Autoprod, Inc.

National Labor Relations Board - Board Decisions

Nov 5, 1982

265 N.L.R.B. 331 (N.L.R.B. 1982)

AUTOPROD, INC.
Autoprod, Inc. and Shopmen's Local Union No. 455,
International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO and
Gerhard Maurer, Petitioner, and Shopmen's
Local Uni9n No. 455, International Association
of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO. Cases 29-CA-7227 and
29-RD-311
November 5, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 29, 1981, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
The Respondent's flagrant misconduct, as evi-
denced by the record in this proceeding, caps a
decade of contumacy and flagrant disregard of its
employees' rights under the Act during which the
Respondent has flouted court-enforced orders of
the Board and persistently ignored its statutory ob-
ligations. The Board previously found that the Re-
spondent sought to undermine the Union's 1972 or-
ganizing campaign by engaging in unlawful interro-
gations, making threats, and discriminatorily dis-
charging two of the four principal employee orga-
nizers. As part of the remedy, the Board imposed a
Gissel bargaining order. 2
Following enforcement of the Board's Order by
the Second Circuit in 1974,7 the Union made an
abortive effort to negotiate a contract and the par-
ties held a series of meetings. Contemporaneously,
the Respondent granted unilateral wage increases,
refused to provide requested information to the
Union which was relevant to its representative
function, and finally terminated negotiations, upon
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2201 NLRB 597 (1973).
3 489 F.2d 752.
the filing of a decertification petition, in the con-
text of the above unfair labor practices which, the
Board found, could have reasonably been predicted
to result in employee disaffection. Based on the
foregoing, the Board concluded that the Respond-
ent bargained in bad faith from the inception of ne-
gotiations.4
Thereafter, the parties bargained, reaching agree-
ment on April 29, 1977, when President Joel Tropp
signed a draft contract on behalf of the Respond-
ent. This agreement, effective from January 1977
through May 1979, provided for a reopener on
wages and other economic issues on 30-day notice
prior to September I of each contract year.
In July 1977, the Union requested bargaining
pursuant to the reopener. The Respondent did not
reply. The Union invoked the (interest) arbitration
clause of the contract. The Respondent, having re-
pudiated the agreement, attempted unsuccessfully
to stay the arbitration and the court directed the
parties to proceed. The Respondent's argument,
both before the court and, later, the arbitrator, that
no agreement was in fact reached was found to be
without merit. Specifically, the Respondent assert-
ed that Tropp signed the draft agreement in order
that it might then be reviewed by his counsel. The
award, handed down on April 20, 1978, mandated,
inter alia, a $1-an-hour across-the-board wage in-
crease, effective that date, and payment by the Re-
spondent into the Union's pension and welfare
funds, effective June 1, 1978. The Respondent
began making payments into the funds in July
1978, but admittedly each payment thereafter was
"somewhat" late. Moreover, the Respondent failed
to pay the required wage increases, as mandated,
and the Union brought court action for confirma-
tion of the award. The Respondent began payment
of the wage increases in December 1978, following
confirmation.
At that time, the Respondent was also in breach
of its contractual obligation to increase vacation
benefits. Further, disputes concerning the Respond-
ent's failure to make proper payments into the pen-
sion and welfare funds and to pay employees
Schneider and Edwards the entire amount of their
retroactive wage increases remained unresolved. In
late February or early March 1979, the Union re-
quested certain payroll information relevant to
issues raised in connection with these disputes and,
on March 20, filed for arbitration. The Respondent,
however, withheld the requested information until
immediately after a second decertification election,
which was held on May 4, only I week prior to
the scheduled arbitration.
4 223 NLRB 773 (1976).
265 NLRB No. 42
331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the facts and for the reasons set forth in his
Decision, the Administrative Law Judge found that
the Respondent violated Section 8(a)(1) of the Act
at preelection dinner meetings by threatening em-
ployees with loss of overtime and side jobs if the
Union won this second decertification election, and
by promising improved pension benefits if it lost. 5
He also found that the Respondent engaged in vio-
lative conduct by suggesting to employee Schnei-
der that he need not comply with a subpena to
appear at the May 1979 arbitration hearing.
Further, the Administrative Law Judge found
that the Respondent violated Section 8(a)(3) by
failing, for discriminatory reasons, to pay Schnei-
der and Edwards the entire amount of their retro-
active wage increases, as required by the April 20,
1978, award.
He also found that the Respondent violated Sec-
tion 8(a)(5) by failing to fully implement the $1-an-
hour across-the-board wage increase mandated by
the earlier arbitration award until a time well
within the 10(b) period; by similarly delaying the
required increase in vacation benefits and the pay-
ments into the Union's pension and welfare funds;
by failing to comply in timely fashion with the
Union's request for information required in the
prosecution of the grievances mentioned above;
and, further, by dealing directly with employees at
the preelection dinner meetings concerning their
pension and welfare benefits, in disregard of the
Union's representative status.
Finally, based on the foregoing instances of mis-
conduct, and in the light of the entire record in this
proceeding, the Administrative Law Judge found
that the evidence pointed to an "overall repudi-
ation of the collective-bargaining agreement" by
the Respondent and a "course of conduct designed
to undermine the Union and to derogate its role as
a bargaining representative."
For these reasons, having sustained the Union's
objections to the election, based on threatened loss
of overtime and promised improvements in pension
and welfare benefits, he recommended that the de-
certification petition be dismissed.
In its exceptions to the Administrative Law
Judge's Decision, the Respondent renews its in-
credible arguments that President Tropp signed the
draft agreement only so that it could be "re-
viewed" by his counsel, that the contract reopener
was limited to wages only, and that the arbitrator's
award itself cast doubt as to whether the required
wage increase amounted to $1 per hour or per day.
While conceding that delays occurred in the pay-
ment of wage increases, even after all collateral ef-
forts to forestall payment had failed, the Respond-
' Predictably, the Union lost this election.
ent asserts merely that such delays were an "over-
sight." The Respondent argues that its delay in
granting the increase in vacation benefits was like-
wise an oversight and that the continuing delay in
making payments into the Union's pension and wel-
fare funds was not significant. Such arguments are
patently frivolous.
In these circumstances, and in the light of the
Respondent's long history of intransigence, we
conclude that traditional forms of relief are inad-
equate as a means of effectuating the policies of the
Act and serving the public interest. Rather, we
deem it appropriate that the Respondent be re-
quired to reimburse this Agency for the costs
which were wantonly and unnecessarily forced
upon it in the litigation of this proceeding, as a
means of restoring the status quo ante.6 To this end,
we shall order the Respondent to reimburse the
Board for its costs and expenses incurred in the in-
vestigation, preparation, presentation, and conduct
of this proceeding, including salaries, witness fees,
transcript and record costs, printing costs, travel
expenses and per diem, and such other reasonable
costs and expenses as are found appropriate. 7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Autoprod, Inc., New Hyde Park, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Designate paragraph 2 as paragraph 1(1), and
paragraph 3 as paragraph 2.
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Make whole the National Labor Relations
Board for the reasonable costs and expenses in-
curred by it in the investigation, preparation, pres-
entation, and conduct of this proceeding, said sums
to include interest as set forth in the section of the
Administrative Law Judge's Decision entitled 'The
Remedy."'s
6 J. P. Stevens & Co., Inc., 244 NLRB 407 (1979), enfd. 668 F.2d 767
(4th Cir. 1982).
7 See Tiidee Products, Inc., 194 NLRB 1234, 1236-37 (1972).
See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Member Zimmerman regrets that Member Jenkins has seen fit in his
partial dissent to disparage the Board for adhering to its position regard-
ing computation of the remedial interest rate. Having cited two wholly
irrelevant cases to dramatize his point (Vaca v. Sipes, 386 U.S. 171 (1967),
and N.L.R.B. v. Radio and Television Broadcast Engineers Local 1212. In-
ternational Brotherhood of Electrical Workers. AFL-CIO [Columbia Broad-
casting System], 364 U.S. 573 (1961)), Member Jenkins then concedes that
Continued
332
AUTOPROD, INC.
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges vio-
lations not expressly found.
IT IS FURTHER ORDERED that the election in
Case 29-RD-311 be, and it hereby is, set aside, and
that the petition in that case be, and it hereby is,
dismissed.
MEMBER JENKINS, dissenting in part:
In Olympic Medical Corporation, 250 NLRB 146
(1980), I proposed that we take several steps to
keep our interest rates on backpay more closely
aligned with the sharply fluctuating interest rates
which those unlawfully discharged would have to
pay on funds borrowed to replace their lost wages.
Such action was necessary to achieve an adequate
"make whole" remedy and to avoid the windfalls
and penalties, to both employees and employers,
which a fixed rate causes. After several years of se-
rious pressure caused by extreme changes in inter-
est rates, the Board, including me, finally made a
belated and inadequate effort to adjust to the new
situation by adopting the formula used by the In-
ternal Revenue Service for interest on tax deficien-
cies and refunds. Florida Steel Corporation, 231
NLRB 651 (1977). Subsequent efforts to persuade
my colleagues to move farther toward a closer
alignment with market rates failed, leading to my
dissent in Olympic Medical.
The IRS formula there reaffirmed by the Board
seemed defective to me for three major reasons:
First, that formula lagged 2 years behind actual
changes in interest rates, thus continuing the wind-
fall-penalty effect of not using current rates; if rates
were rising, the creditor-employee suffered a penal-
ty and the debtor-employer received a correspond-
ing windfall; if rates were falling, the opposite was
true; and if rates fluctuated widely but after 2 years
ended about where they started, either party could
be victimized. The recent sudden drop in interest
rates, which will penalize employers severely, dra-
matizes the effects.
Second, the IRS formula did not change the rate
unless the market rate differed by at least 1 percent
from the existing formula rate, another arbitrary
standard which distributed windfalls and penalties
capriciously.
Third, the IRS formula rate was only 90 percent
of the market rate, a plainly arbitrary figure which
made a "make whole" remedy impossible.
the differences between himself and the Board have narrowed to the
single issue of quarterly rate adjustments, and tacitly agrees that time has
demonstrated the soundness of our adherence to the Internal Revenue
Service formula.
Congress, in the Economic Recovery Tax Act of
1981, effective January 1, 1982, has now corrected
most of these deficiencies. The IRS rate is now ad-
justed annually instead of every 2 years. It is to be
100 percent rather than 90 percent of the market
rate. And the adjustment is to be made even
though the difference between the existing IRS
rate and the market rate is less than I percent.
Thus, most of the objections I set out in Olympic
Medical have been met. One deficiency remains in
the IRS formula: Quarterly adjustments in the rate,
which would take very little effort, would be much
more desirable than annual adjustments. We should
now take this additional step to bring our remedy
more nearly to "make whole." Our failure to do so,
even after Congress has pointed the direction, re-
flects the same inability to meet an issue which the
Supreme Court, in Vaca v. Sipes, 386 U.S. 171, 183
(1967), called our "tardy" action, or which the
same Court, in N.L.R.B. v. Radio and Television
Broadcast Engineers Local 1212, International Broth-
erhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573, found to be a
dereliction of our responsibility to decide jurisdic-
tional disputes on their merits instead of examining
merely contractual provisions and our prior orders
and certifications. Despite this, the battle has been
largely won, and further dissents from our use of
the IRS interest rate will, it is evident, have no
effect on my colleagues. Consequently, though I
remain persuaded we should do more, I shall no
longer say so routinely in each case.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten employees with loss
of overtime and side jobs if they continue to
support Shopmen's Local Union No. 455, In-
ternational Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO, or
any other labor organization.
WE WILL NOT promise to increase pension
and welfare fund benefits provided employees
withdraw their support and assistance for the
Union.
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT promise to recognize another
union or a grievance committee of the employ-
ees if they vote to decertify the Union.
WE WILL NOT advise employees that they
are not required to honor subpenas directing
their attendance at arbitration hearings con-
ducted under the grievance procedure of the
collective-bargaining agreement.
WE WILL NOT refuse to pay retroactive pay
increases due employees because of their sup-
port for the Union or otherwise discriminate
against such employees.
WE WILL NOT refuse to recognize and bar-
gain with the Union as the representative for
purposes of collective bargaining on behalf of
the employees in the following appropriate
unit:
All production and maintenance employ-
ees, including plant clerical employees, but
excluding office clerical employees, superin-
tendents, independent maintenance contrac-
tors, employees represented by other labor
organizations, and all supervisors as defined
in the Act.
WE WILL NOT repudiate our obligations
under any agreement entered into between
Autoprod, Inc., and the Union and refuse to
comply with the terms and conditions pro-
vided in such agreement.
WE WILL NOT refuse and fail to pay wage
increases, vacation benefits, and pension and
welfare benefit payments provided in any col-
lective-bargaining agreement between Auto-
prod, Inc., and the Union, or set forth in any
arbitration award rendered pursuant to the
grievance procedure of such agreement.
WE WILL NOT deal directly with our em-
ployees and bypass their duly authorized col-
lective-bargaining representative concerning
conditions of employment.
We will not refuse to furnish payroll records
and other documents relevant to the process-
ing of a grievance by the Union under the
contract.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL recognize and, upon request, bar-
gain with the Union for our employees in the
appropriate unit described above.
WE WILL make whole William Schneider
and Al Edwards for any retroactive wages due
to them or any other losses because of our re-
fusal to make such payments with interest.
WE WILL make whole any other employee
in the appropriate unit for any loss sustained
because of our failure to make timely pay-
ments of wage increases due pursuant to an ar-
bitration award, with interest.
WE WILL compensate the Board, with inter-
est, for its expenses in preparing for and in
conducting this proceeding.
AUTOPROD, INC.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This pro-
ceeding was heard at Brooklyn, New York, on June 2, 3,
and 4, 1980. Upon a charge filed and served on May 29,
1979, by Shopmen's Local Union No. 455, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, herein called Local 455 or the
Union, the Regional Director for Region 29 issued a
complaint on July 31, 1979, alleging various violations of
Section 8(a)(l), (3), and (5) of the Act by Autoprod, Inc.,
herein called Respondent or the Company.
A petition in Case 29-RD-311 having been filed by
the Union on March 14, 1979, pursuant to a Stipulation
for Certification Upon Consent Election approved April
3, 1979, an election by secret ballot was conducted on
May 4, 1979, among the employees in a stipulated appro-
priate unit. The tally of ballots revealed that, of approxi-
mately 14 eligible voters, 5 cast votes for, and 7 cast
votes against, the Union and 2 ballots were challenged.
The challenged ballots were not sufficient in number to
affect the results of the election. Thereafter, on May 10,
1979, the Union filed timely objections to conduct affect-
ing the results of the election. The Regional Director,
having found the issues raised by the objections may best
be resolved by a hearing, and that the Board may dismiss
the petition if it found that Respondent had engaged in
the violations of Section 8(a)(5) as alleged in the com-
plaint, issued an order consolidating these matters on
August 27, 1979. Respondent filed an answer denying the
commission of any unfair labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. The
General Counsel and Respondent submitted briefs which
have been carefully considered. Upon the entire record
in the case, and from my observation of the witnesses
and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent, a New York corporation, has an office
and place of business in New Hyde Park, New York,
where it is engaged in the manufacture and sale of ma-
chinery for the food processing industry. During the
year preceding the issuance of the complaint, Respond-
ent purchased goods and materials valued in excess of
334
AUTOPROD. INC.
$50,000, of which goods and materials valued in excess
of that sum were transported and delivered to its plant
directly from States in the United States other than the
State of New York.
The complaint alleges, Respondent admits, and I find
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The relationship between the Union and Respondent
goes back to early 1972 when the Union engaged in an
organizational campaign of Respondent's employees
which numbered from 12 to 14. This campaign culminat-
ed in a Board proceeding and order which found that
Respondent had engaged in violations of Section 8(a)(l),
(3), and (5) of the Act, including coercive interrogation
of employees, threatening employees with loss of bene-
fits, and the discriminatory discharge of two of the em-
ployees who were the principal organizers. Finally, find-
ing that Respondent's unfair labor practices rendered im-
possible a fair election, the Board ordered that the Com-
pany recognize and bargain with the Union (201 NLRB
597). In 1974 the Board's order was enforced by the
United States Court of Appeals of for the Second Circuit
(489 F.2d 752).
Subsequent to the decision in that case, the parties' at-
tempts to engage in bargaining resulted in a further
Board proceeding. In the second case, the Board found
that Respondent had engaged in various violations of
Section 8(a)(5) of the Act, including bad-faith bargaining,
unilateral changes in wages and conditions of employ-
ment, and failing and refusing to comply with the
Union's request for information as to the addresses of
employees in the bargaining unit. Finally, it was also
held that Respondent unlawfully terminated negotiations
following the filing of a decertification petition and with-
drew recognition from the Union. The Board determined
that this withdrawal was in the context of Respondent's
unlawful conduct which could have reasonably been pre-
dicted to cause employee disaffection (223 NLRB 773
(1976)).
B. Facts
The saga of the relationship between these parties con-
tinued through arbitration and court proceedings leading
to the instant case. After the second Board order, the
parties engaged in bargaining which resulted in the ex-
ecution of a collective-bargaining agreement on April 29,
1977, by Respondent, through its president, Joel S.
Tropp. This agreement was by its terms effective from
January 1, 1977, until May 31, 1979, and provided that
upon 30 day's written notice before September 1, 1977,
and September 1, 1978, the Union may reopen for pur-
poses of wages and other economic issues and that unre-
solved issues could be submitted to arbitration.
In July 1977 the Union wrote Respondent, requesting
bargaining on the reopener. According to William Cola-
vito, president of the Union, he had been previously un-
successful in getting the Company to implement the con-
tract and was not even certain whether it was paying the
agreed rates of wages since he had no access to its
records. This was also true as to other provisions. In any
case the Company did not respond to his July request for
bargaining on the re-opener and the Union then invoked
the arbitration provision of the contract. Thereupon Re-
spondent went to court to stay the proceedings. Ulti-
mately it did not succeed, and the court directed Re-
spondent to proceed to the arbitration. Before both the
court and the arbitrator Respondent first pleaded that it
had not even executed the contract. No merit was found
to this contention.
A hearing was held before an arbitrator in March 1978
after which an award was issued on April 20, 1978. The
arbitrator, finding that the collective- bargaining agree-
ment had been validly executed, awarded an increase of
$1 per hour for all employees effective as of the date of
the award, and further directed that Respondent join the
Union's pension and welfare plans and commence pay-
ment for its employees to the Union's funds effective
June 1, 1978. Respondent refused to put the award into
effect despite letters from the Union and its attorney as
well as telephone calls. Indeed at the hearing Tropp tes-
tified that he was unable to implement the awards at the
time. Further litigation in the New York State Supreme
Court ensued, and in November 1978 the Court issued its
decision enforcing the arbitrator's award. Respondent fi-
nally began payments to the funds in July 1978.
In August it gave wage increases to its employees
based on what was later determined to be an erroneous
interpretation of the arbitrator's award of a $1- per-hour
increase. Thus Respondent merely increased the mini-
mum wage as provided in the contract by SI rather than
giving each employee S1 over the amount he was actual-
ly receiving. As a result the increases varied from noth-
ing to S1. In addition Respondent at that time refused to
make the wage increases retroactive to April 20, as pro-
vided in the award, forcing the Union to bring action in
the State Court for confirmation of the award. In De-
cember 1978, following the Court's enforcement, Re-
spondent finally instituted the correct rates of pay as
provided in the arbitration award and made the retroac-
tive payments which it had previously refused. Accord-
ing to Colavito, Respondent was also behind in its pay-
ments to the pension and welfare funds.
The contract which was effective from the beginning
of 1977 increased vacation benefits previously in effect
by providing that employees with 3 or more years of
service would receive I additional vacation day in the
fourth year of service and I day for each year thereafter
up to a maximum vacation of three weeks. It is uncontra-
dicted that Respondent did not pay those employees who
were entitled to these additional days, nor did it give
them the additional time off. According to an employee
witness, Gabriel Sinagra, he only learned he was entitled
to more vacation at the end of 1978, and Colavito testi-
fied he did not become aware that employees were not
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receiving this additional benefit until late 1979. In any
event, it was not until December 27, 1979, that Respond-
ent paid the employees who were entitled to these extra
days.
There were several problems with regard to the imple-
mentation of the arbitrator's award increasing wages by
$1 per hour effective April 20, 1978, as applied to certain
individual employees. Two employees, William Schnei-
der and Albert Edwards, were hired in July 1978. Al-
though Respondent gave Edwards the $1-per-hour in-
crease as of August 16, and Schneider his increase as of
September 7, neither one of these employees ever re-
ceived the amount of increase to which he was entitled
back to the date of his original hire. Two other employ-
ees, Karl Melger and Thomas Nails were discharged on
September 22, 1978. Finally, after Colavito made a
number of requests to Respondent, these two employees
received the additional wages to which they were enti-
tled at the end of March 1979.1
In connection with a grievance filed by the Union
concerning, among other things, Respondent's failure to
make correct payments to the various union funds, the
Union requested certain payroll records and information
from Respondent. According to Colavito, in about Octo-
ber 1978 he received certain of these documents which
he requested. Thereafter he also required the payroll
records up to the end of December. This request was
made, it is agreed, in late February or early March 1979.
Despite repeated requests Respondent did not comply
with these last payroll records needed by the Union, and,
in the interim, the Union filed for arbitration relating to
these matters on March 20, 1979. Finally on May 4, after
the close of the election, the Company turned over the
requested records to the Union, only 1 week prior to the
date of the arbitration hearing.
One of the issues involved in this arbitration was
whether Schneider and Edwards were entitled to retro-
active pay, as noted above. Schneider testified that
Tropp had approached him some weeks before the arbi-
tration and told him that he and Edwards were going to
lose the arbitration. According to Schneider, Tropp also
indicated that another issue in the abritration had to do
with the rehiring of Nails and Melger, and that, if the
Union forced him to take back Melger, Schneider would
be laid off as he had been the last man hired. In addition,
Schneider further testified that just prior to the date of
the arbitration hearing, Tropp approached him in the
shop and asked if he had received a subpoena, as he
wanted to see it and show it to his attorney. Tropp told
him that he wanted to see if there were some way
Schneider could get out of going and whether the sub-
poena did not have to be honored. Schneider replied that
he wanted to go to the arbitration.
In his testimony Tropp did not allude to the subject of
whether he had told Schneider that he and Edwards
were going to lose the arbitration and that, if he were
forced to take back Melger, Schneider would have to go.
However he did address himself to the allegations with
respect to the subpoenas. Tropp stated that on May 18
' These and other matters referred to above are uncontroverted and in
most instances a matter of documentary record.
before the arbitration Schneider had asked to see him, so
he did talk to him in the shop at his machine. He asserts
Schneider told him Colavito had called to inform him he
was going to receive the subpoena. Schneider asked
Tropp whether he would have to go to the arbitration
and also mentioned that he himself was not pushing it,
rather it was the Union. Tropp said he would check with
his attorney and then went back to Schneider and told
him he should appear at the hearing if he received the
subpoena and just tell the truth. This incident is one of
the few matters as to which there is conflict in the testi-
mony. I credit Schneider who testified in a straightfor-
ward and forthright manner. Tropp conceded his affida-
vit does not reflect that Schneider spoke to him about a
subpoena, but refers only to Edwards in connection with
the arbitration. Yet Tropp admitted speaking many times
to Schneider about the arbitration. In view of these in-
consistencies and the previous history of Respondent, I
do not credit Tropp's version of the subpoena matter.
On March 14, 1979, a decertification petition was filed.
Shortly thereafter Tropp held a series of dinners at Re-
spondent's expense to which he invited all of the em-
ployees in small groups. The following details concern-
ing certain matters which were discussed by Tropp with
the employees at these dinners are based on the testimo-
ny of Tropp himself. The principal topics related to the
Union's pension and welfare plan. Tropp had prepared
himself by obtaining from various carriers written pro-
posals regarding these type of plans which were exhibit-
ed to the employees along with the details of the union
plans. Basically Tropp told the employees that the prin-
cipal problem was the cost to Respondent of the Union's
plans. He indicated this to the employees in two ways.
He told them, and by means of exhibiting the plans, that
for the same money, the outside plans would confer a
great deal more in ultimate benefits, that is, the monthly
pension payment each would eventually receive upon re-
tirement. Each proposal showed the name of the employ-
ee and the amount each would receive upon retirement.
Although employee witnesses testified that Tropp orally
mentioned to them that certain employees would receive
as much as $8,000 per month under one of these plans
for the same amount of money now being paid to the
union fund, Tropp denied stating it in that fashion. But it
is clear from the record that such sum was written in the
material passed around to the employees as the amount
one of them, the youngest, would receive upon retire-
ment. Tropp also discussed the plans from another point
of view, telling the employees that the same benefit as
provided in the union pension plans could be obtained by
the payment of a much smaller contribution than the
Company was presently making to the union fund. In
connection with this, Tropp emphasized the need of Re-
spondent to be competitive.
Tropp complained to the employees about his cost for
overtime work and side jobs2 which was increased great-
ly, he claimed, as a result of the provision of the union
plan. He said that the costs for the other plans he was
exhibiting were based on a flat 40-hour week, while the
I Side jobs were additional work performed on piece rate basis.
336
AUTOPROD, INC.
union plan was based on the total amount of hours
worked including overtime. Since overtime was paid at
time and a half, this greatly increased the amount of con-
tribution that would be paid on the overtime thus adding
considerably to his cost. He again stressed the need to be
competitive when bidding for jobs.
Tropp conceded that in discussing the funds and plans
he did not mention such features as portability or dental
coverage, which were available under the union pension
and health plans but not in the alternatives he was pre-
senting.
Employees testified that Tropp characterized Local
455 as a construction local many of whose members
work only 8 months a year, which was a factor in driv-
ing up the costs of the pension and welfare funds. Tropp
himself stated that he told employees that the Union's
general contract does not cover many machine building
companies such as Respondent but that the major em-
phasis was in structural steel and ornamental iron work
shops. Colavito testified without contradiction that the
vast majority of the Union's membership consisted of
employees in shops such as Respondent, and were not in
the construction trades, although they may have worked
in the manufacture of products used by construction
companies. In general, Tropp told the employees that the
Union's funds cost too much money and he asked them
to decertify the Union.
Employees Schneider and Sinagra both testified that,
at the different dinners they attended, Tropp, in referring
to the expenses of the union plans, commented that the
union delegates might be pocketing some of that money
or that some of it went to pay for the salaries of union
officials. Once more for the reasons stated above, I credit
the testimony of the employees as to these statements
made by Tropp, who did not specifically deny these alle-
gations in his testimony, but merely stated that he asked
the men to vote out the Union.3
Tropp after being refreshed by his affidavit said that
he did tell the employees about the Union's attempts to
obtain reinstatement of Nails and Melger who had been
discharged in September 1978. Tropp told them that the
shop was a 12-man operation and, if the Union were able
to bring back these two people, then two others would
have to be let go. Tropp testified, however, that within
the year before he made this statement, the Company did
employ 14. This was also found to be a fact in one of the
previous Board cases, and the tally of ballots in the de-
certification election indicated 14 eligible voters.
C. Discussions and Analysis
1. The alleged violations of Section 8(a)(5) of the
Act
The principal issue here is whether the totality of Re-
spondent's conduct gives rise to the conclusion that it
has repudiated the collective-bargaining agreement in
3 Employee Simone and Maqwuine also testified at the hearing. The
latter stated that he is now a foreman and has never been a union
member. They both testified to what occurred at dinner meetings they
attended. I do not credit their testimony since they were both vague, had
poor recollection, and testified in a guarded fashion, not even referring to
matters that Tropp himself conceded he had said and discussed.
such a manner that the filing of the decertification peti-
tion was almost inevitable, and the election was in effect
tainted and was indeed the culmination of Respondent's
unfair labor practices and other activities. Viewed in this
light, the determination need not be based on the ques-
tion as to whether this or that incident alleged to be vio-
lative of the Act was indeed unlawful, or whether or not
certain allegations of illegality are barred by Section
10(b) of the Act, but rather the overall effect of the con-
duct insofar as it reveals an attitude and course by Re-
spondent to circumvent or at least delay the performance
of its obligations. As I have previously indicated, the
chronology of events is illustrative of the result.
As pointed out there have been two bargaining orders
issued by the Board against this Respondent, the first
arising out of a typical Gissel-type situation, and the
second involving violations of Section 8(a)(5) for bad-
faith bargaining, withdrawal of recognition, and refusal
to furnish information, among others. Failure of Re-
spondent to recognize its bargaining continued even after
the negotiation of a contract when it failed to admit even
having executed the contract despite the signature of
Tropp on it. When the Union sought arbitration, Re-
spondent went to the courts to block that procedure on
the grounds that there was no agreement. Finally after
losing in the state court, the same issue was brought
before the arbitrator who found at the out-set that there
was a valid collective-bargaining agreement. Respondent
then failed to implement the terms of the arbitrator's
award, and even after the award was enforced in the
courts, it delayed putting the provisions of that award
into effect.
The arbitrator's award provided for a wage increase
retroactive to the date of the award, April 20, 1978. Re-
spondent began giving the wage increases in August, on
a partial basis, but not at all retroactively. The Board has
found that the withholding of merit wage increases in
these circumstances violates Section 8(a)(1) and (5) of
the Act. 4 Similarly the Board has held that discontinu-
ance of pension and benefit fund contributions constitutes
a violation of Section 8(a)(5) of the Act. 5 In the instant
case Respondent did not begin to make contributions to
the Union's pension and welfare funds until about 2
months after the arbitration award, and payments were
not brought up to date until sometime early in 1979. In
this contention as to both the salary increases and fund
contributions, Section 10(b) is of no avail to Respondent.
The Board has held that "each failure to make the con-
tractually required monthly benefit fund payments con-
stituted a separate and distinct violation of Respondent's
bargaining obligation .... "6 Final payments on retro-
active wage increases due to employees were not made
by Respondent until the end of December 1978, and late
fund contributions carried into 1979, well within the
10(b) period. In any case, the objective of this proceed-
ing is not to seek payment of any wages due to employ-
4 General Motors Acceptance Corp., 196 NLRB 137 (1972), enfd. 476
F.2d 850 (Ist Cir. 1973).
Peerless Roofing Co., Ltd., 247 NLRB 500 (1980).
Farmingdale Iron Works Inc., 249 NLRB 98 (1980).
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees,7 but rather to utilize this conduct of Respondent as
ground work for the issuance of a bargaining order.8
Another violation of the same order is found in the
failure of Respondent to implement the vacation provi-
sions of the contract which provided for additional days
of vacation beyond 2 weeks for employees with over 3
years of employment. According to Respondent's
records, payments to employees for vacation days run-
ning for a period of almost 2 years were made on De-
cember 27, 1979, so that this obligation was outstanding
even beyond the date of the issuance of the complaint
herein. Clearly on the basis of the cases cited, this was
an additional violation of Section 8(a)(5) of the Act.
It is alleged that by failing to furnish payroll records
requested by the Union in early March 1979 for the
processing of a grievance relating to the administration
of the Union's pension and welfare funds, Respondent
also violated Section 8(a)(5) of the Act. These records
were not furnished until May 4, a week before the arbi-
tration hearing was scheduled. The General Counsel
contends that the delay despite numerous requests consti-
tutes a violation. Respondent admits the underlying facts
but relies on the fact that eventually it did give the 1979
payroll records to the Union as sufficient compliance
with the request.
It is well established that "wage and related informa-
tion pertaining to employees in the bargaining unit,
should upon request, be made available to the bargaining
agent. ... "9 The Board has also held that delay and in
attention to a matter relating to the collective-bargaining
obligation might itself warrant a conclusion that a re-
spondent violated the Act. l ° In the instant situation of
neglect in furnishing information, Respondent exhibited
the same characteristics as it did with the other matters
found above to be violative of the Act. Thus, while the
raise in pay rates, the additional vacation benefit, and
payments to the Union's pension and welfare funds all
were ultimately made, they were consummated after
many months of delay all in disregard of the collective-
bargaining agreement and Respondent's obligations
thereunder. Accordingly, I find that by failing to furnish
the requested information to the Union until just 1 week
prior to the scheduled arbitration hearing, Respondent
violated Section 8(a)(1) and (5) of the Act. '
In sum, the catalogue of events together with the spe-
cific violations of Section 8(aX5), and independent viola-
tions of Section 8(a)(Xl1) and (3) hereinafter found herein,
points to overall repudiation of the collective- bargaining
agreement by Respondent and a course of conduct de-
signed to undermine the Union and to derogate its role
I Except Schneider and Edwards whose situation will be hereinafter
dealt with.
a In this respect, the doctrines of Spielberg Manufacturing Co., 112
NLRB 1080 (1955), and Malrite of Wisconsin, Inc., 198 NLRB 241 (1972),
are not applicable. As to the former, the issue of contract repudiation was
not before the arbitrator but rather the issue of validity of the contract as
well as performance by Respondent of its obligation to adhere to certain
terms of the agreement. As to the latter, Malrite is concerned with the
enforcement of the arbitrator's award and, as noted, the payments re-
quired of Respondent were ultimately received.
9 Cowles Communications, Inc., 172 NLRB 1909 (1968).
Lo DePalma Printing Co., 204 NLRB 31 (1973).
l ' Ellsworth Sheet Metal. Inc., 232 NLRB 109 (1977).
as bargaining representative. This, too, violates Section
8(a)(5) of the Act.
2. The alleged violations of Section 8(a)(1) of the
Act
The complaint alleges that during the course of the
dinner meetings held by Tropp before the election, he
threatened employees with loss of overtime and side
jobs. I find merit to this allegation based on the testimo-
ny of Respondent's witnesses. Tropp told the employees
that overtime work was very expensive because of the
additional contributions the Company had to make to the
pension and welfare plans. He further said he had to
raise prices, the field is very competitive, and therefore
they may lose their edge. In his affidavit, submitted to
the Board agent prior to the issuance of the complaint,
Tropp said the amount of work would be reduced for
everybody because he had to pay money into the fund.
At the hearing he denied having said this. Tropp told the
employees that the funds were punitive, they cost too
much money, he could not increase the business or
grow. Simone, an employee called by Respondent as a
witness, said Tropp told them at the meeting that, if he
had to pay out a certain percentage in the overtime, he
could not afford to compete with other companies. He
said he would have to raise his prices too high and he
could not afford it. Tropp repeated that he could not
afford the overtime, as it was too expensive. Finally
Simone said Tropp stated they would not have overtime
except in certain cases when he really needed it. Erwin
Schimkat, a part owner of Respondent, testified Tropp
told the employees that overtime made them less com-
petitive, and prices would have to be raised to cover it. I
find by these statements Respondent was in effect threat-
ening employees with loss of overtime and side jobs
unless the Union were voted out, and thereby violated
Section 8(a)(l) of the Act.'2
With respect to overtime, employee Sinagra testified
that during the dinner meeting he attended he mentioned
he was not getting enough overtime and side jobs nor
were these benefits spread out among the employees.
Sinagra stated Tropp said he could not do anything until
the Union was out and then the Company would
straighten it all out. Sinagra further testified that a day
or two before the election Nardozza called him to the
office and said he was surprised that he had raised the
question of overtime with Tropp at the meeting. In his
testimony, Tropp recalled that Sinagra raised the ques-
tion of overtime with him. After being refreshed by his
affidavit he stated that two other employees, DaSilva
and Melger, also asked about the disproportionate
amount of overtime among the individuals in the shop.
Tropp said he replied that he was not aware of this and
was surprised they were bringing it up at the meeting
but that he would check into it. The General Counsel al-
leges that on the basis of Sinagra's testimony Tropp
promised a benefit of equalizing overtime should the
Union be defeated. Absent any corroboration of Sina-
" There is no probative evidence that Respondent violated the Act in
the same manner through statements of John Nardozza, production man-
ager, as alleged in the complaint.
338
AUTOPROD, INC.
gra's testimony, noting that neither DaSilva nor Melger
testified at the hearing, and in view of the fact that the
subject matter was brought up by the employees, I find
the General Counsel has not sustained his burden and
shall dismiss this allegation of unlawful promise of bene-
fit. For the same reasons I shall dismiss the allegation
that by referring to the question of equalization of over-
time, Respondent, through Tropp and Nardozza, en-
gaged in unlawful solicitation of grievances, particularly
as the matter was brought up by the employees.
As detailed above, Tropp discussed at length the union
pension and welfare plans at the dinner meetings just
prior to the election, and also described several other
plans and presented them to the employees. This conduct
constituted dealing directly with the employees and
again reveals a disregard for the Union's status as bar-
gaining representative, thereby further violating Section
8(aXI) and (5) of the Act. In addition the manner in
which Respondent's alternative plans were presented to
the employees together with Tropp's disparagement of
the Union is tantamount to promising the benefits im-
proved of pension and welfare plans should they vote
out the Union, again in violation of Section 8(aXl) of the
Act.
The complaint alleges that Respondent violated Sec-
tion 8(aXl) by the conduct of Tropp in offering, at one
of the dinner meetings, to tell employees the name of a
labor organization which would benefit them in order to
induce them from supporting the Union. Schneider testi-
fied that, at the meeting he attended, Tropp told the em-
ployees they could get another union, mentioning the
name of the Machinist Union. This is not corroborated
by any of the other witnesses of the General Counsel.
On the other hand Tropp, while admitting he urged em-
ployees to vote against the Union, and told them that 1
hour after the election, they can get a new union, denied
mentioning the name of any union and said there was no
such discussion. Schimkat, his partner, also said Tropp
told employees they were free to get any other union,
but he did not mention the Machinists. I find therefore
that the General Counsel has not sustained his burden in
showing that Respondent violated the Act by offering
employees the name of another union.
On the other hand, Schimkat testified that Tropp not
only said that the employees were free to bring in any
union, but also said the Company could deal with em-
ployees directly on grievances if there were no union.
Maquine, then an employee and now a foreman, testified
that Tropp told the employees they had a right to form
their own union, and Tropp similarly testified. In the
overall context of this case, considering the violations al-
ready found, a suggestion to employees, prior to an elec-
tion, that grievances could be handled by direct negotia-
tions or by formation of their union, strongly hints of
promises of benefits should the employees vote out the
incumbent union and deal directly with Respondent. By
this conduct the Company further violated Section
8(aXl) of the Act.
Finally the complaint alleges that Respondent violated
Section 8(aXI) of the Act by advising employees that
they are not required to honor subpoenas served by the
Union with respect to scheduled arbitration proceedings.
The facts are fully set forth above and I have credited
the version of the incident testified to by Schneider.
Therefore I find that, by Tropp's statements that the sub-
poena need not be honored, Respondent further violated
Section 8(aX ) of the Act. '3
3. The alleged violation of Section 8(aX3) of the
Act
The complaint alleges that Respondent violated Sec-
tion 8(aX3 ) by its failure to have paid two employees,
Schneider, referred to above, and Al Edwards, the retro-
active wages due them under the arbitration award effec-
tive April 20, 1978. It also alleges this failure to be an
additional violation of Section 8(aXS) of the Act. Schnei-
der and Edwards were both employed in July 1978, at a
rate of S5.75, the lowest starting rate under the contract,
and $5.80, respectively. These rates of course were in-
creased by $1 pursuant to the arbitration award, and,
clearly, if Respondent had implemented the award imme-
diately, their starting rates would have been that much
higher. According to the payroll records, Edwards re-
ceived his S1 increase in August and Schneider in Sep-
tember. No employees received the retroactive payments
as of April at that time. However, the Employer's
records reveal that the retroactive payments due to the
employees were made in December together with final
adjustments in the rates of some employees. Two em-
ployees, Melger and Nails, had been discharged in Sep-
tember, and their retroactive payments were received in
March 1979. Thus, Schneider and Edwards were the
only employees who never obtained any retroactivity,
and the General Counsel seeks reimbursement of the
amount due them under the arbitrator's award from the
date of hire until the day each received the $1 increase,
which, it is alleged, was unlawfully withheld in violation
of Section 8(aX3) and (5) of the Act.
In contending that this refusal violated Section 8(aX3),
the General Counsel relies on several items. Thus I have
already found that Respondent violated Section 8(aXl)
when Tropp asked Schneider whether he received a sub-
poena and could avoid appearing at the arbitration. In
addition Schneider testified that the same time that the
subpoena subject was brought up, Tropp told him that if
the Union forced the Company to take back Melger
(who had been discharged in September and concerning
which the arbitration was going to be held), then Schnei-
der would be laid off because he was the last man hired.
Tropp stated that this was because the shop was a 12-
man shop and admitted repeating this statement to the
employees at the dinner meetings. However, this number
is not entirely correct since a document supplied by Re-
spondent, in evidence (G.C. Exh. 14), indicates that at
least from the time of the hiring of Schneider and Ed-
wards in 1978 until the discharges of Melger and Nails in
" Mohican Millr Inc. 238 NLRB 1242 (1978). 1 do not agree with Re-
spondent's contention that this case is limited to a situation where a re-
spondent harsses an employee for attending a hearing. Actually the
Board approved violations found by the Administrative Law Judge who
determined that the company therein violated Sec. 8(·a1) of the Act by
telling an employee he need not to go to the hearing. and also harassing
him thereafter when he attended. The finding was made in the disjunc-
tive.
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 1978 there were 14 employees. Moreover,
Tropp conceded in his testimony that Schneider and
Melger were in different work classifications. Conceiv-
ably, Schneider or Edwards would not lose their jobs if
Melger or Nails were reinstated. Tropp also testified that
he had spoken to Schneider in 1979 a number of times
concerning the arbitration. At one time he told Schnei-
der that he and another employee were in the same boat
and they were going to lose the arbitration.
There is clearly no merit to Respondent's contention
that it did not make the retroactive wage payments to
Schneider and Edwards because they were not employ-
ees at the time of the arbitration award. As noted they
would have received the correct rate if Respondent had
implemented the award. In view of the fact that Re-
spondent made the retroactive payments to all employ-
ees, even including the discharge of Melger and Nails,
the failure to pay Schneider and Edwards was discrimin-
atorily motivated, noting the 8(aX)( violations found
with regard to Schneider and, further, that Tropp admits
also having spoken to Edwards about the subpoena.
Finally, Respondent contends that the claim of Schnei-
der and Edwards to the retroactive backpay is barred by
Section 10(b) of the Act. Indeed the liability exists only
during a brief. period between the dates of their hires in
July, August, and September when they received their
$1 increases. The contention has surface appeal since this
was more than 6 months prior to the filing of the charge.
However it must be remembered that all employees had
the same claim for retroactive pay increases from the
date of the arbitrator's award and no one received that
money until the end of December 1978. Schneider and
Edwards could rightly assume that they were going to
be paid at the same time. Not receiving that money they
pressed their claim, now within the 10(b) period, through
the Union. Indeed Nails and Melger received their back-
pay in March 1979, indicating that Respondent still rec-
ognized its obligation to pay the retroactive backpay. I
find, in the overall view of the case, that the discrimina-
tion against Schneider and Edwards occurred in the
latter part of December 1978 when Respondent failed to
pay them at the time it paid the other employees, and re-
peated this discrimination when Melger and Nails were
paid. Therefore, I find Respondent violated Section
8(a)(l) and (3) of the Act by refusing to make the retro-
active payments to Schneider and Edwards.
I have found above that Respondent repudiated the
contract in violation of Section 8(a)(5) of the Act when
it failed to implement the wage increases and the retroac-
tive backpay payments, within the 10(b) period, to all the
employees. The Board has held that discontinuance of
contract wage payments by an employer constitutes a re-
fusal to bargain and the failure to meet each payment
constitutes an illegal act, and tolls the application of Sec-
tion 10(b).14 Thus, Respondent's refusal to make the
backpay payments due Schneider and Edwards under the
arbitration award through the collective-bargaining
agreement continued to the filing of the charge herein
1" Wayne Electric, Inc., 226 NLRB 409 (1976); Nu-Car Carriers. Inc.,
187 NLRB 850 (1971).
and constituted an unlawful ongoing refusal, and thereby
Respondent further violated Section 8(a)(5) of the Act.
IV. THE OBJECTIONS IN THE REPRESENTATION CASE
The Union timely filed objections to conduct affecting
the outcome of the election. After investigation, the Re-
gional Director ordered a hearing on these objections
and consolidated that matter with the hearing on the
unfair labor practice charges. I have found extensive vio-
lations of Section 8(a)(l), (3), and (5) of the Act, includ-
ing threats of loss of overtime, promises of increased
pension and welfare benefits, and various other violations
of Section 8(a)(l) occurring just before election. More-
over, I have also found violations of Section 8(a)(5) of
the Act by Respondent's refusal to furnish information
requested by the Union and, indeed, continuing repudi-
ation of the collective-bargaining agreement. These vio-
lations were coextensive with the objections consolidated
herein. The Board has stated that "conduct of this nature
which is violative of Section 8(a)(l) is, a fortiori, conduct
which interferes with the exercise of a free and untram-
melled choice in an election." Playskool Manufacturing
Company, 140 NLRB 1417 (1963). This is so "because
the test of conduct which may interfere with the 'labora-
tory conditions' for an election is considerably more re-
strictive than the test of conduct which amounts to inter-
ference, restraint or coercion which violates Section
8(a)(1)." Dal-Tex Optical Company, Inc., 137 NLRB 1782
(1962). I find, therefore, that Respondent did engage in
conduct interfering with the election and the Union's ob-
jections thereto are sustained.
However, in view of the numerous unfair labor prac-
tices, particularly the repeated repudiation of the collec-
tive-bargaining agreement and other violations of Section
8(a)(5) which were designed to undermine the Union and
led inevitably to the filing of the decertification petition,
I find that the petition should be dismissed. As the court
stated in N.L.R.B. v. Big Three Industries, Inc., 497 F.2d
43 (5th Cir. 1974): "It would be particularly anomalous,
and disruptive of industrial peace, to allow the employ-
er's wrongful refusal to bargain in good faith to dissipate
the Union's strength, and then to require a new election
which 'would not be likely to demonstrate the employ-
ees' true, undistorted desires,' NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969), since employee dissaffection
with the Union in such cases is in all likelihood prompt-
ed by the employer-induced failure to achieve desired re-
sults at the bargaining table." Accordingly, I shall rec-
ommend that the representation proceeding be dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
340
AUTOPROD, INC.
VI. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent engaged in extensive
violations of Section 8(a)(5) of the Act by failing to im-
plement the collective-bargaining agreement, and refus-
ing to abide by various provisions such as wage rates,
payments to union pension and welfare funds, paying for
vacation benefits, and engaging in conduct tantamount to
repudiation of the collective-bargaining agreement and
its obligations thereunder, I shall recommend that Re-
spondent be ordered to recognize and bargain with the
Union in the unit found appropriate herein.
As it has been found that William Schneider and
Albert Edwards were not paid a wage increase retroac-
tively in accordance with an arbitration award, in viola-
tion of Section 8(a)(3) and (5) of the Act, I shall recom-
mend that Respondent be ordered to make them whole
for any loss of earnings they may have sustained, with
interest to be computed in the manner set forth in Florida
Steel Corporation, 231 NLRB 651 (1977). While the
record is not entirely clear, it appears that, as a result of
Respondent's failure to implement the arbitration award
in a timely fashion, merit increases which Respondent
granted to some employees on September 7, 1978, may
have been subsumed in the $1 overall wage increase di-
rected by the arbitrator. In such cases, Respondent shall
likewise make those effected employees whole with in-
terest.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Threatening employees with loss of overtime and
side jobs should they continue to support the Union.
(b) Promising increases in pension and welfare benefits
if employees did not select the Union as their representa-
tive.
(c) Promising recognition of another labor organiza-
tion or grievance committee of employees to induce em-
ployees to refrain from remaining members of and assist-
ing the Union.
(d) Advising employees that they are not required to
honor subpoenas to appear at arbitration proceedings.
4. Respondent violated Section 8 (aX3) of the Act by
refusing, discriminatorily, to pay retroactive wages due
to William Schneider and Al Edwards, because of their
'ivities in behalf of the Union.
5. All production and maintenance employees, includ-
ing plant clerical employees, employed at Respondent's
New Hyde Park plant, excluding office clerical employ-
ees, superintendents, independent maintenance contrac-
tors, employees represented by labor organizations other
than the Union, and all supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b) of the
Act. 1'
6. At all times material herein the Union has been the
duly designated bargaining representative within the
meaning of Section 9(a) of the Act of Respondent's em-
ployees employed in the bargaining unit described above.
7. Respondent violated Section 8(aX5) of the Act by:
(a) Refusing at various times since November 29, 1978,
to abide by and implement the terms of the current col-
lective-bargaining agreement and repudiating its obliga-
tions thereunder.
(b) Refusing from November 29 until late December
1978 to grant certain employees wage increases and ret-
roactive wages due them pursuant to an arbitration
award rendered under the contract, and by refusing to
pay other employees said wage increases and retroactive
payments from November 29, 1978, until April 1979.
(c) Refusing to grant certain vacation benefits until
December 1979 to employees pursuant to the collective-
bargaining agreement.
(d) Failing and refusing to make prompt and proper
payments to the Union's pension and welfare funds pur-
suant to the collective-bargaining agreement and arbitra-
tion award.
(e) Bargaining directly with employees in such a
manner as to undermine the status of a duly designated
collective-bargaining agent.
(f) Failing and refusing from early March 1979 until
May 4, 1979, to furnish to the Union payroll records re-
lating to the administration of the union pension and wel-
fare funds, to be utilized in the processing of a grievance
filed by the Union.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER' 6
The Respondent, Autoprod Inc., New Hyde Park,
New York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with loss of overtime and
side jobs if they select the Union to continue as their col-
lective-bargaining representative.
(b) Promising increased benefits with respect to pen-
sion and welfare funds if they vote to decertify the
Union as their collective-bargaining representative.
(c) Promising to recognize another union or a griev-
ance committee of employees if they vote to decertify
the Union.
'5 The complaint alleges, the answer admits, and I find the above-de-
scribed unit to be appropriate.
'6ln the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Advising employees that they are not required to
honor subpoenas served upon them for their attendance
at arbitration hearings.
(e) Discriminating against employees, by withholding
retroactive wage increases due them pursuant to an arbi-
tration award, because of their continued adherence to
the Union.
(f) Refusing to abide by the terms of a duly executed
collective-bargaining agreement and repudiating its obli-
gations thereunder.
(g) Refusing to timely implement wage increases pur-
suant to an arbitration award rendered in accordance
with procedures established by the collective- bargaining
agreement.
(h) Refusing to award employees additional vacation
benefits granted in the said collective-bargaining agree-
ment.
(i) Refusing to make proper and prompt payments to
the Union's pension and welfare funds in accordance
with the provisions of the collective-bargaining agree-
ment and the said arbitration award.
(j) Bargaining directly with employees in such a
manner as to undermine the status of a duly designated
collective-bargaining agent.
(k) Refusing to furnish to the Union payroll records
and information requested for the purpose of processing
a grievance under the contract.
2. In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
to them in Section 7 of the Act. ' 7
3. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make whole William Schneider and Al Edwards
for any loss of retroactive wages they have suffered by
reason of the discrimination practiced against them and
found herein, in the manner described above in the sec-
tion entitled "Remedy."
17 In this connection, notice is taken of the two prior Board orders
involving violations of Sec. 8(aX5) of the Act referred to above.
(b) Make whole any other unit employees who may
have sustained losses in wages by reason of the unlawful-
ly delayed payment of wage increases due them.
(c) Recognize and, upon request, bargain collectively
with the Union herein as the exclusive bargaining repre-
sentative of all of Respondent's production and mainte-
nance employees, including plant clerical employees, em-
ployed at its New Hyde Park plant, excluding office
clerical employees, superintendent maintenance contrac-
tors, employees represented by other labor organizations,
and all supervisors as defined in the Act.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records, and reports, and all other
records necessary to analyze the amount of backpay due.
(e) Post at its New Hyde Park plant copies of the at-
tached notice marked "Appendix." ' Copies of said
notice on forms provided by the Regional Director for
Region 29, after being duly signed by its authorized rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notice is not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO FURTHER ORDERED that the complaint be
dismissed with respect to allegations not specifically
found to be violative of the Act.
IT IS ALSO FURTHER ORDERED that the election in Case
29-RD-311 be set aside, and that the petition therein be
dismissed.
's In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Punu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
342