American Sink Top & Cabinet Co.

National Labor Relations Board - Board Decisions

May 21, 1979

242 N.L.R.B. 408 (N.L.R.B. 1979)

DECISIONS OF NAFIONAL LABOR RELATIONS BOARD
American Sink Top & Cabinet Co., Inc. and Millmen-
Cabinet Makers Industrial Carpenters Union Local
No. 550, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Cases 32-CA-977,
32-CA-1163, and 32-RM-33
May 21, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On January 10, 1979, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent and the Charg-
ing Party filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We adopt the Administrative Law Judge's findings
that Respondent violated the Act by encouraging and
inducing its employees to prepare and sign a decerti-
fication petition, by unlawfully interrogating an em-
ployee, and by unilaterally disavowing the post-con-
tract operation of the grievance procedure. We are
modifying his recommended Order, however, requir-
ing processing of the Union's grievance over the ter-
mination of Richard Davis under the grievance and
arbitration procedure of the expired contract, includ-
ing arbitration if appropriate.
The Administrative Law Judge relied on The Hil-
ton-Davis Chemical Company, 185 NLRB 241 (1970),
to support his ruling that Respondent does not have
to submit to the arbitration procedure of the expired
contract. Hilton-Davis held that parties are not re-
quired to submit grievances to arbitration during the
post-contract hiatus in the event that the grievance
process does not settle the dispute before that stage.
The rationale in Hilton-Davis [at 242] was that "arbi-
tration is, at bottom, a consensual surrender of the
economic power which the parties are otherwise free
to utilize." Inasmuch as the agreement to arbitrate is
a matter of mutual consent, the Board reasoned, the
lapse of that agreement due to contract expiration is a
bar to the agreement's enforcement.
In Nolde Brothers, Inc. v. Local No. 358, Bakery &
Confectionery Workers Union, AFL-CIO, 430 U.S.
243 (1977), however, the Supreme Court held that,
where the parties to a collective-bargaining agree-
ment have agreed to subject certain matters to a
grievance and arbitration process, "the parties' obli-
gations under their arbitration clause survive[s] con-
tract termination when the dispute [is] over an obliga-
tion arguably created by the expired agreement." Id.
at 252. That obligation is not terminated merely by
the parties' failure to expressly cover this situation.
As the Court stated generally in Nolde, in the "ab-
sence of some contrary indication, there are strong
reasons to conclude that the parties did not intend
their arbitration duties to terminate automatically
with the contract." Id. at 253.
The contract herein expired on May 1, 1978. On
July 24, 1978, Respondent discharged Richard Davis.
On July 27, 1978, the Union, by letter, demanded that
Respondent commence a grievance hearing in the
matter of Davis whose discharge it claimed violated
the contract. Respondent refused the Union's request,
stating that "inasmuch as we do not have a valid
union contract, we do not utilize the grievance proce-
dure in any termination." The expired contract pro-
vided for a grievance committee and, in the event of
deadlock at the committee level, referral to arbitra-
tion. The Administrative Law Judge found an 8(a)(5)
violation, but did not order arbitration.
The grievance's basis is "arguably"-at least-the
contract, and there is no reason to conclude that the
parties had intended the arbitration provisions to end
with the contract's term. In light of Nolde, we shall
order the arbitration of the discharge of Richard Da-
vis if appropriate.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
American Sink Top & Cabinet Co., Inc.. Hayward,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as modified below:
1. Substitute the following for paragraph 2(a):
"(a) Upon request, bargain collectively with Local
550 as the exclusive bargaining representative of all
employees in the appropriate unit described above
concerning rates of pay, hours of work, and other
terms and conditions of employment, including the
termination of Richard Davis under the prevailing
grievance and arbitration procedure; and embody
any understanding reached in a signed document."
2. Substitute the attached notice for that of the
Administrative Law Judge.
242 NLRB No. 53
408
AMERICAN SINK TOP & CABINET CO.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act, as amended, and has ordered us
to post this notice. We intend to abide by the follow-
ing:
The National Labor Relations Act gives all em-
ployees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity ex-
cept to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become
union members.
WE WILL NOT change prevailing terms and
conditions of employment without first giving
Millmen-Cabinetmakers Industrial Carpenters
Union Local 550, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, a
chance to bargain over such changes, and WE
WILL NOT otherwise refuse to bargain collectively
with Local 550 as the exclusive bargaining repre-
sentative of our employees in this appropriate
unit:
All production and maintenance employee
employed at our Hayward, California, facility;
excluding all other employees, office clerical,
guards, watchmen, executives and supervisors
as defined in the Act.
WE WILL NOT encourage and induce our em-
ployees to prepare and sign petition expressing
their desire no longer to be represented by Local
550 or any other labor organization, nor will we
otherwise unlawfully solicit our employees to
abandon their support of any labor organization.
WE WILL NOT interrogate employees whether
anyone from a labor organization has been "har-
assing" them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them under Section
7 of the Act.
WE WILL, upon request, bargain collectively
with Local 550 as the exclusive bargaining repre-
sentative of all employees in the appropriate unit
described above concerning rates of pay, hours
of work, and other terms and conditions of em-
ployment, including the termination of Richard
Davis under the prevailing grievance and arbi-
tration procedure; and embody any understand-
ing reached in a signed document.
AMERICAN SINK TOP & CABINET Co., INC.
DECISION
I. STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This con-
solidated matter was heard before me in Oakland, Califor-
nia, on November 2, 1978.
The charge in Case 32-CA-977 was filed on June 1, 1978,
and that in Case 32-CA-1163 on August 18, both by Mill-
men-Cabinetmakers Industrial Carpenters Union Local
550, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Union). An amended consolidated
complaint, covering both cases and superseding an earlier
complaint that had issued in Case 32-CA-977, issued on
September 25. It alleges certain violations by American
Sink Top & Cabinet Co., Inc., (Respondent)' of Section
8(a)(1) and (5) of the National Labor Relations Act (Act).
An election in Case 32-RM-33 was held on May
26, 1978, among Respondent's employees in this unit:
All production and maintenance employees employed
by Respondent at its Hayward, California, facility; ex-
cluding all other employees, office clerical, guards,
watchmen, executives and supervisors as defined in the
Act.[2]
The election derived from a petition filed by Respondent on
February 10, 1978, and a Stipulation for Certification Upon
Consent Election approved by the Regional Director for
Region 32 on March 31. The election tally was three votes
for and three against the Union.
The Union filed objections to the conduct of the election
on May 31, 1978. By an order dated August 8, the Board
adopted the report of the Acting Regional Director recom-
mending that all but one of the objections be overruled and
that the other be heard before an administrative law judge
in consolidation with the hearing in Case 32-CA-977 be-
cause of the similarity of issues. The Regional Director ac-
cordingly issued an order on August 17 consolidating Case
32-CA-977 and Case 32-RM-33 for purposes of hearing;
and, coincident with the issuance of the amended consoli-
dated complaint on September 25, issued a further order
consolidating those two matters with Case 32-Ca- 1163.
' Respondent's name as thus set forth is in accordance with the General
Counsel's unopposed motion to amend, made and granted during the hear-
ing.
2 The complaint alleges, the answer admits, and it is concluded that this is
an appropriate unit for the purposes of the Act.
409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Post-trial briefs were filed for the General Counsel, Respon-
dent, and the Union.
II. JURISI)I('IION
Respondent is a California corporation engaged in the
manufacture of sink tops and cabinets at a plant in Hay-
ward. It annually purchases materials of a value exceeding
$50,000 directly from outside California, and concededly is
an employer engaged in and affecting commerce within
Section 2(2), (6), and (7) of the Act.
III. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
IV. ISSUES
The complaint alleges in substance that, on February 3,
1978, Respondent encouraged and induced its employees to
sign a petition seeking the Union's decertification as their
bargaining representative, thereby violating Section 8(a)(1);
and that one of its agents interrogated an employee about
the Union on April 11, 1978, further violating Section
8(a)(1). The complaint also alleges that, in July 1978, Re-
spondent unilaterally eliminated the grievance procedure
established by a recently expired bargaining contract be-
tween it and the Union, thereby violating Section 8(a)(5)
and (1).
The answer denies any wrongdoing.
The objections matter raises the questions whether the
election should be set aside and, if so, whether the election
should be rerun or the election petition instead dismissed.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent and the Union were party to a bargaining
contract covering the employees in the above unit and ef-
fective from May 1, 1976, to May 1, 1978.
On the morning of February 2, 1978, Respondent's pres-
ident and general manager, Alfred DePoe, and a labor rela-
tions consultant retained by Respondent, Kenneth White,
met with the six unit employees. White, after being intro-
duced by DePoe, did most of the talking. First announcing
that it was a "voluntary meeting," and that the employees
were free to return to their jobs if they wished,' White
stated in substance:
It is my understanding that you gentlemen are most
dissatisfied with the Union, and would like to know
what could be done, if anything, to become free of the
requirement to be union members, pay dues, and be
burdened with the jurisdiction of a contract. Your
company is also most unhappy with the Union, and
believe[s] we would all be better off as a nonunion em-
ployer.
'No one did.
White explained that the matter could be brought to a
vote if 30 percent of the employees were to file a signed
petition with the NLRB expressing their wish to escape
union representation. White said that the employees could
file such a petition themselves, or they could give it to him
and he would file--"it's strictly up to you to do what you
want." He then gave the telephone numbers of the San
Francisco and Oakland regional offices of the NLRB, and
invited the employees to call to verify the information he
had given them.
During the meeting, White asserted variously that the
Union had been found to have illegally picketed Respon-
dent in 1975, and that Respondent had "suffered badly" as
a result;4 that the Union had won only 2 of over 100 arbi-
tration proceedings it had brought against Respondent, and
that this had cost a "substantial amount of money," some
of which had come from the employees' union dues; that
the Union "had abused" two of the employees during an
arbitration the preceding day, and that this meeting had
been called because those employees "were unhappy with
the Union";' and that the standard union contract con-
tained many provisions that were inapplicable to Respon-
dent's operation.
DePoe and White eventually left the meeting to permit
the employees to discuss the matter among themselves. A
while later, they were told that the employees needed more
time to reach a decision. White suggested that they talk it
over with their families and otherwise consider the matter
with care, and the meeting ended.
DePoe and White met again with the six employees the
following morning, February 3. White answered assorted
questions about NLRB election procedure, and proposed
caption language for a petition to be signed by the employ-
ees. His testimony:
I said it should be in your own handwriting, it should
be dated, you should sign your full name and use any
kind of verbiage you want, to accomplish what you are
after, if this is your desire. You can be very formal
about it-say, we the undersigned no longer desire rep-
resentation by Local 550, et cetera, et cetera. Or you
can simply say we don't want the Union anymore, we
no longer want the Union. Words to this effect would
be sufficient.
4 In Millmen-Cabinet Makers, Industrial Carpenters Union Local 550, etc.
(Diamond Industries), 227 NLRB 196 (1976), the Union was found to have
unlawfully picketed Respondent in 1975 in furtherance of a dispute with a
firm doing a great deal of business with Respondent.
After an arbitration hearing in October 1977, two of the employees, Del-
bert Kisner and Roy Vargas, expressed to DePoe their displeasure with the
Union, Vargas asking: "How the hell do we get out of the Union?" After a
grievance hearing on February , 1978, Vargas again indicated to DePoe
that he wished there were a way out of the Union. DePoe's testimony that
Kisner also complained about the Union after the February I hearing is
discredited, Kisner having credibly testified that he expressed such a senti-
ment to DePoe only once-after the October arbitration matter. Also dis-
credited is Vargas' testimony that the first meeting began "when we ap-
proaching-all of us as a group-approached Fred DePoe and requested,
how do we go about trying to get out of going, you know, nonunion [sicl."
Vargas was generally a disorganized and unimpressive witness, and, al-
though called by the General Counsel, plainly was sympathetic to Respon-
dent. Beyond that, there was no corroboration from any source that the
employees went to DePoe as a group to seek the Union's ouster.
410
AMERICAN SINK TOP & CABINET CO.
To someone's question what Respondent was "going to
do" for the employees if they voted the Union out, White
responded that, while the law forbids promises in the cir-
cumstances, he "just happened" to have a contract "that
had been negotiated with the employees. directly. after a
union had been decertified" at a firm he represents in south-
ern California. He added that "we could probably work
something out like that." White said he would prepare a
similar document for Respondent's situation, and DePoe
stated that it would be available for employee examination
before the May I expiration of the union contract.? The
sample document was then passed around, White com-
menting that it was far less cumbersome and more relevant
than the standard union contract.
One of the employees voiced apprehension about the low
wages set forth in this document, prompting White to em-
phasize that it was merely illustrative "of what could be
accomplished," and DePoe to declare that Respondent
"would be foolish ... not to keep up with the industry" as
concerns wage levels. White cautioned at this point that
DePoe was "fringing on making a promise," repeating that
no promises could be made at that time. Even so, when one
of the employees asked about the effect of decertification on
health-and-welfare coverage, DePoe replied that he "as-
sumed" that the existing coverage for nonunit personnel
could be extended to the unit employees, and would talk to
Respondent's insurance agent about that; and, in answer to
a question about the effect of decertification on pension
coverage, DePoe said that, although Respondent did not
have a pension plan for its nonunit people, it did have an
IRS-approved profit-sharing plan, the implication being
that this, too, could be extended to the unit employees.'
DePoe and White at length left the meeting, whereupon
all six employees signed a petition dated February 3 and
bearing this caption: "We no longer wish to be represented
by the Millmen Union Local 550." The petition was de-
livered to DePoe and White, either in DePoe's office or
upon their return to the meeting. Whichever, the meeting
ended at that point.8
As previously stated, Respondent filed the petition for
election in Case 32-RM-33, I week later (on February 10),
submitting the employee petition in support of it.9
6 Richard Hillmann is credited that White said he would prepare a similar
document, and that DePoe said it would be available before May 1. DePoe
testified that he was asked if Respondent could put "something in writing,"
and replied that it could not-that the employees would "just have to trust
that we will be fair at the time that we ... have a chance to write our own
contract." Hillmann's testimony in this regard carned conviction and plausi-
bility, especially dovetailed with the April I I conversation between him and
DePoe, developed later.
' DePoe and White are credited that DePoe spoke in terms of a profit-
sharing plan, DePoe credibly testifying that Respondent had no pension plan
for its nonunit personnel. Roy Vargas, who testified that the reference was to
a pension plan, seemed susceptible to confusion and is discredited.
IThat the February 3 meeting followed the sequence just described is
inferable from White's testimony that the discussion of wages and health-
and-welfare and pension coverages "could have been" before he and DePoe
left the meeting, and that the meeting ended "immediately" after the em-
ployees turned over the paper they had signed.
9 In its brief, Respondent cites two other "objective grounds" for filing the
petition-the displeasure with the Union expressed by Delbert Kisner and
Roy Vargas, mentioned above in fn. 5, and the employees' continued work-
ing despite the Union's 1975 picketing, mentioned above in fn. 4. The record
being silent on the latter point, Respondent asks that judicial notice be taken
On April 11. 1978, DePoe asked one of the employees,
Richard Hillmann. if anyone from the Union had been
"harassing" him. The apparent reference was to Otis How-
ard, an assistant business representative for the Union, who
was picketing the premises at the time. Hillmann replied
that Howard "has been talking to me." then asked if, before
the election, the employees would be able to see a contract
of the sort mentioned by White and DePoe during the Feb-
ruary 3 meeting. DePoe answered that "the law says I can't
do anything until after the election"; that the employees
would "just have to trust that we will be fair at the time that
we ... have a chance to write our own contract."'0
On July 24, 1978, Respondent informed one of its em-
ployees, Richard Davis, that he was being terminated. Da-
vis had suffered an injury several months before, and had
not been on the active payroll since. The Union responded
by sending a letter to Respondent, dated July 27. demand-
ing that it "convene a grievance committee hearing into this
discharge." The demand was refused, White explaining in a
letter to the NLRB: "Inasmuch as we do not have a valid
union contract, we do not utilize the grievance procedure in
any termination." The old union contract contained a
grievance-arbitration procedure providing for the conven-
ing of a grievance committee-consisting of two representa-
tives from the Union and two from management within 5
days of a demand for same, and for referral to arbitration in
the event of a deadlock at the committee level.
B. Conclusions
While it is permissible in some circumstances for an em-
ployer to impart information to employees of procedures to
escape union representation, it is concluded that Respon-
dent's activities leading to the February 3 employee petition
went beyond that and consequently violated Section 8(a)(1)
as alleged.
Thus, after announcing near the outset of the February 2
meeting that Respondent was "most unhappy with the
Union" and believed that everyone would be "better off' if
it were out of the picture, White embarked upon a recital
intended to discredit the Union. Then, during the meeting
of February 3, White not only suggested caption-language
for an employee petition, but held out the prospect of a
contract such as one "that had been negotiated with the
employees, directly, after a union had been decertified" at a
plant in southern California. Also on February 3. and still
before the employee petition had been signed, DePoe spoke
of extending the nonunit health-and-welfare and profit-
sharing coverages to the unit employees, and gave assur-
ances that wages would "keep up with the industry." should
the Union be ousted.
It is plain, then, that far from being purely informational,
the two meetings culminating in the employee petition had
of the decision concerning that picketing, cited above in fn. 4. That decision
establishes that there indeed was no work stoppage in 1975 (227 NLRB at
196), but further establishes that the Union informed the employees in ad-
vance of the picketing that they were "to report to work as usual and per-
form the required services" as though there were no picket line. 227 NLRB
at 199.
0' As mentioned above in fn. 6. DePoe testified that he made this remark
dunng the February 3 meeting, not on April I 1. The context of the April I I
conversation, coupled with the earlier credibility resolutions concerning Feb-
ruar) 3, compels the conclusion that the remark was made on April I I.
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the impermissible purpose and effect of encouraging and
inducing the employees to register their displeasure with the
Union in a way enabling Respondent to file for a decertifi-
cation election. See, generally, Holly Manor Nursing Home,
235 NLRB 426, 428-429 (1978); Quality Transport Inc., 211
NLRB 198, 206 (1974); Allou Distributors, Inc., 201 NLRB
47 (1973).
The employees petition, being unlawfully generated, did
not constitute a valid ground for belief by Respondent that
the Union had lost the majority inferable from the still-in-
effect bargaining contract-"it would be wholly contrary to
the purposes of the Act . . . to rely upon the fruits of an
unfair labor practice to justify the dishonoring of the bar-
gaining obligation." Montgomery Ward & Co., Incorporated,
210 NLRB 717, 717 (1974). See also The National Cash
Register Company, 201 NLRB 1034, 1035 (1973). It follows,
there being no other independent circumstance giving rise
to a doubt of majority sufficient to support the petition for
a decertification election or a withdrawal of recognition,"
that the election was a nullity and Respondent's bargaining
obligation continued unabated. Cf., Vernon Manufacturing
Company and Spencer Industries, 214 NLRB 285 (1974);
Cantor Bros., Inc., 203 NLRB 774, fn. 4 (1973).
It is concluded, therefore, that Respondent was under a
duty to adhere to the prevailing terms and conditions of
employment even after the May 1 expiration of the bar-
gaining contract, and that it consequently violated Section
8(aX5) and () as alleged when it declined the Union's July
request that the Davis termination be treated under the pre-
vailing grievance procedure, and in so doing unilaterally
disavowed the continuing operation of the grievance proce-
dure, "inasmuch as we do not have a valid union contract."
Hilton-Davis Chemical Company, Division of Sterling Drug,
Inc., 185 NLRB 241 (1970).
It is concluded, finally, that DePoe violated Section
8(a)(1) as alleged by asking Hillmann on April I 11 if anyone
from the Union had been "harassing" him. Interrogation of
this sort is normally proscribed, especially as here during
the pendency of an election, and there has been no record
showing of circumstances removing DePoe's conduct from
the general rule.
CONCLUSIONS OF LAW
1. By encouraging and inducing its employees to prepare
and sign an antiunion petition, as found herein, Respondent
violated Section 8(a)(X) of the Act.
2. By unilaterally disavowing the continuing operation
of the prevailing grievance procedure, as found herein, Re-
spondent violated Section 8(aX5) and (1) of the Act.
3. By asking an employee if anyone from the Union had
been "harassing" him, as found herein, Respondent vio-
lated Section 8(aXI) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
1 It is concluded in this regard that the other objective grounds cited by
Respondent in support of the election petition, mentioned above in fn. 9, are
not adequate for these purposes.
ORDER'2
The Respondent, American Sink Top & Cabinet Co.,
Inc., Hayward, California, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Changing prevailing terms and conditions of employ-
ment without first giving Millmen-Cabinetmakers Indus-
trial Carpenters Union Local 550, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, a chance to
bargain over such changes, or otherwise refusing to bargain
collectively with Local 550 as the exclusive bargaining rep-
resentative of its employees in this appropriate unit:
All production and maintenance employees employed
by Respondent at its Hayward, California facility; ex-
cluding all other employees, office clerical, guards,
watchmen, executives and supervisors as defined in the
Act.
(b) Encouraging and inducing its employees to prepare
and sign petitions expressing their desire no longer to be
represented by Local 550 or any other labor organization,
or otherwise unlawfully soliciting its employees to abandon
their support of any labor organization.
(c) Interrogating employees whether anyone from a la-
bor organization has been "harassing" them.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them under Section 7 of the Act.
2. Take this affirmative action:
(a) Upon request, bargain collectively with Local 550 as
the exclusive bargaining representative of all employees in
the appropriate unit described above concerning rates of
pay, hours of work, and other terms and conditions of em-
ployment, including the termination of Richard Davis un-
der the prevailing grievance procedure;'3 and embody any
understanding reached in a signed document.
(b) Post at its facility in Hayward, California, the at-
tached notice marked "Appendix."'' Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
2 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
" This does not mean, however, that Respondent must submit to the arbi-
tration procedure of the expired contract should the grievance concerning
Davis not be resolved at an earlier step. Hilton-Davis Chemical Conmpany,
supra at 185 NLRB 242-243. See also Nolde Brothers, Inc. v. Bakery Work-
ers, 430 U.S. 243, 257 (1977) (Stewart dissent). The Union's argument is
rejected that the remedy herein should call for Davis' reinstatement with
backpay pending compliance by Respondent with the grievance procedure
as concerns his termination. There is no reason to believe, nor has there been
any showing, that Respondent's misconduct herein will work to its benefit at
such time as the grievance is entertained.
1" In the event that this Order is enforced by a judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
412
AMERICAN SINK TOP & CABINET CO.
receipt thereof, and be maintained 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 ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(c) Notify the Regional Director for Region 32. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the election in Case
32-RM-33 be set aside, and that the petition therein be
dismissed.
413