Arrow Sash And Door Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1166 (N.L.R.B. 1985)

1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arrow Sash and Door Company and Millmen and
Cabinet Makers Local No . 2172, United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO; and Orange County District Council
of Carpenters , affiliated with the United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO. Cases 21-CA-22503 and 21-CA-
22832
30 September 1985
DECISION AND ORDER REMANDING
PROCEEDING
BY'CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 15 March 1985 Administrative Law Judge
George Christensen issued the attached decision in
,this case finding that the Charging Party Unions
had not condoned a "sickout" engaged in by sever-
al of the Respondent's employees on 29 July 19831
and that, consequently, the Respondent's decision
to cancel an extension 'of its collective-bargaining
agreement with the Unions, based on its purported
belief that the latter had condoned the "sickout,"
its withdrawal of concessions and agreements made
during negotiations , its cessation .of payments to the
health and pension funds, and its implementation of
a new health plant without prior notice to,-- or
reaching impasse with, the Unions violated Section
8(a)(5) and (1) of-the Act.z
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
In support of the judge's finding 'that the Unions
did not condone the "sickout," he noted that at a
meeting held on, 28 July Unions' Business Repre-
sentative Robert Acosta opposed the idea of a
"sickout proposed by certain employees and
warned employees that they risked discharge if
they called in sick and were not ill.
In its exceptions to the judge's decision, the Re-
spondent contends that the testimony of employee
Michael Barrett indicates, contrary--to: the judge's
finding, that the Unions - condoned the "sickout."
Barrett testified that during the 28 July meeting,
'Acosta, in response to employee' Bill Gawryl's sug-
gestion that all unit employees call in sick the fol-
lowing day, stated that "it wasn't a very good idea,
but, you know, if they wanted to do it, go ahead."
, According -to Barrett, Acosta further stated that "it
',All dates are 1983 ,unless otherwise indicated
2 The judge also found that alleged discnminatee John Paukner had
been lawfully terminated , along with other employees, for participating
in the "sickout ." No exception was taken to this finding. Accordingly,
we shall adopt the judge 's recommended dismissal of that portion of the
complaint which alleges that Paukner's discharge violated Sec . 8(a)(3)
and (1) of the Act -
would be hard for the company to prove that they
were not sick on that day." The judge made no
credibility resolution concerning Barrett's testimo-
ny. He also failed to -resolve other conflicts in testi-
mony concerning what transpired during the 28
July meeting.3 ,
.. Having considered the matter, we find that a de-
termination of whether the Respondent violated
Section 8(a)(5) and (1) of the Act requires that spe-
cific credibility resolutions'be made concerning the
testimony attributed to Acosta by Barrett and that
other 'conflicts in testimony- relating .to- the 28 July
meeting be resolved. Accordingly, this matter shall
be remanded to the administrative law judge for
the purpose of making such credibility resolutions.
ORDER
It is ordered that the portion of the complaint al-
leging that the Respondent violated Section 8(a)(3)
and (1) of the Act is dismissed.
IT IS FURTHER ORDERED that this proceeding is
remanded to Administrative Law Judge George
Christensen for the purpose of preparing and issu-
ing a supplemental decision with respect to the
8(a)(5) and (1) allegations of the complaint setting
forth resolutions of credibility of witnesses, and
containing new findings of fact, conclusions of law,
and a recommended order in light of such findings
and conclusions. Following service of the supple-
mental decision on the parties, the provisions of
Section 102.46 of the Board's Rules and Regula-
tions shall be applicable.
3 On cross-examination , Acosta testified that he might have told em-
ployees during the 28 July meeting that , if they called in sick and the
Company could not prove it, "there's nothing the company can do about
it " Further , although Barrett and Acosta testified that a "sickout" was
discussed among employees , employee Tommy Puebla,, who claimed to
have been present during the entire meeting , testified that there was no
discussion of a "sickout.", Finally, despite Acosta 's testimony concerning
the "sickout ," he nevertheless denied having any knowledge that the em-
ployees supported the idea of a "sickout "
Joel B. Martinez, Esq., of Los Angeles, California, for the
General Counsel.
A. Patrick Nagel, of Newport Beach, California, for the
Company. -
Gordon K Hubel, Esq. (Levy & Goldman), of Los Ange-
les, California, for the Union. '
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative . Law Judge.
On February 23 and 24, 1984, I conducted a hearing at
Santa Ana, California, to try issues raised by a consoli-
dated complaint issued on February 3, 1984, based on a
charge filed by Millmen and Cabinet Makers Local No.
2172, United Brotherhood of Carpenters and Joiners of
276 NLRB No..126
ARROW SASH & DOOR CO 1167-
America, AFL-CIO; and Orange County District Coun-
cil of Carpenters, affiliated with the United Brotherhood
of Carpenters and Joiners of America, AFL-CIO' ih
Case 21-CA-22503 on August 18, 1983.2 and amended
on November 29, plus a charge filed by the Union in
Case 21-CA-22832 on December 12 and amended on
February 1, 1984.
The complaint alleges that Arrow Sash and Door
Company3 and the Union were parties to a contract for
a term extending from August 1, 1980, to July 31 and an
agreement extending that contract's terms to August 12,
covering an appropriate unit of the Company's employ-
ees, and that the Company violated Section 8(a)(1) and
(3) of the National Labor Relations Act (Act) by dis-
charging and -subsequently refusing to reinstate unit em-
ployee John Paukner because of his union activities and
violated Section 8(a)(1) and (5) of the Act by an August
cancellation of the extension agreement, withdrawal of
all concessions and agreements it made in prior negotia-
tions, cessation of payments into health and pension
funds established under the 1980-1983 extended contract,
and implementation of a new health plan, all without
prior notice to the Union, agreement, or a bargaining im-
passe.
The_ Company asserts Paukner was discharged and
denied reinstatement because he participated in a strike
against the Company on July 28 in violation of the con-
tract, thereby losing his protection under the Act, and
contends it did not violate the Act by its cancellation of
the extension agreement, withdrawal of its previous con-
cessions and agreements, cessation of payments into the
funds, and implementation of a new health plan without
prior notice to the Union or a bargaining impasse be-
cause it was not obligated to bargain with the Union
after the Union's alleged July 28 ratification or condona-
tion of the July 29 strike action by unit employees
and/or the Union's alleged failure or refusal to bargain
with the Company over the wages, etc., of the unit em-
ployees for a substantial period after the expiration of the
contract. -
The issues for determination are
1. Whether Paukner participated in a strike against the
Company on July 28 and, if he did, whether he thereby
lost his protection under the Act; or, if he did not,
whether his subsequent discharge and the Company's re-
fusal to reinstate him violated the Act.
2. Whether the Company's cancellation of the exten-
sion agreement ; withdrawal of its previous concessions
and agreements ; cessation of payments into the funds;
and implementation of a new health plan without prior
notice to the Union, union agreement,' or a bargaining
impasse violated the Act.
The parties appeared by counsel at the hearing and
were afforded full opportunity to adduce evidence, to
examine and cross-examine witnesses , and to file briefs.
All parties filed briefs.
I Hereafter called the Union
2 Read 1983 after all further date references omitting the year
Hereafter called the Company
Based on-my review of the entire record, observation
of the witnesses, perusal of the briefs, and research, I
enter the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admitts, and I find
at all pertinent times the Company was an employer en-
gaged in commerce and in a business affecting commerce
and the Union was a labor organization within the mean-
ing of Section 2 of the Act.
II. THE UNIT AND THE UNION'S REPRESENTATIVE
-STATUS
The Company and the Union executed a contract in
1980 for a 3-year term expiring July 31. At that and all
subsequent times, the Company was a cabinet manufac-
turer and installer. The contract was a standard area
agreement promulgated by the Union to cover employ-
ees of manufacturers in that business within the Union's
geographical jurisdiction' who recognized the Union as
the exclusive collective-bargaining representative of their
production and maintenance employees. It is undisputed
at all times pertinent to this proceeding the Company
recognized the Union as the duly designated representa-
tive of a majority of its employees at its Irvine, Califor-
nia facilities classified as and/or performing the work of
fixture makers, custom cabinet-makers, working produc-
tion foremen, machine set-up men, production machine
operators, production cabinet assemblers, packers, parts
movers, helpers, shipping and receiving clerks, janitors,
truckdrivers and forklift operators, excluding employees
covered by other labor agreements, professional employ-
ees, supervisors and guards as defined in the Act.
On the basis of the foregoing, I find at all pertinent
times the unit just set forth was appropriate for collec-
tive-bargaining purposes, the Union represented a majori-
ty of the Company's employees within that unit, and the
Union was the exclusive collective-bargaining representa-
tive of the employees in that unit, within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The contract the parties signed in 1980 was subject to
termination on. July 31 by timely notice. Both parties
filed timely notice of their desire to terminate the con-
tract on July 31 and to negotiate a successor contract.
The parties met on June 17 and 28 and-July 11, 12, 19,
and 28, and exchanged and discussed contract proposals
and counterproposals. By the noontime close of the July
28 meeting, they resolved most of the disputed issues be-
tween- them and, anticipating the likelihood they would
be able to'resolve the remaining issues with one more
session scheduled by mutual agreement for August 4,
agreed to extend the basic contract to midnight on that
date.
Throughout the negotiations, the union spokesman was
Business Representative Robert Acosta and the company
spokesman was Attorney A. Patrick Nagel. Company
Part-Owner, Vice President, and General Manager-Law-
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rence Andrews' was present at all the negotiating ses-
sions and company - employee/Union Shop • Steward
Thomas Puebla was present at the July sessions.
About 1:30 p.m. on July 28, Nagel telephoned Acosta,
and stated Andrews was disturbed over employee dissat-
isfaction generated by certain of the Company's contract
proposals and feared a strike.5 Nagel suggested the par-
ties extend, the basic contract to August 12 to provide
additional time for resolving the remaining differences
between them (in the event the August 4 session did not
do so) and requested Acosta's assurance the Union
would respect the no-strike provision of the extension
agreement through its expiration date. Acosta agreed to
the proposed extension and gave the requested assurance.
On July 28, there were 12 employees within the unit-
Michael Barrett, Joseph Emer, William Gawryl, Herman
Kubach, Joseph Nixa, John Paukner, Terrence Pickering,
Thomas Puebla, Ray Reaves, Dwayne Thompson, Frank
Vietnheimer, and Kenneth Warren. -
Puebla asked the other unit. employees to attend a
meeting with Acosta after the end of their work shift
that day (the shift ran from 7 a.m. to 3:30 p.m.). Seven of
the twelve attended the meeting (Barrett, Gawryl,
Paukner, Pickering, Puebla, Thompson, and Warren).
Acosta told the seven he felt negotiations were going
well; he hoped to reach agreement with the Company on
all terms of a successor contract by the close of the next
negotiating session ; and the company proposal for dis-
continuance of pension benefits was the major unre-
solved issue (the Union insisting on continued coverage).
Prior to recessing negotiations that morning, he and
Nagel agreed to extend the, contract through, that date,
and later in the day he indicated to Nagel he thought he
could go along with a Nagel proposal to extend the con-
tract to August 12 to provide additional time for con-
cluding negotiations in- the event they were unable to fi-
nalize an agreement on August 4. Acosta also reported
the status of negotiations, i.e., the issues resolved and
those. still in dispute. The employees expressed resent-
ment over the "give-backs" the Company was proposing
and their disagreement to any contract extension, advo-
cating immediate strike action in support of the Union's
opposition thereto. Acosta responded there was firm
agreement on the August 4 extension ; stated he would
contact Nagel and try to limit the extension to that date;
stated • any strike before the expiration of the extension
agreement was a "wildcat"- strike (due to the no-strike
provision of the extended agreement); stated the employ-
ees could be discharged if they went on strike before the
* I'find at all pertinent times Andrews was an officer, supervisor, and
agent of the Company acting on its behalf and Nagel was an agent of the
Company acting on its behalf within the meaning of Sec 2 of the Act
5 Prior to the July 28 session, Puebla made a written company contract
proposal dated June 28 available to the unit employees, they discussed it
among themselves and were disturbed by several sections therein, par-
ticularly company proposals for terminating the existing pension plan
coverage, changing health plan coverage, weakening the seniority provi-
sion, and lowering wage rates The employee concerns were not molli-
fied (in fact, they were exacerbated) by Company President Jerry Todd's
responses to employee inquiries concerning those proposals prior to July
28 Aware of those concerns through Todd, Andrews feared the employ-
ees might be planning a strike when Puebla commented at the close of
the July=28 negotiations he might not be at work on July 29
expiration of the extended agreement; stated' the Union
could not do anything for them if they went on strike
before the expiration of the extended agreement; and
stated he would report the result of the August 4 negoti-
ations, take a strike vote, and support whatever action
the employees authorized following the expiration of the
extended agreement. The employees reluctantly accepted
Acosta's position they were barred from striking until re-
ceipt of his report and expiration of the extended agree-
ment (with Acosta repeatedly assuring them he 'thought
he would have a complete contract agreement for their
consideration by the close of the August 4 negotiating
session). Gawryl proposed the employees. stage a "sick-
out" the following day to pressure the Company into
modifying its bargaining stance at the August 4-negotia-
tions. Most of'the employees supported the idea. Acosta
opposed it, warning the employees they, risked discharge
if they called in sick and were not ill.
Following the close of the meeting, Barrett telephoned
Emer and gave Emer an accounting of what transpired
at the meeting.
The following day Andrews arrived at the plant about
6 a.m. The unit employees scheduled to work that day
were Emer, Gawryl, Nixa, Paukner, Pickering, Puebla,
Reaves, Thompson, and Vietnheimer. Barrett was sched-
uled to start his vacation that day; Kubach and Warren
were not scheduled to work. About 6:30 a.m.,-Puebla's
wife-telephoned Andrews, stated Puebla had not been at
home all night, and asked if he was there. Andrews re-
plied he was not at the plant. She asked if any other em-
ployees were there. Andrews replied in the negative and
suggested she call' later. A few minutes later Gawryl
telephoned. He told Andrews he was in Hesperia (a
town over 100 miles distant) on his way to Barstow, be-
cause he received word his father suffered a heart attack
there. Andrews expressed his sympathy.
Emer, Nixa, Paukner, Reaves, and Vietnheimer ar,
rived at-the plant between 6:30 and 7 a.m. Paukner inter-
cepted Reaves and Vietnheimer at the parking lots and
advised them many of the employees who attended the
union meeting the previous, afternoon were angry over
Acosta's agreement to extend the contract, past July 31,
that Acosta, inter alia, advised' the employees the Com-
pany was insisting on terminating the employees' pension
coverage, that many of the employees planned to call in
sick that morning to put economic pressure on the Coin-
pany, and that he was unsure whether or not to go to
work. - -
On entering the plant, Reaves sought out company of-
ficial Byron Brown at • his office and asked Brown if it
was true the Company was trying to take away the em-
ployees' pensions. Brown replied that was untrue, the
Company was only proposing a reduction in the number
of paid holidays. Andrews overheard the exchange and
intervened, stating Brown was incorrect and the Compa-
ny did intend to eliminate the pension plan. Reaves left
Brown's office and went towards the timeclock. An-
drews followed him.
8. Reaves and Vietnheimer were neighbors and Vietnheimer, who did
not possess a valid driver's license, regularly rode to work in Reaves'
auto
ARROW SASH & DOOR CO. 1169
While Paukner, Reaves, and Vietnheimer were in the
vicinity of the timeclock, Andrews informed them while
he was limited in what he could say, since the Company
and the Union were still in negotiations over new con-
tract terms, he could tell them the Company was serious
in its proposal for termination of the Company's partici-
pation in the pension fund and making any further con-
tributions thereto. One of the employees asked why the
Company could not just continue in-effect the terms of
the expiring contract. Andrews responded the Company
felt it had to terminate its funding of employee pensions
because its continued participation therein exposed the
Company to heavy potential financial liability under the
requirements of a Federal statute (ERISA), citing the ex-
ample of a small local company bankrupted thereby.
Reaves' face turned red and he began to tremble. He
walked to a nearby drinking fountain and drank from it.
On returning, he stated he felt ill and wanted to go
home 7 Noting Reaves' condition, Andrews gave -him
permission to go home Reaves asked Vietnheimer if he
was coming. Vietnheimer replied while he would like to
work, he. had better accompany Reaves.8 As Reaves
went to his auto, Vietnheimer asked Andrews for per-
mission to accompany Reaves. Knowing where the two
-lived and Vietnheimer's dependency on Reaves for trans-
portation, Andrews granted Vietnheimer's request and
Vietnheimer left the- plant. Meanwhile, Emer and Nixa
clocked in and went to work and Paukner told Andrews
he was not going to be an "outlaw," leaving the plant.
About 7:30 a m., Andrews received a telephone call
from Thompson. Thompson told him- a number of em-
ployees, including Thompson, were dissatisfied with the
progress of the contract negotiations and decided the
previous day they•were_not going to report for work
that day. Thompson also stated he was going to look foi•
another job closer to his home, since it was a long com-
mute to the plant. Following that call, Andrews dis-
patched' Brown to check on Gawryl and Puebla. Brown
left the,plant and, on returning, advised Andrews about
8:30 a m:-.he saw Gawryl leave his home, enter a vehicle,
and drive 'away, and that he saw Puebla's auto parked
outside his home.. Pickering neither telephoned nor re-
ported for work. -
About 10 a.m., Emer informed Andrews that Barrett
'telephoned him after the union meeting the previous day
and identified Gawryl, Paukner, Pickering, Puebla, and
Thompson as supporters of a July 29 "sick-out" to bring
economic pressure on the Company to modify its bar-
gaining stance. X
After conferring with Nagel, on July , 30 Andrews
issued discharge notices and final paychecks to Gawryl,
Paukner, Pickering, Puebla, and Thompson, citing the
five employees' July 29 withholding of their services in
violation of the no-strike provision of the still unexpired
1980-1983 contract as the reason therefor.
The Union learned of, the discharges the following
Monday (August 1) when Gawryl, Puebla, and Thomp-
' Reaves was upset over the potential loss of his pension benefit, since
he was-close to completion of the number of years of participation in the
plan which would qualify him for a vested interest therein -
8 The two lived a considerable distance from the plant and public
transportation was not readily available
son went to the Union's office and reported they had
been discharged for not reporting for work on July 29.
On the same date (August 1), the Company imple-
mented the health plan it proposed in negotiations- with
the Union to replace the plan established under the 1980-
1983 contract (the Union had proposed continuation of
that plan) and made no further contributions either to the
health or welfare fund established under the contract'9
On August 2, Nagel's secretary telephoned Acosta and
advised him Nagel was canceling the August .4 negotia-
tions.
On August 3, Nagel telephoned Acosta to state that he
canceled the August 4 negotiations and was canceling
the extension agreement because some of the unit em-
ployees engaged in. a work stoppage on July 29 in. viola-
tion of the contract's no-strike provision and because
Acosta failed to comply with his July 28 assurance the
Union would comply with that provision through the ex-
piration of the extension agreement; that the employees
who were scheduled to work on July-29 but instead en-
gaged in the work stoppage had been discharged and
would not be reinstated; that the Company was with-
drawing any and all tentative agreements and conces-
sions the Company had agreed on in prior negotiations;
and-that while the Company continued to recognize the
Union as the exclusive collective-bargaining representa-
tive of the unit employees," it would have new contract
proposals to advance. -
On August 11; Nagel sent Acosta a letter confirming
the statements just noted.
When in early November the trustees of the funds in-
formed the Union the Company had not tendered contri-
butions covering any unit employees after June 30, the
Union formally requested the Company make the requi-
site contributions, stating the Company- was legally obli-
gated to "continue paying for the unit employees' health
and pension fund coverages in accordance with the perti-
nent provisions of the expired contract until the Compa-
ny and the Union resolved their differences with respect
thereto.
In ' late November, the Company tendered' contribu-
tions to the funds covering July and formally advised the
Union it was not going to make any contributions cover-
ing any months thereafter on the ground the 1980-1983
contract requiring such contributions expired on July 31.
The Company made no contributions thereafter.
In subsequent negotiations, the parties reached agree-
ment (about January 26, 1984) on terms for a new con-
tract retroactive to August 1, 1983, and continuing for a
2-year term to July 31, 1985. The new contract eliminat-
ed pension coverage for the unit employees and substi-
tuted the health plan the Company unilaterally instituted
on August 1 for the preceding' health plan, effective
August 1.
9 In fact , the Company made no contributions for July
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. ANALYSIS AND CONCLUSIONS
A. The Alleged 8(a)(1) and (3) Violation (the Paukner
Discharge)
It is undisputed Paukner attended the July 28 union
meeting. While Paukner claimed he left the meeting after
10 minutes, he was there long enough to learn that the
employees' pension coverage remained in dispute, that
Acosta agreed to extend the contract beyond its expira-
tion date, and that most of the employees at the meeting
favored a "sick-out" the following day to pressure the
Company to change its bargaining status. 10
Though Paukner advised Reaves he had not decided
whether to join the "sick-out" before the three entered
the plant that morning, it is clear he made up his mind to
join when, following Reaves' and Vietnheimer's depar-
ture from the plant, Paukner advised Andrews he was
not going to be an "outlaw" and followed them out. i i
I therefore find and conclude that by declaring he was
not going to be an "outlaw" and failing or refusing to
clock in and go to work the morning of July 29, Paukner
joined in and supported Gawryl, Pickering, Puebla, and
Thompson in their "sick-out" and was discharged there-
for.12
Since the five employees' "sick-out" violated the no-
strike provision of the unexpired contract, the five dis-
charges were not violative of the Act.' 3 I therefore shall
recommend those portions of the complaint alleging the
Company violated the Act by discharging Paukner be
dismissed.
B. The Alleged 8(a)(1) and (5) Violations
In retaliation for the July 29 "sick-out," the Company
not only discharged the five participants therein , it uni-
laterally canceled the scheduled August 4 negotiations
session, repudiated the July 28 extension agreement, re-
tracted all concessions and agreements it made or
reached in preceding negotiations, ceased making contri-
butions to the health and pension funds established under
the 1980-1983 contract (as extended), and implemented a
new health plan, all - without prior notice to the Union
and affording the Union an opportunity to negotiate on
those matters either to agreement or impasse. -.
The Board, with court approval, consistently has held
that by unilaterally changing wages (which include pen-
sion and health plan contributions) of employees estab-
lished under a collective-bargaining agreement during
the term of that agreement or, following its expiration,
prior to union agreement thereto or bargaining impasse,
an employer violates Section 8(a)(1) and (5) of the
10 This finding is based on Reaves ' testimony_ to what Pauknei told
him the morning of July 29
I I I credit Andrews' testimony Paukner made that pronouncement
(and Andrews ' testimony he did not give Paukner permission to leave)
The latter is supported by undisputed testimony Andrews gave Reaves
and Vietnheimer specific permission to leave and that Emer and Nixa
went to work.
12 The balance of the unit either reported for work (Emer and Nixa),
was on vacation (Barrett), were not scheduled to work (Kubach and
Warren), or were excused from working (Reaves and Vietnheimer)
is Goodie Brand Packing Corp, 270 NLRB 451 (1984), Chrysler Corp,
232 NLRB 466 (1977).
Act. 14 Unilateral employer implementation of a new
health plan under the same circumstancesls and unilater-
al employer withdrawal of agreements and concessions
made in prior bargaining without good cause under the
same circumstances 16 have also been held violative of
those sections of the Act.
The Company contends its actions were not violative
of the Act because the Union condoned or ratified the
employees' July 29 "sick-out" and/or failed to request
bargaining on issues in dispute between the Company
and the Union (including the health and pension plan
issues) for a substantial period following the Company's
cancellation of the scheduled August 4 negotiations and
the extension agreement.
These contentions lack merit. At the July 28 union
meeting , Acosta opposed Gawryl's proposal the-employ-
ees stage a "sick-out" on July 29, insisted the employees
were required by the contract (as extended) to remain on
the job until the expiration of the extension agreement,
warned the employees they risked discharge if they par=
ticipated in a "sick-out" the next day, requested they
desist from authorizing or participating in any economic
action against the Company until the conclusion of the
scheduled August 4 negotiations and receipt of his report
on its results , and advised the employees the Union
could not do anything for them if they withheld their*
services and were disciplined therefor prior to the expi-
ration of the extension- agreement . It is clear Acosta left
the July 28 meeting under the impression the employees
would refrain from any economic action against the
Company until he completed the August 4 bargaining
session and met with them to report what transpired. 17
With respect to the laches defense advanced by the
Company, the short reply is it was the Company which,
between August 1 and 15, unilaterally canceled the ex-
tension agreement , broke off negotiations; implemented a
new health plan, ceased making contributions to the ex-
isting health and pension funds, and withdrew all prior
i4 Burger Pits, Inc, 273 NLRB 1001 (1984), American Distributing Co,
264 NLRB 1413 (1982), enfd 715 F 2d 446 (9th Cir 1983), Stone Boat
Yard, 264 NLRB 981 (1982), enfd 715 F 2d 441 (9th Cir 1983), Abbey
Rents, Inc, 264 NLRB 969 (1982), Taurus Waste Disposal, 263 NLRB 309
(1982), Hassett Maintenance Co, 260 NLRB 1211 (1982), Robbins Sash &
Door Co, 260 NLRB 659 (1982), Cauthorne Trucking, 256 NLRB 721
(1981), enfd 691 F2d 1023 (DC Cir 1982), Peerless Roofing Co, 247-
NLRB 500 (1980), enfd 614 F 2d 737 (9th Cir 1981), Antonino's Restau-
rant, 246 NLRB 833 (1979), enfd 648 F2d 1206 (9th Cir 1981), Crest
Beverage Co, 231 NLRB 116 (1977), Hen House Market No. 3, 175 NLRB
596 (1969), enfd 428 F 2d 596 (8th Cir 1970)
15 Turnbull Roofing Co, 259 NLRB 934 (1982), Antonino 's Restaurant,
supra, Electrical Machinery Co, 243 NLRB 239 (1979), enfd 653 F 2d 958
(5th Cir 1981), Carpenter Sprinkler Corp, 238 NLRB 974 (1978), enfd
605 F 2d 60 (2d Cir 1979), Cal-Pacific Furniture Mfg Co, 228 NLRB
1337 (1977) -
is Mead Corp, 256 NLRB 686 (1981), enfd 697 F2d 1013 (11th Cir
1983), Harowe Servo Controls, 250 NLRB 958 (1980), F Strauss & Son,
216 NLRB 95 (1975), enfd 536 F 2d 60 (5th Cir 1976), Ramona's Mexi-
can Food Products,, 203 NLRB 663 (1973), enfd 531 F 2d 390 (9th Cir.
1975), A W Thompson, Inc, 184 NLRB 119 (1970), enfd 449 F 2d 1333
(5th Cir 1971), American Seating Co, 176 NLRB 850 (1969), enfd 424
F 2d 106 (5th Cir 1970)
17 Acosta first became aware some of the employees went ahead with
the July 29 "sick-out" on August 1, when Gawryl, Puebla , and Thomp-
son appeared at the union office to report the Company discharged them
for participating therein
ARROW SASH & DOOR CO
concessions and agreements, all -without prior union
notice or bargaining, prior to any agreement or impasse,
and with charges pending which led'to this proceeding.
Under such circumstances, a lathes defense is inappropri-
ate and without merit.
On the basis of the foregoing, I find and conclude that
by its August unilateral' cancellation of the extension
agreement, withdrawal of its previous concessions and
agreements ,18 implementation of a new health plan, and
cessation of contributions to the health and pension funds
during the term of the 1980-1983 contract, as extended,
and prior to any -agreement on, new contract terms or
bargaining impasse, the Company violated Section
8(a)(1) and (5) of the Act. . , -
CONCLUSIONS OF LAW
1. At all pertinent times the Company was an employ-
er engaged in commerce and in a business affecting com-
merce, and the Union was a labor organization within
the meaning of the Act.
2. At all pertinent times Andrews was an officer, su-
pervisor, and agent of the Company acting on its behalf
and Nagel was an agent of the Company acting on its
behalf within the meaning of the Act.
3. At all pertinent times the Union has been the duly
designated collective-bargaining representative of a ma-
jority of the Company's employees within the following
unit:
All employees of Arrow Sash & Door Company at
its . Irvine, California facilities performing work
within the job classifications titled: fixture maker,
custom cabinet maker, working production fore-
man, machine set-up man,. production machine oper-
ator, production cabinet assembler, packer, parts
mover, helper, shipping & receiving clerk, janitor,
truckdriver and forklift operator, excluding employ-
ees covered by other labor, agreements, professional
employees, supervisors and guards as defined in the
Act.
4. The Company violated Section 8(a)(1) and (5) of the
Act by As August unilateral cancellation of the extension
agreement , withdrawal of its previous concessions and
agreements, implementation of a new health plan, and
cessation of contributions to the health and pension ;funds
established under the 1980-1983 company-union con-
tract, as extended, during the term of the extended con-
tract and/or prior to any agreement between the Compa-
ny and the Union on new contract terms or bargaining
impasse. -
5. The Company did not otherwise violate the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of the Act. -
18 My finding and conclusion the Company's defenses lack merit also
support a finding and conclusion, which I make, that the Company did
not have "good-cause" for withdrawing its previous agreements and con-
cessions.
1171
THE REMEDY
Since I have entered findings the Company engaged in
unfair labor practices, I shall recommend the Board
direct the Company to cease and desist therefrom and
take affirmative action designed to effectuate the pur-
poses of the Act, including bargaining at the Union's re-
quest and the posting of the appropriate notices.
In view of my finding the Company violated the Act
by ceasing to tender contributions after August 1 to the
pension fund established under the terms of the 1980-
1983 company-union contract, as extended, during the
term of the extended contract, and prior to the time the
Company and the Union_ agreed to such cessation (Janu-
ary 26, 1984), 1 shall recommend the Board direct the
Company to tender contributions to the pension fund
covering a period extending from August 1, 1983,
through January 1984.19 Since the Board ordinarily does
not provide for the payment of interest,on such remedies
but does , permit the levy of penalties provided in the
documents governing the administration of such funds
for failing to timely tender contributions, possible loss of
return on investment on the funds withheld, administra-
tive costs, etc., I shall leave to the compliance stage of
this case the question of whether the Company should be
required to pay additional sums as the result of its unlaw-
ful withholding of contributions to the pension fund be-
tween August 1983 and January 1984.20 -
In view of my finding the Company violated the Act
by ceasing to tender contributions after August -1 to The
health fund established under the terms of the 1980-1983
company-union contract, ' as extended, and prior to the
time ' (January 26, 1984) the Company and the Union
agreed to substitute the health plan the Company unilat-
erally implemented on August 1, effective August 1, I
shall recommend the Board direct the Company to make
whole any unit employee who suffered a -monetary loss
by virtue of the fact the new, rather than the old, plan
was in effect between August 1 and January 26, 1984,
with interest on any sum or sums due as set forth under
the "other monetary remedies" category set forth in
Florida Steel Corp., 231 NLRB 651 (1977).-
Having found the Company did not violate the Act by
discharging Paukner,.-I shall recommend the Board dis-
miss those portions of the complaint alleging by that dis-
charge the Company violated the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21 - -
10 Cf NLRB 'v. Cauthorne Trucking, 691 F 2d 1023 at 1025-26 (D C'
Cir 1982), where the court stated -
We hold that where an employer and a union have bargained in
good faith, despite the employer 's prior unilateral changes in wages
or conditions of employment, the employer's ongoing liability for the
unlawful unilateral changes terminates on•the date when the parties
execute a new agreement or reach a lawful impasse
Also see NLRB v Antonino 's Restaurant , 648 F 2d 1206 (9th Cir 1981)
20 Cf Cauthorne Trucking, 256 NLRB 721, 723 fn 9 (1981), Turnbull
Enterprises, 259 NLRB 934 (1982), Farmingdale Iron Works, 249 NLRB
98 (1980)
21 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in-Sec 102 48 of the Rules, be adopted by the
Continued
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Arrow Sash and Door Company,
Irvine, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unilaterally canceling any agreement with Millmen
& Cabinet Makers Local 2172,.an affiliate of the Orange
County District Council of Carpenters and the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO covering its employees within a unit repre-
sented by,that organization because some of the-unit em-
ployees fail to comply with terms of that agreement.
(b) Retracting without good cause agreements and
concessions it makes in negotiations with Local 2172
over the rates of pay, wages, hours, and working condi-
tions of,its employees within the unit.
(c) Implementing new or changed rates of pay, wages,
hours, and working conditions of its employees within
the unit during the term of any agreement with the
aforesaid organization without prior notice to and agree-
ment by that organization.
(d) Implementing, changing, 'or terminating , rates of
pay, wages (including contributions to health and pen-
sion funds), hours, or working conditions established
under an agreement with the aforesaid organization cov-
ering its employees within the unit following the expira-
tion of any agreement with that organization prior either
to agreement by that organization or bargaining impasse.
(e) Failing or refusing to bargain with the aforesaid or-
ganization at its request concerning the rates of pay,
wages, hours and working conditions as the collective-
bargaining representative of its employees in the follow-
ing appropriate unit: .
All employees of Arrow Sash & Door Company at
its Irvine, California 'facilities performing the work
of and/or classified as fixture maker, custom cabinet
maker, working production foreman, machine set-up
man, production machine operator, production cabi-
net assembler, packer, parts mover, helper, shipping
& receiving clerk, janitor, truckdriver and forklift
operator, excluding employees covered by other
labor agreements, professional employees, supervi-
sors and guards as defined in the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act.
(a) Tender to the Southern California Lumber Indus-
try Retirement Fund the monthly contributions estab-
lished by the 1980-1983 contract between Arrow Sash &
Door Company and the aforesaid organization on behalf
of each of its employees within the unit during and for
the months of August, September, October, November,
and December 1983 and January 1984.
(b) Tender to the same fund such additional sum or
sums as shall be deemed appropriate in the compliance
phase of this proceeding (see The Remedy).
(c) Make whole any unit employee who has suffered a
loss between August 1983 and January 1984 due to any
Board and all objections to them shall be deemed waived for all pur-
poses
differences between the health and dental benefits pro-
vided by the health plan established under the 1980-1983
agreement between Arrow and the aforesaid organiza-
tion, with interest of any sums due- as set forth under the
"other monetary remedies"category enumerated in-Flori-
da Steel Corp., 231 NLRB 651 (1977).
(d) Bargain with the aforesaid organization at its re-
quest concerning the rates of pay, wages, hours, and
working conditions of the unit employees (except as lim-
ited by the terms of an agreement with that organiza-
tion).
(e) Post at its premises in Irvine, California copies of
theattached notice marked "Appendix. "22, Copies of the
notice, on forms provided by the Regional Director for
Region 21, shall be signed by an authorized representa-
tive of Arrow Sash & Door Company and posted imme-
diately upon their receipt and maintained for 60 consecu-
tive days thereafter in conspicuous places,- including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure the no-
tices are not altered, defaced, or covered by other mate-
rials.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that those portions of the
complaint alleging Arrow Sash and Door Company vio-
lated the Act by discharging John Paukner are dismissed.
22 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD,
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT cancel any agreement we have made
with Millmen & Cabinet Makers Local 2172, an' affiliate
of the Orange County District Council of Carpenters and
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO covering our employees represented
by that organization because some of our employees cov-
ered by that agreement fail to comply with terms of that
agreement.
WE WILL NOT retract any agreements or concessions
we have made in negotiations with Local 2172 over the
rates of pay, wages, hours, and working conditions of
our employees represented by that organization without
good cause.
WE WILL NOT implement new or changed rates of
pay, wages, hours, or working conditions of.our employ-
ees represented by Local 2172 during the term of any
ARROW SASH & DOOR CO.
agreement with that organization without prior notice to
and agreement by that organization.
WE WILL NOT implement , change, or terminate rates
of pay, wages (including contributions to fund health,
dental, and pension benefits), hours, or working condi-
tions established under an agreement with Local 2172
following the expiration of such an agreement prior
either to agreement with Local 2172 to such implementa-
tion, change, or termination or reaching an impasse in
bargaining with that organization about such implemen-
tation, change, or termination.
WE WILL NOT fail or refuse to bargain with Local
2172 at its request concerning the rates of pay, wages,
hours, and working conditions as the representative of
our employees in the following unit:
All employees of Arrow Sash & Door Company at
its Irvine, California facilities performing the work
of and/or classified as fixture maker, custom cabinet
maker, working production foreman, machine set-up
man, production machine operator, production cabi-
net assembler, packer, parts mover, helper, shipping
& receiving clerk, janitor, truckdriver and forklift
operator, excluding employees covered by other
labor agreements, professional employees, supervi-
sors and guards as defined in the Act.
1173
WE WILL tender to the Southern California Lumber
Industry Retirement Fund the monthly contributions es-
tablished by our 1980-1983 agreement with Local 2172
on behalf of each of our employees represented by that
organization on our payroll during and for the months of
August, September, October, November, and December
1983 and January 1984.
WE WILL tender to the same fund such additional sum
or sums as shall be determined by the Agency in the
compliance phase of this case.
WE WILL make whole any employees represented by
Local 2172 who suffered a loss between August 1983
and January 1984 due to any differences between the
health and dental benefits unilaterally established by us
on August 1, 1983, and the health and dental benefits
provided those employees under the health plan estab-
lished under our 1980-1983 agreement with Local 2172,
with interest on any sums due.
WE WILL bargain with Local 2172 at its request con-
cerning the rates of pay, wages, hours, and working con-
ditions of our employees represented by that organiza-
tion, except as limited by the terms of an agreement with
that organization.
ARROW SASH AND DOOR Co.