Bierl Supply Co.

National Labor Relations Board - Board Decisions

Nov 26, 1969

179 N.L.R.B. 741 (N.L.R.B. 1969)

BIERL SUPPLY COMPANY 741
Bierl Supply Company and United Brotherhood of
Carpenters and Joiners • of America , Local 1012,
AFL-CIO. Case 18-CA-2732
November 26, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On August 28, 1969, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the
Respondent had not. engaged in other unfair labor
practices alleged in the amended complaint. The
General Counsel filed timely exceptions to the Trial
Examiner's Decision, with a brief in support thereof.
Respondent filed timely exceptions and an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this , case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Decision, the exceptions and briefs, „and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, as modified herein.
1. We agree with the Trial Examiner, for the
reasons stated in his Decision, that the Respondent
violated Section 8(a)(3)1 and (1) of the Act by
discriminatorily discharging employee
Schwarzenbach. We also concur in the Trial
Examiner's conclusion that the General Counsel has
failed to prove that the Respondent discriminated
against employees-union officials Olberding and
Fischer in violation of Section 8(a)(3) and (1).
2. The Trial Examiner found that the Respondent
granted unilateral wage increases to nonjourneymen
employees and made a unilateral change in vacation
benefits during the negotiating period. We agree
with this finding. The Trial Examiner concluded,
however, that, this activity was not in violation of
Section 8(a)(5), relying in part upon the failure of
the Union to object to the changes and in part upon
his findings that the Respondent did not intend to
undercut the Union's prestige as the employees'
representative and that the increases did not in fact
interfere with the negotiations or indicate bad-faith
bargaining. We do not agree v+ith this conclusion.
It is clear that under established principles the
Respondent' s unilateral changes in wages and
vacation policies violated Section 8(a)(5) and (1) of
the Act. Thus, it is now well settled that a unilateral
change in conditions of employment is a
circumvention of the duty to negotiate which
frustrates the objectives of Section 8(a)(5) much as
does a flat refusal. The U. S. Supreme Court has
held that such a change made while the parties are
in the process of negotiating, i.e., at a time when no
impasse has occurred, violates Section 8(a)(5) even
though the employer has every desire to reach
agreement upon a contract and in all good-faith
bargains to that end.' There is no dispute that in
this case the parties were continuing to meet, that
the wage rates were under discussion and a change
in vacation practices had been proposed, and that in
fact the Respondent instituted a new vacation policy
and continued to grant wage increases' without
notice to the Union. In these circumstances, it is
immaterial that the Respondent may have acted
without any intention to undermine the Union's
prestige. Nor do we consider it significant that the
Union failed to object to the Respondent's
institution of the changes, inasmuch as its silence
does not constitute a clear and unequivocal
manifestation of the Union's intention to waive its
right to complain about such action.3 Finally, with
respect to the change in the vacation benefits, the
Respondent wrongly relies in its answering brief
upon the fact that the Union had continuously
proposed this very change. Since the bargaining
process contemplated by the Act had not been
completed, there was no impasse in bargaining, and
the Respondent was not free to take unilateral
action to put into effect proposals which had been
made and were under consideration 4
Accordingly, we hold that the Respondent
violated Section 8(a)(5) of the Act when it
unilaterally increased certain wage rates and
changed vacation benefits, and the employees have
thereby been deprived of the benefits of collective
bargaining. The record indicates that the first
instance of unilateral wage increase occurred on
June 13, 1968, almost immediately after the
certification of the Union. We find, therefore, that
the Respondent deprived its employees of the
effective services of their selected bargaining agent
on that date. To place the Respondent and the
Union in as nearly the same situation as possible to
that which existed prior to June 13, we shall
construe the initial year of certification as beginning
on the date Respondent commences to bargain in
good faith with the recognized representative in the
appropriate unit.'
IN L R B v Benne Katz. d/b/a Williamsburg Steel Products Co. 369
U S 736, 743
'The Trial Examiner found that the Respondent did not have an
established regular wage progression pattern and that the raises given were
individual increases unilaterally granted
'J H Bonck Company, Inc, 170 NLRB No 164 (TXD)
'Comfort Springs Corporation, 143 NLRB 906, 9l3
'Barnett Pontiac . Inc , 174 NLRB No 57, Burnett Construction
179 NLRB No. 125
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Bierl Supply
Company, Carroll, Iowa, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
with the following modifications:
1. Renumber the present paragraph 1(b) as 1(c),
and insert prior thereto the following paragraph
1(b):
"(b) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with the United Brotherhood of
Carpenters and Joiners of America, Local 1012,
AFL-CIO, as the exclusive bargaining representative
of its employees in the appropriate unit."
2. Add the following as paragraph 2(b) of the
Trial Examiner's Recommended Order and reletter
the subsequent paragraphs accordingly:
"(b) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all the employees in the appropriate unit with
respect to 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.
The appropriate bargaining unit is:
All employees employed in construction and floor
covering work of Bierl Supply Company;
excluding office clerical employees, professional
employees, sales employees, guards and
supervisors as defined in the Act, as amended."
3. In the notice to the Trial Examiner's
Recommended Order insert the following paragraph
as the first indented paragraph:
WE WILL, upon request, meet with and bargain
collectively in good faith with the United
Brotherhood of Carpenters and Joiners of
America, Local 1012, AFL-CIO as the exclusive
collective-bargaining representative of all the
employees in the appropriate unit and if an
understanding is reached will embody such
understanding in a signed agreement. The
appropriate unit is:
All employees employed in construction and
floor covering work of Bierl Supply Company;
excluding office clerical-employees, professional
employees, sales , employees, guards and
supervisors as defined in the Act, as amended.
4. In the notice insert the following paragraph
after the present second indented paragraph:
WE WILL NOT refuse to bargain collectively
with United Brotherhood of Carpenters and
Joiners of America, Local 1012, AFL-CIO, as the
exclusive representative of the employees in the
Company. 149 NLRB 1419, 1421. Mar lac Poultry Company. Inc. 136
NLRB 785, 786-787
appropriate unit.
IT IS HEREBY FURTHER ORDERED that the
complaint herein be, and it hereby is, dismissed
insofar as it alleges violations of the Act not found
herein
MEMBER ZAGORIA, dissenting in part and concurring
in part.
I would adopt the Trial Examiner's findings,
conclusions, and recommendations.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner : This case was
tried at Carroll , Iowa, on June 10-11, 1969 ,' pursuant to a
charge filed on February 11, and amended February 24,
by United Brotherhood of Carpenters and Joiners of
America, Local 1012, AFL-CIO, herein called the Union,
and pursuant to a complaint issued on May 13. The
primary issues are whether the Respondent , Bierl Supply
Company, herein called the Company , (a) discriminatorily
discharged one employee , (b) discriminatorily laid off two
others, and (c) failed to bargain in good faith, in violation
of Section 8(a)(I), (3), and ( 5) of the National Labor
Relations Act , as amended.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Company,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
The Company is a corporation doing business in
Carroll, Iowa, where it is engaged in the construction and
remodeling of homes and in the sale of floor covering and
other building materials . Annually, its sales exceed
$500,000 and its purchases of goods originating outside
the State exceed $50,000. The Company admits, and I
find , that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Discharge and Layoffs
I Background
The Company's construction and floor covering
employees work under separate supervision. President
Harold J . Bierl , herein called Bierl, supervises the
construction crew, which builds partially-prefabricated
Kingsberry Homes, and remodels old homes Bierl's
brother, Store Manager Dennis Bierl , supervises the
Company's carpet layers, as well as manages the store
where floor covering and other building materials are sold.
In June 1968, the Union was certified as the bargaining
representative of a unit of both construction and floor
covering employees. At the time of the election in May,
'All dates, unless otherwise indicated , are in the period from July 1968
until June 1969
BIERL SUPPLY COMPANY 743
there were six construction employees (crew leader
Leonard Fischer and five others), four carpet layers, and a
salesman -drapery installer.
In August, Bierl decided to expand the construction
business if a sufficient number of employees could be
hired at the nonunion rates the Company was paying. (At
that time, Bierl had two journeymen carpenters, crew
leader Fischer and finisher Erwin Grote, being paid $3.25
an hour ; a nonjourneyman carpenter , Leroy Bierl, being
paid $2.50 an hour; a carpenter helper, Greg Stoelk, being
paid $2 an hour; a carpenter-laborer, George Seidle, paid
$1.65, and a licensed plumber and licensed electrician,
Merle Olberding, paid $3 an hour.) The Company
advertised in the newspaper for employees, but got little
response
On September 16, Bierl hired Wayne Nepple, who had
neither a plumber's or electrician's license, to help
Olberding with the plumbing, heating, and electrical work.
He paid Nepple $2.75 an hour (25 cents less than
Olberding). Then on - October 7, Bierl employed Nick
Schwarzenbach, an unemployed, union, journeyman
carpenter, who agreed to work for $3 an hour.
.On October 9, Bierl summarily discharged
Schwarzenbach. Thereafter on December 20, during
contract negotiations with the -Union, Bierl laid off the
two members of the construction crew who were on the
Union ' s negotiating committee , Crew leader Fischer and
plumber-electrician Olberding (both of whom were also
officials of the Union). The complaint alleges that the
discharge and layoffs were discriminatorily motivated.
2. Discharge of Schwarzenbach
Journeyman carpenter Schwarzenbach, a resident of
Carroll. was a member of Carpenters Local 1948 in
Ames, about 67 miles away. When Schwarzenbach
responded to one of Bierl's newspaper ads for employees,
Bierl informed him that the Company could not afford the
(union) wages he had been getting. Schwarzenbach, who
was unable to find work in Ames, replied that he was
looking for something more permanent , and that he was
willing to take a lower wage in order to save the time and
money spent in driving out of town to work. He agreed to
accept $3 an hour.
Schwarzenbach worked alone at the construction
project on Monday, October 7, and until Tuesday noon,
when he began working with crew leader Fischer and
carpenter-helper Stoelk (Bierl's son-in-law ). The next
morning, Wednesday, October 9, Fischer asked
Schwarzenbach (outside, of Stoelk's presence) if, in
Schwarzenbach's words, "I would go out on strike with
them if they went , and I said yes, I would. And after Mr.
Fischer left, the boy [Stoelk, Bierl's son-in-law] came
back and I thought he was for the Union, and I asked
him if he heard about them going on strike, and he said
no." That afternoon, when Stoelk was still working with
Schwarzenbach, Union Business Agent Clarion Sampson
and Carpenters State Council Representative Fred M.
Pedersen went to the job. Sampson talked with
Schwarzenbach for about 5 or 10 minutes. In the
conversation, they mentioned job opportunities for
carpenters in Denver.
As Schwarzenbach was leaving work, at the end of the
day, he observed Bierl at the entrance to the project,
talking to one of the workmen. That evening, he received
a telephone call from Bierl. According to Schwarzenbach,
Bierl first asked "if this-was Nick," and then said, "This
is Harold Bierl. As far as your and my relationship is
concerned, you are done as of now." Schwarzenbach
asked why, and Bierl "said he thought he hired someone
who had some interest in him and wanted to work but I
was going to Denver, anyway, so just forget it." On
cross-examination, Schwarzenbach testified that he did not
advise Bierl of any intention of going to Denver Then the
company counsel asked if Schwarzenbach had "any
opinion or information as to where he [Bierl] would have
drawn that conclusion." Schwarzenbach answered that he
had a very positive idea, "It was his son-in-law that was
on the job. . I am sure Mr. Fischer didn't tell Mr.
Bierl , and I didn't, and he [son-in-law Stoelk] was the
only other person ... that knew about the conversation"
with Sampson. (Bierl denied having heard that day that
the union representatives visited the job, and denied
talking to Stoelk ) The following Saturday, October 12,
Schwarzenbach went to the office to pick up his check
According to Schwarzenbach, Bierl then "said he was
going to shut it off before it got started," without
explaining what he meant "He also continued to say they
are going to strike, anyway, so I might lust shut it down
completely. . He said he didn't need them two
characters in there telling him how to run his business
either." (Union Representatives Sampson and Pedersen
had been negotiating with him ) Bierl further "said I was
good enough that I could get a job anyplace, he knew
that." (Schwarzenbach had already gone to work, the
morning after his discharge, on an industrial job in
Carroll at a higher rate of pay ) When the company
counsel asked him on cross-examination what was his
opinion of why he was discharged, Schwarzenbach
testified that Bierl "knew I was union and I had heard
about this strike and . . I told [Bierl's son-in-law] about
it . . and Mr. Bierl knew about that, and I just figured
he just tied the thing together and figured that it was best
that I wasn't around there any more, because I made both
statements in front of his son-in-law "
Bierl gave much conflicting testimony about what
transpired He testified that Schwarzenbach's
"workmanship was fine, but ... he didn't seem to get too
much work done." He stated that he went by the job three
times on Wednesday, October 9. When asked by company
counsel the direct question, "Did you say anything to Mr.
Schwarzenbach about the performance that you were
observing," he stated, unequivocally, "Not until that
evening." Upon being asked when he reached the decision
to discharge Schwarzenbach, he first answered, "That
evening." Then he changed his answer, stating, "Well, no,
when I left there I decided that he wasn't going to work
out and he was on a trial basis." Bierl further testified
that that evening, while still at the store, he telephoned
Schwarzenbach at home and told him "He did a real good
job, but except there wasn't enough accomplished," and
that he was discharged, "that it wasn't working out."
Thus, according to this testimony, Bierl had said nothing
to Schwarzenbach about his performance on the job, but
summarily discharged him by telephone. Later, however,
Bierl testified that when he went to the job ;I1
mid-afternoon, he told Schwarzenbach "I was unhappy
with what went on, how much work was progressed,"
whereupon Schwarzenbach said he "was working his
hardest." (This not only conflicts with Bierl's earlier
testimony, but it is contrary to Schwarzenbach's denial
that there had been any complaints about his work .) Bierl
also testified at one point (although giving further
contradictory testimony elsewhere) that he talked with
crew leader Fischer about Schwarzenbach about
mid-afternoon, after visiting Schwarzenbach's job the
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
third time, and complained that there was a lot of visiting
going on and not too much accomplished. He claimed that
Fischer agreed with him, and said "he thought there was a
problem," and "he was going to watch it, I guess " Later
in his testimony, Bierl was asked if he talked to Fischer
again before discharging Schwarzenbach over the
telephone. He answered, "No, because I told him I
thought I was going to relieve" Schwarzenbach. (This
testimony is contrary to Fischer's testimony that Bierl did
not say anything to him about not being pleased _ with
Schwarzenbach's work, did not consult with him about
Schwarzenbach's work performance, and did not advise
him that Schwarzenbach might be discharged.) Both
Schwarzenbach and Fisher impressed me as honest,
trustworthy witnesses . I credit their testimony (and not
Bierl 's) about what transpired , and discredit Bierl's claim
that Schwarzenbach's work was unsatisfactory.
, Having considered all the evidence and the
circumstances , including Bierl ' s comments to
Schwarzenbach on October 12 about a strike, about
shutting "it down before it got started," and about "two
characters" (meaning Sampson and Pedersen ) running his
business, I find that Bierl was concerned with the
influence Schwarzenbach, a member of another
Carpenters local, might have on the other employees
during the contract negotiations with the Union.
(Contrary to Bierl's denials, I find that his son-in-law,
Stoelk, had reported to him about Sampson's and
Pedersen's visit to the job, and about Schwarzenbach's
talk concerning a strike.) I find that Bierl, despite the
shortage of journeyman carpenters who would work for $3
an hour, decided to discharge this competent, satisfactory
journeyman in order to eliminate from his employment
this person he then suspected of being a militant union
supporter. (In view of the fact that Schwarzenbach was
employed on a better-paying job the day after his
discharge, I do not agree with the contention the
Company makes in its brief that the Union's failure to file
a charge at the time, or to protest the discharge in
negotiations , "strongly militates against the force and
credibility of the Union's delayed allegations and belated
innuendoes..").
Accordingly, I find that the reason given for
discharging Schwarzenbach was pretextual, and that the
discharge was discriminatorily motivated - to discourage
union membership and a strike - and violated Section
8(a)(3) and (I) of the Act.
3. Layoff of Olberding and Fischer
By the last part of December, the Company's
construction work had contracted instead of expanding, as
earlier planned. The new houses were not selling ( because
of the "tight money" situation); the bank would not grant
another construction loan until a house was sold, and
there was little construction work to be done on two
unfinished houses. In the December 18 contract
negotiations with the Union, Company Attorney Ronald
H. Schechtman stated that there would possibly be a
layoff, and that if things got worse, the Company
probably would close down the construction work and
keep only one man, journeyman carpenter Grote, to
perform the Company's remodeling work.
On December 20, Bierl laid off plumber-electrician
Olberding and crew leader Fischer, and on December 27,
he laid off carpenter-laborer Seidle. Olberding was
recalled on December 31 to complete the plumbing work
on one house, and laid off again on January 10, until
January 28 when he was recalled to finish the plumbing
on the other house, and to do remodeling work. On April
17, when the Company planned to resume its construction
work, it recalled Fischer "to his previous position as
journeyman carpenter," but he declined because of other
work he was doing. (Contrary to the Company's belated
contention that Fischer was a supervisor, I find that Bierl
himself supervised the small crew of construction workers
and did the hiring, firing, and granting of wage increases
without consulting Fischer I further find that despite
Bierl's plans in August to hire a second crew, to train
Fischer to be a construction supervisor, and to place him
on a commission , these plans did not materialize, and
crew leader Fischer had no actual supervisory authority at
the time of his layoff )
The General Counsel does not dispute the shortage of
work, but contends that the Company was
discriminatorily motivated when it laid off Union
Financial Secretary Fischer and Treasurer Olberding (both
members of the union negotiating committee), and
"retained junior employees Nepple and Stoelk to perform
work which both Fischer and Olberding had done in the
past." Fischer (hired in April 1968) had been a carpenter
for 16 years. Olberding (the Company's senior employee,
hired in May 1955) was not only a plumber and
electrician, but had worked a total of 8 years as a
carpenter for the Company, and despite the customary
winter slack seasons, had not been laid off since his first
year of employment. Both were qualified to do finish
carpentry work. However, as pointed out by the Company
in its brief, "except for the inside finish work which
[finisher] Grote completed, the remaining work did not
require a journeyman carpenter." (The evidence is
undisputed that Nepple and Stoelk engaged in a
considerable amount of make-work: sweeping out the
garage, shoveling snow, and working for one of Bierl's
other businesses , hauling, unloading , and unpacking
furniture, and hauling away cartons ) As special reasons
for retaining the junior employees (both hired in 1968),
Bierl testified that "Stoelk was my son-in-law . . I
couldn't hardly lay him off," and Nepple's "wife is my
secretary . . and they are lust newly weds and they are
expecting, I wasn't in any position to lay him off"
(Nepple, as well as two carpet layers and the
salesman-drapery installer, quit in February.)
The evidence does show that in prior years, the
Company permitted Olberding during the slack winter
seasons to work in the shop, making fittings and duct
work for future use, or to work as a carpenter finisher.
However, in view of the undisputed shortage of skilled
work to be done, and the special reasons cited by Berl, I
find that the General Counsel has failed to prove that the
December 20 layoffs of these two key employees,
Olberding and Fischer, while retaining the lower-paid
junior employees, was motivated by a desire to undercut
the Union in the negotiations, to discourage union
membership, or to interfere with the employees' protected
concerted activity I further find that even if it is assumed
that Bierl was aware that both Stoelk and Nepple were
nonmembers of the Union (as they were), the General
Counsel has failed to prove that this was a contributing
factor in deciding to retain them while laying off Union
Officials Olberding and Fischer.
The General Counsel also contends that the Company
further discriminated against crew leader Fischer by hiring
replacement carpet layers in February without offering
Fischer the opportunity to perform this work However,
the Company made a practice of hiring low-paid trainees
BIERL SUPPLY COMPANY 745
to learn carpet laying, and gave each of them periodic
wage increases while he was being trained by working with
a leadman. Not only is there no showing that Fischer
would have been interested in such a low-paying job, but
the assignment of a journeyman carpenter to this different
trade would have deprived the Company of a trainee who
in time would be trained to assume the role of leadman of
a two-man crew I therefore find, in these circumstances,
that the Company was justified in not offering
employment to Fischer as a carpet layer.
Accordingly, I shall recommend dismissal of the
allegations that the Company discriminated against
Olberding and Fischer.
B. Alleged Bargaining Violations
1. Negotiations
The main issue in the negotiations was wages.
A major problem in reaching agreement on wages was
the fact that the Company was the top-paying residential
contractor in Carroll, and the Union had been unable to
organize any of the Company' s competitors.
Following the June 3, 1968, certification, Union
Representatives Sampson and Pedersen met informally
with President Bierl on June 25. Bierl informed them that
they could not expect a wage rate of $4 or more, and
stated that many of his men were not qualified for high
wages. Thereafter, the Union selected an employee
negotiating committee , drafted a proposal, and submitted
it to Bierl on July 26, requesting a journeyman rate of
$3 30 an hour , to be raised on May I to $3.45. Bierl met
with Union Representative Pedersen and the employee
negotiating committee on August 12, when (as testified by
Pedersen ) Bierl stated his wish that "we had other
employers to sit on the same side of the table with him."
The Union agreed that that would be helpful, and "the
committee left that meeting with instructions to secure
additional members from the employees of other
employers."
Following this meeting , Bierl turned the negotiations
over to Attorney Schechtman , and the Union renewed its
efforts to organize other contractors in Carroll . During
the next 3 months, the Union contacted the Company
once or twice a month , while the organizing efforts
continued . Sampson lived in Ames , and Pedersen in
Waterloo, about 160 miles from Carroll. Usually, when
they were in town, they would drop by to see either Bierl
or Schechtman , without appointments . (The General
Counsel contends that the Company engaged in dilatory
tactics, pointing out that the Company failed to propose
any meetings , and that Attorney Schechtman was not
prepared for negotiations , and said he would be busy for
the next 2 weeks , when Sampson and Pedersen met with
him on November 7. However , the union representatives
did not have an appointment to visit Schechtman on that
date , and had not had an appointment about a month
earlier, on October 9, when they went by his office and
found him to be out of town. In view of the Union's
failure to request the attorney for a meeting during this
time , or to give him notice , of their coming , I find no
merit to the General Counsel 's contention.)
Serious negotiations began on December 2. The Union
had failed to organize any of the Company's competitors.
It was still proposing the same wage scale . Attorney
Schechtman advised the union representatives and the
employee committee that the employees would have to be
classified, because they were not all journeymen. The
Union agreed, and on December 18 met again with the
Company, proposed its classification of the employees,
and reached an agreement with the Company on it (The
classification placed the employees along an
apprenticeship scale, crediting them with various years of
experience in order that the percentages of the
journeyman wage -- figured at $3.30 an hour would
approximate their current wages.) At this meeting, and in
the meeting on the next day, the Union was proposing an
immediate $3.30 rate, and the Company was proposing a
$3.10 rate. (Sampson and Pedersen, who kept no notes of
the meetings, did not recall the Company proposing a rate
of $3 10, but I credit Attorney Schechtman's testimony
that the Company did propose that journeyman rate ) By
this time, the parties had reached an agreement on most
of the Union's contract proposal.
On December 23, the Union mailed the Company a
revised proposal, requesting a journeyman rate of $3.15,
to be increased to $3.20 on February 1, $3.25 on April 1,
and $3.30 on June 1. On January 3, Attorney Schechtman
mailed the Union a reply. He wrote that he had made
inquiries and had found that the top journeyman rates of
the Company's competitors ranged from $2.20 to $3 an
hour He offered a journeyman rate of $3.15 an hour.
When the parties met on January 14, the work was
slack, none of the houses had been sold, and three
employees on the construction crew had been laid off The
Union reduced its proposal further, by offering to
postpone each of its proposed bimonthly wage increases
for 3 months. (The $3.25 rate paid journeymen Grote, as
well as Fischer before his layoff, would be red-circled, and
would not be increased under the revised proposal until
September 1, when the $3.30 journeyman rate would
become effective. Plumber-electrician Olberding would,
under both the Company's proposals, receive a 15-cent
increase immediately, from $3 to the $3.15 journeyman
rate.) The Company continued to propose a journeyman
rate of $3.15 for the entire life of the agreement (without
reducing any employee's wages). No further concessions
were made; there was an impasse on wages; and the
negotiations concluded. (No further meeting was held until
June 4, the day after the end of the certification year. The
Company then stated that the Union no longer
represented a majority of the employees, and conditioned
further bargaining on proof of majority. The Union
contended that this was irrelevant presumably in view
of the alleged unfair labor practices The General Counsel
does not deny a loss of majority, but contends that an
employer who has failed to bargain in good faith during
the certification year "is in no position to challenge the
union 's continued majority status.")
Contrary to the General Counsel's contention that the
Company was engaged in bad-faith bargaining, and that
at the last negotiating meeting on January 14,
"Schechtman really had nothing to offer and no real
intention to negotiate ," I see nothing in the attorney's
conduct at the negotiations to indicate a lack of good
faith. The Company had already offered the Union a
journeyman rate 15 cents higher than the next highest
journeyman rate for residential work in the area. Unless
the Company's conduct away from the bargaining table
(discussed below) indicates otherwise, its refusal to make
further concessions on the wage issue would not indicate a
desire to produce a stalemate as a means of undermining
the Union.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Other conduct
In the Union's original written proposal, dated July 26,
the Union sought a 1-week vacation "with pay based on a
forty hour week." This was less than the Company had
been providing. For years, the construction crew had been
given a 1-week vacation with pay based on the number of
hours the crew was, working. i.e., pay for 45 hours if the
crew was working a 45-hour workweek.
On September 6, the Company issued a notice, stating
that in 1969, vacation pay would not be paid on overtime
as before, but would be "adjusted to straight time of forty
hours." Having proposed the same thing, the Union raised
no objection -- , until filing its- first amended charge
against the Company on February 24. Under these
unusual circumstances, I find that the Company's actions
in announcing the change in the vacation pay, effective the
next year, did not interfere with the negotiations, nor
indicate bad faith, on the Company's part.
Also in the September 6 notice, in which the Company
pointed out deficiencies in the making out of time tickets,
the Company stated that "Time books will no longer be
furnished. They can be picked up at Stones at very small
cost." The cost was 35 cents, for a book which would last
6 months. The Union did not object. This matter is too
trifling for further consideration.
Although the September 6 vacation and time-book
changes were mentioned in the Union's February 24
amended charge (but not in the Union's original charge
filed on February 11), there was no mention in either the
original or amended charge of the Company's continued
practice of giving individual wage increases to
nonjourneyman employees. The Company's practice was
first challenged , on June I 1 at the trial, when the
complaint was amended to allege that the Company "has
unilaterally offered and has unilaterally granted wage
increases to employees in the bargaining unit without
bargaining with the union."
In the floor covering department, Store Manager
Dennis Bierl customarily hired low-paid trainees to learn
the, trade of carpet laying, promising them periodic wage
increases. After the June 3 certification of the Union, he
continued to upgrade the carpet' layers as previously
promised. ,,
Following the certification, President Harold Bierl gave
no wage increases to the journeyman carpenters, but
continued his prior practice of granting individual wage
increases to -nonjourneyman employees on the basis of
experience, ability, and need. These wage increases were
given to two union members, nonjourneyman carpenter
Leroy Bierl and carpenter-laborer. Seidle, and to one
nonmember, carpenter helper Stoelk. The Union at no
time raised any objection, or sought to be consulted. In
contract negotiations, the Union was concerned with
raising the journeyman' rate. It apparently welcomed the
individual increases to the nonlourneyman.
The unilateral granting of individual wage increases,
under ,other circumstances, may not only constitute
evidence of overall .bad-faith bargaining, but also itself
violate Section 8(a)(6), as in Insulating Fabricators, Inc ,
144 NLRB 1325, 1332, cited by the General Counsel. I
find. that -here, though, .th'e Company's actions were not
intended to undercut the Union's prestige as the
employees' representative, and there is no proof that they
had that result, or that they interfered in any way with the
negotiation, of higher journeyman rates. Accordingly, I
find that the continued granting of individual increases to
nonjourneyman employees, without objection from the
Union, did not interfere with the negotiations or indicate
bad-faith bargaining.
Although having found heretofore that Bierl discharged
journeyman carpenter Schwarzenbach when Bierl learned
that he was talking about a strike, I do not believe that
the discriminatory discharge, in October, demonstrated
bad-faith bargaining, or a desire to produce a stalemate in
December and January, when the impasse over wages
occurred.
The General Counsel also contends that Bierl's
suggestion to Fischer, "an employee committeeman and
Financial Secretary of Local 1012, that the employees
abandon the Union and form their own independent
union," demonstrates bad-faith bargaining This remark
was made in August, when Bierl was talking to Fischer
about being trained to be a construction supervisor I find
that this isolated remark, over 3 months before serious
bargaining began, was not sufficient in itself -- nor
sufficient when considered in the totality of the
Company's conduct - to prove that the Company was
not seeking in good faith to resolve its differences with the
Union.
I shall therefore recommend dismissal of the Section
8(a)(5) allegations in the complaint.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Nick Schwarzenbach
on October 9, 1968, to discourage union membership and
the employees' protected concerted activity, the Company
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
2. The General Counsel has failed to prove that the
Company discriminated against union officials Leonard
Fischer and Merle Olberding in violation of Section
8(a)(3) and (1) of the Act.
3. The General Counsel has failed to prove that the
Company failed to bargain in good faith or otherwise
violated Section 8(a)(5) of the Act.
THE REMEDY
I shall recommend that the Respondent be ordered to
cease and desist from the unfair labor practices found and
from like or related invasions of the employees' Section 7
rights; to offer reinstatement to Nick Schwarzenbach,
with backpay computed in the manner set forth in F. W
Wdolworth Company, 90 NLRB 289, plus interest at 6
percent per annum as prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716; and to post appropriate
notices.
Accordingly, on the basis of the foregoing findings and
conclusions, and on the entire record, I recommend
pursuant to Section 10(c) of the Act issuance of the
following.
ORDER
Respondent , Bierl Supply Company, its officers , agents,
successors, and assigns , shall:
1. Cease and desist from-
(a) Discharging or otherwise discriminating against any
employee because of his membership in or activities on
behalf of United Brotherhood of Carpenters and Joiners
of America , AFL-CIO, or any other labor organization.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
BIERL SUPPLY COMPANY
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Nick Schwarzenbach full reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole in the manner set forth in the section
of the Trial Ekaminer's Decision entitled "The Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and make available to the Board, or its
agents, upon request, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its places of business in Carroll, Iowa,
copies of the attached notice marked "Appendix."2 Copies
of the notice, on forms provided by the Regional Director
for Region 18, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "This Notice is Posted by Order" shall be substituted for the words
"Pursuant to the Recommended Order of a Trial Examiner" in the notice
In the further event that the Board 's Order is enforced by a decree of the
United States Court of Appeals, there shall be added after the words "An
Agency of the United States Government" the words "as Enforced by the
United States Court of Appeals."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 18, in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
747
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board an
Agency of the United States Government
WE WILL offer Nick Schwarzenbach full
reinstatement, and pay him for the earnings lost as a
result of his October 9, 1968, discharge, plus 6 percent
interest.
WE WILL NOT discharge or discriminate against any
employee for supporting United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, or any
other union.
WE WILL NOT unlawfully interfere with our
employees' union activities
BIERL SUPPLY COMPANY
(Employer)
Dated By
(Representative) (Title)
Note: Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board's Regional Office, 316 Federal Building, 110
South Fourth, Minneapolis , Minnesota 55401, Telephone
612-725-2618