Cal-Pacific Furniture Mfg. Co.

National Labor Relations Board - Board Decisions

Apr 11, 1977

228 N.L.R.B. 1337 (N.L.R.B. 1977)

CAL-PACIFIC FURNITURE MFG. CO. 1337
Yama Woodcraft , Inc., d/b/a Cal-Pacific Furniture
Mfg. Co. and Furniture Union Local 500, Uphol-
sterers' International Union, AFL-CIO. Case 21-
CA-14892
April 11, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
Woodcraft Inc., d/b/a Cal-Pacific Furniture Mfg. Co.,
herein called Respondent, has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the National Labor Relations Act, herein called the Act, as
amended. Respondent filed an answer denying the com-
mission of the alleged unfair labor practices.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs, I make the following:
FINDINGS OF FACT
On December 21, 1976, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, General Counsel filed
limited cross-exceptions, and Respondent filed an
opposition to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions 1 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Yama Wood-
craft, Inc., d/b/a Cal-Pacific Furniture Mfg. Co., Los
Angeles, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
1 We agree with the Administrative Law Judge that, in the absence of a
bargaining impasse , the Respondent's implementation of its last wage
proposal violated Sec. 8(a)(5) of the Act In these circumstances, we find it
unnecessary to pass upon the distinction the Administrative Law Judge
draws in fn. 14 of his Decision between the facts in Quality Motels of
Colorado, Inc, 189 NLRB 332 (1971), and those present herein
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case held on November 2, 1976, is based on
an unfair labor practice charge filed by the above-cap-
tioned Union on July 26, 1976, and a complaint issued on
August 25, 1976, on behalf of the General Counsel of the
National Labor Relations Board, herein called the Board,
by the Regional Director for Region 21, alleging that Yama
' The certified bargaining unit consists of all employees employed by
Respondent at its plant located on East 88th Street , Los Angeles , California;
228 NLRB No. 169
I. THE BUSINESS OF RESPONDENT
Respondent, a corporation engaged in the manufacture
of furniture in Los Angeles, California, annually purchases
and receives goods and products valued over $50,000
directly from suppliers located outside the State of
California. Respondent is admittedly an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Furniture Union Local 500, Upholsterers' International
Union, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ISSUES IN PERSPECTIVE
On July 23, 1975, in a Board-conducted election, a
majority of Respondent's employees in an appropriate unit
selected the Union to be their exclusive bargaining
representative. On September 3, 1975, the Board certified
the Union to represent all of these employees.' This case
involves the negotiations between Respondent and the
Union over the terms of an initial collective-bargaining
agreement. The negotiations failed to produce an agree-
ment and the employees struck.
The complaint alleges that during the negotiations
Respondent refused to bargain in good faith in violation of
Section 8(a)(5) of the Act by engaging in the following
conduct: (1) "Withdrawing wage and fringe benefit offers
and breaking off negotiations on all other contract
proposals at a time when a valid impasse had not been
reached, and by subsequently conditioning the reinstate-
ment of said wage and fringe benefit offers upon their prior
acceptance by the Union"; (2) "[dealing] directly with the
employees . . . in derogation of the Union's status as the
exclusive collective bargaining representative . . . by
offering to employees, who chose not to engage in a strike
against Respondent, the same terms and conditions of
employment as previously offered to the Union during
negotiations, at a time when said offer had been withdrawn
by Respondent and when a valid impasse in bargaining
had not been reached"; (3) unilaterally placing into effect
the wage offer previously offered the Union at a time when
said offer had been withdrawn by Respondent and when a
valid impasse in bargaining had not been reached. The
complaint also alleges Respondent violated Section 8(a)(1)
excluding all office clerical employees, guards , watchmen, professional
employees and supervisors as defined in the Act
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act by threatening "to permanently replace all
employees who participated" in the above-described strike.
Finally, the complaint alleges that the strike was either
caused or prolonged by the aforesaid unfair labor practic-
es, hence, it is an unfair labor practice strike.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
On September 3, 1975,2 the Union was certified by the
Board as the exclusive bargaining representative of Re-
spondent's employees. The initial meeting to negotiate the
terms of a collective-bargaining agreement was held on
November 5, 1975. Thereafter, bargaining meetings were
held on December 8, 1975, January 6, February 2 and 27,
March 9, April 23, June 23, and July 19. The Union's
spokesperson was Union Business Agent Wiley Smith.
Respondent's spokesperson, until February 10, was Attor-
ney Eddy Feldman, who was replaced on that date by
Attorney Charles Goldstein.
On November 5, 1975, at the initial bargaining session,
the Union submitted a complete contract proposal which
was discussed at this meeting and at the meetings of
December 8, 1975, and January 6. These discussions
resulted in agreement over approximately three or four of
the proposal's noneconomic provisions.
On February 2, at the third bargaining session , Respon-
dent submitted a contract proposal which dealt only with
economic matters - wages and fringe benefits. Its wage
proposal was substantially less than the Union's. For
example , the Union had proposed that journeyman
upholsterers receive an hourly minimum wage rate of $4.95
on the effective date of the contract, whereas Respondent's
proposal offered this classification an immediate minimum
hourly rate of $4 with an increase to $4.50 at the end of 2
years. On the subject of fringe benefits, Respondent
rejected the Union's pension proposal and, on the subject
of health and welfare, offered to contribute $25 a month
per employee. The Union had proposed that Respondent
make monthly contributions for each employee into a
pension as well as a health and welfare program, with its
contributions for health and welfare totaling substantially
more than $25 a month. In connection with paid vacations
and holidays, Respondent proposed that its existing policy
of 6 yearly paid holidays and 1 week of paid vacation after
1 year of employment be continued. The Union's proposal
called for 8 yearly paid holidays as well as an increase in
the vacation benefits: specifically, 2 weeks of paid
vacations after 2 years of employment, 3 weeks after 10
years, and 4 weeks after 15 years. In short, Respondent on
February 2 proposed that the Union accept substantially
less economic benefits for the employees than the Union
was proposing. On February 2, upon his receipt of
Respondent's economic proposal, the Union's negotiator,
2 Unless otherwise designated the dates hereafter refer to 1976
3 Union security, probationary period; seniority (certain parts of this
provision), safety and health, union visitation ; zipper clause.
4 The portions of Respondent 's noneconomic contract proposal which
the parties agreed not to agree or disagree about, but instead to defer
discussion until future meetings, are as follows. Seniority (several sections of
Smith, notified the Respondent's negotiators that its offer
was "inadequate and unacceptable."
On February 27, at the fourth negotiating session,
Respondent submitted a contract proposal which dealt
solely with noneconomic matters . This proposal was
discussed during the meeting of February 27 as well as at
the March 9 and April 23 bargaining sessions . By the end
of the April 23 session the parties had reached agreement
over several of the provisions included in Respondent's
noneconomic contract proposal,3 disagreed on others, and
with respect to the remainder of the proposal, agreed that
they would neither agree nor disagree, but would discuss
these provisions in the future .4
During the April 23 bargaining session the Union
submitted a new economic proposal. This proposal was
more favorable for the Company than the Union's previous
proposal, but the parties' respective economic proposals
were still apart. The Union now proposed that the hourly
wage rates set out in its initial wage proposal would go into
effect at the start of the third year or a 3-year contract
instead of the effective date of the agreement as initially
proposed. For example, under the Union's previous
proposal, journeyman upholsterers and cutters would be
paid a minimum hourly rate of $4.95 on the effective date
of the agreement, whereas under the new proposal they
would receive $4 per hour at the start of the first year, $4.50
at the start of the second year and $4.95 at the start of the
third year. The Respondent's proposal provided that these
classifications would receive $4 per hour at the start of the
first year and at the start of the third year $4.50 an hour.
Employees classified as trimmers and no-saggers, under the
Union's initial proposal, would receive $4.85 per hour on
the effective date of the agreement, whereas under the
Union's new proposal they would receive $3.85 on the
effective date of the agreement , $4.35 at the start of the
second year, and $4.85 at the start of the third year. The
Respondent's proposal provided that these classifications
would receive $3 an hour on the effective date of the new
agreement and $4 an hour effective the third year of the
agreement . Regarding health and welfare, the Union's
April 23 proposal was the same as its previous one except
that it would not become effective immediately, but rather
at the start of the second year of the new agreement. The
Union accepted Respondent's proposal of six paid hoh-
days, instead of eight, but proposed that if employees
worked on a holiday they would be compensated at time
and a half their regular rate plus holiday pay, which was
more than Respondent was proposing. Finally, the Union
modified its paid vacation proposal of 2 weeks after 2 years
of employment to 2 weeks after 3 years of employment, but
in all other respects its vacation proposal remained the
same . On April 23, upon receiving the Union's new
economic proposal, Goldstein, Respondent's negotiator,
stated that he could not indicate whether the proposal was
acceptable but, at a later date, would notify Smith, the
Union's negotiator, about the Respondent's position.
this provision); leave of absence (certain parts of this provision), hours of
work and overtime , discharge and discipline ; management rights; lunch
periods; performance of work by supervisors ; physical examinations; shop
steward; and those economic provisions which dealt with employees'
eligibility for paid holidays and vacations and the manner in which such pay
would be computed.
CAL-PACIFIC FURNITURE MFG. CO. 1339
On June 23, the next negotiation meeting took place at
the Hyatt Hotel. When they arranged this meeting, Smith
and Goldstein agreed that in an effort to reach an
agreement they would negotiate for 3 consecutive days, if
necessary, and would arrange for the presence of a
commissioner from the Federal Mediation and Concilia-
tion Service.
The June 23 meeting commenced with FMCS Commis-
sioner Allan being brought up to date about the state of the
negotiations. During this briefing Smith and Goldstein
indicated their desire to discuss the subject of wages first
because, in their opinion, this was the most important
subject in dispute and they would then go on and discuss
other subjects. Goldstein asked for the Union's position on
the Company's February 2 economic offer. Smith stated
that it was unacceptable. Smith asked for the Respondent's
position on the Union's new economic proposal submitted
to Goldstein at the last negotiation session . Goldstein
could not state Respondent's position, explaining that he
had been unable to reach Gene Rothstein, Respondent's
president, and would not be able to reach him until early
that afternoon. At this point the negotiators went to lunch.
Following the lunch period they caucused in separate
rooms. Shortly thereafter, Commissioner Allan notified
Smith that Respondent had rejected the Union's new
economic offer and had withdrawn its economic offer from
the bargaining table. Commissioner Allan brought Gold-
stein into the room and Goldstein repeated Allan's
description of the Respondent's bargaining position. Then,
Smith asked Goldstein to sit down and discuss the several
noneconomic proposals that the negotiators during the last
three bargaining sessions had agreed to discuss in the
future. Goldstein took the position that "he didn't think
there would be any use of it." At this point the meeting
ended. However, Smith and Goldstein talked briefly in the
hotel lobby. Smith stated that he was sorry that the meeting
had broken up "like this" inasmuch as he wanted to reach
an agreement. Goldstein stated that he understood why
Smith could not accept the Company's wage offer and
observed that the Union had an "industry problem" 5 and
thought the Union would have to strike. Smith, while
acknowledging that Goldstein's comment about the Union
b The Union never took the bargaining position that it would not accept
less than the industry wage standard - the wage rates paid by employers
under contract with unions - but instead took the position that it needed a
contract that contained wage rates somewhere in the vicinity of the wages
paid by the industry In this regard, the Union's April 23 economic proposal
would have raised employees' minimum wages to the industry's as of April
23, but inasmuch as the employers in the industry were currently negotiating
new agreements, Respondent would presumably be paying less than its
competitors at the end of the first year of the agreement and most definitely
by the second and third years of the 3-year contract proposed by the Union
6 What took place on June 23 is based on the testimony of Wiley Smith
and Audrey James insofar as the testimony of one is not inconsistent with
the other's. In those instances where their testimony is not consistent I have
credited Smith's testimony because, in bearing and demeanor, he impressed
me as the more trustworthy witness. In addition, James' testimony in one
very significant respect is contradicted by the whole record, thus casting
doubt on the reliability of her memory as to what occurred at the June 23
meeting She testified, in effect, that Respondent did not withdraw its wage
offer from the bargaining table but that Commissioner Allan merely
indicated that Rothstein had stated he could not afford to pay the
employees the wages proposed by Respondent. It is undisputed, however,
that Goldstein at the negotiating meeting of July 19, as described infra,
admitted that at the negotiating meeting of June 23 he withdrew the
Company's wage proposal from the bargaining table
striking was correct, requested that Goldstein continue to
negotiate. In this regard, Smith asked Goldstein "how
about going into some of these other items that we haven't
reached agreement or disagreement on." Goldstein an-
swered, "I don't think there would be any advantage to it."
Smith stated that he thought the Union would probably
have to strike but that it would not commence immediate-
ly. Goldstein asked Smith to notify him when the Union
intended to strike. On this note they parted company.6
On July 13, as described infra, the Union held a meeting
of the Company's employees, after working hours, at which
time the employees voted to strike. On the day of the
meeting, prior to the meeting, or shortly before the day of
the meeting, Respondent distributed a leaflet to its
employees.7 The leaflet was on Respondent's stationery
and signed by its vice president, Dennis Huffman. It
advised the employees that in the event of a strike
Respondent would remain open for business, that striking
employees were not eligible for unemployment benefits,
and that Respondent would provide protection for those
employees who desired to continue to work during the
strike. In addition, the leaflet stated:
3. THE COMPANY WILL FILL ALL OF THE JOBS, OF
THOSE PEOPLE WHO CHOOSE NOT TO WORK, WITH PEOPLE
WHO WANT TO WORK AND NEED A JOB.
4. THE COMPANY WILL OFFER, TO THOSE PEOPLE
WHO CONTINUE TO WORK, THE SAME OFFER MADE TO THE
UNION DURING THE NEGOTIATION MEETINGS.
On July 13, the Union conducted a meeting, after
working hours, which was attended by approximately 60
employees for the purpose of deciding whether they wanted
to strike. Smith told the employees about Respondent's
wage offer. He did not explain the offer in detail, but
simply told them that Respondent's proposal divided all
jobs into four labor grades with a separate hourly rate for
each grade and quoted them the rates. Smith then stated
that at the last negotiating meeting Respondent had
rejected the Union's wage proposal and had withdrawn its
wage offer, thus there was no company wage offer on the
bargaining table for the Union to consider which, Smith
said, was illegal . Smith also told the employees that
7 The conclusion that the leaflets were distributed prior to the Union's
strike vote meeting is based on the testimony of Union Representatives
Smith and Sanchez and employee Rueda, each of whom impressed me as a
credible witness. Smith testified that shortly before the start of the meeting
both Sanchez and James gave him a copy of the leaflet. Sanchez testified
that prior to the meeting, as the employees entered the Union's hall, he
observed several of them with the leaflets and that one of the employees
gave him a copy. Rueda testified that Foreman Tamura handed out such
leaflets to the employees several days prior to the strike vote meeting. In
crediting the testimony of Rueda, Smith, and Sanchez, I have carefully
considered Rueda's pretrial affidavit and the testimony of James. The
affidavit, contrary to Respondent's contention , is not inconsistent with
Rueda's testimony . The fact that Rueda in the affidavit states Foreman
Tamura passed out the leaflets "shortly before" the first meeting, at which
the Company met with the employees to discuss the strike, does not impeach
Rueda's testimony . Neither the affidavit nor the record as a whole indicates
when, in relation to this company meeting, the strike vote meeting occurred
Finally, James' testimony tends to corroborate Smith 's insofar as James
admits that immediately prior to the start of the strike vote meeting she
handed Smith a document distributed by management . She was unable to
remember what the document contained and, when asked if it was the
leaflet in question, answered an unconvincing "I don 't think so "
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had violated the law by distributing the strike
leaflets. The employees overwhelmingly voted to give the
Union the authority to call a strike "at an appropriate
time."s
The next negotiation meeting which took place on July
19 was arranged by FMCS Commissioner Courtney.
Courtney asked Goldstein and Smith to brief him about
the history of the negotiations. In the process Goldstein
referred to the Company's wage proposal. Smith declared
there was no such proposal on the bargaining table because
it had been withdrawn by Goldstein at the last negotiation
meeting . Goldstein denied this and simultaneously handed
Smith a 4-page document. Smith examined the document
and expressed the view that, other than the third page
which was a copy of the Union's recent wage proposal, he
had never seen the other three pages. However, upon
further examination, Smith indicated that pages 1, 2, and 4
were almost identical with the Company's wage proposal
except that the spaces provided for hourly wage rates were
blank. Smith asked if the blank spaces should contain the
rates set forth in the Company's previous wage proposal.
Goldstein answered in the affirmative and also told Smith
that in connection with health and welfare the Company
would contribute $25 monthly for each employee effective
the first year of the contract. In short, the substance of
pages 1, 2, and 4 of the document Goldstein handed Smith,
as completed by Goldstein's verbal explanation, was
identical to the Company's previous economic offer.9
Smith, after filling in the blanks and writing in the
Company's position concerning the health and welfare
program, pointed out to Goldstein that this offer had been
withdrawn by Goldstein at the last bargaining session.
Goldstein denied this but Huffman, Respondent's vice
president who was a member of Respondent's negotiation
team , informed Goldstein that Smith was absolutely
correct. Huffman showed Goldstein the minutes taken by
Respondent's negotiators at the last negotiating meeting
and, after reading the minutes, Goldstein acknowledged
that Smith was correct in stating Respondent had with-
drawn its economic offer. At this point Commissioner
Courtney requested that the parties caucus in different
rooms. Courtney thereafter told the union negotiators that
he thought that, if the Union indicated it was willing to
accept Respondent's economic offer, Respondent would
reinstate the offer. Smith advised Courtney that the offer
was unacceptable because it was inadequate. This ended
the meeting. However, on the way out of the building,
Smith and Goldstein spoke briefly. Goldstein told Smith
that he thought the Union's offer was a fair one but
Respondent would not accept it and Goldstein was of the
opinion the Union would have to strike.io
s The pertinent part of what occurred at the strike vote meeting, which is
described in the text, is based primarily on the testimony of Smith, who
impressed me as a sincere and reliable witness, and is supplemented by the
testimony of Sanchez and Rueda to the extent their testimony is not
inconsistent with Smith's I have rejected the portions of James' testimony
which is inconsistent with Smith 's, particularly James' assertion that, after
generally describing the Company 's wage proposal , Smith asked the
employees to vote whether they wanted to accept the offer or to strike. In
manner and demeanor James did not impress me as a reliable witness.
Moreover , her description of what occurred at this meeting , when viewed in
the context of the whole record, is highly improbable Thus, it is undisputed
The vice president of Respondent, Huffman, the day
following the July 19 negotiating meeting, phoned Smith,
the Union's negotiator, and asked whether Smith under-
stood Respondent's bargaining position. Smith replied that
it was his understanding Respondent had withdrawn its
economic proposals, but that if the Union indicated it
would accept these proposals, Respondent would reinstate
them. Huffman acknowledged this was correct.
On July 27, the Union called the employees out on strike
and as of the date of the hearing in this case, November 2,
the strike was still in progress.
On the day of the strike Respondent placed into effect its
wage proposal, including its health and welfare proposal.
During July, prior to the strike, Respondent's officials
met with employees in small groups and, in pertinent part,
told them that "the company was going to continue
operating in the event of a strike and would replace those
who went out on strike and . . . that those who stayed to
work and did not go out on strike would receive the
benefits that the company had offered to the Union."
The parties as of November 2, the date of the hearing in
this case, had not held a negotiating meeting since the one
held July 19. Neither party has contacted the other to
arrange for a meeting . However, the Federal mediator
contacted Union Representative Smith and asked if the
Union would attend a negotiating meeting . Smith an-
swered in the affirmative.
B. Discussion and Ultimate Findings
General Counsel argues that Respondent violated its
statutory bargaining obligation by withdrawing its eco-
nomic contract proposal , conditioning its reinstatement
upon acceptance by the Union while, at the same time,
breaking off negotiations on all other subjects.
The record establishes that, by the end of the collective-
bargaining meeting of April 23, the parties were in
agreement about several noneconomic items, had agreed to
defer any discussion about several other noneconomic
matters until future meetings, but were apart on economic
matters such as wages and fringe benefits. However, on
April 23 the Union modified its position on economic
matters . It offered a more favorable wage and fringe
benefit package which Respondent indicated would be
considered.
On June 23, the next negotiating session , Respondent
withdrew its economic proposal, rejected the Union's
revised economic proposal, and refused the Union's
request to discuss the several noneconomic matters which
the parties previously had agreed to discuss at future
meetings. At the next meeting, held on July 19, which was
arranged by a Federal mediator, Respondent offered to
that, at the last negotiation meeting held before the strike vote meeting,
Respondent withdrew its wage offer from the bargaining table . In this
circumstance, James' testimony that Smith asked the employees to vote
whether or not to accept the Company 's proposal rings false.
9 The remaining document was a copy of the Union 's wage proposal
is The above description of the July 19 meeting is based on the testimony
of Smith and the testimony of James insofar as it is not inconsistent with
Smith's. I have credited Smith's version , in each instance where their
testimony does not jibe , because he impressed me as the more trustworthy
witness.
CAL-PACIFIC FURNITURE MFG. CO. 1341
reinstate its economic proposal if the Union accepted it.
The Union rejected this proposal. This meeting concluded
with no discussion of other matters nor did the Umon
specifically request Respondent's negotiator to discuss
noneconomic matters. This is not surprising. In view of
Respondent's previous refusal on June 23 to discuss
noneconomic matters, the Union acted quite reasonably on
July 19 in not repeating this request. Considering the
circumstances, Respondent's conduct was calculated to
lead the Union to believe that such a request would have
been futile.
In short, the record demonstrates that Respondent
refused to bargain over noneconomic matters unless the
Union agreed to accept Respondent's economic proposal
or offered an economic proposal acceptable to Respon-
dent. There is insufficient evidence that collective-bargain-
ing negotiations on June 23 had reached an impasse when
Respondent refused to discuss noneconomic matters.
Impasse has been defined as that point of time in
negotiations where the parties are warranted in assuming
that further bargaining would be futile. See Alsey Refracto-
ries Company, 215 NLRB 785, fn. 1 (1974), citing Taft
Broadcasting Co., WDAFAM-FM TV, 163 NLRB 475, 478
(1967), affd. 395 F.2d 622 (C.A.D.C., 1968). Here, there is a
lack of evidence that, when Respondent on June 23 refused
to bargain, it was realistically warranted in assuming that
further bargaining would be futile. For, although the
Union had indicated that Respondent's economic proposal
was not acceptable, there is no evidence that the Union
had indicated it was unwilling to make further concessions
on this or other unresolved issues . To the contrary, at the
negotiating session immediately prior to the one held June
23, the Union reduced its economic demands, thus
demonstrating it was willing to make concessions and to
reduce its economic demands in an effort to reach
agreement .ii Nor is there a scintilla of evidence that on
June 23, when Respondent refused to discuss noneconomic
issues, the Union, either by word or deed, had indicated its
economic proposal was a final offer. Moreover, as
described supra, the parties had not resolved or fully
discussed other important noneconomic issues . The very
nature of collective bargaining presumes that while
movement may be slow on some issues , a full discussion of
other issues, which as in the instant case have not been the
subject of agreement or disagreement, may result in
agreement on the stalled issues. "Bargaining does not take
place in isolation and a proposal on one point serves as
leverage for positions in other areas." Korn Industries, Inc.
v. N.LR.B., 389 F.2d 117, 121 (C.A. 4, 1967). Thus, "had
the respondent been willing to bargain further, much more
might have been accomplished through the give and take
atmosphere of the bargaining table." N.L.R.B. v. Sharon
Hats, Inc., 289 F.2d 628, 632 (C.A. 5, 1961). Under the
circumstances, I conclude that on June 23, when Respon-
dent initially refused to discuss noneconomic issues,
negotiations had not reached the point where there was
,.no realistic possibility that continuation of discussion at
that time would have been fruitful." American Federation of
Television and Radio Artists [Taft Broadcasting Co.] V.
N.LR.B., 395 F.2d 622, 628 (C.A.D.C., 1968).
The question presented for decision is whether it was an
unlawful refusal to bargain, within the meaning of Section
8(a)(5) of the Act, for Respondent, absent a bargaining
impasse, to break off negotiations and refuse to bargain
about noneconomic matters unless the Union either agreed
to accept Respondent's economic proposal or proposed an
economic proposal acceptable to Respondent. A review of
the applicable legal principles convinces me that, by
engaging in this conduct, Respondent violated Section
8(a)(5) and (1) of the Act.
Under Section 8(a)(5) of the Act, it is an unfair labor
practice for an employer "to refuse to bargain collectively
with the representative of his employees ... " Collective
bargaining is defined in Section 8(d) of the Act as "the
mutual obligation . . . to meet at reasonable times and
confer in good faith with respect to wages, hours and other
terms and conditions of employment, or the negotiation of
an agreement ...: . The statute specifies, of course, that
no party is required to make concessions or to yield any
position fairly maintained; but the statute does require the
parties to negotiate in a manner which lends itself to the
real possibility of reaching an accord. N.L.R.B. v. American
National Insurance Co., 343 U.S. 395, 404 (1952). "[T]he
essential thing is . . . the serious intent to adjust differenc-
es and to reach an acceptable common ground." N.L.R.B.
v. Insurance Agents' International Union, AFL-CIO, 361
U.S. 477, 485 (1960). "[T]he employer is obliged to make
some reasonable effort in some direction to compose his
differences with the Union . . . ." Kayser-Roth Hosiery
Company, Inc. v. N. L. R. B., 430 F.2d 701, 703 (C.A. 6,
1970), quoting from N.L.R.B. v. Reed & Prince Manufactur-
ing Company, 205 F.2d 131, 134-135 (C.A. 1, 1953).
Furthermore, the duty imposed by the Act with respect
to collective bargaining "may be violated without a general
failure of subjective good faith." N.L.R.B. v. Katz et al., 369
U.S. 736, 743 (1962). For, the Act authorizes the Board "to
order the cessation of behavior which is in effect a refusal
to negotiate, or which directly obstructs or inhibits the
active process of discussion, or which reflects a cast of
mind against reaching agreement ." Katz, supra, 369 U.S. at
747. Accordingly, a party's refusal to discuss some
mandatory subject of bargaining may constitute a violation
of Section 8(aX5) regardless of his good-faith bargaining on
other matters.
In the instant case Respondent insisted that its position
on the important economic matters had to be accepted by
the Union before there could be any discussion and
negotiation on noneconomic issues . This course of conduct
was calculated to obstruct the process of meaningful
contract discussion because progress in negotiations in
noneconomic areas could have enabled the Union to
further modify its economic demands. I recognize there is
nothing to prevent parties from attempting to reach
agreement on economic matters first and only then to
negotiate about noneconomic matters. It may happen,
however, as it did here, that such negotiations threaten to
stall because the parties cannot reach agreement on
11 I also note that Respondent 's negotiator admitted to the Union's
negotiator that the economic package submitted by the Union was a "fair
one "
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic matters . The only way to avoid impasse in this
circumstance may be through exploration of the employer's
position and the union's position on noneconomic matters.
If the parties find they are able to reach agreement on
significant noneconomic matters, they may feel justified in
yielding ground on the economic terms. If in these
circumstances the union, as it did here, asks the employer
to turn to noneconomic issues, but the employer, as it did
here, refuses to talk about them until all of the economic
issues have been settled on terms favorable to the
employer, impasse is virtually guaranteed.12 Such conduct
is plainly incompatible with each party's statutory duty to
negotiate in a manner which facilitates agreement. Indeed,
in an analogous situation the Supreme Court has stated
that: "A refusal to negotiate in fact as to any subject which
is within § 8(d), and about which the union seeks to
negotiate, violates § 8(a)(5) though the employer has every
desire to reach agreement with the union upon an over-all
collective agreement ...." N.L.R.B. v. Katz, 369 U.S.
736, 742-743. See also N.LR.B. v. Patent Trader, Inc., 415
F.2d 190, 198 (C.A. 2, 1969). (By postponing economic
bargaining to the end of the negotiations, the employer
" `reduced the flexibility of collective bargaining, [and]
narrowed the range of possible compromises' with the
result of '. . . rigidly and unreasonably fragmenting the
negotiations ...' ").
Based on the foregoing, I conclude that Respondent's
refusal during contract negotiations to discuss noneconom-
ic matters and requiring as a condition for such discussion
that the Union agree to accept Respondent's terms on
economic matters is the type of conduct antithetical to
good-faith bargaining and exhibits a cast of mind against
reaching agreement; hence, it constitutes a refusal to
bargain in good faith in violation of Section 8(a)(5) and (1)
of the Act. Federal Mogul Corporation, 212 NLRB 950
(1974); The Adrian Daily Telegram, a Division of Thompson
Newspapers, Inc., 214 NLRB 1103 (1974); Reisman Bros.,
Inc., 165 NLRB 390 (1967).
General Counsel contends that, by unilaterally institut-
ing its wage and health insurance proposals, Respondent
violated Section 8(a)(5) and (1) of the Act.
It is settled law that an employer violates Section 8(a)(5)
and (1) of the Act by unilaterally altering employees' terms
and conditions of employment. N.L.R.B. v. Katz, supra.
Such unilateral action, without regard to the subjective
issue of good-faith bargaining, is unlawful where contract
negotiations have not yet reached an impasse, for such
action is "circumvention of the duty to negotiate which
frustrates the objectives of § 8(a)(5) much as does a flat
12 "Bargaining does not take place in isolation and a proposal on one
point serves as leverage for positions in other areas." Korn Industries, supra
at 121. Also, see Hustad , "Use and Abuse of Ground Rules in Labor
Negotiations," 15 Air Force JAG Rev. 102, 105-106, discussing the
"procedural straitjacket " imposed on the bargaining process by a party's
insistence that articles be settled "in accordance with [their] numerical
order" in its proposal:
True free collective bargaining is put under insurmountable
obstacles when it is so restricted Unshackled collective bargaining
solves problems instead of creating them , but this type of bargaining
requires a flexibility and freedom of response from both parties It is
imperative that the parties have the freedom to discuss related issues
together and have the flexibility to resolve some potential impasse
problems by the ability to " trade off" Many problems which at first
refusal." NLRB. v. Katz, supra at 743. In the instant case,
on July 27, the day the strike commenced, Respondent
unilaterally instituted changes in its employees' wages and
health insurance. These changes had been proposed by
Respondent and rejected by the Union at the February 2,
June 23, and July 19 negotiating sessions . Respondent
defends its unilateral implementation of these proposals on
the ground that an impasse in negotiations had been
reached; thus, Respondent was privileged to implement its
last offer. I agree that by the end of the July 19 bargaining
session the parties, due to Respondent's bargaining stance,
as described supra, had reached an impasse over economic
matters. But, assuming Respondent's bargaining tactic was
permissible, it did not create the type of a bargaining
impasse contemplated by the Act. For, as described supra,
the parties had not resolved or fully disclosed a substantial
number of significant noneconomic issues . Thus, since the
very nature of collective bargaining presumes that move-
ment may be slow on some issues, a full discussion of the
noneconomic issues which had not been the subject of
agreement or disagreement might have resulted in agree-
ment on the stalled economic issues.13 This seems especial-
ly likely in the instant case since the Union at the
bargaining session immediately prior to the one held June
19 had reduced its economic demands, thus demonstrating
it was willing to make concessions in an effort to reach
agreement. Under the circumstances, I am persuaded that
on July 27, when Respondent unilaterally instituted
changes in its employees' wages and health insurance,
negotiations had not reached the point where there was
"no realistic possibility that continuation of discussion at
that time would have been fruitful." American Federation of
Television Artists v. N.L.R.B., 395 F.2d at 628. In reaching
this conclusion, I have taken into account the Union's
strike of July 27, but considering all of the circumstances, I
am persuaded the strike does not reflect the existence of an
impasse. See N.LR.B. v. Safeway Steel Scaffolds Company
of Georgia, 383 F.2d. 273, 280 (C.A. 5, 1967).
Even assuming that on July 27 collective-bargaining
negotiations had reached the point of impasse, I am still of
the opinion that Respondent was not privileged to institute
unilaterally its last economic offer 14 where, as here, a cause
of the impasse was Respondent's refusal to bargain in good
faith. As found, supra, Respondent's refusal to discuss
noneconomic issues , unless the Union agreed to accept
Respondent 's terms on economic issues , constitutes a
refusal to bargain in violation of Section 8(a)(5) and (1) of
the Act and was responsible for the parties' bargaining
impasse over economic issues . In these circumstances,
seemed insurmountable at the bargaining table disappear with the
reflection of time and the lack of a need for either party to be boxed
into a rigid position When it initially appears that the parties are
headed for a deadlock on a particular item , that item should be
deferred to a time when the bargaining atmosphere is more conducive
to its solution.
13 See fn. 12, supra.
14 I reject General Counsel 's contention that Respondent 's implementa-
tion of the terms of its last economic proposal was unlawful because the
proposal had previously been withdrawn, citing Quality Motels of Colorado,
Inc, 189 NLRB 332, 337 (1971). Quality Motels is inapposite. There, the
respondent-employer unequivocally withdrew its final offer, the union was
given no further opportunity to accept the offer . Here, the Union at all times
could have accepted Respondent's economic offer.
CAL-PACIFIC FURNITURE MFG. CO.
Respondent's unilateral conduct was unlawful even though
the parties had deadlocked on economic issues. For, "it is
manifest that there can be no legally cognizable impasse,
i.e., a deadlock in negotiations which justifies unilateral
action, if a cause of the deadlock is the failure of one of the
parties to bargain in good faith." Industrial Union of Marine
and Shipbuilding Workers of America, AFL-CIO v.
N.LR.B., 320 F.2d 615, 621 (C.A. 3, 1963). See also
N. L R. B. v. Safeway Steel Scaffolds, 383 F.2d at 280.
Based on the foregoing, I find that, by unilaterally
implementing its wage and health insurance proposals on
July 27, Respondent violated Section 8(a)(5) and (1) of the
Act.
General Counsel contends that Respondent dealt direct-
ly with its employees in violation of Section 8(a)(5) and (1)
of the Act by offering employees the same terms and
conditions of employment offered to the Union during
negotiations if the employees agreed not to engage in a
strike.
The facts pertinent to this allegation, as described supra,
are not disputed. During July, prior to both the strike and
the meeting at which the employees voted to authorize the
strike, Respondent in substance told them that in the event
of a strike those employees who remained at work and did
not support the strike would receive the benefits offered to
the Union during collective-bargaining negotiations. This
message , in my opinion, violates Section 8(a)(1) and (5) of
the Act. It was initially issued to the employees at least 2
weeks before the start of the strike while the parties were
still engaged in contract negotiations and before the
employees had even voted to strike. Respondent promised
employees improved working conditions as a reward if they
did not support a strike called by their bargaining
representative, the Union, in support of the Union's
bargaining position. This message was calculated to
impress upon the employees that Respondent alone was
entitled to credit for the increase in employment benefits
that nonstrikers would receive in the eventuality of a strike
and that only those employees who chose not to support a
strike would partake in the benefits. This promise of
benefits was calculated to exert pressure upon the employ-
ees to force the Union to accede to Respondent's
bargaining position. Obviously, such a promise of benefits
was inherently destructive of the employees' Section 7 right
to support the Union's bargaining position by striking and
was designed to undermine the Union. Unless justified by
special circumstances, it is a violation of the Act. In this
regard, I recognize that in the case of a bona fide impasse
in bargaining an employer is privileged to place into effect
its last offer and communicate this information to the
employees. I also recognize that under certain circumstanc-
es a strike will reflect the existence of an impasse. However,
a strike by itself does not reflect the existence of an impasse
for it is quite frequently simply only a pressure tactic
designed to strengthen the union's hand in bargaining. As
the Court held in N.L.R.B. v. Safeway Steel Scaffolds, 383
F.2d at 280, cert. denied 390 U.S. 955:
i5 This is not a situation where, after the parties reached a bargaining
impasse and the Union had already announced a strike date, the
respondent-employer notified its employees that it would implement its last
contract offer on the date the strike was scheduled to begin. See Frick
1343
The only factor which might seem to reflect the
existence of an impasse would be the strike, but the use
of economic pressure by a union does not relieve the
company of the duty to bargain . . . . "A strike does
not in and of itself suspend the bargaining obligation."
Indeed, in the instant case the strike which the Union
eventually called, as found supra, did not reflect the
existence of a bona fide impasse. Moreover, under certain
circumstances a strike may even make a sufficient change
in the bargaining atmosphere so as to break an impasse.
See United States Cold Storage Corporation, 96 NLRB 1108
(1951), and N.L.R.B. v. Webb Furniture Corporation, 366
F.2d 314, fn. 2 (C.A. 4, 1966). Under the circumstances, I
cannot conclude that Respondent's promise to implement
its contract offer if the Union called a strike was
tantamount to announcing that it would act in this fashion
if the negotiations reached an impasse.
Based on the foregoing, I find Respondent's message,
that in the event of a strike it would institute its contract
proposal for the benefit of the employees who did not
support the strike, was calculated to subvert the Union and
to wean employees away from the Union and to deal
directly with them concerning matters over which it was
obligated to bargain with the Union. By such conduct
Respondent not only interfered with employees' Section 7
rights in violation of Section 8(a)(1) of the Act, but also
undermined the Union and its legitimate bargaining
position in violation of Section 8(a)(5) of the Act.15
General Counsel takes the position that the strike of July
27, which was still in progress at the time of the hearing in
this case, was caused and/or prolonged by Respondent's
unfair labor practices.
The law is settled that employees who strike in protest
over their employer's unfair labor practices are entitled to
reinstatement to their former jobs upon their unconditional
offer to return to work, displacing if necessary any
replacements hired during the strike. Mastro Plastics Corp.
v. N.L.R.B., 350 U.S. 270, 278 (1956). A strike is treated as
an unfair labor practice strike even though the employer's
unfair labor practices are only a contributing cause of the
strike. Larand Leisurelies, Inc. v. N.L.R.B., 523 F.2d 814,
820 (C.A. 6, 1975).
On July 13, the employees voted to give the Union
authority to call a strike at its discretion. As found, supra,
prior to the strike vote meeting, Respondent violated
Section 8(a)(5) and (1) of the Act by its refusal to discuss
noneconomic issues at the bargaining table until the Union
agreed to accept Respondent's terms on economic issues
and by its distribution of a leaflet which in part notified the
employees that in the event of a strike it would institute its
contract proposal for the benefit of those employees who
did not support the strike. The employees, at the strike vote
meeting, after being informed about the state of the
collective-bargaining negotiations and, in particular, that
the Union regarded the Company's bargaining position
and strike leaflet as illegal, voted overwhelmingly to give
the Union authority to call a strike at its discretion.
Company, 161 NLRB 1089 (1966). In the instant case the offer to implement
Respondent's contract proposal was made at least 2 weeks before the strike,
prior to the scheduling of the strike, and even prior to the employees' strike
vote, and at a time when no bona fide impasse existed
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, at the July 19 bargaining session , Respondent
maintained its illegal bargaining position. On July 26, the
Union filed the instant unfair labor practice charges. The
next day the strike commenced. On these facts, I am
persuaded, it cannot be successfully contended that the
instant strike bore no relationship to the Company's unfair
labor practices.
Based on the foregoing, I find Respondent's unfair labor
practices were a contributing cause of the strike.16
Accordingly, the strike is an unfair labor practice strike.
General Counsel contends that Respondent violated
Section 8(a)(1) of the Act by threatening to discharge the
strikers. In this regard, it is undisputed that during July,
prior to the strike, Respondent distributed a leaflet to its
employees stating in part that in the event of a strike "the
company will fill all of the jobs, of those people who choose
not to work, with people who want to work and need a job"
and, at meetings, told its employees it "would replace those
who went out on strike." These statements constitute a
correct recitation of Respondent's right to replace economic
strikers.17 See Mississippi Extended Care Center Inc., d/b/a
Care Inn, Collierville and d/b/a/ Care Inn, Memphis, 202
NLRB 1065 (1973), and Mosher Steel Company, 220 NLRB
336, fn. 7 (1975), citing Coca Cola Bottling Company of
Louisville, 166 NLRB 134 (1967). However, as found supra,
the strike was an unfair labor practice strike, not an
economic one, hence the strikers, upon application, are
entitled to immediate reinstatement even if they have been
replaced. Accordingly, Respondent's communication to
the employees that it would replace them if they went out
on strike constitutes a violation of Section 8(a)(1) of the
Act. Matlock Truck Body & Trailer Corp., and its Agent Roy
L. Matlock, 217 NLRB 346 (1975). It is no defense that
Respondent's message contemplated an economic strike
for, "[tjhe right of employees to engage in activity
guaranteed by Section 7 of this Act should not be subjected
to defeasance merely because the employer believes he is
not violating the Act in restraining the employees in the
exercise of such rights." N.L.R.B. v. Puerto Rico Rayon
Mills, Inc., 293 F.2d 941, 945-946 (C.A. 1, 1961). This is
especially true in the instant case because it was Respon-
dent's own conduct which resulted in the unfair labor
practice strike.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Yama Woodcraft, Inc., d/b/a Cal-Pacific Furniture
Mfg. Co., the Respondent , is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. Furniture Union Local 500, Upholsterers ' Interna-
tional Union, AFL-CIO, the Union, is a labor organization
within the meaning of Section 2 (5) of the Act.
16 Since the strike at its inception was caused by Respondent 's unfair
labor practices , I have not decided whether the unlawful unilateral change
in employees ' wages and health insurance benefits instituted on the first day
of the strike converted the strike from an economic into an unfair labor
practice strike I note that not every unfair labor practice comnutted during
the course of an economic strike ipso facto converts the strike into an unfair
labor practice strike N LR B v James Thompson & Co, Inc, 208 F 2d 743,
749 (C A 2, 1953), compare Roma Paper Products Corp, 208 NLRB 644,
3. All employees employed by Respondent at its facility
located on East 88th Street, Los Angeles, California;
excluding all office clerical employees, guards, watchmen,
professional employees, 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 September 3, 1975, the Union has been, and is
now, the exclusive representative of all employees in the
aforesaid bargaining unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. The strike of Respondent's employees, called by the
Union, which commenced on July 27, 1976, is an unfair
labor practice strike.
6. By threatening to replace employees who participat-
ed in the aforesaid unfair labor practice strike, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
7. By refusing to permit any discussion of noneconomic
issues in contract negotiations and requiring as a condition
for such discussion that the Union agree to accept its terms
on economic issues , Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
8. By unilaterally changing the wages and health
insurance benefits of the bargaining unit employees prior
to bargaining with the Union in good faith to an impasse,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
9. By notifying bargaining unit employees that in the
event of a strike it would place into effect its contract
proposal for the benefit of those employees who remained
at work and did not support the strike, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act,
including reinstatement of unfair labor practice strikers
upon their unconditional offer to return to work and the
dismissal of subsequently hired employees if that becomes
necessary.
Having found that Respondent has refused in good faith
to bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit
described herein, it will be recommended that Respondent
bargain collectively , upon request, with the Union as the
exclusive representative of the employees in the appropri-
655-656 ( 1974), and Cavalier Division of Seeburg Corporation Cavalier
Corporation, 192 NLRB 290 , 291 (1971 ), with N.L RB v Safeway Steel
Scaffolds, 383 F.2d at 280-281
17 In George Webel d/b/a Webel Feed Mills & Pike Transit Company, 217
NLRB 815, 818 (1975 ), cited by the General Counsel, the language and
surrounding circumstances were calculated to lead the employees to believe
that once a striker replacement had been hired the sinker would have no
rights to reinstatement.
CAL-PACIFIC FURNITURE MFG. CO. 1345
ate unit and, if an understanding is reached, embody such
understanding in a signed agreement.
The General Counsel does not seek an extension of the
certification year (see Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962)) but only a general bargaining order to
remedy the unlawful refusal to bargain. Here, 9-1/2
months into the certification year Respondent ceased to
bargain in good faith. Under these circumstances, rather
than provide an extension period of approximately 2-1/2
months from the resumption of the negotiations, I am of
the view that a general bargaining order is more meaning-
ful. See Federal Pacific Electric Company, 215 NLRB 861
(1974).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 18
Respondent , Yama Woodcraft , Inc., d/b/a Cal-Pacific
Furniture Mfg. Co., Los Angeles , California , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Furniture Union Local 500, Upholsterers ' International
Union , AFL-CIO, as the exclusive representative of its
employees in the following appropriate unit:
All employees employed by Respondent at its facility
located on East 88th Street, Los Angeles , California;
excluding all office clerical employees , guards, watch-
men, professional employees , and supervisors as de-
fined in the Act.
(b) Refusing to bargain collectively with the above-
named Union by changing the wages, hours, or other terms
and conditions of employment of the employees employed
in the aforesaid bargaining unit without bargaining with
the Union in good faith to an impasse and by dealing
directly with the bargaining unit employees concerning
matters over which it is obligated to bargain with the
Union.
(c) Threatening to replace employees who participate in
an unfair labor practice strike.
(d) Promising employees improved terms and conditions
of employment if they refrain from supporting the Union
by not engaging in a strike called by the Union.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Furniture
Union Local 500, Upholsterers' International Union,
AFL-CIO, as the exclusive representative of all employees
in the aforesaid appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment and, if an agreement is reached,
embody such understanding in a signed agreement.
(b) Upon application, offer immediate and full reinstate-
ment to their former jobs or, if said jobs no longer exist, to
substantially equivalent employment, if jobs are available,
without prejudice to their seniority or other rights and
privileges, to all those employees of the Respondent in the
certified unit who were on strike on or after July 27, 1976,
and who have not already been reinstated, dismissing, if
necessary, any persons hired as replacements by Respon-
dent on or after July 27, 1976. If sufficient jobs are not
available for these employees, they shall be placed on a
preferential hiring list in accordance with their seniority or
other nondiscriminatory practices theretofore used by the
Company and they shall be offered employment before any
other persons are hired. Make whole these employees for
any loss of earnings they may have suffered, or may suffer,
by reason of Respondent's refusal, if any, to reinstate them
by payment to each a sum of money equal to that which he
normally would have earned during the period from 5 days
after the date on which he applied, or shall apply, for
reinstatement to the date of Respondent's offer of rein-
statement to him, absent a lawful justification for Respon-
dent's failure to make such offer. Backpay shall be
computed on the basis of calendar quarters, in accordance
with the method prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950). Interest at the rate of 6 percent per
annum shall be added to the net backpay and shall be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its premises in Los Angeles, California, copies
of the attached notice marked "Appendix." 19 Copies of
said notice, on forms provided by the Regional Director for
Region 21, after being duly signed by Respondent's
representative, shall be posted by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material. In addition, mail a copy of said notice to
each striker who has not returned to work.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
18 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
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
19 In the event that the Board's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the Order of the Board and abide by the
following:
WE WILL, upon application, offer immediate and full
reinstatement to their former or substantially equiva-
lent positions, if jobs are available, without prejudice to
their seniority or other rights and privileges, to all our
employees who were on strike on or after July 27, 1976,
and who have not already been reinstated, dismissing,
if necessary, any per sons hired by us on or after July 27,
1976. If insufficient jobs are available for these
employees, they shall be placed on a preferential hiring
list and they will be offered employment before any
other persons who are hired. Where appropriate we will
make them whole for loss of earnings in accordance
with the Board's Order.
WE WILL, upon request, bargain collectively con-
cerning rates of pay, wages, hours of employment, and
other terms and conditions of employment with
Furniture Union Local 500, Upholsterers' International
Union, AFL-CIO, as the exclusive representative of all
the employees in the appropriate unit described below
and, if an agreement is reached, embody it in a signed
contract. The appropriate unit is:
All employees employed by us at our plant
located on East 88th Street, Los Angeles, Califor-
nia; excluding all office clerical employees,
guards, watchmen, professional employees, and
supervisors as defined by the Act.
WE WILL NOT refuse to bargain with the above-
named Union by changing wages , hours, or other terms
and conditions of employment of the employees
employed in the above-described bargaining unit
without bargaining with the above-named Union in
good faith to an impasse and by dealing directly with
the bargaining unit employees concerning matters over
which we are obligated to bargain with the Union.
WE WILL NOT threaten to replace employees who
engage in a strike caused by our unfair labor practices
nor will we promise employees improved terms and
conditions of employment if they refrain from support-
ing the above-described Union by not engaging in a
strike called by the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your right
to engage in activities protected by Section 7 of the Act.
YAMA WOODCRAFT, INC.,
D/B/A CAL-PACIFIC
FuRNITVRE MFG. Co.