Arrow Sash & Door Co.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1108 (N.L.R.B. 1986)

1108 ARROW SASH & DOOR CO.
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 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 23 January 1986 Administrative Law Judge
George Christensen issued the attached supplemen-
tal decision. The Respondent filed exceptions and a
supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by unilaterally terminating an agreement to extend
the expiration date of its collective-bargaining con-
tract with the Unions from 31 July to 12 August
1983; by canceling negotiations scheduled for 4
August 1983, withdrawing the concessions it had
made, and from the tentative agreements it had
reached, with the Unions during prior bargaining
sessions;2 and by ceasing to make any further con-
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
2 The Respondent here has failed to demonstrate that it had good
cause for withdrawing from the tentative agreements reached and the
concessions made during its prior bargaining sessions with the Unions.
The Respondent asserts that it withdrew its concessions and the tentative
agreements because it believed that the Unions had sanctioned or con-
doned a "sickout" engaged in by some of its employees on 29 July 1983
and had, therefore, breached the no-strike provision of their agreement,
thereby allowing it to withdraw its concessions and from the tentative
agreements , as well as justifying its other actions. However, as the judge
correctly found, the evidence in this case fails to establish that the Unions
either sanctioned, condoned, or in any way encouraged the Respondent's
employees to engage in a "sickout. " Under these circumstances , it is clear
that the Respondent was not justified in withdrawing from the tentative
agreements it had reached with, or the concessions it had made to, the
Unions during previous bargaining sessions , or in engaging in any of its
other unlawful conduct. In this respect , the instant case is distinguishable
from the Board's recent decision in Farm Boy Restaurants, 279 NLRB 82
(1986), in which the Board found that an employer 's withdrawal of a ten-
tative agreement reached between its negotiator and the union-on issues
relating to cost-of-lrvmg increases and cash payments in lieu of meals-
tributions to the Unions' health and pension funds,3
and implementing its own health plan without
giving prior notice to, or reaching impasse with,
the Unions. In his recommended Order the judge,
inter alia, directs the Respondent to make contribu-
tions to the Unions' pension fund for the period
August 1983 through January 1984. For the reason
stated below, we fmd it improper to order the Re-
spondent to make the pension fund contributions
suggested by the judge.
As noted, the Respondent's unlawful conduct re-
sulted from its mistaken belief that the Unions had
condoned an illegal work stoppage by its employ-
ees on 29 July 1983. After the Respondent's cancel-
lation of the scheduled 4 August 1983 bargaining
session, no further negotiations were held by the
parties until 16 December 1983 when, at the Re-
spondent's request, contract negotiations were re-
was not unlawful because the employer demonstrated good reason for
doing so.
Under the totality of the circumstances test reiterated in Farm Boy Res-
taurants, it is clear that the Respondent's withdrawal of agreement to ten-
tative agreements and concessions violated the Act. Thus, despite appar-
ent progress in negotiations toward a new agreement, the Respondent not
only withdrew from all tentative agreements and concessions previously
made, but it did so in conjunction with its cancellation of the extension of
the existing contract; cancellation of the next scheduled bargaining ses-
sion; unilateral cessation of payments to the pension and health funds, and
unilateral implementation of a new health plan. Such conduct as a re-
sponse to the employee sick-out went far beyond the grounds retied on in
Farm Boy for justifying that employer's action. Indeed, Farm Boy is dis-
tinguishable from this case in that there the employer withdrew agree-
ment only as to one issue and its asserted explanation for that action was
economically based. Furthermore, the holding in this case does not leave
the Respondent without recourse in the face of unauthorized job actions,
such as the one here, since the Respondent was entitled to and in fact did
discharge employees involved in the sick-out. Finally, the issue here is
not whether the Respondent acted in good faith, but whether the Re-
spondent had good cause in unilaterally withdrawing from the tentative
agreements and concessions made. For the reasons stated, it did not
Chairman Dotson does not agree that the Respondent's withdrawal of
the concessions it had made and from the tentative agreements -it had
reached with the Unions was unlawful. He notes in this regard that the
General Counsel in this case has not alleged, nor does the record evi-
dence show, that the Respondent engaged in such conduct for the pur-
pose of avoiding its bargaining obligation or reaching final agreement
with the Unions. Rather, the record,, in his view, clearly establishes that
the Respondent had bargained in good faith with the Unions until 29 July
1983, when the "sickout" occurred, and that its decision to withdraw its
concessions and from the tentative agreements was precipitated by the
sickout. Under these circumstances, Chairman Dotson finds that the
reason proffered by the Respondent for withdrawing from the tentative
agreements and the concessions made does not indicate a lack of good
faith and, contrary to his colleagues, finds the Board's decision in Farm
Boy Restaurants, supra, to be applicable and controlling here. That the
principals here-the employees-rather than their union agent planned
and engaged in the sick-out does not 'Change the result. The majority
would surely find it anomalous, were the situation reversed, to find the
Union in violation of Sec. 8(bX3) on the grounds that the Employer's ne-
gotiator was ignorant of, or disapproved the Employer's conduct.
8 The Respondent made no contributions to the Unions' pension fund
for the months of August 1983 through January 1984, when the parties
entered into a new agreement. Although the Respondent as of August
1983 had also failed to make its July 1983 pension fund contribution, the
record indicates that this was an oversight rather than a deliberate act on
the part of the Respondent and that the error was corrected by the Re-
spondent sometime in November 1983 when it tendered its July payment
to the Unions' pension fund
281 NLRB No. 149
ARROW SASH & DOOR CO. 1109
sumed . The parties engaged in serious and good-
faith negotiations between 16 December 1983 and
26 January 1984, and a final agreement was
reached on this latter date . The new agreement
was made retroactive to 1 August 1983 and provid-
ed, among other things , for the elimination of any
further pension coverage for the Respondent's em-
ployees, and substituted the health plan implement-
ed by the Respondent on 1 August 1983 for the
one contained in the prior contract.
From the above facts , it is clear that under the
26 January 1984 agreement the Respondent 's obli-
gation to contribute to the Union 's pension fund
ceased to exist as of 1 August 1983, the effective
date of the new contract. Thus, while the Respond-
ent did violate the Act by failing to tender contri-
butions to the Unions ' pension fund after July 1983,
we nevertheless find that the Unions here have, by
virtue of their 26 January 1984 agreement terminat-
ing any further pension coverage for employees
retroactive to 1 August 1983 , effectively and freely
waived any right they may have had to receive ad-
ditional pension fund contributions from the Re-
spondent for the period beyond July 1983. To
order the Respondent in these circumstances to
make the pension fund payments for the months of
August 1983 through January 1984, as the judge
recommends , would be tantamount to having the
Board rewrite part of the 26 January 1984 agree-
ment so as to impose on the Respondent this addi-
tional obligation that the parties themselves, after
good-faith and serious negotiations , elected not to
do. For this reason , we find it improper to direct
the Respondent to tender such contributions to the
Unions ' pension fund and shall , accordingly , delete
this provision from the judge 's recommended
Order.
The Respondent , however, shall be required to
comply in all other respects with the judge's rec-
ommended Order , including the provision requiring
that it make whole all those employees who may
have suffered a monetary loss by virtue of the fact
that from 1 August 1983 to 26 January 1984 they
were covered by the health plan unlawfully imple-
mented by the Respondent on 1 August 1983,
rather than by their old health plan. Although in
January the new health plan was made retroactive
to August, it is conceivable that , absent the Re-
spondent's unlawful conduct , the employees would
have received some benefits under the old plan
prior to the January agreement . To the extent such
benefits would have been in excess of what they
actually received under the unlawfully instituted
new plan , the employees should be made whole.
Thus, although the parties, in their 26 January 1984
agreement, agreed to substitute the health plan in-
stituted by the Respondent for the old one and to
make it retroactive to 1 August 1983 , we find that
it would be unconscionable to require the Respond-
ent's employees to bear the cost of any additional
expenses they may have incurred between 1
August 1983 and 26 January 1984 as a result of the
Respondent 's unlawful implementation of its own
health plan .4 Rather, the cost for such expenses
should be borne by the wrongdoer; in this case, the
Respondent.5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Arrow Sash and Door Company , Irvine,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Delete paragraphs 2(a) and (b) and reletter the
subsequent paragraphs.
2. Substitute the attached notice for that of the
administrative law judge.
4 Contrary to the Chairman 's position stated below, to make whole
employees who may have suffered a monetary loss as a result of the Re-
spondent's unlawful implementation of the new health plan does not con-
stitute a rewrite of the parties' 26 January 1984 agreement . By granting
such a remedy , the Board is not requiring the Respondent to retroactive-
ly make payments to the old health plan nor is it requiring the Respond-
ent to reestablish the old health plan. The Board is only applying its tra-
ditional remedy of requiring a respondent to make whole those employ-
ees who have suffered a loss as a result of the respondent's unlawful uni-
lateral implementation of changes in working conditions . Here, the Board
is presented with a clear violation of the Act. The Unions ' subsequent
bargaining decision does not preclude the Board from remedying that
violation and making whole employees who were harmed by the Re-
spondent's unlawful conduct.
5 Chairman Dotson would not require the Respondent to reimburse
employees for expenses incurred resulting from the fact that the Re-
spondent's health plan, rather than the old plan , was in effect from I
August 1983 to 26 January 1984 He notes in this regard that by agreeing
in their 26 January 1984 agreement to adopt the Respondent 's health plan
and to make it retroactive to 1 August 1983 the parties, as they did with
the pension fund contributions, effectively waived the employees ' right to
claim any benefits or privileges arising under the old health plan. The
majority here, he finds, "rewrite[s] part of the 26 January 1984 agree-
ment," an action it properly refuses to take with regard to pension fund
payments
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 ordered us to post and abide by this notice.
WE WILL NOT cancel any agreement with Mill-
men & Cabinet Makers Local No. 2172, United
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and Orange County District Council of
Carpenters, affiliated with the United Brotherhood
of Carpenters and Joiners of America, AFL-CIO
because some of our employees covered by that
agreement withheld their services in violation of
the no-strike provision of the agreement without
the authorization, support, ratification, or encour-
agement of an agent of Local 2172 acting within
the scope of his authority.
WE WILL NOT retract without good cause agree-
ments and concessions we have made in negotia-
tions with Local 2172 over the rates of pay, wages,
hours, and working conditions of our employees
represented by Local 2172.
WE WILL NOT implement new or changed rates
of pay, wages, hours, and working conditions of
our employees represented by Local 2172 during
the term of an agreement with Local 2172 covering
those subjects and prior to any agreement with
Local 2172 for such new or changed rate, etc., or
an impasse in bargaining with Local 2172 over
such new or changed rate; etc.,
WE WILL NOT fail or refuse to bargain with
Local 2172 -concerning the rates of pay, wages,
hours, and working conditions of our employees
represented by Local 2172.
WE WILL make whole any employee who suf-
fered a loss between 1 August 1983 and 26 January
1984 due to any difference between the health and
dental benefits provided by the Health Plan estab-
lished under our 1980-1983 agreement with Local
2172 and the plan we placed in effect on 1 August
1983, with interest on any sums due.
WE WILL bargain with Local 2172 at its request
over, rates of pay, wages, hours, and working con-
ditions of our employees represented by that orga-
nization (except as limited by the terms of an
agreement with Local 2172).
ARROW SASH AND DOOR COMPANY
SUPPLEMENTAL DECISION
GEORGE CHRISTENSEN, Administrative Law Judge.
On 30 September 1985 the Board remanded my 15
March 1985 decision in the subject cases and ordered I
prepare and issue this supplemental decision "with re-
spect 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 conclu-
sions," and, particularly, specific credibility resolutions of
conflicts in the testimony of witnesses Robert Acosta,
Michael Barrett, and Thomas Puebla.
In compliance with that order and on the basis of my
review of the entire record, observation of the witnesses,
research and analysis, I enter the following new
FINDINGS OF FACTS
1. JURISDICTION AND LABOR ORGANIZATION
On the basis of admissions in the answer to pertinent
allegations of the complaint, I find at all relevant times
Arrow Sash and Door Company (Respondent) was an
employer engaged in commerce in a business affecting
commerce and the Charging Parties (Unions) were labor
organizations within the meaning of Section 2 of the Na-
tional Labor Relations Act (Act).
II. THE UNIT AND THE UNION'S REPRESENTATIVE
STATUS
On the basis of admissions in the Respondent's answer
to pertinent allegations of the complaint, a valid agree-
ment between the Respondent and the Unions,' the Re-
spondent's conduct in negotiations (to be later discussed)
and statements contained in letters addressed to the
Unions by the Respondent,2 I find the Respondent and
the Unions executed an agreement in 1980 for a 3-year
term expiring 31 July 1983,3 at all subsequent times the
Respondent recognized the Unions as the duly designat-
ed collective-bargaining representative of a majority of
the Respondent's employees at its Irvine, California fa-
cilities classified and/or performing the work'of fixture
makers, custom cabinetmakers, working production fore-
men, machine setup men, production machine operators,
production cabinet assemblers, packers, parts movers,
helpers, shipping and receiving clerks, janitors, truck-
drivers, and forklift operators, excluding employees cov-
ered by other labor agreements, professional employees,
supervisors and guards as defined in the Act, and that a
unit consisting of the Respondent's employees' classified
as and/or performing the work of the job classifications
just set forth at all pertinent times has been and is an ap-
propriate unit for collective-bargaining purposes within
the meaning of Section 9 of the Act.
III. THE ALLEGED FAILURE OR REFUSAL TO BARGAIN
Representatives of the Respondent and the Unions
served timely notices on one another of their desire to
terminate the 1980-1983 agreement on 31 July and to ne-
gotiate a successor agreement; met on 17 and 28 June
and 11, 12, 19, and 28 July; and exchanged and discussed
each party's proposals for the terms of the successor
agreement.4
Throughout the negotiations, Acosta acted as the
Unions' spokesman and Attorney A. Patrick Nagel acted
as the Respondent's spokesman.5 Andrews attended all
i General Counsel's Exhibit 2 (G.C Exh hereafter)
2 G.C. Exhs. 3, 4, 6, and 7.
3 Read 1983 after all further date references omitting the year
4 These findings are based on the uncontradicted testimony of the
Unions' business representative, Robert Acosta, plus corroboration of that
testimony by the Respondent's part-owner, vice president, and general
manager, Lawrence Andrews, and Respondent employee Thomas Puebla
5 This finding is based on Acosta's uncontradicted testimony. On the
basis of that testimony and communications exchanged by Acosta and
Nagel (G.C. Exhs. 3, 4, 5, 6, and 7), I also find at all pertinent times
Acosta was an agent of the Unions action on their behalf and Nagel was
an agent of the Respondent acting on its behalf within the meaning of
Sec. 2 of the Act.
ARROW SASH & DOOR CO.
the negotiating sessions and Puebla attended the July, ses-
sions.6
Shortly before the close of the 28 July session, Acosta
and Nagel agreed to hold the next session on 4 August
and to extend the terms of the 1980-1983 agreement to
midnight on that date.' In a telephone conversation after
the 28 July meeting ended, Acosta and Nagel agreed to
further extend the terms to the 1980-1983 agreement to
12 August.8
Puebla went to the plant after the 28 July negotiating
session ended and asked the unit employees at work to
attend a meeting with Acosta following the end of the
workshift. Unit employees Michael Barrett, William
Gawryl, John Paukner, Terrence Pickering, Puebla,
Dwayne Thompson, and Kenneth Warren accepted the
invitation and attended the meeting.9 Unit employees
Joseph Enter, Herman Kubach, Joseph Nixa, Ray
Reaves, and Frank Vietnheimer did not attend the meet-
ing.
The employees arrived for the meeting prior to Acos-
ta's appearance. Puebla advised the employees at the ne-
gotiations that the Respondent still was proposing no
wage increases for them, a second and lower tier of
wage rates for new employees, taking away their seniori-
ty„10 reducing their paid holidays by two, changing their
health and vacation plans, terminating their pension plan,
and that Acosta agreed to extend the terms of the 1980-
1983 agreement to 4 August."
The employees were upset by Puebla's comments and,
when Acosta arrived, plied him with questions concern-
ing their accuracy. Acosta confirmed the accuracy of
Puebla's comments, stated while the employees were
going to have to accept the establishment of a second
wage tier for new employees, the loss of two paid holi-
days and changes in the vacation provision (explaining
the change would not affect them, only new hires), he
believed the Respondent would agree to retain the cur-
rent health and pension coverages, he hoped to secure an
agreement eliminating that portion of the Respondent's
seniority proposal giving management sole discretion in
applying it to layoffs, that he and Nagel agreed to a 2-,
week rather than a 1-week extension of the 1980-1983
agreement following the adjournment of face-to-face ne-
gotiations earlier that day in the hope and expectation an
agreement on all the terms of a successor agreement
could be reached' during the extension period, and ex-
15 This finding is based on Acosta's uncontradicted testimony, support-
ed by the testimony of Andrews and Puebla.
.^ This finding is based on the uncontradicted testimony of Acosta, cor-
roborated by Andrews and Puebla and written confirmation by Nagel
(G.C'. Exh. 3).
3 This finding is based on Acosta's uncontradicted testimony and writ-
ten confirmation by Nagel (G.C. Exh. 3)
'' This finding is based on the uncontradicted and mutually corrobora-
tory testimony of Acosta, Barrett (a witness called by the Respondent),
Paukner, and Puebla.
L0 By virtue of a proposal to add ability, skill, productivity, and appli-
calnon to work, in addition to seniority, as criteria for determining which
employees to lay off, and giving the Respondent sole discretion in apply-
ing those criteria (Puebla expressed fear this would lead to layoff of
senior, higher-paid employees and retention of lower-paid, more recent
hires in any layoff).
11 This finding is based on the uncontradicted and mutually corrobora-
tory testimony of Barrett, Paukner, and Puebla.
plained a strike vote would be conducted at a future
meeting if no final agreement or an agreement unsatisfac-
tory to the employees was negotiated during the exten-
sion period.12
The employees heatedly opposed the extension agree-
ment and wanted to go out on strike immediately, with
Barrett (a truckdriver) suggesting roving pickets at
points he was delivering Respondent's products could
bring Respondent's operations to a halt. Acosta tried to
calm down the employees, promised to contact Nagel
and seek his agreement to reducing the extension period
to its original 4 August date, requested the employees
give him an opportunity to see if he could conclude a
final agreement at the 4 August negotiations, promised
the employees he would submit the results of that session
to them that day, and promised to support whatever
action they decided to take at that time, including a vote
to go on strike, and took the position the employees
were barred from striking before the expiration of the ex-
tension period by the extension agreement.13
Warren questioned Acosta about what could happen
to the employees if they went out on strike before the
expiration of the extension period. Acosta stated the em-
ployees would be engaging in a "wildcat" strike in viola-
tion of the no-strike provision of the extended agree-
ment, the Respondent could discharge them for such a
violation, and the Unions could not do anything for
them.14
Faced with Acosta's explanation of the risks they ran
by striking before the expiration of the extension period,
the employees relunctantly relinquished any thought of
going out on a strike prior to such expiration. 1 s
One of the employees (Gawryl) nevertheless suggested
the employees call in sick the next day (probably out of
frustration and to retaliate in some way against the Re-
spondent over its proposed "give-aways") and most of
the employees supported the suggestion, including Bar-
rett and Warren (neither of whom was scheduled to
work on 29 July). Acosta responded by reiterating his
position: any withholding of their services by the em-
ployees prior to the expiration of the extension period
would constitute a "wildcat" strike in violation of the
no-strike provision of the extended agreement, the Re-
spondent could discharge any employee who engaged in
such activity, and the Unions could not do anything for
them and corollary advice, i.e., that the Respondent
could not discipline any employee who had a legitimate
reason for not reporting for work-real illness-but any
employee so claiming had better be able to prove it. The
employees received the impression Acosta was opposed
to and attempting to discourage their, taking the action
sought by Gawryl.16
12 These findings are based on uncontradicted testimony by Acosta,
supported by the testimony of Barrett, Paukner, and Puebla.
13 These findings are based on testimony by Acosta, corroborated by
the testimony of Barrett , Paukner, and Puebla.
i4 Acosta 's testimony to this effect was supported by Barrett.
is Barrett confirmed Acosta's testimony that this was the employee's
reaction.
16 The findings in this paragraph are based on the following Acosta
testimony, in response to the question whether Acosta instructed the em-
Cointinued
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither Paukner nor Puebla-the only witnesses other
than Acosta and Barrett who attended the 28 July meet-
ing-testified to what transpired at the meeting with re-
spect to the Gawryl suggestion and Acosta's comments
with respect to that suggestion. Paukner claimed he left
the meeting early and heard no such suggestion or dis-
cussion; Puebla denied any such suggestion or discussion
occurred. I discredit that claim and denial on the ground
both were attempting to avoid weakening their previous
self-serving testimony, in Paukner's case, that he was un-
aware of the suggested "sick-out" when he reported but
failed to go to work the day following the meeting and,
in Puebla's case, that he -was actually ill when he failed
to report for work the day following the meeting.
Following the close of the 28 July meeting, Barrett
telephoned Emer and reported what transpired at the
meeting. 17
On 29 July, nine employees were scheduled to work-
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. Emer, Nixa, Paukner,
Reaves,` and Vietnheimer arrived at the plant prior to
shift starting time; Paukner refused to go to work, saying
ployees not to engage in a walkout or a sick-out: "Well, they didn't
really ask me if they could do it, so I really didn't answer them `yes' or
`no'. I explained to them what would happen if it did happen, and I
couldn't do anything for them if there actually was a wildcat stike or
walkout the following day" and the following Barrett testimony . Q. "Did
Acosta say don't do it. Don't call in sick?" A. "He suggested it, but
didn't say don't do it " Q. "In what way did he suggest it?" A. "He sug-
gested not to do it." Q. "When Bill [Gawryl] brought up the subject that
everybody should call in sick, what did Bob [Acosta] say?" A. "He didn't
agree. He thought it was a bad idea." Q."What do you remember him
[Acosta] saying?" A. "That it was not a good idea and that you'd better
be prepared to prove that you are sick if you do call in sick." Barrett's
testimony to this effect was clear, affirmative, and convincing both in
tone and demeanor This mutually corroboratory testimony of Acosta
and Barrett (there was no contrary testimony by any other witness) casts
doubt on ' the credibility of Barrett's testimony Acosta, an experienced
and sophisticated union representative, on 28 July, encouraged the em-
ployees to participate in a "wildcat" walkout on 29 July by telling the
employees "if they wanted to do it, go ahead" and I discredit that testi-
mony. While giving the testimony just discredited, Barrett's tone and
manner were hesitant, uncertain, and unconvincing, in complete contrast
to his demeanor in his other (credited) testimony. As far as the Barrett
testimony Acosta told the employees "it would be hard for the company
to prove that they were not sick that day" and Acosta's testimony he
may have told the employees if they called in sick and, the company
could not prove they were not ill, there was nothing the company could
do about it, I find both Acosta and Barrett were referring to Acosta's
correct advice if any of the employees were really ill, the Respondent
could not discipline them for falling to report to work. With respect to
the following exchange- Q "In fact, is-it not true that you [Acosta] were
made aware by the employees that they supported the idea of calling in
sick and not reporting for work on Friday, July 29, at that particular
meeting held the previous day, July the 28th?" A. "No," Acosta had just
previously testified "I can't remeber who exactly said it, because they
were all talking at once and it was really hard to keep order because they
were all upset. I explained to them if somebody didn't show up to work
the next day, they'd better have good proof why they didn't, because the
company's going to know-and I don't remember if I explained that the
company had certain tights-but I did make it clear that if they were
going to be sick or not be able to work that day-or the following day-
they'd better have good proof because they're going to need it to keep
their job." I therefore find and conclude either Acosta misunderstood the
former question or was truthfully responding he believed his opposing
any "wildcat" walkout had persuaded the employees to abandon their
support of the suggested "wildcat" walkout on 29 July.
17 This finding is based on Barrett's uncontradicted testimony
he was not going to be an "outlaw"; Andrews excused
Reaves and Vietnheimer from working in view of the
former's illness and the latter's:reliance on Reaves for
transportation. Gawryl, Pickering, Puebla, and Thomp-
son did not report to work. Gawryl telephoned Andrews
and claimed he was in Hesperia (a town 100-miles dis-
tant) on his way to Barstow, because he received word
his father suffered a heart attack there. Thompson, tele-
phoned Andrews and told Andrews he and a number of
other employees were dissatisfied with the progress in
negotiations and decided they were not going to report
for work that day and that he was going to look for an-
other job closer to his home because it was a long com-
mute between his home and the plant. Puebla's wife tele-
phoned and asked if Puebla was there, professing igno-
rance of his whereabouts. Andrews did not hear from
Pickering at all. Following Andrews' receipt of the
Gawryl, Thompson, and Puebla telephone calls, Emer
advised Andrews that Barrett telephoned him the previ-
ous day and identified Gawryl, Paukner, Pickering,
Puebla, 'and Thompson as employees who were not
going to come to work that day because they were dis-
satisfied with the progress of negotiations. Andrews dis-
patched another employee (Byron Brown) to check at
the homes of Gawryl and Puebla. Brown reported he
saw Gawryl leave his home and the Puebla's car was
parked outside his home. The following day Andrews
prepared discharge notices and final paychecks for
Gawryl, Paukner, Pickering, Puebla, and Thompson.18
The Unions learned of the discharges the following
Monday (1 August) when Gawryl, Puebla, and Thomp-
son went to the Union's office and reported that on ar-
riving for work that morning, they were notified they
were discharged because they did not report for work on
29 July.19
On the same date (1 August).the Respondent imple-
mented the health plan it proposed in negotiation with
the Unions to replace the plan established under the
1980-1983 agreement (the Unions had proposed continu-
ation of that plan) and made no further contribution
either to the health or pension funds established under
that agreement. 20
On 2 August Nagel's secretary telephoned Acosta and
advised him Nagel, was canceling the 4 August negotia-
tions. On 3 August Nagel telephoned Acosta to state he
canceled the 4 August negotiations, was canceling the 28
July extension agreement, and was withdrawing any and
all of the Respondent's tentative agreements and conces-
sions, because some of the unit employees engaged in a
work stoppage in violation of the no-strike provision of
the agreement on 29 July. Nagel went on to state the Re-
spondent continued to recognize the Unions as the exclu-
sive collective-bargaining representative of the unit em-
18 The notices and paychecks were distributed 1 ,August. These find-
ings are based on mutually corroboratory or undisputed testimony by
Andrews, Reaves, and Vietnhenner; any contradictory testimomy by
Paukner is discredited.
19 This finding is based on Acosta's undisputed testimony, corroborat-
ed in part in Puebla.
20 Nor did the Respondent make any contributions for July This find-
mg is based on G.C. Exhs. 4, 5, and 6 and Acosta's undisputed testimony.
ARROW SASH & DOOR CO. 1113
ployees and would have new contract proposals to
present to the Unions.21
In early November, the trustees of the health and pen-
sion funds informed the Unions the Respondent had not
tendered contributions covering any unit employees after
30 June. The Unions formally requested the Respondent
make the requisite contribution, stating the Respondent
was legally obligated to continue paying for the unit em-
ployees' health and pension fund coverages in accord-
ance with the pertinent provisions of the expired agree-
ment until the Respondent and the Unions resolved their
differences with respect thereto. The Respondent there-
after tendered contributions to the funds covering the
month of July and formally advised the Unions it was
not going to make any further contributions, on the
ground the 1980-1983 agreement expired on 31 July. The
Respondent made no further contributions. 2 2
In subsequent negotiations, the Unions agreed to
accept all the Respondent 's proposals for a new agree-
ment, retroactive to 1 August 1983 and expiring 31 July
1985 . The new agreement incorporated the Respondent's
proposed elimination of pension coverage and substitu-
tion of a new health plan instituted by the Respondent
on 1 August for the trustee plan contained in the previ-
ous agreement.23
IV. ANALYSIS AND CONCLUSIONS
I have entered findings on 2 and 3 August the Re-
spondent canceled the 4 August negotiation, canceled the
28 July extension agreement, instituted a new health plan
effective 1 August, ceased contributions to the health
and pension funds, and withdrew all previous agreements
and concessions it made during negotiations, all without
prior notice , negotiations , or impasse, because 5 of the 12
unit employees participated in a 29 July "wildcat" walk-
out.
Normally an employer's refusal to meet and negotiate
with a union representing a majority of its employees
concerning their wages, etc., particularly after a walkout
had ended or was not authorized by the union, his unilat-
eral change of the union-represented employees' wages
(including pension and health fund contributions), his im-
plementation of a new health plan, and his withdrawal of
agreement and concessions in prior bargaining , before
the expiration of an agreement with the union and after
its expiration , before union agreement to the changes or
bargaining impasse, constitutes a violation of Section
8(a)(1) and (5) of the Act.24
Thus the only question is whether the unilateral Re-
spondent actions described above constituted lawful re-
taliation for the walkout (in addition to its lawful dis-
charge of the five participants).
The Respondent argues its unilateral actions were
lawful , in essence contending the walkout by 5 of its 12
21 This finding is based on Acosta 's uncontradicted testimony and
Nagel 's confirming letter (G.C. Exh. 4)
22 This finding is based on stipulations and the letter exchanges be-
tween the Unions and the Respondent (G.C Exhs . 5 and 6).
23 This finding is based on Acosta's testimony and R . Exh. 4.
24 See the cases cited in fns. 14, 15, and 16 of my prior decision and
International Shoe Corp., 152 NLRB 699 (1965), United Elastic Corp, 84
NLRB 768 (1949); Higgins, Inc., 90 NLRB 184 (1950)
unit employees on 29 July , prior to the expiration both
of the 1980-1983 agreement and the extension agreement,
constituted a material breach by the Unions of the no-
strike provision of the agreements , relieving the Re-
spondent of any duty to bargain with the Unions and any
liability under the Act for its unilateral actions.
Decisions have issued holding such union action con-
stitutes a material breach, relieves the affected employer
from any duty to bargain within the meaning of Section
8(a)(5) of the Act, and frees him to act unilaterally.25
The issue of union responsibility within the meaning of
the Act for "wildcat" walkouts by its members has
arisen repeatedly . In the leading case on the subject,26
the United States Supreme Court held such responsibility
must be determined according to common law agency
rules, further holding a union is not responsible for such
actions where there is no showing the union by an agent
acting within the scope of his agency powers instigated,
supported , ratified, or encouraged the member/employee
action . Other courts have issued similar decisions.27
In this case the Respondent contends such responsibil-
ity may be predicted on Acosta's remarks at the 28 July
union meeting while discussing Gawryl's suggestion the
employees attending the meeting withhold their services
the following day to bring economic pressure on the Re-
spondent to change its bargaining stance.
I have entered findings Acosta informed the employ-
ees attending the meeting they were barred from bring-
ing such pressure on the Respondent prior to the expira-
tion of the no-strike provision of the 1980-1983 agree-
ment, as extended; that the Union would not authorize or
sanction a strike against the Respondent until he had a
chance to reach agreement on terms for a new agree-
ment in further negotiations, present the result to the em-
ployees, conduct a strike vote, a majority voted to reject
any proposed contract terms and to go on strike, he se-
cured the necessary authorization and sanction therefor,
and the extension agreement expired. I have also entered
findings Acosta informed the employees they risked dis-
charge if they took individual action against the Re-
spondent prior to the time the measures and events just
described were accomplished and passed and, while the
Unions could not prevent them from doing so , neither
could or would the Unions help them if they did so
without legitimate reason therefor (actual illness, grant of
requested time off, etc.)28 and lost their jobs. Last, I
have entered findings the only witnesses who testified to
the tenor of Acosta's remarks concerning the Gawryl
suggestion (Acosta and Barrett) were in complete agree-
ment Acosta opposed and tried to discourage the employ-
26 Leveld Wholesale, 218 NLRB 1344 (1975 ); Dow Chemical Co., 212
NLRB 333 (1974); Marathon Electric Mfg. Co., 106 NLRB 1171 (1953),
affd. 223 F .2d 338 (D.C. Cit. 1955), cert . denied 350 U.S. 981 (1956).
26 Carbon Fuel Ca v. Mine Workers Local 1216, 444 U.S. 212 (1979).
27 Consolidated Coal Co. P. Mine Workers Local 1261, 752 F.2d 1258
(10th Cir. 1984); North River Energy Corp. v Mine Workers, 664 F.2d 1184
(11th Cir . 1981); U.S Steel Corp. v. Mine Workers, 519 F.2d 1249 (5th
Cir. 1975), rehearing denied 526 F.2d 376 (1976), cert. denied 428 U.S. 910
(1976).
28 While Barrett and Warren attended the meeting and supported
Gawryl's suggestion, both were on excused absence the next day and
were not disciplined.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees from engaging in any unauthorized economic activity
against the Respondent prior to the expiration of the ex-
tended agreement, which is consistent with his repeated
expression of his belief he could secure an agreement
with the Respondent satisfactory both to the Unions and
the employees if they refrain from any economic action
against the Respondent while he engaged in further ne-
gotiations.
It is clear Acosta during the meeting tried to perform
the delicate balancing act a union representative fre-
quently has to perform during negotiations; attempting to
retain the trust and support of its members/employees in
the face of a hostile reaction to a report concerning the
current state of those negotiations and at the same time
cooling the tendency of the militants among their
number to engage in rash and untimely actions which
would disrupt negotiations and make it difficult to secure
an acceptable agreement.
On the basis of those findings, I conclude the Re-
spondent failed to show the Unions by Acosta's remarks
during the 28 July union meeting authorized, called, en-
couraged, or ratified the 29 July "wildcat" walkout by 5
of the 12 unit employees and therefore further find and
conclude the Respondent violated Section 8(a)(1) and (5)
of the Act by its unilateral 2 and 3 August cancellation
of the 4 August negotiations, its 1 August installation of
a new health plan, its cessation of contributions after 1
August to the health and welfare funds established by
the 1980-1983 agreement, and its 3 August withdrawal
of all agreements and concessions it made in prior nego-
tiations.29
CONCLUSIONS OF LAW
1. At all pertinent times the Respondent was an em-
ployer engaged in commerce in a business affecting com-
merce and the Unions were labor organizations within
the meaning of Section 2 of the Act.
2. At all pertinent times Nagel was an agent of the Re-
spondent acting on its behalf and Acosta was an agent of
the Unions acting on their behalf within the meaning of
Section 2 of the Act.
3. At all pertinent times the Unions were the designat-
ed collective-bargaining representative of a majority of
the Respondent's employees within a unit appropriate for
collective-bargaining purposes within the meaning of
Section 9 of the Act consisting of:
All employees of Arrow Sash and Door Company
it its Irvine, California facilities performing work
within 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 and 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. Five of the twelve employees within the unit with-
held their services from the Respondent on 29 July to
bring economic pressure on the Respondent to change its
position in current negotiations for an agreement suc-
ceeding a currently effective agreement between the Re-
spondent and the Unions containing a no-strike provi-
sion, in violation of that provision.
5. On 28 July Acosta did not authorize, sanction, insti-
gate, cause, call, support, ratify, or encourage the five
employees to take the action just described.
6. The Respondent violated Section 8(a)(1) and (5) of
the Act by retaliating for the 29 July walkout by the five
employees30 by unilaterally-without prior notice to the
Union, bargaining, or impasse-cancelling scheduled ne-
gotiations, installing a new health plan, ceasing contribu-
tions to health and welfare funds established under the
1980-1983 agreement between the Respondent and the
Unions, and withdrawing the. agreements and conces-
sions it made in previous negotiations.
7. The aforesaid unfair labor practices affected com-
merce within the meaning of the Act.
THE REMEDY
Having found the Respndent engaged in unfair labor
practices , I recommend the Board direct the Respondent
to cease and desist thereform and take affirmative action
designed to effectuate the purposes of the Act.
In view of my finding the Respondent violated the
Act by ceasing to tender contributions after 1 August to
the pension fund established under the 1980-1983 agree-
ment during its extension and prior to the time the Re-
spondent and the Unions agreed to terminate pension
plan coverage for the unit employees (26 January 1984),
I recommend the Board direct the Respondent to tender
contributions to the pension fund covering a period ex-
tending from 1 August 1983 through January 1984.31 Be-
cause the Board ordinarily does not provide for the pay-
ment 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 make
'timely tender of contributions, possible loss of return on
investment on the funds withheld , administrative costs,
etc., I recommend the Board leave to the compliance
stage of this case the question of whether the Respond-
ent should be required to pay additional sums as the
result of its unlawful withholding of contributions to the
pension fund between August 1983 and January 1984.32
In view of my finding the Respondent violated the
Act by ceasing to tender contributions after 1 August to
the health fund established under the 1980-1983 agree-
ment during its extension and prior to the time (26 Janu-
ary 1984) the Respondent and the Unions agreed to sub-
stitute the health plan the Respondent instituted on 1
30 I have earlier concluded the Resondent was legally entitled to its
29 See the cases cited in fns. 14, 15, and 16 of my prior decision and 24 added retaliation of discharging the five employees who withheld their
above In view of these findings, I also find and conclude the Respondent services on 29 July.
did not have "good cause" for withdrawing its agreements and conces- 81 See the cases cited in fn. 19 of my prior decision
sions in the negotiations preceding the withdrawal 32 See the cases cited in fn. 20 of my prior decision
ARROW SASH & DOOR CO. 1115
August, I recommend the Board direct the Respondent
to make whole any unit employees who suffered a mone-
tary loss by virtue of the fact the new rather than the old
plan was in effect between 1 August 1983 and 26 Janu-
ary 1984, with interest on any sum or sums due as set
forth under the "other monetary remedies" category of
Florida Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed33
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 No. 2172, an affiliate of the
Orange Country District Council of Carpenters and the
United Brotherhood of Carpenters & Joiners of America,
AFL-CIO because some of the employees covered by
that agreement withhold their services in violation of the
no-strike provision of that agreement without the author-
ization, support, ratification, or encouragement of an
agent of Local 2172 acting within the scope of his au-
thority.
(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 represented by Local 2172.
(c) Implementing new or changed rates of pay, wages,
hours, and working conditions of its employees repres-
sented by Local 2172 during the terms of an agreement
with Local 2172 covering those subjects and prior to any
agreement with Local 2172 for such new or changed
rates of pay, etc., or impasse in bargaining with respect
thereto.
(d) Failing or refusing to bargain with Local 2172 con-
cerning the rates of pay, wages, hours, and working con-
ditions of its employees represented by Local 2172.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Tender to the Southern California Lumber Indus-
try Retirement Fund the monthly contributions estab-
lished by the 1980-1983 agreement between Arrow Sash
and Door Company and Local 2172 on behalf of each of
its employees within the unit covered by that agreement
during and for the months of August , September, Octo-
ber, 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 as prescribed in the remedy sec-
tion of this decision.
(c) Make whole any unit employees who have suffered
a loss between 1 August 1983 and 26 January 1984 due
to any difference between the health and dental benefits
provided by the health plan established under the 1980-
1983 agreement between Arrow Sash and Door Compa-
ny and Local 2172 and the plan placed in effect by the
Respondent on 1 August 1983 , with interest on any sums
due as set forth under the "other monetary remedies"
category of Florida Steel Corp., 231 NLRB 651 (1977).
(d) Bargain with Local 2172 at its request concerning
the rates of pay , wages, hours, and working conditions of
its employees represented by Local 2172 (except as limit-
ed by the terms of an agreeement with that organiza-
tion).
(e) Post at its premises in Irvine , California, copies of
the attached notice marked "Appendix."34 Copies of the
notice, on forms provided by the Regional Director for
Region 21 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced , or covered by
any other material.
(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.
as 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
Board and all objections to them shall be deemed waived for all pur-
Poses.
34 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 Nation-
al 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."