American Gypsum Co.

National Labor Relations Board - Board Decisions

Sep 12, 1977

231 N.L.R.B. 1291 (N.L.R.B. 1977)

AMERICAN GYPSUM COMPANY
American Gypsum Company and District Council No.
3, United Cement, Lime and Gypsum Workers
International Union, AFL-CIO. Cases 28-CA-
4012 and 28-CA-4047
September 12, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 7, 1977, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel and
the District Council filed cross-exceptions and
supporting briefs.
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, findings,
and conclusions of the Administrative Law Judge, to
modify his remedy,' and to adopt his recommended
Order as modified herein. 2
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 as
modified below and hereby orders that the Respon-
dent, American Gypsum Company, Albuquerque,
New Mexico, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
I. Insert the following as paragraph l(c) and
reletter the subsequent paragraphs accordingly:
"(c) Conditioning the continuation of collective
bargaining upon the withdrawal of unfair labor
practice charges."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i In accordance with our decision in Florida Steel Corporation. 231
NLRB 651 (19771. we shall apply the current 7-percent interest rate for
periods prioi to August 25. 1977. in which the "adjusted prime rate" as used
hby the Internal Revenue Service in calculating interest on tax payments was
at least 7 percent
: The General Counsel excepts to the Administrative Law Judge's failure
to find as alleged in the complaint that Respondent further violated the Act
byv conditioning the continuation of collective bargaining upon the
withdrawal of the instant unfair labor practice charges. Although the
allegation is supported by credited testimony and documentary evidence,
and fully discussed by the Administrative Law Judge, he apparently
inadvertently omitted making any finding or conclusion regarding it. We
therefore find that the conditioning of collective bargaining on the
231 NLRB No. 152
withdrawal of the charges before the Board constituted a refusal to bargain
in good faith (O'Land, Inc.. d/J/a Ramada Inn South. 206 NLRB 210
(1973)). and shall amend the recommended Order accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize United
Cement, Lime and Gypsum Workers Internation-
al Union, Local 419, as the exclusive bargaining
representative of our employees in the following
described appropriate bargaining unit:
All production, maintenance and shipping
employees employed at our Albuquerque,
New Mexico, location, excluding all other
employees, office clerical employees, truck-
drivers, guards and supervisors as defined in
the National Labor Relations Act.
WE WILL NOT refuse to bargain in good faith
with said Union with respect to a collective-
bargaining agreement covering our employees in
said bargaining unit.
WE WILL NOT condition the continuation of
collective bargaining upon the withdrawal of
unfair labor practice charges.
WE WILL NOT continue to impose terms and
conditions of employment which are not consis-
tent with those set forth in our 1974 agreement
with said Union and with practices followed prior
to November 20, 1975.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights protected under Section 7 of the Act.
WE WILL immediately recognize the aforesaid
Union as the exclusive bargaining representative
of our employees in the above-described bargain-
ing unit.
WE WILL, upon request, bargain in good faith
with said Union with respect to a collective-
bargaining agreement covering our employees in
said bargaining unit and, if an understanding is
reached, embody such understanding in a signed
agreement.
WE WILL immediately restore to our employees
in said unit the terms and conditions of employ-
ment set forth in our 1974 contract with the
Union and the practices which existed prior to
November 20, 1975.
WE WILL immediately reinstate any employees
who were not recalled to work upon the reopen-
ing of our plant in September 1976, in accordance
with their seniority, to their former positions or, if
1291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such positions are no longer available, to substan-
tially equivalent positions, and WE WILL make
them whole for any loss they may have suffered
by our failure to recall them.
WE WILL make whole any employee who was
reemployed after our plant reopened in Septem-
ber 1976, but suffered a loss because he was not
recalled in proper order of seniority.
WE WILL make whole all employees, past and
present, who may have suffered a loss by reason
of our failing, since on or about September 8,
1976, to observe the terms and conditions of
employment provided for in the 1974 contract
with the Union or the practices prevailing prior to
November 20, 1975.
AMERICAN GYPSUM
COMPANY
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based on
a charge filed by District Council No. 3, United Cement,
Lime and Gypsum Workers International Union, AFL-
CIO, hereafter referred to as the District Council, on
August 24, 1976, as amended on September 13 and 23,
1976, the complaint in Case 28-CA-4012 was issued on
October 15, 1976. Based on a charge filed by said District
Council on September 23, 1976, as amended on November
4, 1976, the complaint in Case 28-CA-4047 was issued on
November 5, 1976. By order of the Regional Director for
Region 28 dated November 5, 1976, the above two cases
were consolidated for hearing. The complaints, as amended
during the course of the hearing, allege that American
Gypsum Company, hereafter referred to as Respondent or
Company, engaged in various acts violative of Section
8(a)(5) and (I) of the National Labor Relations Act, as
amended. Respondent, by its answers, denies, inter alia,
that it committed the unfair labor practices alleged.'
Pursuant to notice a hearing was held in Albuquerque,
New Mexico, on February 8, 9, 10, and 11, 1977, before
me, duly designated as Administrative Law Judge. Appear-
ances were entered on behalf of the General Counsel, the
District Council, and United Cement, Lime and Gypsum
Workers International Union, Local 419, and Respondent.
Briefs were timely filed on behalf of all of said parties. 2
Based on the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following:
I Other denials are discussed hereinbelow.
2 By motion dated March 22, 1977, Respondent moves to strike from
General Counsel's brief the two "attachments" which were appended and
references to said attachments. Inasmuch as said attachments are not part of
the record in this proceeding they will be disregarded as well as references
thereto in General Counsel's briefs. Although General Counsel has opposed
the motion, the motion is granted since, in addition to the above reason, said
attachments are not material to the resolution of the issue before me.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New Mexico corporation with its princi-
pal office and place of business in Albuquerque, New
Mexico, is engaged in the business of the manufacture and
sale of gypsum wallboard.
The parties entered into the following stipulation:
Respondent, during both the calendar year 1975 and
calendar year 1976, sold and had delivered gypsum
wallboard valued in excess of $50,000 directly to
customers located outside the State of New Mexico;
and, during the same periods of time purchased and
had delivered to its operations in New Mexico goods
and material valued in excess of $50,000, which were
delivered to it directly from suppliers and firms located
outside the State of New Mexico.
Respondent, however, denies that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, despite meeting the Board's
jurisdictional standards as indicated above. This denial is
predicated upon the contention in its brief that from
"November 20, 1975, to October 15, 1976," it was "not
doing business of any form or nature," and "that there is
no legal or statutory basis for asserting jurisdiction over
charges arising during the period when Respondent was
not, in any sense, an employer within the meaning of the
Act." For the reasons stated hereinbelow I find no merit in
Respondent's contention and conclude that Respondent,
during all times material herein, was an employer engaged
in commerce within the meaning of the Act, as alleged.
II. THE LABOR ORGANIZATION INVOLVED
United Cement, Lime and Gypsum Workers Interna-
tional Union, Local 419, is a labor organization within the
meaning of the Act.3
III. THE UNFAIR LABOR PRACTICES
A. The Bargaining Unit Involved
All production, maintenance, and shipping employees
employed by the Respondent at its Albuquerque, New
Mexico, location, excluding all other employees, office
clerical employees, truckdrivers, guards and supervisors as
defined in the National Labor Relations Act, as amended,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.4
B. Background Information
American Gypsum Company, prior to December 21,
1971, was a division of the Susquehanna Corporation. On
3 Although in its answer Respondent denied the allegation of this
conclusion based on lack of knowledge, upon motion of General Counsel
filed prior to the hearing Administrative Law Judge James T. Barker found
said denial to be a "sham" and ruled that the allegation "stand as admitted."
The record supports said finding and ruling.
4 See fn. 3. supra.
1292
AMERICAN GYPSUM COMPANY
said date the Company was purchased by E. M. McDowell,
Sr., and his son, and became a separate New Mexico
corporation. On July 24, 1974, the Respondent entered into
a collective-bargaining agreement with the Union covering
the employees in the above-described unit. Said agreement
contains the following:
ARTICLE XVIII
TERM OF AGREEMENT
After ratification by the members of the Local
Union, this Agreement shall become effective and
remain in full force and effect and be binding upon the
parties hereto from July 24, 1974, to and including July
31, 1976, and it shall continue in full force and effect
thereafter from year to year until either party on or
before May 31, of any year, beginning May 31, 1976,
gives written notice to the other party of its desire or
intention either to alter or modify or to terminate the
same. If such notice is given, the parties hereto shall
begin negotiations not later than July I in such year
and this Agreement shall continue in full force and
effect until completion and signing of a new Agree-
ment, provided, however, that after such negotiations
have continued without reaching an agreement until
expiration date in any year, then either party may
terminate this Agreement, at any time thereafter upon
notice. 5
It appears that commencing the latter part of 1973
Respondent began losing money and in about March 1975
management was turned over to Republic Housing
Corporation. It further appears that Respondent continued
to operate at a loss and eventually it ceased operating on or
about November 20, 1975, at which time all the bargaining
unit employees were laid off. It further appears that at that
time its accounts payable exceeded accounts receivable by
approximately $300,000 and it owed bank debts of
approximately $1,400,000. The only operations subsequent
to the layoff were in the sales of inventory. Charlie
Nevarez, who was the plant superintendent prior to the
layoff, was retained by Respondent as a guard.
C. Chronological Summary of Events
On March 10, 1976, there was a meeting between
representatives of the Union (Jack Hammond, president of
the Union and vice president of the District Council, and
Floyd Phillips and a Mr. Antinellis, representatives of the
District Council) and representatives of the Respondent,
McDowell and the company attorney, Charles Spann. The
meeting was held for the purpose of resolving outstanding
grievances arising prior to the layoff. Phillips credibly
testified that after resolution of the grievances there was a
discussion about working out problems at the plant so that
it could reopen. Phillips' uncontradicted and credited
testimony continues as follows:
" There is no evidence that either party gave a notice of termination in
accordance with the proviso in the last sentence of the abose-quoted article.
A. Mr. Spann said that he would like to see both
the Company and the Union work together in order to
get that plant reopened and back on a production basis.
Q. Was there any response by anyone from the
Union with regard to that?
A. Yes, sir. All of the representatives, President
Hammond, Representative Antinellis and myself cer-
tainly agreed that we wanted to do everything that we
could to sit down with the company and we advised
them at that time that we would be willing to do so at
any time, to try to work out whatever the problems are
with the agreement to get the plant going so we could
get our members back to work.
Q. Do you recall anything further about that
meeting with regard to an agreement?
A. No, sir.
Q. Were there any arrangements made for a future
meeting at that time?
A. They said they would discuss it and see what
they could do and contact President Hammnond, if there
was anything, if there was any need for a meeting, then
they would contact us for a meeting through President
Hammond and if so, sit down and see what could be
worked out.
At the Company's request a meeting was held on April
27, 1976. Phillips credibly testified without contradiction as
to what occurred at the meeting. His testimony commences
as follows:
Q. And who was present at that meeting?
A. For the Company, there was Mr. McDowell,
Sr.; Mr. McDowell, Jr.; Charlie Nevarez, plant manag-
er; Ms. Schneider, an attorney out of Tucson and Mr.
Rothschild, an attorney out of Tucson for the compa-
ny; and for the Union, there was President Jack
Hammond, financial secretary "Reed"; recording
secretary "Williams" and myself.
Q. And what transpired at that meeting?
A. At that meeting the attorneys, Ms. Schneider
and Mr. Rothschild, explained to us that they were
experts in the field of bankruptcy, Chapter II Bank-
ruptcy attorneys and that at that time the company was
behind on their payments to the bank here and they
were wanting to foreclose on the company and they
wanted to see what could be worked out with the
Union in order to get the plant reopened. I asked them
what it would take to get the plant reopened, that we
were there to work with them and we most definitely
did want to get the plant reopened and get our
members back to work.
Then followed a discussion of various "problems" the
Company wanted to resolve, such as foremen being
restricted from doing bargaining unit work. It further
appears that the company representatives wanted to
remove maintenance employees and lab employees from
the bargaining unit and make them salaried; wanted to
have two 12-hour shifts per day with overtime after 40
hours a week rather than three 8-hour shifts per day;
1293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted 34 employees and 40 supervisors (instead of 67 and
8 supervisors, the complement employed at time of
shutdown); and wanted to "combine the jobs," pay one
rate of pay, do away with all classifications and "have
anybody do any work that was necessary to be done." It
further appears from Phillips' credited testimony that the
union representatives strenuously objected to deleting the
maintenance workers and "people from the lab" from the
bargaining unit, stated that they thought some jobs could
be combined, and that they could not go along with
changing to 12-hour shifts. It also appears from Phillips'
credited testimony that the Company offered to show its
books to the Union, but the union representatives stated
that it was not necessary, that they "knew the company was
in bad shape." It was agreed that the Company would draw
up proposals with respect to their "problems" which would
be submitted to Phillips and then another "negotiation"
would be scheduled. It is noted at this point that it appears
from the record that the Union was closely affiliated with
the District Council and that one of the duties of Phillips,
as district representative, was to assist locals associated
with the Council, including the Union, in negotiating
contracts.
By letter dated May 4, 1976, signed by Phillips, district
representative, the District Council timely notified the
Company that the "Union" desired "to alter and/or
modify" the current collective-bargaining agreement be-
tween it and the Company, and offered to meet at the
Company's earliest convenience. 6 By letter dated May 18,
1976, the Company responded by suggesting a meeting on
May 31, 1976. By a series of letters and phone calls the
meeting was postponed, particularly because the Compa-
ny's proposals were not prepared and because, on June 3,
1976, Max Richards was retained as counsel by the
Company to represent it in negotiations. On June 9, 1976,
Richards called Phillips. 7 Both Phillips and Richards
testified to their conversation and there is no significant
conflict in their testimony. Following is a summary thereof
as related by Phillips:
A. Yes. Mr. Richards called and said that he would
have the draft ready and he would like to meet with me
and review the draft first before we came to Albuquer-
que and got into any negotiations. I told him at that
time that I couldn't sit down in negotiations on a one to
one basis or any other basis without the committee
being present. He said that this would not be a
negotiation, but we would sit down and just review
what was discussed here in Albuquerque in the
previous meeting. I suggested that we go ahead and
meet in Albuquerque and he said his schedule was quite
full and that we could either meet in Tucson or we
could meet in Apple Valley at my office. At that time
he said it was going to be a while before he could even
come to Apple Valley and it would be quite a while
before he could go to Albuquerque for negotiations as
'i Copies of the letter were apparently sent to Weaver, the International
Union's .ice president: Nevarez, as Respondent's plant manager: Ham-
mond. president of the Union: the Union's recording secretary, Williams;
arnd the Council's office.
I Richards credibly testified that he called Weaver to determine with
whom he should speak regarding negotiations and Weaver suggested
Phillips.
his schedule was quite full. So I agreed to meet him in
his office in Albuquerque or in Tucson.
Q. And did you in fact meet him there?
A. Yes, sir, I did.
Q. On what date?
A. The 14th I believe it was.
Richards and Phillips met in Richards' office in Tucson
on June 14 and both testified with regard thereto. Although
there are considerable variations in their testimony there
are no substantial conflicts. Summarized hereinbelow is the
substance of their meeting as gleaned from credited
portions of their testimony. Richards handed Phillips a
draft of an "interim agreement" which proposed to alter
considerably the current agreement for I year, and
thereafter restore said current agreement for a period of 90
days "in order that the Union may be restored to its former
position for the purposes of collective bargaining." Phillips
stated that he did not understand that they were there to
negotiate and that the draft changed "practically all of the
present labor agreement." Richards responded that "this is
what it is going to take to get the company back into
operation." They went over the agreement and Phillips
pointed out numerous items that he did not feel the Union
would go along with or that he would not recommend. It
appears that there was no provision for employees'
insurance coverage and Richards stated he had not
planned to include insurance, that he was not aware that
the Company was paying the full cost of insurance.
Richards offered to send him a copy of the policy which he
later did. Phillips said he would take the proposed draft
back to his office and send Hammond a copy of it.
Arrangements were made to meet in Albuquerque on June
25 and 26. Richards stated that he did not plan to have
McDowell at the meeting, that "he was too worked up over
the whole thing," and that when they were negotiating the
Union could make counterproposals and if he agreed with
them he would convince McDowell to go along. Further,
Richards asked who would be present representing the
Union, that he "would like to keep it small," and Phillips
told him that he had no control over who or how many the
Union had on its negotiating committee.8 Richards
testified that he suggested that they try to limit the number
on each side to four and that Phillips expressed no problem
with that. I am of the opinion that Richards' memory was
faulty at that point and I credit Phillips' version. (It is
noted that there were actually six men representing the
Union at the meeting, including Phillips, although there
were four persons representing the Company, and there is
no indication that there was any protest as to the number
representing the Union.)
The negotiating meeting was held, as scheduled, on June
25 and 26. The following testified with respect to the
meeting: Phillips; Charlie Nevarez, who had been designat-
ed plant manager by the Company at the time of the
negotiations; Edward Williams, who was appointed by
" It appears that the practice was for the principal officers of the Union
to be on the committee plus any others designated by the president. It also
appears that Hammond announced at one of the union meetings prior to
negotiations the makeup of the committee.
1294
AMERICAN GYPSUM COMPANY
Hammond as a member of the Union's negotiating meeting
and at the time of the hearing was employed by the
Respondent as a plant clerk; Hammond; and Richards.
Also, there were received in lieu of his testimony the
transcript of the testimony before the United States
District Court (at a proceeding for an injunction brought
by the Regional Director) of William Wesson and two
pretrial statements he gave to a Board agent. Wesson, who
is a friend of McDowell, was designated by the Company
as one of its bargaining representatives. He was unable to
testify, however, because of the recurrence of a serious
heart problem. No worthwhile purpose would be served in
reviewing the mass of evidence in the record with respect to
what occurred on June 25 and 26, since there is no material
conflict in the various versions presented and the details
are of no materiality. Rather, it appears that a brief
summary will suffice for the purpose of resolving the issues
herein.
Following is such a summary based on credited portions
of the evidence. Richards presented to the union represen-
tatives a slightly revised draft of the "interim agreement"
he had previously reviewed with Phillips during their
meeting on June 14. Both Phillips and Hammond testified,
and their testimony is credited, to the effect that when
Richards presented the draft he said that it was what the
Company needed and that he could tie the Union up in
litigation for 2 years. The draft was discussed during the
day of June 25 but little progress, if any, was made toward
a meeting of minds. When the meeting was resumed on the
morning of June 26, there again was little progress,
although the Union assured the Company that it wanted to
work out resolutions of the problems the Company
presented in order to make it possible for it to resume
operations. It was agreed that perhaps more progress could
be made if the number of participants were reduced to four
people. The reduced complement of negotiators consisted
of Phillips and Hammond for the Union and Richards and
Wesson for the Respondent.
Said four persons met in the afternoon of June 26 and
made some progress. Tentative agreement was reached on
a number of the Company's proposals, but the Union also
rejected a number of others, and others remained open.
Also, the Company made a few concessions. However, one
concession that there be three 8-hour shifts per day was
later withdrawn by the Company which insisted on its
proposal that it had to have two 12-hour shifts per day with
overtime only after 40 hours per week. The meeting ended
with the understanding that Richards would prepare
another draft and then there would be a further meeting of
the four-man group to consider it.
On June 27, 1976, Phillips and Hammond stated at a
union meeting that they "felt that we are going to get an
agreement."
At the suggestion of Richards, Phillips met with him in
Tucson on July 9, upon Richards' explanation "that he
wanted to sit down again and go over his draft with me,
prior to bringing the sub-committee in." 9 It appears that
Richards had not prepared a new draft of the Company's
proposals. It appears from credited portions of their
" The "sub-committee" apparently referred to Richards and Wesson for
the Respondent and Phillips and Hammond for the Union.
testimony that they agreed that any agreement reached
would be in the form of an informal "letter of agreement"
rather than a formal printed bargaining agreement. It
further appears that they reviewed the areas of agreement
and disagreement which had been covered in the "sub-
committee" negotiations, that Richards would prepare a
proposed agreement which he would send to Phillips, and
that when counterproposals were submitted by the Union
at a negotiation session "in Albuquerque" he, Richards,
would take them up with McDowell.
On July 27, 1976, Richards called Phillips. Both testified
to their conversation and there is a substantial contradic-
tion in their testimony as to their conversation. They both
agree in their testimony that Richards stated he was
sending copies of a proposed agreement signed by
McDowell. As to the contradiction in their testimony
Phillips testified as follows:
A. He told me that he was sending the Company's,
the way I recall it, firm and final offer to the office and
there was no need to meet any more in negotiations as
the Company had gone as far as they could go, Mr.
McDowell had signed the letter of agreement and that
would be the agreement if we were to have an
agreement.
Q. What did you say, if anything?
A. I told him that, it was a shock to me first, I
didn't tell him that it was a shock to me, but it was. I
told him that there was no way that I could really
comment on it until I got back to the office, but that it
was my understanding from the last time that we had
talked to each other that we were going to go back into
negotiations in Albuquerque, New Mexico.
Q. Did he respond to that?
A. He said this was as far as the company was
going to go.
On the other hand, Richards denied that he said the
proposed agreement was a "final" proposal but that he did
say it was a "firm" proposal. While he did not categorically
deny Phillips' testimony that he said there was no need for
any further negotiating meetings, he, in effect, contradicted
it by testifying that they agreed Phillips would send back
counterproposals if he had any. Of the two, Phillips was the
more convincing witness and, therefore, his testimony is
credited. Moreover, the language in Richards' letter dated
the same day which accompanied the proposed agreement
tends to support Phillips' version. The language referred to
in said letter is as follows: "Naturally, I respect the fact
that your organization has the legal right to make
counterproposals to reject the present company proposal.
However, it is my best judgment that further major
concessions on the part of the Company will not be
forthcoming, and that the present proposal represents the
best offer which the Company's foreseeable financial and
operational capabilities will permit." In my opinion this
must reasonably be construed as intending to indicate that
any future negotiations would be fruitless. It is noted that
in his letter Richards stated that, "With minor exceptions,
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is my opinion that the only two cases in which I can
anticipate difficulty on your part in securing ratification by
the employees are those of the hours of work [two 12-hour
shifts per day for 4 days without overtime until after 40
hours per week] and the latitude retained by the Company
for the retention and selection of individuals in the
positions of Mechanic A and Electrician A."
By letter dated August 2, 1976, Phillips wrote to Richards
acknowledging receipt of the "firm and final offer"
represented by the proposed agreement. He further stated
that "there is no way" that he could recommend it to the
members of the Union and added that "the Union is ready
and willing to sit down in negotiations with you and the
other Company Representatives, at any time, to try and
work out an agreement, that both the Union and the
Company can live with."
Richards replied by letter dated August 18, 1976, in
which he stated that the proposed agreement was incorrect-
ly characterized as a "firm and final" offer, but that in view
of Richards' "unequivocal declaration" that he will not
recommend it to the members of the Union, "we have
concluded thatyour view of 'firm and final' is one which we
must adopt." The letter also, in effect, charges that the
Union has made no concessions to the Company's
demands. This does not appear to be supported by the
record or for that matter by Richards' previous letter in
which he indicated there were only two areas in the
Company's proposals which might not be acceptable to the
Union's members. It further states that any further attempt
to bargain "is obviously barred by an impasse which your
organization has created through its failure to bargain in
good faith." The letter continues as follows:
More importantly, your organization's conduct,
constitutes, in our legal opinion, a failure to your duty
of representation and a constructive abandonment of
your status as bargaining representative for the employ-
ees.
Accordingly, this letter will officially advise you of
the present position of the company:
I. It is the company's position that the contract of
July 24, 1974 has now expired and that a total and
complete impasse to further negotiations has been
created by your unilateral actions.
2. The company, by your actions, has arrived at a
good faith doubt that your organization has any further
intention of representing the desires of a majority of the
employees covered, and will henceforth refuse to
"' It is noted that in testifying on cross-examination Richards stated with
respect to the letter of August 18 as follows: "We were intending to
withdraw recognition from District Council No. 3, who I thought was acting
for Local 419. .... At that point in time. I do not believe we were intending
to withdraw recognition from Local 419, no, sir." However, in his pretrial
alliidavit it is stated:
Til: R:I'O)R IER:
Paragraph No. 2: That the actions reflected in the letter of August 2.
1976. created the good faith doubt on the part of the company that
Local Union No. 419 and its agents had any further intentions of
representing the desires of a majority of the employees within the
bargaining unit and that based upon this abandonment of representa-
tion, that the company would, henceforth, refuse to accord the union
any recognition as a bargaining representative.
accord your organization any recognition as a bargain-
ing representatives
3. We note that upon expiration of the contract,
serious physical damage was done to the plant and its
equipment. In the event that any responsibility for this
action or future actions of this nature can be attributed
to your agents, the company fully intends to seek both
actual and punitive damages together with criminal
prosecution.
4. With dispatch of this letter, each affected
employee will be sent a copy of the company's offer
together with a copy of your letter of August 2, 1976,
and this reply."l
The company reserves the right to take any neces-
sary unilateral and legal actions to protect its financial
interest which have heretofore been adversely affected
by the actions of your organization.
As stated hereinabove an unfair labor practice charge
was filed on August 24, 1976. Shortly thereafter Phillips
called Richards. Phillips' testimony as to their conversation
is as follows:
A. I called Mr. Richards to try to get back into
negotiations as I didn't think anybody was going to
gain on the approach we were now taking. I requested
that we sit down in negotiations here in Albuquerque
and see what, see if we couldn't work out an agreement
that both of us could live with, both of us being the
Union and the Company, in getting the plant back into
operation and our employees, our members back to
work. He told me that he would not meet in negotia-
tions unless the Union withdrew all of the NLRB
charges that were filed against the Company and that
there really wasn't any need to get back into negotia-
tions anyway as the Company had made all of the
concessions that they were going to make and any other
concessions would have to be made by the Union.
Q. Did you say anything to that?
A. I told him that I could not withdraw the
charges, that I felt they had to continue their course.
On the other hand Richards testified to the conversation
as follows:
He asked me if there was any way we could settle
this matter. And, I said, "Well, I thought we had
resolved this matter. It was bargained in good faith and
Based on the contradictory statement in his affidavit and his expertise in the
field of labor law, his above-quoted testimony is not credited. The
distinction he attempted to draw by his testimony (of withdrawing
recognition from the District Council as "acting for Local 419," but not
from Local 419) is not credible in view of the language contained in the
letter written by an attorney experienced in the field of labor law which does
not make the distinction that he made in his testimony. This analysis of a
portion of his testimony is one of the reasons I found him to be a less
convincing witness than Phillips. It is noted that in its brief Respondent
contends that "there has been no evidence Respondent has ever withdrawn
recognition from Local 419."
u By undated letter from McDowell addressed "To Our Friends" this
action was taken.
1296
AMERICAN GYPSUM COMPANY
we received no proposals and I don't know where we go
from here."
I said, "Now you've filed these charges. I would like
to get a couple of things straight." I asked him, I said,
"Are you going to submit our July 27th proposal to the
membership, the people?"
He said, "I will not submit it, I'm not going to submit
it." I also asked him, oh, then he said, "The only
concession that the union has ever been willing to make
here is to extend the terms of the expired agreement for
the period of one year."
I said, "Well, that's just a total departure from
everything we've been doing. In view of that, I don't see
any possibility of settling it, because I think you've
created an impasse here."
Again I find Phillips the more convincing witness and
credit his testimony as to the conversation. It is noted that
Phillips categorically denied making the statement attrib-
uted to him by Richards about the only concession the
Union was ever willing to make. None of the testimony as
to what occurred at the negotiation sessions on June 25 and
26, or with respect to conversations between Richards and
any union representative, or previous correspondence
indicates that the Union ever took such a position, and as a
matter of fact Wesson admitted that in the sessions he
attended the Union did not indicate it was only willing to
extend the 1974 agreement. Rather, according to Wesson,
there were a number of areas of agreement as well as
disagreement.
By letter dated September I to Phillips, Richards stated,
inter alia, that unless the unfair labor practice charge is
withdrawn within 10 days "the Company must retract any
and all offers previously made." He also advised that such
retraction would be effected "in the event of any picket
lines, handbilling, or other interference with the conduct of
the business of the Company." The letter also stated that in
his (Richards') legal opinion the union representatives are
breaching their duty of fair representation and consequent-
ly abandoning the Union's status as bargaining representa-
tives.
By letter dated September 8 to Richards, Phillips
reaffirmed the Union's willingness to negotiate an agree-
ment.
Turning now to the reopening of Respondent's plant and
hiring of employees, it appears that McDowell had made
contact with a John Hudspeth about giving financial aid to
the Company and that McDowell was sufficiently encour-
aged to inform Nevarez (plant manager designate, as
indicated above) in the latter part of August that the plant
was going to reopen in the near future and he instructed
him to make arrangements to hire a staff. Nevarez met with
a group of men who had been foremen and one whom he
intended to make a foreman and told them that the
Company was "attempting to open up with whoever
decided to return to work," that they would be foremen,
and that "there was going to be no union contract."
Through these men and by word of mouth, laid-off
employees and apparently others were told that if they
wanted to work for the Company they would have to make
applications and the Company started receiving applica-
tions for employment toward the end of August. It appears
that each man who was hired was required to sign a
document which indicated that he was accepting employ-
ment at a specified hourly rate of pay and that he
understood his employment was "terminable at the will of
the Company." It further appears that every applicant was
informed either that he would be working "nonunion" or
"without a union contract." It also appears that at least
some of the men started working on September 8. The
parties stipulated as follows:
Since at least on or about September 10, 1976,
Respondent unilaterally: (a) changed its past practice
by failing to recall employees by seniority and by
failing to comply with contract provisions requiring the
recall of employees by seniority; (b) changed the recall
procedure by requiring employees to fill out applica-
tions for employment and to take a physical examina-
tion; (c) abolished seniority and other rights of
employees recalled from layoff by treating recalled
employees as new employees without seniority or other
rights; (d) changed wages; (e) abolished paid holidays,
paid vacations, and "callout time"; and (f) refused to
confer with the Union over grievances.?2
It is noted at this point that some of the men who had
been laid off consulted union representatives about the
appropriateness of their applying for work and were told
that there was no objection to their doing so. It is also
noted at this point that the terms and conditions of their
employment did not conform with the terms and condi-
tions set forth in Respondent's aforementioned proposed
agreement (which Phillips refused to recommend).
By letter dated September 8, 1976, Phillips wrote to
Richards as follows:
Apparently, due to your lack of experience in Labor
Union negotiations, it appears from your August 18
and September 1, 1976 letters, that my August 2, 1976
letter needs some clarification.
My letter stated: "I have reviewed the proposal in its
entirety and find that there is no way that I could
recommend this to the members of Local Union No.
419."
A membership meeting was scheduled on or about
August 20, 1976, to report the Company's firm offer,
dated July 27, 1976, and your letter of August 18, 1976,
in which what I stated in my August 2, 1976 letter to
you: "That there is no way that I could recommend this
to the members of Local Union No. 419" means - that
I am not going to recommend your firm offer to the
members, as a basis of settlement.
Again, as mentioned in my August 2, 1976 letter, and
to reaffirm [sic], "the Union is ready and willing to sit
down in negotiations with you and the Company
Representatives, at anytime to try and work out an
agreement that both the Union and the Company can
live [with ]."
:' Further. it appears that there was a change in the insurance plan.
1297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated September 15, 1976, Phillips again wrote
to Richards requesting a meeting to negotiate a contract
between Respondent and the Union, and also advising him
that "The Company's last offer was rejected by a
unanimous vote, by the members of Local Union No. 419,
on September 12, 1976." By letter dated September 20,
Richards replied, acknowledging receipt of Phillips' letter
and stating that the "offer" which was rejected on
September 12 was retracted on September 10, "due in part
to your refusal on two separate occasions to present it to
the membership..." Richards also stated in his letter as
follows:
As I have previously advised you, American Gyp-
sum Company has a good faith doubt that your
organization represents a majority of its employees. In
keeping with this belief, I must interpret your demand
for a meeting for the purposes of negotiating to, in fact,
be a demand for union recognition. In this regard,
American Gypsum Company respectfully declines any
such meeting until your organization has been properly
certified by the National Labor Relations Board. I am
sure that you are familiar with the procedures for
obtaining such a certification.
By letter dated October 4, 1976, Kent Weaver, vice
president of the District Council, wrote to McDowell and
advised him that the Union represents the Company's
employees "legally, sincerely and in spirit," and requested
a bargaining session on October 27, 28, and 29, in
Albuquerque. By letter dated October 12, Richards replied
on behalf of McDowell in which he in effect reiterated the
positions he had previously stated in letters to Phillips, and
offered to meet with Weaver on a "personal one-to-one
basis" to determine whether the "differences and questions
which now exist can be resolved." By letter dated October
27, Weaver advised McDowell, in effect, that it would be
inappropriate for him to meet with Richards as Richards
suggested and again requested a bargaining session. This
letter apparently was returned to Weaver marked "re-
fused," so Weaver sent it to Richards by covering letter
dated November 9, 1976.
While there was further correspondence the letters do
not relate to the efforts of the Union to bargain with
Respondent and are not material to the issues herein.
Concluding Findings
Re Board's Jurisdiction over Respondent
Respondent, by its answer, denies that it is an employer
engaged in commerce during all times material herein and
argues in its brief that, despite the fact that it meets the
Board's annual monetary jurisdictional standards, since it
was shut down and not engaging in commerce when the
unfair labor practices were alleged to have occurred, "there
is no legal or statutory basis for asserting jurisdiction over
charges arising during the period when Respondent was
not, in any sense, an employer within the meaning of the
Act." The cases cited by the Respondent do not support its
" However. in that case Respondent admitted being an employer
engaged in commerce within the meaning of the Act and, therefore, the issue
raised herein was not considered.
position, but neither does the case cited by General
Counsel refute it. Research has failed to reveal any decision
which is dispositive of this issue, although there are cases in
which the Board has taken jurisdiction and found unfair
labor practices in similar situations, e.g., Pepsi-Cola
Bottling Company of Beckley, Inc., 145 NLRB 785 (1964).13
I am persuaded that Respondent's position is without
merit by reason of the consequences which would flow
from a holding sustaining said position. The Board has
long asserted jurisdiction based solely upon the annual
monetary standards which are admittedly met herein. If
Congress or the Board intended that the Act were not to
apply to an employer meeting said standards merely
because it was not operating at the time the unfair labor
practices were committed, it would follow that any time an
employer was shut down (whether for seasonal, economic,
or other reasons) it, as well as a labor organization involved
with it, would be free to ignore the provisions of the Act. I
am convinced that neither the courts nor the Board would
accept such an interpretation of the intent of Congress in
passing the Act and it would certainly not effectuate the
purposes of the Act to so interpret it.
Re the Unfair Labor Practices
According to the findings of fact hereinabove there was
only one formal bargaining session (on June 25 and 26). It
appears that some progress was made in the latter part of
June 26, but there remained some areas of disagreement, as
well as some matters left unresolved. Thereafter Phillips
met with Richards to go over Respondent's proposed
agreement which was not, however, ready at the time. This
meeting had been suggested by Richards not as a
negotiation session but as a means of preparing for the next
negotiation session. It was agreed at that time that
Richards would prepare a draft to be submitted at the next
negotiation session at which the Union's counterproposals
thereto could be considered. No such session was held,
however, for on July 27, 1976, Richards sent three copies of
an agreement signed by McDowell, which in a telephone
conversation that day Richards told Phillips was the
Company's "firm and final" offer and that, since it was as
far as the Company could go, there was no need to meet in
any more negotiations. Phillips responded by letter dated
August 2 that he could not recommend the agreement to
the union membership and offered to meet to try to work
out an agreement "that both the Union and the Company
can live with." Richards replied by letter dated August 18
that while his offer was incorrectly characterized as firm
and final, in view of Phillips' declaration that he would not
recommend the agreement, Phillips' characterization of the
proposed agreement as "firm and final" is "one which we
must adopt." Said letter further states that any further
attempt to bargain "is obviously barred by an impasse
which your organization has created through its failure to
bargain in good faith." Said letter also charged that "your
organization's conduct constitutes a failure of your duty of
representation and constructive abandonment of your
status as bargaining representative for the employees";
1298
AMERICAN GYPSUM COMPANY
"that a total and complete impasse to further negotiations
has been created by your unilateral actions"; and that the
Company has a "good faith doubt that your organization
has any further intention of representing the desires of a
majority of the employees covered and will henceforth
refuse to accord your organization any recognition as a
bargaining representative."
All of the positions of Respondent and accusations set
forth in Richards' letter of August 18, it appears from the
record, must have been predicated solely on the fact that
Phillips stated he would not recommend Respondent's
proposed agreement to the union membership, since there
is no other probative evidence in the record which can
reasonably be construed as a contributing factor. I am
unable to comprehend how Phillips' refusal to recommend
the proposed agreement furnished Respondent with a basis
for arriving at the above-outlined positions and charges
stated in Richards' August 18 letter. No cases were cited
which support Respondent's said positions and charges
and research failed to reveal any applicable precedent.
It appears that, in effect, Respondent by said August 18
letter and its subsequent letters in reply to the Union's
request for further negotiations had adopted a "take-it-or-
leave-it" attitude. It appears that, while it was refusing to
recognize the Union as the bargaining representative, at
the same time it was willing to do so if the Union accepted
its proposed agreement. Moreover, as it threatened to do in
its August 18 letter, it distributed to the laid-off employees
copies of its proposed agreement and correspondence
relating to it. Such conduct constitutes a refusal to bargain
in good faith in violation of Section 8(a)(5) and (1) of the
Act under the principles set forth in General Electric
Company, 150 NLRB 192, 194 (1964). Moreover, its
withdrawal of recognition of the Union was not based on a
good-faith doubt based on objective considerations, there
being no evidence of any objective considerations. Also it
appears that the withdrawal was predicated upon the
Union's abandonment of its obligation to represent the
employees fairly, but there is no evidence which would
support this reason.14
In its brief Respondent questions the authority of the
Union's bargaining committee because it "had not been
approved as required by the Local Union's Bylaws and
Constitution," but it cites no cases on the point. It does not
appear that an employer can question the appropriateness
of a union's representatives on the basis that they have not
been selected in accordance with the Union's internal
procedures. Harley Davidson Motor Co., Inc., AMF, 214
NLRB 433, 439 (1974).
As stated hereinabove, the record will not support a
finding that Respondent was justified in claiming that an
impasse was reached because of the Union's "failure to
bargain in good faith." Therefore, I find that there is no
basis for concluding that the Respondent was justified in
implementing its proposals without further consultation
with the Union.'5 Consequently, I am led to conclude that
the terms and conditions of employment it imposed
without consultation with the Union constituted further
" This point is discussed more fully hereinbelow.
I' Even if it were assumed that an impasse had been reached after good-
faith bargaining. it appears that the terms and conditions of employment
violations of Section 8(a)(5) and (1) of the Act. Thus, every
one of the changes in the terms and conditions of
employment including the failure to recall employees
according to seniority was violative of the Act. The
Respondent's defense that General Counsel failed to prove
that any employee suffered a loss by reason of said failure
to recall them is of no merit. The loss, if any, is a matter to
be determined in the compliance stage of the case.
One of the defenses raised by Respondent with respect to
the unilateral changes it made is that it was motivated by
economic necessity because of its financial difficulties. This
defense is without merit. Oak Cliff-Golman Baking Compa-
ny, 202 NLRB 614, 616 (1973).
Another defense raised by Respondent is that the Union
"waived its rights" to object to the unilateral changes since
it was aware of the changes and acquiesced in them
(apparently by advising its members to apply for employ-
ment). There is no merit in this defense. First of all, both
prior to, during, and after the changes had been made the
Union repeatedly asked Respondent to meet and bargain
with it, and, second, the alternatives suggested by the
Respondent in its brief, such as advising its members not to
return to work and resort to picketing, would have resulted
in an unreasonable hardship upon them of going without
work. Certainly working or permitting employees to work
under conditions that constitute unfair labor practices
cannot and should not be construed as a waiver of the
unfair labor practices. The cases cited by Respondent in
support of this defense are not applicable to the facts in this
case.
Finally, the Respondent argues that "the union agents
breached their duty of fair representation and constructive-
ly abandoned their status as collective-bargaining represen-
tatives." In effect, Respondent's argument appears to be
that Phillips, as representative of the District Council and
acting as agent for the Union, deliberately frustrated the
Union's acceptance of Respondent's proposed agreement
in order to protect the District Council's "vested interests
. . . in other contracts with other companies." The facts,
however, do not support this contention. One of Phillips'
responsibilities as a representative of the District Council
was to assist Local 419 in its negotiations and serve on its
negotiating committee. It appears that after the June 25
and 26 negotiating session it was Richards who requested
Phillips to meet with him to prepare for the next session
and it further appears that there was agreement that the
problem of other contracts (between other locals and other
employers) could be avoided by using the form of a "Letter
of Agreement." Further, it appears that Phillips cooperated
with Richards in trying to resolve the problems standing in
the way of an agreement. In sending the agreement to
Phillips, Richards stated in his letter that he realized that
there were at least two areas which might well prevent the
Union's acceptance of it. Therefore, Phillips' unwillingness
to recommend its acceptance could not reasonably be
construed as a deliberate attempt to block a more faorable
agreement with Respondent than other employers had with
other locals. Phillips credibly testified that it was his
Respondent imposed did not conform with the terms and conditions it had
proposed.
1299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understanding with Richards that the proposed agreement
which Richards was to send him was to be considered at a
further negotiation session with other members of the
Union's committee (representatives of Local 419) also
present. Thus, it is apparent he was not trying to take over
control of the negotiations for the Union and frustrate the
reaching of an agreement. I am of the opinion that
Respondent's argument is based on neither a sound factual
or legal basis. The cases cited by Respondent in support of
its argument are factually so dissimilar to the facts in this
case that they offer no aid. In any event, as stated
hereinabove, I find that Respondent withdrew recognition
from the Union and not merely recognition of Phillips or
the District Council as an agent of the Union. Even if it
were assumed that Respondent had a good-faith doubt of
Phillips' motives, I am not persuaded that this would
furnish a lawful basis for withdrawing recognition from the
Union.
General Counsel contends that Respondent further
violated Section 8(a)(5) and (1) of the Act by refusing to
meet and bargain with the Union "unless the Union's
negotiating committee was limited to one member." This
apparently refers to Richards' offer by letter dated October
12 to meet with Weaver on a "personal one-to-one basis."
It appears that Richards was not offering to meet with
Weaver for the purpose of bargaining over a contract
between the Company and the Union but, rather, merely
for the purpose of exploring with him whether bargaining
could be resumed on a basis acceptable to the Company.
Consequently, I do not believe Richards' request consti-
tuted an attempt on the part of Respondent to limit the
Union's "negotiating committee" to one member, as
contended by General Counsel.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its
operations set forth in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor
practices found herein and take certain affirmative action,
as provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that Respondent violated Section
8(a)(5) and (I) of the Act, commencing on August 18, 1976,
and continuing to date, by withdrawing recognition of the
Union as the exclusive bargaining representative of its
employees in the above-described appropriate bargaining
unit, and by refusing to bargain in good faith with the
Union as their representative with respect to a collective-
bargaining agreement covering said employees, it will be
recommended that Respondent be ordered to recognize the
Union as the collective-bargaining representative of its said
employees, and, upon request, bargain in good faith with
the Union with respect to a collective-bargaining agree-
ment covering the employees in said bargaining unit and, if
an understanding is reached, embody such understanding
in a signed agreement.
It further having been found that Respondent violated
Section 8(a)(5) and (1) of the Act, commencing on or about
September 8, 1976, and continuing to date, by unilaterally
changing the terms and conditions of employment of
employees in said bargaining unit, it will be recommended
that Respondent be ordered to restore the terms and
conditions of employment which existed prior to said
changes; reinstate any laid-off employees who were not
recalled and who would have been had Respondent not
failed to recall its employees in order of seniority; make
said employees and any others whole for any loss they may
have suffered by reason of said failure to recall them in
order of seniority; and make all employees, past and
present, whole for any loss they may have suffered by
reason of the unilateral changes in their terms and
conditions of employment. Backpay shall be computed in
accordance with the formulas set forth by the Board in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plum5ing & Heating Co., 138 NLRB 716 (1962).
In view of the extensive effect upon employees of
Respondent's unfair labor practices a broad order will be
recommended.
The District Council and the Union have requested that
a "Tiidee Remedy" (Tiidee Products, Inc., 194 NLRB 1234,
1236-37 (1972)) be imposed upon Respondent. I am not
satisfied that Respondent's defense can be characterized as
"frivolous," the criterion required for such a remedy.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
I. Respondent is, and has been at all times material
herein, an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
3. The above-described bargaining unit is an appropri-
ate bargaining unit within the meaning of Section 9(b) of
the Act.
4. Since at least July 24, 1974, and at all times material
herein, the Union has been, and is now, the exclusive
bargaining representative of the employees in the aforesaid
unit.
5. Respondent violated Section 8(a)(5) and (1) of the
Act, commencing on August 18, 1976, and continuing to
date, by withdrawing recognition of the Union as the
exclusive bargaining representative of Respondent's em-
ployees in the aforesaid unit, and by refusing to bargain in
good faith with the Union as their representative with
respect to a collective-bargaining agreement covering said
employees.
6. Respondent violated Section 8(a)(5) and (1) of the
Act commencing on or about September 8, 1976, and
continuing to date by unilaterally changing the terms and
1300
AMERICAN GYPSUM COMPANY
conditions of employment of its employees as provided for
in the 1974 collective-bargaining agreement and as have
been established by past practice, prior to November 20,
1974, including the failure to recall employees in accor-
dance with their seniority.
7. General Counsel has failed to prove by a preponder-
ance of the evidence that Respondent violated the Act by
refusing to meet and bargain with the Union "unless the
Union's negotiating committee is limited to one member."
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 16
The Respondent, American Gypsum Company, Albu-
querque, New Mexico, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Refusing to recognize United Cement, Lime and
Gypsum Workers International Union, Local 419, as the
exclusive bargaining representative of its employees in the
following described appropriate bargaining unit:
All production, maintenance and shipping employees
employed at its Albuquerque, New Mexico location,
excluding all other employees, office clerical employ-
ees, truckdrivers, guards and supervisors as defined in
the National Labor Relations Act.
(b) Refusing to bargain in good faith with said Union
with respect to a collective-bargaining agreement covering
the employees in said bargaining unit.
(c) Continuing to impose terms and conditions of
employment which are not consistent with those set forth
in its 1974 agreement with said Union and with practices
followed prior to November 20, 1975.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights protected
under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Immediately recognize the aforesaid Union as the
exclusive bargaining representative of its employees in the
above-described bargaining unit.
(b) Upon request, bargain in good faith with said Union
with respect to a collective-bargaining agreement covering
the employees in said bargaining unit and, if an under-
"- 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, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
standing is reached, embody such understanding in a
signed agreement.
(c) Immediately restore to the employees in said unit the
terms and conditions of employment set forth in its 1974
contract with the Union and the practices which existed
prior to November 20, 1975.
(d) Immediately reinstate any employees who were not
recalled to work upon the reopening of its plant in
September 1976 in accordance with their seniority and
make them whole for any loss they may have suffered by its
failure to recall them.
(e) Make whole any employee who was reemployed after
the plant reopened in September 1976, but suffered a loss
because he was not recalled in proper order of seniority.
(f) Make whole all employees, past and present, who may
have suffered a loss by reason of Respondent's failing to
observe the terms and conditions of employment provided
for in the 1974 contract with the Union or the practices
prevailing prior to November 20, 1975.
(g) The aforesaid employees whom Respondent is
ordered to make whole for losses suffered by them shall be
made whole in accordance with the manner set forth in the
section hereinabove titled "The Remedy."
(h) 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, as well as the determination of the
terms and conditions of employment which are ordered to
be restored.
(i) Post at its place of business in Albuquerque, New
Mexico, copies of the attached notice marked "Appen-
dix." '7 Copies of said notice, on forms provided by the
Regional Director for Region 28, after being duly signed by
an authorized representative of Respondent, shall be
posted by 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(j) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
'7 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 bN 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."
1301