Benjamin F. Wininger & Son, Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1987

286 N.L.R.B. 1177 (N.L.R.B. 1987)

BENJAMIN F. WININGER & SON 1177
Benjamin F. Wininger & Son, Inc . and Sheet Metal
Workers' International Association, Local
Union No. 170, AFL-CIO. Cases 21-CA-
24662, 21-CA-24989, and 21-CA-25146
27 November 1987
Paul H Fisch, Esq., for the General Counsel.
Kenneth P. Young, Esq. (Wohiner, Kaplon, Phillips, Vogel
Shelley & Young), of Los Angeles, California, for the
Charging Party.
Mike K. Sullivan (Mike Sullivan & Associates, Inc.), of
Covina, California, for the Respondent.
DECISION AND ORDER
BY CHAIRMAN DOTsoN AND MEMBERS
JOHANSEN AND BABSON
On 2 September 1987 Administrative Law Judge
Gordon J. Myatt issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party and the General Counsel
filed answering briefs.
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 briefs and has
decided to affirm the judge's rulings , findings,' and
conclusions,2 to modify his remedy,3 and to adopt
the recommended Order.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Benjamin F.
Wininger & Son, Inc., Los Angeles, California, its
officers , agents, successors, and assigns, shall take
the action set forth in the Order.
1 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 contends that the mariner in which the judge con-
ducted the hearing showed bias against the Respondent On careful exam-
mation of the judge's decision and the entire record, we are satisfied that
the contentions of the Respondent in this regard are without merit
a In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-tern Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C. § 6621 Interest on
amounts accrued prior to I January 1987 (the effective date of the 1986
amendment to 26 US; C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
4 For the reasons set forth in his dissent in Rapid Fur Dressing, 278
NLRB 905 ( 1986), Chairman Dotson dissents from the majority's fording
that the Respondent violated Sec . 8(aX5) and (1) of the Act by hiring
employee Jose Luis Valle on 25 March 1985 as a general helper at less
than the hourly rate required by the then-existing collective-bargaining
agreement and by failing to notify and bargain with the Union concern-
mg this contract modification. Although this conduct, which occurred
during the term of the bargaining agreement , may constitute a breach of
the parties' contract , it does not reflect a repudiation of the collective-
bargaining agreement in any way tantamount to a violation of the Act
286 NLRB No. 115
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. On
charges filed by Sheet Metal Workers' International As-
sociation, Local Union No. 170, AFL-CIO (the Union)
against Benjamin F. Wininger & Son, Inc . (the Respond-
ent), the Acting Regional Director for Region 21 issued
an amended consolidated complaint and notice of hear-
ing on 18 December 1986. The consolidated complaint
alleges , among other things , that the Union has been the
exclusive collective -bargaining representative of an ap-
propriate unit of Respondent 's employees since May
1980, and that the Union and Respondent have been par-
ties to a collective-bargaining agreement that by its terms
and extensions was effective for the period 1 May 1980
to 30 April 1985. Further, that since March 1985,1 the
Union has requested that Respondent bargain collective-
ly for a successor agreement and Respondent has failed
and refused to bargain in good faith by engaging in eva-
sive and dilatory conduct. Finally, that Respondent
failed to meet its statutory bargaining obligation to the
Union by engaging in the following conduct: (1) unlaw-
fully withdrawing recognition of the Union as exclusive
collective-bargaining representative of the unit employ-
ees; (2) unilaterally discontinuing its contribution to the
unit employees ' pension fund ; (3) unilaterally discontinu-
ing its contribution to the unit employees' health, dental,
and vision plans; (4) unilaterally discontinuing its partici-
pation in the California State Workshare Program; and
(5) unilaterally eliminating Veterans' Day as a paid holi-
day for unit employees. The consolidated complaint al-
leged that by this conduct Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act).
Respondent filed an answer in which it denied the
commission of any unfair labor practices . Respondent's
answer, among other things , sought to raise an 8 (f) issue
concerning the contract and its bargaining relationship
with the Union.2 The undisputed evidence here estab-
lishes that Respondent is not an employer in the building
and construction industry . Rather, Respondent is a man-
ufacturer and fabricator of grocery store metal shelving.
Therefore, Section 8(f) has no application to the factual
situation involved in these cases . Furthermore, during
the hearing Respondent failed to present any evidence
whatsoever to attempt to establish that Section 8(f) con-
trolled its relationship with the Union. Accordingly, Sec-
tion 8(f) is not an issue in this proceeding . See M. W.
i Unless otherwise indicated , all dates herein refer to the year 1985
2 Sec. 8(f) of the Act is a provision relating to prehire agreements
unique to the building and construction industry
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kellogg Constructors v. NLRB, 806 F.2d 1435, 1441 (9th
Cir. 1986).
A hearing was held in this matter on 27 January and
11 February 1987 in Los Angeles, California. All parties
were represented by counsel or representatives and af-
forded full opportunity to examine and cross -examine
witnesses and to present material and relevant evidence
on the issues. Briefs were submitted by the parties and
have been duly considered.3
On the entire record in this matter, including my ob-
servation of the witnesses and their demeanor while testi-
fying, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Benjamin F. Wininger & Son, Inc., is a
California corporation engaged in the manufacture of
grocery store shelving . Respondent maintains its princi-
pal place of business in Los Angeles, California. It was
admitted at the hearing that in the normal course of its
business operations , Respondent annually sells goods and
products valued in excess of $50 ,000 to customers locat-
ed within the State of California, who in turn annually
purchase or receive goods and materials directly from
suppliers located outside the State of California. It was
further admitted at the hearing that Respondent derives
gross revenues from the sale of its products in excess of
$500,000 annually . Based on the foregoing , I find Re-
spondent is, and has been at all times material, an em-
ployer engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings admit and I find that Sheet Metal
Workers' International Association, Local Union No.
170, AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Conditions Under the Expired Agreement
The undisputed testimony establishes that the Union
and Respondent had a 17-year collective-bargaining his-
tory prior to the hearing in this matter . The latest collec-
tive-bargaining agreement between the parties was effec-
tive from 1 May 1980 to 30 April 1983 and was extended
by mutual consent for 1-year periods through 30 April
1985.4 The agreement contained a union-security provi-
sion that required Respondent to inform the Union on a
monthly basis of all new hires and terminations . In addi-
tion, the union-security provision contained a dues-
checkoff clause. However, sometime during the term of
the 1980-1983 agreement, Respondent, with the Union's
consent, ceased deducting union dues from the employ-
ees' wages and the employees paid their dues directly to
the Union.
At some unspecified time, apparently 3 years prior to
these proceedings, Respondent was confronted with the
prospects of reducing the number of days worked by its
employees due to a drop in business. It applied for relief
through the California State Workshare Program.5
Through the workshare program, the employees worked
a 4-day (32-hour) week and received payments from the
State Unemployment Compensation program equivalent
to what they would have received for a fifth workday.
In addition , sometime during one of the extension peri-
ods of the 1980-1983 agreement, the employees, through
the Union, agreed to contribute 25 cents an hour from
their wages toward Respondent's obligation for pay-
ments on their behalf to the health and welfare plan of
the Union. This contribution by the employees was to
assist Respondent in meeting its increased costs to the
health and welfare program in order to maintain the cur-
rent level of benefits.
B. Negotiations for a New Agreement
On 1 March the Union gave Respondent written
notice that it desired to terminate the extended collec-
tive-bargaining agreement on its expiration date and re-
quested negotiations for a successor agreement. In addi-
tion, the Union requested an updated list from the Re-
spondent regarding the unit seniority list with dates of
hire, job classifications, rates of pay, and addresses of
each unit employee. (See G.C. Exhs. 5(a) and (b)).6
The undisputed testimony discloses that Respondent
did not respond to the Union's request for information
concerning the unit employees or its notice of termina-
tion of the existing agreement . On 1 May, Fernandez
sent Respondent a written copy of the Union's proposed
contract modifications and requested that the parties
confer to establish a time and place for the commence-
ment of negotiations . (See G .C. Exh. 6.) Respondent
failed to respond to the Union's letter and Fernandez
went to the plant to speak with Respondent's president,
Frank Wininger. Fernandez was told by the secretary
and bookkeeper, Jeanine Sheffield, that Wininger was on
vacation and would not return until 17 June. Fernandez
returned on that date and spoke directly with Wininger.
9 Briefs were due on 6 April 1987. Counsel for the General Counsel,
joined by counsel for the Charging Party, filed a motion to strike Re-
spondent's brief. The motion was grounded on the fact that copies were
not mailed to counsel until 7 April 1987 and they did not contain an affi-
davit of service . Respondent's consultant hand-delivered a copy of Re-
spondent's brief to the Division of Judges on 6 April 1987, but apparently
did not mail copies to counsel until the following day. Although Re-
spondent did not strictly follow the requirements of Rule 102 .42 of the
Board's Rules and Regulations, and this is not to be condoned , I find Re-
spondent has substantially complied with the requirements of the rule
Accordingly , the motion to strike is denied
* See G C. Exh. 4 . According to the unrefuted testimony of the union
business representative , Robert Fernandez, the extensions were not re-
duced to executed documents The Union merely requested a 1-year ex-
tension of the existing agreement in writing and Respondent complied by
abiding by the terms of the written agreement.
Under the conditions of the workshare program , where the employ-
ees were represented by a union , the union was required to sign the em-
ployer's application form ; thereby indicating its consent for the unit em-
ployees to participate in the program.
6 Fernandez testified it was standard procedure for the Union to re-
quest information concerning unit employees when an existing contract
was being terminated for purposes of renegotiation He stated that in
many instances employers failed to notify the Union of new hires or
changes within the bargaining units.
BENJAMIN F. WININGER & SON 1179
The union representative testified that Wininger stated
Respondent had no intention of negotiating or signing a
new collective-bargaining agreement with the Union.
Fernandez then informed Wininger that he would do
whatever he had to do concerning Respondent 's position
on the Union 's request for negotiations.'
The Union filed unfair labor practice charges against
Respondent with the Board's Regional Office following
Fernandez' conversation with Wininger on 17 June.
Sometime in early July, Fernandez was advised by the
Board agent investigating the charges that Respondent
was represented by Richard Reincke, a labor consultant
employed by the consulting firm of Mike Sullivan & As-
sociates . A copy of a letter from Reincke, addressed to
the Union but sent to the Board's Regional Office, was
given to Fernandez by the Board agent . In the letter,
Reincke offered, on behalf of Respondent , to meet and
negotiate with the union representative . (See G.C. Exh.
7.) Based on Reincke 's representation that Respondent
was willing to negotiate with the Union, Fernandez
withdrew the unfair labor practice charges.
Fernandez contacted Reincke and a meeting was
scheduled for 14 August at the Union's trust fund office.
When Fernandez and Reincke met, Fernandez gave
Reincke a copy of the Union's proposals and explained
the Union's position on each of them. According to Fer-
nandez, Reincke stated Respondent was not in a good fi-
nancial position . The union representative testified he in-
formed Reincke the Union's proposals were "not etched
in stone" and that the Union was "flexible" concerning
its demands . Fernandez stated he further proposed a
two-tier wage system whereby new hires would receive
a lower wage rate and the current employees would
maintain their present rates with an increase in benefits.
According to Fernandez , Reincke agreed to check with
Respondent and then contact the union representative.
The meeting between Fernandez and Reincke lasted ap-
proximately one-half hour and no date was set at that
time for a subsequent meeting.
Reincke, on the other hand, testified that prior to
meeting with Fernandez, he advised Wininger that the
Union would offer Respondent a "standard industry
agreement" and Wininger indicated this would not be ac-
ceptable . According to Reincke, when he met with Fer-
nandez on 14 August, he informed the union representa-
tive that Respondent wanted a "independent contract."
He stated the expired agreement between the parties was
a standard industry contract with a "most favorite na-
tions" provision. 8 Reincke stated he insisted Respondent
wanted a wage freeze or rollback and the deletion of
some of the existing holidays. Reiiicke also rejected the
Union's request that Martin Luther King's birthday be
added as an additional holiday.
Reincke denied that Fernandez stated the Union was
flexible concerning its contract proposals, although he
9 The above is based on the unrefuted testimony of Fernandez. Win-
inger was not called as a witness, in these proceedings.
s The clause referred to by Remcke was ail. XXI of the expired agree-
ment, which provided:
The Union agrees that there shall not be a more favorable contract
offered to any competitor of the Employer or to any organization
engaging [sic] the same classifications of work.
admitted the union representative suggested a possible
two-tier wage plan provided the current employees re-
ceived a wage increase . Reincke further testified it was
his understanding that Fernandez had no authority to ne-
gotiate anything other than a standard industry agree-
ment because of the most favorite nations clause in the
expired agreement . Reincke acknowledged, however,
that he was not aware of any employer association or
any competitor of Respondent that was signatory to a
similar collective-bargaining agreement with the Union.
Reincke testified that his agreement to check with Re-
spondent and then send the Union Respondent 's counter-
proposals was merely "a matter of courtesy." He stated
he considered the parties to be at an impasse at the end
of their half-hour meeting because he understood Fer-
nandez was precluded , by the most favorite nations
clause, from negotiating anything other than a standard
industry agreement.
Contrary to Reincke, Fernandez testified he had full
authority to negotiate terms for a new collective-bargain-
ing agreement with the Respondent . Fernandez also
stated the Union did not have a standard industry agree-
ment that employers were asked to sign . According to
Fernandez, the only limitation on his authority to negoti-
ate was that the trust and pension fund provisions had to
conform with the terms of the Union's trust and pension
fund agreements.
The unrefuted testimony discloses that Reincke did not
make any effort to contact Fernandez after their meeting
on 14 August. Fernandez testified' he telephoned
Reincke's office on a number of occasions thereafter. He
stated that many times there was no answer to his calls
or when there was an answer , Reincke was not available.
In the latter instances he left messages but Reincke failed
to respond.
On 6 November Fernandez sent a letter (G.C. Exh. 8)
to Reincke requesting that negotiations resume and that
Respondent respond to the proposals submitted to
Reincke on 14 August. Reincke then submitted written
counterproposals to Fernandez on 15 November. In its
counteroffer, Respondent rejected the Union's two-tier
proposal and demanded an across-the-board wage reduc-
tion. Respondent also rejected the Union's proposal for
an additional holiday for Martin Luther King's birthday
and sought to limit its contribution to the Union's nation-
al pension plan to 40 cents an hour for each employee.
In addition, Respondent refused to negotiate a dues-
checkoff provision (asserting it was a nonmandatory sub-
ject of bargaining) and sought to limit the contract term
to 1 year. Reinke also noted a new address and tele-
phone number for Sullivan (G.C. Exh. 9).
Reincke acknowledged that he had not diligently sup-
plied the Union with Respondent's counterproposal be-
cause he considered this action to be a mere formality.
From his testimony, it is apparent that Reinke felt the
submission of the proposals was a meaningless gesture
because he was of the view the Union could only agree
to a standard industry contract. Reincke further ac-
knowledged that while he considered Respondent's
counterproposal to be its best and final offer, he did not
state this in his letter to the Union.
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fernandez testified that on receiving Respondent's
counteroffer, he attempted on numerous occasions to
contact Reincke by telephone. He stated he either re-
ceived no response to his phone calls or the lines were
busy when he called.9 On 4 April 1986 Fernandez sent a
letter (G.C. Exh. 10) to Reincke requesting that they
meet during the week of 14 April to resume negotiations.
When no response to this letter was received, the Union
filed unfair labor practice charges against the Respond-
ent with the Board.
On 23 August 1986 Sullivan, rather than Reincke, sent
a letter to the Union repudiating Respondent 's obligation
under the expired agreement . In the letter Sullivan as-
serted the Union had "abandoned the negotiations" and
created an impasse by failing to respond to Respondent's
last offer . Sullivan also asserted that Respondent was
willing to have a Board-conducted election upon the
Union establishing a 30-percent showing of interest
among the unit employees. (See G.C. Exh. 11.)
C. Changes in the Employment Terms Instituted by
Respondent
The parties stipulated at the hearing that on 27 March
1985 Jose Luis Valle was employed as a general helper
in Respondent's plant. Valle was hired at an hourly rate
of $5 an hour, which was less than the contract rate for
his job classification. Fernandez testified that the Union
was never informed by Respondent that Valle was hired
as a unit employee . Nor was the Union made aware of
his- wage rate.
Employee Willie Walker had worked for the Respond-
ent for 12 years as a spot welder. Walker had been a
member of the Union for over 19 years and was the shop
steward at the plant. Walker testified that sometime in
November 1985 he went into the office to get coffee and
overheard a conversation between Wininger and the
office secretary, Sheffield. Walker stated Wininger was
complaining to Sheffield about the cost of the benefits
Respondent was incurring under the collective -bargain-
ing agreement . According to Walker, Wininger stated
Respondent was going to discontinue its contributions
for the contract benefits.' ° Sometime in December,
Walker informed Fernandez of Wininger 's statements
and was told Respondent could not stop its contributions
because of its obligation under the collective-bargaining
agreement.
Sheffield testified that in mid-January 1986 she called
Reincke because Respondent was required to remit its
contributions to the health and welfare and pension funds
for the unit employees for the month of December. Shef-
field questioned whether Respondent still had an obliga-
tion to do so in the absence of a new contract. Reincke
9 At the hearing, Remcke testified he terminated his relationship with
Sullivan & Associates sometime in February or March 1986 Remcke tes-
tified that he remained at the address indicated on the letterhead on
which he sent the Respondent 's counteroffer and Sullivan moved to a
new address . According to Remcke, he continued to have his phone mes-
sages taken when he was not in his office and he only received one mes-
sage from Fernandez sometime in April.
10 Sheffield was called as a witness and while she could not recall a
specific statement by Walker concerning stopping the contributions under
the contract , she admitted Respondent was short of funds and consvantly
seeking ways to reduce costs
informed Sheffield that he had not received a response
from the Union in 30 days and "it" (the bargaining rela-
tionship) was over. Reincke instructed Sheffield not to
remit the contributions for the contractual benefits for
the month of December . Based on Reincke 's advice, Re-
spondent included a notice to the employees with their
paychecks on 27 January advising them that the contract
had expired and no new agreement had been negotiated.
The notice (G.C. Exh. 3) informed the employees that
Respondent was "no longer signatory to a collective bar-
gaining agreement with [the Union]."
Sheffield testified she sought to quickly get an insur-
ance plan for the unit employees so there would not be a
long lapse in their coverage . Walker testified he was
called into the office, as shop steward, and told by Win-
inger that Respondent was going to change the insurance
coverage of the employees and the number of paid holi-
days. On 29 January 1986, Respondent gave the unit em-
ployees a memorandum stating the changes it intended to
make in their insurance coverage and the costs that
would be deducted from their pay if they wished cover-
age for their dependents . Respondent also listed the
number of paid holidays it intended to grant the employ-
ees, and the Veteran's Day holiday was eliminated from
this list (G.C. Exh. 2). The unit employees met with
Wininger in the plant and complained about the changes
in their benefits. 1I Wininger replied that if the employees
were unhappy with the changes they should find jobs
elsewhere. It is undisputed that Respondent did not
notify the Union of the changes it was making in the
terms and conditions of the unit employees. The Union
was informed, however, of these changes by Walker in
his capacity as shop steward.
The parties stipulated that Respondent ceased making
contributions on behalf of the unit employees to the
Union's National Pension Plan B in December 1985 and
contributions to the health, dental, and visual care plan
on 29 January 1986. Respondent also discontinued its
participation in the state workshare program and the em-
ployees were only paid for the 32 hours they worked
each week. Finally, on Veteran's Day, 11 November
1986, the unit employees were required to work a regu-
lar shift at their regular hourly wage rate. At no time
prior to any of these changes did Respondent notify or
negotiate with the Union.
IV. CONCLUDING FINDINGS
A. Failure to Pay Valle the Contract Wage Rates
Based on the stipulation of the parties, it is undisputed
that Valle was hired by Respondent as a general helper
on 25 March 1985, at a time when the extant agreement
had not expired. Further, his hourly rate of pay was less
than the rate required by the collective-bargaining agree-
ment. The evidence also establishes Respondent never
notified the Union that Valle was hired as a unit employ-
ee, nor did it inform the Union that Valle was being paid
11 Sheffield acknowledged that the insurance coverage offered the em-
ployees was not as comprehensive as the benefits under the expired
agreement In addition, it did not provide for dental or visual coverage,
as did the expired agreement
BENJAMIN F. WININGER & SON
less than the contract wage rate. It is axiomatic that Re-
spondent's conduct in this regard was in derogation of its
bargaining obligation under the Act. By paying Valle
less than the contract wage rates for his position as gen-
eral helper , Respondent unilaterally modified a term and
condition of employment, during the life of the existing
agreement , without notifying and bargaining with the
Union about the modification. Accordingly, I find that
by this conduct Respondent violated Section 8(a)(5) and
(1) of the Act. Southwest Securiiq Equipment Corp., 262
NLRB 665 (1982), enfd. 736 F.2d 1332 (9th Cir. 1984).12
B. Negotiations for a New Collective-Bargaining
Agreement
Viewing Respondent's brief in the most charitable
light, it appears that Respondent, on the one hand, is
contending it bargained to impasse with the Union and
then implemented the changes in the terms and condi-
tions of employment of the unit employees, and on the
other, that the Union abandoned its representation of the
unit employees. The overwhelming evidence in the
record, however, belies these contentions by Respondent
and fully establishes Respondent violated Section 8(a)(5)
and (1) of the Act.
It is settled law that on the expiration of a collective-
bargaining agreement , an employer may riot make unilat-
eral changes of the terms and conditions of employment
of unit employees without first bargaining, in good faith,
to impasse with the collective-bargaining representative.
Excelsior Pet Products, 276 NLRB 759 (1985); The Sacra-
mento Union, 258 NLRB 1074 (1981); Markle Mfg. Co.,
239 NLRB 1353 (1979). It is equally settled that when a
genuine impasse has been reached in negotiations, an em-
ployer's freedom to implement changes in employment
terms and conditions is limited to those changes that are
reasonably consistent with the terms last offered to the
union during negotiations . NLRB v. Katz , 369 U.S. 736,
743 (1962); Western Publishing Co., 269 NLRB 355
(1984); Taft Broadcasting Co., 163 NLRB 475 (1967),
enfd. sub nom. AFTRA, Kansas City Local v. NLRB, 395
F.2d 622 (D.C. Cir. 1968). I find that the record in the
instant case does not demonstrate Respondent has met
any of the conditions that would have permitted it to
lawfully change the terms and conditions of employment
established by the expired agreement.
First, it is evident that from the time of the Union's
initial request for negotiations, Respondent had no inten-
tion of attempting to reach an agreement for a successor
contract. Respondent never responded to the Union's
termination letter of 1 March nor to the Union's propos-
als submitted on 1 May. The position taken by Wininger
on 17 June, when Fernandez came to the plant to set a
time for negotiations, graphically illustrates Respondent's
rejection of its collective-bargaining obligation. Fernan-
dez' testimony is unrefuted that Wininger said he did not
have any intentions of negotiating or signing a contract
with the Union. Indeed, it was only after the Union filed
12 Respondent 's suggestion in its brief that this is a matter for arbitra-
tion is rejected Having repudiated the collective-bargaining agreement
and the entire bargaining process, Respondent cannot now assert that the
matter of Valle's wages is a subject for deferral to arbitration.
1181
an unfair labor practice charge against Respondent that
Respondent then offered, through its labor consultant, to
negotiate with the Union.
Next, Reincke's conduct, both during and after the
single one-half hour bargaining session on 14 August,
demonstrates that he had no intention of engaging in
meaningful negotiations with the Union for a new agree-
ment . By his own admission, Reincke concluded the ex-
pired agreement was a "standard industry contract." Re-
spondent produced no evidence, however, to establish
that this was in fact the case.19 The characterization of
the contract between the Union and Respondent as a
standard industry agreement was merely an assumption,
erroneous or not , that Reincke was prepared to make
and which determined his bargaining posture.
In addition, I fully credit the testimony of Fernandez
that the Union had no such standard agreement that it
was seeking to impose on Respondent. Indeed, the unre-
futed testimony is that during the brief bargaining session
on 14 August, Fernandez offered to negotiate a two-tier
wage system with Respondent in order to induce Re-
spondent to come to an agreement . Thus, I find the evi-
dence establishes that Fernandez had full authority and
was willing to negotiate an agreement with Respondent.
I also find that the facts demonstrate Reincke had no in-
tention to negotiate or even to submit a counteroffer to
the Union, since he deemed this to be an exercise in futil-
ity based on his erroneous assumption regarding Fernan-
dez' bargaining authority.
The record establishes that Reincke failed to respond
to the telephone messages left by Fernandez requesting
that Respondent submit a counteroffer, and only submit-
ted such proposals on 15 November after receiving a
written request from the Union on 1 November. More-
over, each time Fernandez attempted to contact Reinke
after the latter had submitted Respondent's counteroffer,
he was unable to do so nor were his messages returned
by Reincke.
Finally, when Reincke severed his relationship with
Sullivan & Associates in February or March 1986, nei-
ther he nor Sullivan advised the Union that Sullivan now
represented Respondent. Nor did Respondent or any of
its representatives make any effort to respond to the
Union's written request on 4 April 1986 for further nego-
tiations. 14
13 Respondent 's belated attempt at the resumption of the hearing in
this matter to subpoena collective -bargaining agreements the Union had
with other employers was not permitted The hearing was continued
solely for Respondent 's convenience to permit it to present testimony
from two witnesses who Respondent claimed it could not subpoena at the
time of the original hearing date There is no claun whatsoever that Re-
spondent could not have subpoenaed the desired documents from the
Union in time for the initial hearing date, and Respondent's effort to do
so at the resumption clearly breached the terms for which the resumption
was granted
14 Whether Remcke was deliberately avoiding Fernandez or whether
he was having problems receiving his telephone messages need not be de-
termined here It is evident from Reincke's own testimony that he was
"dilatory" in submitting a counteroffer to the Union and this was based
on his preconceived notion that the Union could only negotiate a stand-
ard industry agreement
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In light of the above circumstances , I find that the Re-
spondent was engaging in dilatory tactics and refusing to
negotiate in good faith with the Union for a successor
collective-bargaining agreement . It is evident , therefore,
that the parties could not have reached an impasse in ne-
gotiations because Respondent 's conduct was in com-
plete derogation of the bargaining obligation required by
the statute . Nor can it be said that the Union abandoned
its representation of the unit employees in this case. To
the contrary, the record demonstrates the union repre-
sentative attempted time and again to contact Respond-
ent's representative in order to proceed with negotiations
for a new agreement . Except for the one instance on 15
November, Respondent failed to respond in any fashion,
and after that date Respondent refused to respond to any
of the Union's requests for further negotiations . Based on
the above, I fmd the record overwhelmingly establishes
Respondent did not negotiate in good faith with the
Union to the point of impasse when it unilaterally
changed the terms and conditions of employment of the
unit employees . I further fmd Respondent 's conduct here
was the very antithesis of the bargaining process and that
it violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Benjamin F. Wininger & Son, Inc., is
an employer within the meaning of Section 2(2) engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Sheet Metal Workers' International Association,
Local Union No. 170, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Respondent ; excluding all other employees,
guards, and supervisors as defined in the Act constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since 1 May 1980 the Union has been and is now
the exclusive representative of all employees in the
above bargaining unit for purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By hiring employee Jose Luis Valle on 25 March
1985 as a general helper at less than the hourly rate re-
quired by the then-existing collective-bargaining agree-
ment, and by failing to notify and bargain with the
Union concerning this contract modification , Respondent
has violated Section 8(a)(5) and (1) of the Act.
6. By unilaterally discontinuing its contributions on
behalf of the unit employees to the Union's National
Pension Plan B in December 1985, without notifying and
bargaining to impasse with the Union, Respondent has
unlawfully modified the existing terms and conditions of
employment of its employees in violation of Section
8(a)(5) and (1) of the Act.
7. By unilaterally discontinuing its contributions to the
Union's health, visual, and dental plans for the unit em-
ployees without notifying and bargaining to impasse with
the Union, Respondent has unlawfully modified existing
terms and conditions of employment of its employees in
violation of Section 8(a)(5) and (1) of the Act.
8. By discontinuing its participation in the California
State Workshare Program on 26 August 1986 without
notifying and bargaining to impasse with the Union, Re-
spondent has unlawfully modified existing terms and con-
ditions of employment of its employees in violation of
Section 8(a)(5) and (1) of the Act.
9. By eliminating Veteran's Day as a paid holiday and
by requiring employees to work on that day at the regu-
lar hourly wage rates , without first notifying and bar-
gaining to impasse with the Union, Respondent has un-
lawfully modified existing terms and conditions of em-
ployment of its employees in violation of Section 8(a)(5)
and (1) of the Act.
10. By refusing to negotiate in good faith with the
Union, on request, for the terms of a successor collec-
tive-bargaining agreement , Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices , it shall be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.1 s
Respondent shall be ordered to make whole employee
Jose Luis Valle by paying him the difference between
the wage rate he received and the wage rate contained in
the expired collective -bargaining agreement for his job
position . Respondent shall also be required to make
whole the unit employees by paying them the difference
between the wage rates set forth in the expired agree-
ment for working a paid holiday on 11 November 1986
and the wage rates they received for working on that
day. Ogle Protection Service , 183 NLRB 682 (1970). Inter-
est shall be calculated and paid on the amounts of back-
pay due the employees in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). 16
In addition , Respondent shall be required, on request
by the Union, to rescind its current insurance program
and holiday policy and give immediate effect to the
health and benefit provisions and holiday provisions con-
tained in the expired agreement . Further, Respondent
shall be required to make contributions for the unit em-
ployees retroactive to the dates Respondent unlawfully
discontinued such contributions to the Union's National
Pension Plan B and the health, visual , and dental
plans . 17 Respondent shall also be required to reimburse
any unit employee , with interest, for any monetary losses
sustained by reason of Respondent 's unlawful discontinu-
ance of its contributions to these various funds and plans.
Finally, Respondent shall be ordered to give effect to all
of the existing terms and conditions of employment of
the expired collective-bargaining agreement until, on re-
quest by the Union, it bargains in good faith and a new
agreement or a valid impasse is reached.
15 Counsel for the General Counsel has requested that a visitatorial
provision be incorporated in the remedy in this matter Since the Board
has not established definitive guidelines for the inclusion of this type of
provision in its Orders, I am of the view that the request must be denied.
ie See generally Isis Plumbing Co, 138 NLRB 716 (1962).
is Respondent's contributions to the various benefit funds shall be de-
termined in the manner set forth in Merryweather Optical Co., 240 NLRB
1213, 1216, fn. 7 (1979).
BENJAMIN F. WININGER & SON
On the foregoing findings of fact, conclusions of law,
and the entire record in this case , and pursuant to Sec-
tion 10(c) of the Act, I issue the following recommend-
edts
ORDER.
Respondent, Benjamin F. Wininger & Son, Inc., Los
Angeles, California its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Sheet Metal
Workers International Association, Local Union No. 170,
AFL-CIO as the exclusive collective-bargaining repre-
sentative of its employees in the following appropriate
unit:
All production and maintenance employees em-
ployed by Respondent; excluding all other employ-
ees, guards and supervisors as defined in the Act.
(b) Unilaterally modifying the existing terms and con-
ditions of its collective -bargaining agreement covering
the unit employees by hiring and paying employees wage
rates less than the wage rates contained in the expired
collective-bargaining agreement without first notifying
and bargaining in good faith to an agreement or a valid
impasse with the Union.
(c) Unilaterally discontinuing contributions on behalf
of the unit employees to the Union 's National Pension
Plan B without first bargaining, in good faith, with the
Union until an agreement or a valid impasse is reached.
(d) Unilaterally discontinuing payments to the Union's
health, dental , and vision plans for the unit employees
without first bargaining , in good faith, with the Union
until an agreement or a valid impasse is reached.
(e) Unilaterally discontinuing its participation in the
California State Workshare Program for the unit employ-
ees without first bargaining, in good faith, with the
Union until an agreement or a valid impasse is reached.
(f) Unilaterally eliminating Veteran 's Day as a paid
holiday and requiring employees to work that day for
regular wages without first bargaining , in good faith,
with the Union until an agreement or a valid impasse is
reached.
(g) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act,.
(a) On request, bargain collectively in good faith with
the Union, as exclusive representative of the employees
in the above-described unit, with respect to rates of pay,
wages, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) On request by the Union, rescind all unilateral
changes made in the terms and conditions of employment
of the unit employees and honor the terms of the latest
re 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
1183
expired agreement until a valid bargaining impasse or a
new agreement is reached with the Union.
(c) Pay to Jose Luis Valle, with interest, the difference
between the hourly wage rate he received and the
hourly wage rates prescribed for his job position in the
latest expired collective-bargaining agreement.
(d) Pay to the unit employees, with interest, the differ-
ence between the wages they received and the wages
prescribed in the latest expired collective -bargaining
agreement for working on Veteran's Day, 11 November
1986.
(e) Reapply for participation in the California State
Workshare Program and make the unit employees
whole, with interest, for any monetary loss they suffered
by the unlawful discontinuance of participation in that
program.
(f) On request by the Union, make all contributions for
the unit employees, retroactive to the date of discontinu-
ance, to the Union's National Pension Plan B and the
Union's health, dental, and visual care plans. In addition,
reimburse unit employees, with interest, for any losses
they may have suffered by reason of the unlawful dis-
continuance of the contributions to these benefit funds.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay and benefit con-
tributions due under the terms of this Order.
(h) Post at its Los Angeles, California, facility copies
of the attached notice marked "Appendix." 19 Copies of
the notice, on forms provided by the Regional Director
for Region 21, after being signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(i) Notify the Regional Director in writing within 20
days of the date of this Order what steps Respondent has
taken to comply.
19 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."
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.
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain collectively in good
faith with Sheet Metal Workers' International Associa-
tion, Local Union No. 170, AFL-CIO as the exclusive
bargaining representative of our employees in the follow-
ing appropriate bargaining unit:
All production and maintenance employees em-
ployed by us; excluding all other employees,
guards, and supervisors as defined in the Act.
WE WILL NOT unilaterally modify the terms and con-
ditions of our collective-bargaining agreement with the
Union by hiring and paying unit employees wage rates
less than the wage rates contained in the collective-bar-
gaining agreement.
WE WILL NOT unilaterally discontinue making contri-
butions on behalf of our employees to the Union's Na-
tional Pension Plan B or to the Union's health, dental,
and vision plans without first bargaining with the Union
in good faith until an agreement or an impasse is
reached.
WE WILL NOT unilaterally discontinue our participa-
tion in the California State Workshare Program without
first bargaining in good faith with the Union until an im-
passe or an agreement is reached.
WE WILL NOT unilaterally eliminate Veteran's Day as
a paid holiday for our unit employees, and WE WILL NOT
require them to work on that day at regular wages with-
out first bargaining in good faith with the Union until an
agreement or an impasse is reached.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request by the Union, bargain collective-
ly in good faith concerning rates of pay, wages, hours,
and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in
a signed agreement.
WE WILL, on request by the Union, rescind all unilat-
eral changes made in the terms and conditions of em-
ployment of our unit employees, and WE WILL honor the
terms of the latest expired collective- bargaining agree-
ment until a bargaining impasse or a new agreement is
reached with the Union.
WE WILL pay Jose Luis Valle, with interest, the differ-
ence between the hourly wage rates he received and the
hourly wage rates required for his job position in the
latest expired collective-bargaining agreement.
WE WILL pay our unit employees, with interest, the
difference between the wages they receive and the
wages required by the expired collective-bargaining
agreement for working on Veteran's Day, 11 November
1986.
WE WILL reapply for participation in the California
State Workshare Program and WE WILL make our em-
ployees whole, with interest, for any losses they have
sustained by our unlawful discontinuance of participation
in that program.
WE WILL, on request by the Union, make all contribu-
tions for our unit employees, retroactive to the date of
our discontinuance, to the Union's National Pension Plan
B and the Union's health, dental, and vision care plans.
WE WILL also reimburse our employees, with interest,
for any losses they may have sustained by reason of our
unlawful discontinuance of our contributions to the
Union's benefit funds.
BENJAMIN F. WININGER & SON, INC.