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

National Labor Relations Board - Board Decisions

Oct 22, 2010

356 N.L.R.B. 4 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
American Standard Companies, Inc., American
Standard Inc. d/b/a American Standard and
Glass, Molders, Pottery, Plastics & Allied
Workers International Union, AFL–CIO, CLC,
and its Local Union No. 7A. Cases 8–CA–33352,
8–CA–33477, 8–CA–33551, 8–CA–33641, 8–CA–
34284, 8–CA–34372, and 8–CA–34809
October 22, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On May 30, 2008, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 352 NLRB 644 (2008).1 Thereafter,
the Respondent filed a petition for review in the United
States Court of Appeals for the D.C. Circuit, and the
General Counsel filed a cross-application for enforce-
ment. On June 17, 2010, the United States Supreme
Court issued its decision in New Process Steel, L.P. v.
NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of
the Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the court of appeals remanded
this case for further proceedings consistent with the Su-
preme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board Members not assigned to the
panel had the opportunity to participate in the adjudication of this case
at any time up to the issuance of this decision.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions and to adopt the recommended Order to the extent
and for the reasons stated in the decision reported at 352
NLRB 644, which is incorporated herein by reference
except as modified below.
Substitute the following two paragraphs for the third
full paragraph at page 645.
“We agree with the judge’s conclusion that the parties’
conduct in the late hours of April 30, and early hours of
May 1, 2002, establishes that there was no ‘meeting of
the minds’ on a successor agreement. It is undisputed
that there was no written agreement or signed or initialed
document of any kind memorializing the alleged agree-
ment between the parties prepared on May 1, contrary to
both the parties’ prior practice and the common collec-
tive-bargaining practice generally. The Union called a
brief strike after expiration of the prior agreement and
before the parties agreed to extend the prior contract.
The parties agreed to continue negotiating over the out-
standing noneconomic issues, and the parties in fact did
so in the early morning hours of May 1, when the media-
tor was no longer present. Respondent’s corporate vice
president, Mo Heshmati, informed employees as they
arrived at work the morning of May 1 that negotiations
were on-going as no settlement had been reached.
Given these various forms of compelling evidence that
neither the Union’s nor the Respondent’s principals be-
lieved an agreement had been reached, the testimony of
the mediator and related evidence that the judge refused
to receive would not change our conclusion that the Re-
spondent violated Section 8(a)(5) when it refused to con-
tinue negotiations in the absence of impasse or agree-
ment on May 1, and its related actions after that time.
For that reason, we decline to pass on the Respondent’s
argument that the judge erred by excluding the evi-
dence.”3
3 Fn. 11, id., is incorporated herein in its entirety.

356 NLRB No. 4