not participating as a
member of the Association.
By letter dated June 19, 1975, the Association informed
the Union that its proposals for a new contract were
unacceptable. The Association proposed that the expiring
contract be extended for another 3 years. At the second
June bargaining session this request for a continuation of
the expiring contract for another 3 years was repeated by
the Association. The proposal was rejected by the Union.
On July 1, 1975, the Union commenced a strike against
those employers who had not signed a new contract with it,
including the eight employer-members of the Association.
On or about July 15, 1975, Union Representative Matienzo
called Joseph Bardy of the Association and informed
Bardy that the Union had new proposals for a contract.
Matienzo delivered the new proposals to Association
representatives. In a letter dated July 23, 1975, the
Association acknowledged the new proposals for a contract
and rejected them, stating its hope that the union position
"will become more receptive." The letter ended by
requesting that the Union let it "know of any changes."
Sometime in August, while on the picket line, Matienzo
spoke with Association President Kennedy and Bardy and
was again told by them that the Association would not sign
the Union's latest proposal and that they were waiting for
the Allied group to settle with the Union before further
negotiations. The Association and the Union had followed
this same course of conduct, i.e., suspending final negotia-
tions until Allied reached a new contract, for over 20 years.
Historically, the Allied negotiations have established the
pattern for settlements in the industry for the other
employers in the industry who were not members of Allied.
From June 24, 1975, through mid-January 1976, there
were no face-to-face bargaining sessions between the
Union and the Association. During that period of time, the
Allied negotiations continued and neither the Association
nor the Union asked for bargaining meetings.
In late December 1975 or early January 1976, Respon-
dent recognized Local 810 as the representative of all of
Respondent's employees. It entered into a collective-
bargaining agreement with Local 810 dated January 1,
1976, covering these employees. The bargaining agreement
also requires that, as a condition of employment, all of
Respondent's employees become and remain members of
Local 810.
The next negotiating session between the Union and the
Association occurred on January 13, 1976, about I week
after Allied had reached an agreement with the Union. At
this session, the Union further modified its two earlier sets
of proposals. Discussion ensued on the subject of the
purchasing of certain types of prefabricated panels and
other issues. The Association indicated a willingness to
334
ACME WIRE WORKS, INC.
agree to the same wage and economic provisions agreed to
by Allied.
At this January 13 meeting, Respondent had no
representative in attendance. Union President Colavito
inquired of Kennedy and Bardy as to the whereabouts of
Respondent's representative. Kennedy stated that he had
heard that Respondent "was finished with us." Colavito
asked where he heard that from but all Kennedy would say
was that he had heard it. Colavito then asked Kennedy to
let him know positively what the Respondent's position
was and Kennedy agreed he would let him know at the
next meeting.
The next bargaining session was held on January 19,
1976. Respondent did not attend. After discussion on
various topics, agreement was reached on a new contract
and it was executed by the Union and the Association.
During the course of this meeting, Colavito again inquired
about Respondent. Colavito was informed by Bardy that
the Association had just received a letter that day from
Respondent informing it that Respondent had resigned
from the Association. Colavito asked Bardy to indicate on
the letter that he had just received it and he did so. He
wrote that he received the letter of resignation, which was
dated August 11, 1975, on January 16, 1976.2
It is uncontroverted that at no time prior to the January
1976 meetings was the Union told or made aware of any
desire or decision of Respondent to withdraw from
bargaining through the Association.
On January 20, 1976, Union Representative Matienzo
spoke to Respondent's representative, Batthaney, and told
him that the Union had reached an agreement with the
Association and that he wanted Respondent to honor it
and to send his men back to work. Batthaney told
Matienzo that Respondent had resigned from the Associa-
tion and that he had nothing to do with the Union
anymore. In late March 1976, the Union sent a copy of the
agreement that had been reached between it and the
Association to Respondent and noted again that it
considered Respondent to be bound by it.
The Union's strike against the employer-members of the
Association, except for Respondent, ended after the
agreement was reached with the Association.
On March 29, 1976, the Union also sent a letter to
Respondent unconditionally requesting on behalf of
Respondent's employees that they be returned to work. At
this time, Respondent employed four employees. Respon-
dent never responded to that request.
B. Discussion and Analysis
Multiemployer bargaining is a consensual arrangement.
Under Board law, employers and unions may withdraw
2 The above is based on the credited and mutually corroborative
testimony of Colavito and Matienzo. The only other witness in this
proceeding was Bardy, whose testimony I discredit to the extent it is
inconsistent with the findings set forth above. Bardy's testimony is that
Respondent mentioned possible withdrawal from the Association in July
1975. There was no evidence, however, that this was a firm resignation or
that it was communicated to the Union. Bardy also testified he believes he
handed the resignation letter to union representatives on January 13 and
received it from Respondent's representative the day before. Bardy
conceded. however, that he wrote that he had received the letter on January
16 on a cop) of the letter received into evidence in this case. Although he
from multiemployer bargaining only under certain condi-
tions. Prior to the beginning of negotiations, withdrawal
can only be effected by an unequivocal written notice
expressing a sincere intent to permanently abandon the
multiemployer unit and to pursue negotiations on an
individual employer basis. Once negotiations begin, how-
ever, withdrawal can only be effected on the basis of
mutual consent or "unusual circumstances." 3
In the instant case, General Counsel urges that Respon-
dent's withdrawal, allegedly discussed in July 1975 but not
formalized or transmitted to the Union until January 19,
1976, was untimely. Respondent does not seriously dispute
that the withdrawal, whenever it occurred, was untimely,
insofar as it occurred after negotiations began on a new
contract. It urges, however, that it was entitled to withdraw
from multiemployer bargaining because of the following
"unusual circumstances": (1) an impasse occurred some-
time after the June 1975 meetings of the parties; (2) the
Union had engaged in unlawful surface bargaining; and (3)
a combination of factors existed amounting to "dire
economic circumstances" within the meaning of Hi-Way
Billboards, Inc., 206 NLRB 22 (1973), enforcement denied
on other grounds 500 F.2d 181 (C.A. 5, 1974). I find that
Respondent's withdrawal was untimely and that the record
herein does not show unusual circumstances which would
permit such untimely withdrawal. Furthermore, I find that
Respondent violated the Act by coupling its withdrawal
from the Association, whose members were obligated to
bargain with the Union as the exclusive representative of
its employees, with recognition of Local 810, another labor
organization which did not represent a majority or, so far
as the record shows, any of its employees. I further find
that the strike of Respondent's employees-after the
attempted withdrawal and unlawful recognition of Local
810-was converted into an unfair labor practice strike and
Respondent's refusal to offer three strikers their jobs back
upon their unconditional request to return to work was
unlawful.
1. Negotiations had commenced and withdrawal
was untimely
In the instant case, bargaining-at least opening negotia-
tions-began in June 1975. The Union submitted its
proposals and the Association called for extension of the
existing agreement. The Association also made proposals
on vacation, subcontracting, and training programs. On
July 15, the Union submitted modified proposals which
were rejected. Thereafter, according to the credited
testimony, the parties mutually agreed to suspend bargairn-
ing until the Union had reached agreement with the Allied
employer group, whose negotiations were in progress. This
testified that he was mistaken when he affixed the January 16 date on the
letter, I find his testimony incredible. This is not only because I give greater
weight to the notation made contemporaneously with the relevant events
herein and to the testimony of Colavito and Matienzo, but also because
Bardy's testimony was confusing and imprecise and his demeanor
convinced me that he was deliberately attempting to show that Respondent
had not given an untimely withdrawal from the Association. Accordingly. I
am unable to credit Bardy's testimony on this or any other crucial issue in
this case.
3 City Roofing Co., 222 NLRB 786 (1976); Bill Cook Buick, Inc., 224
NLRB 1094(1976); RetailAssociates, Inc., 120NLRB 388(1958).
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been the traditional course of bargaining in the
industry. Thus, it is clear that, at this point, negotiations
had commenced and withdrawal without the consent of the
Union would have been untimely.4
As I have found above, neither the Respondent nor the
Association informed the Union of Respondent's decision
to withdraw from the Association until the final negotiat-
ing session on January 19, 1976. This was clearly untimely,
as the Allied agreement had been concluded and the
Respondent, again without notifying the Union, had
concluded an agreement with another labor organization.
Accordingly, in the absence of "unusual circumstances,"
Respondent violated Section 8(a)(5) and (1) of the Act by
its untimely withdrawal from the multiemployer unit after
bargaining had commenced.
2. Respondent's claim of unusual circumstances
In view of the circumstances of the withdrawal, none of
the reasons now offered by Respondent provide a defense
to its conduct. It is axiomatic that the decision to withdraw
from multiemployer bargaining must be made in good faith
with the utilization of a different course of bargaining on
an individual basis.5 Respondent's decision did not satisfy
these prerequisites. First of all, none of the asserted reasons
were advanced at the time of the withdrawal in January
1976, a factor which the Board views as undercutting an
asserted defense to untimely withdrawal. 6 The rationale for
this view is sound since it is unlikely that a circumstance
allegedly justifying untimely withdrawal from a multiem-
ployer unit is truly "unusual" if it is not asserted at the time
but rather awaits the onset of litigation. Indeed, in this
case, no reason was given for the withdrawal when
Respondent's resignation was transmitted to the Union.
From all that appears, the reason for the withdrawal was
that Respondent was dissatisfied with the contract con-
cluded with Allied which it knew would be significant in
the final contract concluded with the Association. Respon-
dent waited, however, to withdraw until after negotiations
were almost completed and after the Allied contract was
concluded. Moreover, here Respondent sought to with-
draw from multiemployer bargaining in the context of
unlawful recognition of another union as the representative
of its employees with no attempt to bargain with the Union
on an employerwide basis. There is no evidence that the
contract with Local 810 was entered into after ascertain-
ment of the desires of a majority of Respondent's
employees. Nor did Respondent make any attempt to
bargain with the Union on an individual basis, even though
it is fair to presume that the Union's representative status
in the single-employer unit continued. See Tahoe Nugget,
Inc., 227 NLRB 357 (1976).7
4 See The Carvel Company, and C and D Plumbing and Heating Company,
226 NLRB 11 (1976).
s See RetailAssociates, Inc., 120 NLRB at 394.
6 Tulsa Sheet Metal Works, Inc., 149 NLRB 1487, 1488 (1964), enfd. 367
F.2d 55, 58 (C.A. 10, 1966); see also N.L.R.B. v. Central Plumbing Company,
492 F.2d 1252, 1254. fn. 3 (C.A. 6, 1974).
7 Respondent only had four employees and they all engaged in the strike;
there is no evidence that any did not wish the Union to represent them.
8 An impasse was defined as follows in Taft Broadcasting Co., WDAF
AM-FM I V, 163 NLRB 475,478 (1967):
Respondent's asserted reasons for its withdrawal are
insufficient to constitute "unusual circumstances" warrant-
ing untimely withdrawal. First of all, the evidence herein
does not support Respondent's contention that there was
an impasse.8 Although there was a hiatus of several months
in bargaining between the first sessions and the last ones,
there was no single overriding issue which divided the
parties and made it unlikely that there would be agreement
in the foreseeable future. It appears that both parties were
satisfied with the decision to wait for conclusion of the
Allied bargaining, which had been traditional. Moreover,
as indicated below, the Allied negotiations continued
during this period and their successful conclusion led, in
some measure, to the agreement of January 19, 1976. Until
the litigation of this case there had been no suggestion by
the Association or its members that there was an impasse
in negotiations. In any event, Board law is quite clear that
impasse alone is no excuse for untimely withdrawal from
the multiemployer bargaining obligation. Bill Cook Buick,
Inc., supra.
Respondent also urges that it was privileged to withdraw
from the Association because the Union had engaged in a
complete failure to bargain in good faith. Assuming
arguendo that this might be a factor that would excuse an
untimely withdrawal in certain factual circumstances,
Respondent's contention is not well founded in the
circumstances of this case. I cannot conclude from the
evidence discussed above that the Union bargained
improperly or unlawfully with respect to the Association.
The Union's original proposals were general in nature, but
contemplated increased benefits. In July, after the Associa-
tion failed to make an economic offer, the Union asked for
a 10-percent wage increase. Thereafter, there was mutual
agreement to await the Allied negotiations which contin-
ued during this period and resulted in an agreement which
led to the Association agreement. By virtue of the entire
bargaining-including the waiting period while the Allied
negotiations were going forward-the Association was able
to obtain the Union's agreement on one of the important
issues it raised early in the negotiations, the subcontracting
of panels. Thus, neither the hiatus in bargaining nor the
Union's lack of specificity, relied upon by Respondent,
shows lack of good-faith bargaining on the part of the
Union. Moreover, neither the Association nor the Respon-
dent filed charges with the Board alleging that the Union
had engaged in surface bargaining. This casts further doubt
on Respondent's assertion that the Union was bargaining
in bad faith and rather confirms that the Association was
content to wait for the conclusion of the Allied bargaining.
In these circumstances, it is inappropriate to give weight to
defenses which in effect attempt to escape obligations
Whether a bargaining impasse exists is a matter of judgment. The
bargaining history, the good faith of the parties in negotiations, the
length of the negotiations, the importance of the issue or issues as to
which there is disagreement, the contemporaneous understanding of
the parties as to the state of negotiations are all relevant factors to be
considered in deciding whether an impasse in bargaining existed.
336
ACME WIRE WORKS, INC.
under the Act by dredging up alleged unfair labor practices
concerning which charges were not timely filed.9
Finally, Respondent's allegations of dire economic
circumstances are unavailing. The evidence it cites in-
volved the opening bargaining salvos of Association
representatives when they first met with union representa-
tives. The picture of a depressed industry presented by
Respondent was as applicable to the other Association
members as to Respondent. Yet they continued in the
multiemployer unit, Respondent submitted no evidence of
its own impending economic doom nor any economic
evidence whatsoever. Nor is the fact of a strike sufficient
reason for untimely withdrawal. 10
3. Respondent's recognition of Local 810
As stated above, the Respondent has not shown
sufficient reason to excuse its untimely withdrawal from
the Association. Thus, it was obligated to honor the
agreement reached by its agent, the Association, and the
Union, and its refusal to do so violated Section 8(a)(5) and
(1) of the Act. Furthermore, Respondent entered into a
collective-bargaining agreement with Local 810 which
carried an effective date of January 1, 1976. Since its
bargaining obligation was defined by the Union's majority
status in the multiemployer Association, Respondent's
recognition of Local 810 and negotiation of a collective-
bargaining agreement with Local 810 violated Section
8(a)(2) and (1) of the Act."I Since the Local 810 agreement
contained a union-security provision requiring membership
in Local 810, the Respondent's conduct also violated
Section 8(a)(3) and (1) of the Act.'2
4. Reinstatement of strikers
I also find and conclude that, after Respondent's unfair
labor practices described above, the economic strike of
employees was prolonged by Respondent's unlawful
conduct and converted into an unfair labor practice strike
at least with respect to the employees of Respondent who
remained on strike after the Union came to terms with the
Association.13 These employees were entitled to immediate
reinstatement upon their unconditional offer to return to
work, which was made on their behalf by the Union on
March 29, 1976.14 General Counsel concedes that one
employee, Dougherty, returned to work before the Union's
offer on behalf of all striking employees. There is no
evidence that the three other employees were immediately
reinstated to their former jobs and the Respondent did not
show that it made offers of reinstatement to them. Indeed,
in response to Union Representative Matienzo's request
that Respondent honor the Association agreement and let
9 See International Hod Carriers' Building & Common Laborers' Union of
America, Road & Heavy Construction, Local 1298, AFL-CIO (Roman Stone
Construction Company). 153 NLRB 659, fn. 3 (1965); North Bros. Ford. Inc.,
220 NLRB 1021 (1975); see also NL.R.B. v. Crimprex, Inc., 517 F.2d 501,
505 (C.A. 1, 1975).
'O Beck Engraving Co., Inc., 213 NLRB 53, 54-55 (1974), enforcement
denied on other grounds 522 F.2d 475 (C.A. 3. 1975).
in International Ladies' Garment Workers Union AFL-CIO [Bernhard-
Altmann Texas Corp.] v. N.LR.B., 366 U.S. 731, 737-739 (1961). The
obligation to bargain with an incumbent union exacts the "negative duty to
treat with no other." Medo Photo SupplI Corporation v. N.L.R.B., 321 U.S.
678, 684 (1944).
his men come back to work, Batthaney replied that he had
nothing to do with the Union. Accordingly, the Respon-
dent's failure to reinstate employees Diaz, Hammel, and
Paradise was violative of Section 8(a)(3) and (1) of the
Act.'5
Respondent contends that the Union's offer was inopera-
tive because it was simply a pro forma statement without
knowledge of the circumstances of the particular employ-
ees involved. There is evidence that employee Hammel was
unable to work because he was ill and that the whereabouts
of employee Paradise at the time of the hearing were
unknown. Although the evidence is sketchy on this point, I
am convinced that Union Representative Matienzo had
sufficient knowledge of the desires of the employees to
return to work so that the Union's offer on their behalf was
a legitimate one in the circumstances of this case. The letter
itself makes the offer unconditional. There is evidence that
Matienzo spoke to Paradise, who said that he had talked to
an official of Respondent about returning to work but was
not going back unless "Local 455 is back there"; that he
had also spoken to Hammel in February or March 1976;
and that he had heard about Diaz returning to work.
Moreover, Batthaney had indicated in a conversation with
Matienzo that Respondent had nothing to do with the
Union. Any further questions concerning the availability of
Paradise or Hammel for work and the backpay amounts, if
any, due all employees, including Diaz, may be resolved in
the compliance phase of this proceeding.
CONCLUSIONS OF LAW
1. All production and maintenance employees, includ-
ing plant clericals employed by the employer-members of
the Wire Works Manufacturers Association, Inc., exclusive
of all clerical employees, superintendents, guards, and all
supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for bargaining within the
meaning of Section 9(b) of the Act.
2. The Union is, and at all material times has been, the
exclusive bargaining representative of the employees,
including those of Respondent, in the aforesaid appropri-
ate unit.
3. At all times material, Wire Works Manufacturers
Association, Inc., has been the authorized negotiating
agent of the Respondent authorized to negotiate collective-
bargaining agreements on behalf of the Respondent within
the meaning of Section 2(13) of the Act.
4. By refusing on and after January 19, 1976, to sign the
agreement reached between the Union and the aforesaid
Association on that date, the Respondent has engaged in a
12 Local Lodge No. 1424, International Association of Machinists, AFL
CIO [Bryan Manufacturing Co.] v. N. LR.B., 362 U.S. 411, 412-414 (1960).
13 Tulsa Sheet Metal Works, Inc., 149 NLRB at 1503: Palomar
Corporation, 192 NLRB 592, 598 (1971), enfd. 465 F.2d 731 (C.A. 5. 1972).
"4 See Southwestern Pipe, Inc., 179 NLRB 364 (1969), enforcement
denied 444 F.2d 340 (C.A. 5, 1971); Certified Casting & Engineering, Inc.,
145 NLRB 572, 573 (1963).
is There is testimony that Union Representative Matienzo heard that
Diaz had returned to work, but I consider this evidence insufficient upon
which to base a finding, particularly since the date and the circumstances of
Diaz' return were unspecified.
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to bargain, an unfair labor practice within the
meaning of Section 8(a)(5) and (1) of the Act.
5. By entering into and maintaining a collective-bar-
gaining agreement with Local 810, which agreement
contained a provision requiring employees to become
members of Local 810, at a time when Respondent was
obligated to bargain with the Union as the exclusive
representative of its employees, Respondent violated
Section 8(a)(3), (2), and (1) of the Act.
6. The strike and refusal to work of Respondent's
employees, Manuel Diaz, Martin Hammel, and Frank
Paradise, was prolonged after January 19, 1976, by
Respondent's unfair labor practices and the strike, which
was originally an economic strike, was thus converted into
an unfair labor practice strike.'6
7. By refusing and failing, after March 29, 1976, to
reinstate its above-named employees upon their uncondi-
tional offer to return to work, Respondent discriminated
against them in violation of Section 8(a)(3) and (1) of the
Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from the unfair labor practices found and take certain
affirmative action which I deem necessary to effectuate the
purposes of the Act.
Since it has been found that Respondent refused to
bargain with the Union by refusing to execute and abide by
the agreement reached between the Union and the
Association, I will recommend that Respondent be ordered
to sign and honor said agreement and make whole its
employees for any loss of wages or other benefits they may
have suffered as a result of Respondent's failure to sign the
agreement on or about January 19, 1976. Backpay, if any,
shall be computed in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
In addition, since Respondent has been found to have
unlawfully entered into a collective-bargaining agreement
with another labor organization, Local 810, at a time when
it was obligated to bargain with the Union, it shall be
ordered to cease and desist from giving effect to said
agreement and to reimburse employees the amounts they
paid, pursuant to the union-security provisions of that
agreement, for union dues or initiation fees, except insofar
as employees joined Local 810 prior to the date of said
agreement. The amounts of reimbursement, if any, shall
carry interest at the rate of 6 percent per annum.
Finally, since Respondent has been found to have
unlawfully failed to reinstate unfair labor practice strikers
after their unconditional offer to return to work, it shall be
ordered to offer them full reinstatement to their former
positions or, if those jobs no longer exist, to substantially
'i There is no evidence that the Union or the employees knew before
January 19 that Respondent had signed a contract with Local 810 effective
January 1, 1976.
17 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.
equivalent jobs, and to make them whole for any losses
suffered in accordance with the backpay formula men-
tioned above.
Upon the foregoing findings of fact and conclusions of
law, and the entire record of this case, I hereby issue the
following recommended:
ORDER' 7
Respondent, Acme Wire Works, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to sign the contract negotiated
by Wire Works Manufacturers Association on behalf of its
members and Shopmen's Local Union No. 455, Interna-
tional Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, and agreed upon on January 19,
1976.
(b) Recognizing and bargaining with Local 810, Steel,
Metals, Alloys and Hardware Fabricators and Warehouse-
men, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
or any labor organization or giving effect to its contract
with Local 810, dated January 1, 1976, so long as it is
obligated to bargain with Shopmen's Local 455 as the
exclusive representative of its employees in the above-
described appropriate unit.
(c) Refusing and failing to reinstate employees who strike
to protest unfair labor practices of Respondent upon their
unconditional offer to return to work.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Withhold and withdraw all recognition from Local
810 as the exclusive representative of its employees in the
unit which is represented by Shopmen's Local 455 and
cease giving effect to or applying its agreement with Local
810 dated January 1, 1976.
(b) Reimburse all present and former employees, except
those who joined Local 810 prior to the execution of the
January 1, 1976, agreement between Respondent and
Local 810, for all initiation fees, dues, and other monies, if
any, paid by them pursuant to the union-security provi-
sions of said agreement, in the manner provided in the
section above entitled "The Remedy."
(c) Forthwith sign and implement the agreement reached
on January 19, 1976, between the Association and the
Union insofar as it applies to employees of Respondent in
the above-described unit.
(d) Upon execution of the foregoing agreement, give
retroactive effect to January 19, 1976, or such other
effective date as appears in the agreement reached between
Respondent and the Union on that date, and make whole
its employees for any losses that may have been suffered by
Respondent's failure or refusal to sign said agreement.
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, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
338
ACME WIRE WORKS, INC.
(e) Offer to employees Manuel Diaz, Martin Hammel,
and Frank Paradise immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them
from March 29, 1976, the date on which the Union made
an unconditional offer to return to work on their behalf,
until the date of Respondent's unconditional offer of
reinstatement to them, together with interest at the rate of 6
percent per annum, in the manner set forth in the section of
this Decision entitled "The Remedy."
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, 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.
(g) Post at its plant in the Borough of Brooklyn, New
York, New York, copies of the attached notice marked
"Appendix." 18 Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(h) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
'i In the event that 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 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
After a hearing at which all sides had an opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act
and has ordered us to post this notice.
This Act gives all employees these rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL forthwith sign the contract of January 19,
1976, negotiated by Shopmen's Local 455 and the Wire
Works Manufacturers Association.
WE WILL give retroactive effect to the terms and
conditions of said contract.
WE WILL NOT recognize Local 810, Teamsters as the
representative of our employees represented by Shop-
men's Local 455, and WE WILL NOT give effect to or
apply the January 1, 1976, contract with Local 810.
WE WILL NOT refuse to reinstate employees who have
struck to protest our unlawful conduct upon their
unconditional offer to return to work.
WE WILL make our employees whole for any losses
they may have suffered by our refusal to sign the Wire
Works Manufacturers Association agreement or for our
failure to immediately reinstate employees who offered
to return to work unconditionally after abandoning
their strike to protest our unlawful conduct.
WE WILL reimburse any employee for all fees, dues,
or other payments to Local 810 which we may have
unlawfully deducted from their pay under the union-
security provision of our contract with Local 810.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer Manuel Diaz, Martin Hammel, and
Frank Paradise immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority or other rights or privileges, and WE WILL
make them whole for any loss of pay they may have
suffered because of our discrimination against them,
with interest at 6 percent per annum.
ACME WIRE WORKS, INC.
339