Certified Building Products, Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1974

208 N.L.R.B. 515 (N.L.R.B. 1974)

CERTIFIED BUILDING PRODUCTS , INC. 515
Certified Building Products , Inc.; and Carl Fidler and
Glaziers, Glassworkers and Glass Warehouse
Workers Union Local 636, International Brother-
hood of Painters and Allied Trades, AFL-CIO.
Case 21-CA-11522
January 18, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On September 21, 1973, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding . Thereafter, the Respondents and the
General Counsel filed exceptions and supporting
briefs and the General Counsel filed 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
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 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein?
Benjamin Banderas, Elpidio Banderas, Josephine
Barron, Tomas Nevares Cervantes, Margaret Cisne-
ros, Joe Phillip Concha, Ella Cossio, Jesus Cossio,
Gary Fonnesbeck, Wade Hudyshere, Lola Mae
Jones, Transito Lomeli, Richard Mangaser, Anthony
McClure, Sheila Outen, Daniel Rivas, Gilberto
Rodriguez, Maria Segura, Freddie Smith, Jose
Vasquez, Luis Vasquez, and Josephine Vasquez, for
any loss of wages and other benefits they may have
suffered as a result of the discrimination against
them in the manner set forth in the section of the
Decision of the Administrative Law Judge entitled
`The Remedy,' and in fn. 2 of the Board's Decision."
3. Substitute the attached notice for Appendix B
of the Administrative Law Judge's Decision.
The General Counsel moved to quash Respondents ' exceptions as
improperly filed, but, even upon consideration of these exceptions , we find
that the assertion of jurisdiction over both Respondents is proper and that
adoption of the Administrative Law Judge' s unfair labor practice findings is
warranted Rejected as without record support is Respondent Certified's
allegation that Respondents were denied a fair hearing.
2 While we agree with the Administrative Law Judge that the
Respondents unlawfully discharged all 24 employees in the bargaining unit
named in In 17 of his Decision , we find ment in the General Counsel's
exceptions that all of them be made whole for any loss of wages and other
benefits they may have suffered from February I, 1973, the date of their
discharge. to when the Respondents ceased to do business , on or about
March 30. 1973, in accordance with the backpay formula set forth in the
said Decision.
APPENDIX B
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 as
modified, and hereby orders that Respondents,
Certified Building Products, Inc.; and Carl Fidler,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as modified below:
1. Delete paragraph I and substitute the follow-
ing:
"1. Cease and desist from:
"(a) Discharging, or otherwise discriminating
against, any employee to discourage membership in
Glaziers, Glassworkers and Glass Warehouse Work-
ers Union Local 636, International Brotherhood of
Painters and Allied Trades, AFL-CIO, or any other
labor organization.
"(b) Making any changes in the rates of pay,
wages, hours, or other working conditions of their
production and maintenance employees without
prior notice to and consultation with the Union, the
employees' exclusive bargaining representative."
,2. Delete paragraph 2(a) and substitute the
following:
"(a) Make whole Daniel Andrade, Felipe Arreola,
208 NLRB No. 85
NOTICE
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial during which all parties had an
opportunity to present evidence, the National Labor
Relations Board found that we committed several
unfair labor practices, ordered us to refrain from
committing such unfair labor practices in the future,
and further ordered us to take certain affirmative
acts. In compliance with that Order, we want to tell
you that:
WE WILL reimburse the following employees
who were unlawfully discharged on February 1,
1973, for any loss of wages and other benefits you
may have suffered from the discharge date until
we ceased doing business in March 1973, together
with interest at 6 percent per annum:
Daniel Andrade, Felipe Arreola, Benja-
min Banderas, Elpidio Banderas, Josephine
Barron, Tomas Nevares Cervantes, Marga-
ret Cisneros, Joe Phillip Concha, Elia Cossio,
Jesus Cossio, Gary Fonnesbeck, Wade
Hudyshere, Lola Mae Jones, Transito Lome-
li, Richard Mangaser, Anthony McClure,
Sheila Outen, Daniel Rivas, Gilberto Rodri-
quez, Maria Segura, Freddie Smith, Jose
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vasquez, Luis Vasquez, and Josephine Vas-
quez.
WE WILL make contributions to the health and
welfare fund established by Glaziers, Glasswork-
ers and Glass Warehouse Workers Union Local
636, International Brotherhood of Painters and
Allied Trades, AFL-CIO, on your behalf to
maintain your coverage under that plan for the
months of December 1972 and January, Februar-
y, and March, 1973, and we shall reimburse you
for any losses you may have suffered by reason of
your noncoverage by that plan during those
months, together with interest at 6 percent per
annum.
In the event we resume business, WE WILL
reinstitute the rates of pay, wages, hours, and
working conditions you received prior to your
February 1, 1973, discharge and will keep those
rates of pay, wages, hours, and working condi-
tions in effect until we have either reached an
agreement with said Union in changing them or
reached an impasse in negotiations with said
Union over changes therein.
CERTIFIED BUILDING
PRODUCTS, INC.
(Employer)
Dated By
(Representative ) (Title)
CARL FIDLER
(President)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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 or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5229.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
July 19, 1973,1 i presided over a hearing at Los Angeles,
i Read 1973 after all subsequent date references omitting the year
2 Hereafter called the Union
3 Hereafter called the Company and Fidler
i Palley also appeared specially for the limited purpose of objecting to
the validity of service upon Fidler
California, to try issues raised by an amended complaint
issued June 21 on the basis of charges and amended
charges filed by Glaziers, Glassworkers and Glass Ware-
house Workers Union Local 636, International Brother-
hood of Painters and Allied Trades, AFL-CIO,2 on
February 2, 7, 23, 28, and May 17. The amended complaint
alleged that Certified Building Products, Inc.; and Carl
Fidler, an Individual,3 4 violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended
(hereafter referred to as the Act), by: (1) making changes in
wages, hours, and working conditions subsequent to taking
over the plant, business, and work force of Allied Equities
Corp.5 without prior notice to or bargaining with the
Union representing their and Allied's employees; (2)
failing to bargain in good faith with the Union concerning
the wages, hours, and working conditions of those
employees despite their awareness and acceptance of the
Union's majority representative status among those em-
ployees; and (3) discharging those employees because of
their union representation. The Company filed an answer
to the amended complaint at the hearing, denying the
commission of any unfair labor practices. Fidler did not
file an answer to the amended complaint. At the hearing
counsel for the Company, while specifically noting he was
not appearing on behalf of Fidler, contended the Board
had no jurisdiction over Fidler because the amended
complaint was not personally served on Fidler.
The answer, inter aka, denied the jurisdictional and
successor allegations of the amended complaint and
admitted the appropriateness of the employee unit, the
Union's majority representative status therein, the qualifi-
cation of the Union as a labor organization, and the
discharge of the employees represented by the Union on
February 1.
The issues joined by the parties and litigated at the
hearing were: (I) Board jurisdiction over the Company and
Fidler; (2) the successor issue ; (3) whether the Company
and Fidler failed to bargain in good faith; (4) whether the
Company and Fidler made unilateral changes in employee
wages, hours, and working conditions without prior notice
to or bargaining with the Union; and (5) whether the
Company and Fidler discharged their employees to avoid
bargaining with the Union concerning their employees'
wages, hours, and working conditions.
The General Counsel and counsel for the Company
appeared at the hearing and were afforded full opportunity
to adduce evidence , examine and cross -examine witnesses,
argue, and file briefs. A brief has been received from the
General Counsel.
Based on my review of the entire record,6 observation of
the witnesses , perusal of the brief and research , I enter the
following.
Hereafter called Allied.
5 The General Counsel's motion to correct the transcript ( filed with his
brief) is granted Corrections are set out in full in Appendix A attached
hereto lomitted from publication )
CERTIFIED BUILDING PRODUCTS, INC. 517
FINDINGS OF FACT
I. rHh JURISDICTION AND SUCCESSOR ISSUES?
Between November 1970 and May or June 1972, Allied
conducted two separate businesses at a plant located at 702
East Gage Stree ., Los Angeles, California. The two
businesses were organized into two divisions, one called the
Certified Building Products Division, which manufactured
aluminum doors and windows, and the other called the
Glasgo Division, which manufactured mirrors.
In May or June 1972, Allied leased a plant at Compton,
California, for a 5-year term and moved the Certified
Building Products Division there , as well as the offices for
both divisions. Glasgo manufacturing operations were
continued at the Gage Street plant.
Allied continued the manufacturing operations of the
Certified Building Products Division at the Compton,
California, plant through December 3, 1972.
During this entire time (November 1970-December
1972), John Verser was employed by Allied as its vice
president and handled all purchases and sales for both
divisions, in addition to other duties.
In the period January 1-December 3, 1972, the Certified
Building Products Division purchased from suppliers
located outside the State of California goods valued in
excess of $50,000. Gross sales during this period averaged
between $90,000-$ 100,000 per month.
During the week preceding December 4, 1972, Allied
sold Certified Building Products' name, equipment, vehi-
cles, machinery, inventory, and customer accounts to
Fidler for $470,000, payable over a 7-year period. Fidler
made no down payment; the first installment on the note
was due and payable on March 30.
Fidler formed a California corporation, with himself as
sole stockholder and president, under the name Certified
Building Products Corporation. The new corporation
assumed the lease on the Compton plant. Sometime
around this period, Allied sold the Glasgo operation to a
different buyer.
The Company and Fidler continued the business
unchanged, at the Compton plant, commencing December
4, 1972. They continued to work on and complete customer
orders in process at the time of the changeover. They
utilized the same personnel, equipment, machinery , inven-
tory, plant, etc., to produce the same products for the same
customers and market as Allied had. Verser and other
management personnel were retained by Fidler and the
Company in the same positions they held with Allied.
Fidler and the Company continued to occupy, and to do
business at, the Compton plant until late March. They
defaulted on payment to Allied of the first installment due
on the note (March 30) .8 The business was repossessed by
Allied at that time.
Verser was employed by Allied following the reposses-
sion in the same capacity he previously held with Allied
and with Fidler and the Company. He remained in that
position for Allied from March through July 1. He has
become part of the management of the Company which
has since taken over the business.
During the penod the business was operated by Fidler
and the Company, glass valued at $38,484.63 was pur-
chased from Guardian Industries Corporation. All such
glass was shipped from Guardian's glass manufacturing
plant in the State of Michigan to its warehouse and
tempering operation in California. Glass valued at
$25,665.43 was tempered by Guardian at the California
location and then delivered to Fidler and the Company.
The other $7,957.22 worth of glass delivered by Guardian
to Fidler and the Company was shipped to them without
such tempering; i.e., in the same condition it arrived from
Michigan.
During this same period, Fidler and the Company
ordered a shipment of glass valued at $12,819.20 from
Orient Glass, Incorporated. That glass was shipped directly
from Japan but was not delivered until April, after
assurance of acceptance and payment by Allied.
Information was not available at the hearing regarding
other purchases made by Fidler and the Company due to
the unavailability, either to the General Counsel or counsel
for the Company, of the Company's records.
Verser's testimony that Fidler and the Company contin-
ued in the same plant, in the same business, manufacturing
the same products, for the same customers, and utilizing
the same personnel as Allied during the time they operated
the business was uncontradicted and corroborated by
employee witness Josephine Vasquez. That testimony is
credited.
Based thereupon, I find and conclude that the Company
was a successor to Allied, as the term "successor" has been
applied in cases arising under Section 8(a)(5) and (1) of the
Act.
Based on the Verser testimony and supporting evidence
that in the period January 1, 1972, to December 3, 1972,
Allied purchased from suppliers located outside the State
of California goods valued in excess of $50,000; that Fidler
and the Company took over Allied's inventory on
assumption of the business on December 4; that Fidler and
the Company purchased from just one suppliers goods
shipped intact from outside of California valued at
approximately $8,000 and ordered goods to be shipped
intact from outside of California valued at approximately
$12,800; and that business continued at the same volume
between December 4, 1972, and March 1973, I find that
the purposes of the Act will be best served by assuming
jurisdiction over the Company and Fidler based on the
Board's statutory jurisdiction,iO and I therefore find and
r The findings under this heading are based for the most part on the
uncontradicted testimony of John Verser, which is credited, and documen-
tary evidence submitted at the hearing.
8 Verser's uncontradicted testimony is credited that the default was
caused by Fidler's appropriation for his personal account of $60,000 of
company cash and $103.000 in receivables and his disappearance prior to
the due date of the :irst installment, only a portion of which was
subsequently returned, leaving the Company a defunct corporation with no
assets.
9 The identity of other suppliers could not be ascertained due to the
professed inability of company counsel to locate the Company's records
1s The Company's professed inability to produce the Company's records
prevented an accurate assessment of the Company's sales to purchasers
located outside of California and purchases from sellers located outside of
California In these circumstances , it behooves the Board to assert its
statutory jurisdiction Tropicana Products, Inc, 122 NLRB 121, Supreme,
Victory and Deluxe Cab Companies, 160 N LRB 140
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that Fidler and the Company at all times
pertinent were employers engaged in commerce in a
business affecting commerce, as those terms are defined in
Section 2(2), (6), and (7) of the Act.
A. Jurisdiction Over Fidler
The only differences between the original complaint
issued on March 30 and the amended complaint issued on
June 17 consist of allegations of filing and service of the
fourth amended charge on May 17 and the naming of
Fidler as a joint- or co-Respondent.
There is no question Fidler had actual knowledge of the
contents of both the original and amended complaints.
On April 3, Fidler sent a letter to Region 21 on his
personal letterhead over his signature stating the Company
was no longer in business , denying the allegations
contained in the original complaint, and designating Mel
Darrow of Chubb, Darrow and Associates as counsel.
On June 22, the amended complaint was served on
Lawrence P. Schwartz of Palley & Schwartz. II On July 16,
Region 21 sent copies of the amended complaint, by
postpaid registered mail, to Mel Darrow of Chubb, Darrow
and Associates and to Fidler at the home address he listed
on his April 3 letter to the Region.
On July 17, a representative of Chubb, Darrow and
Associates signed a receipt for the registered mail. No such
receipt was received from Fidler.12
On various dates in July, Fidler appeared and personally
participated with his and the Company's attorneys, Palley
and/or Schwartz, in discussions of possible settlement of
the issues raised by the amended complaint.is
The General Counsel seeks to add Fidler as a joint- or
co-Respondent in this case on the theory Fidler, the sole
stockholder and president of the Company, personally ran
the Company, made all policy decisions, and was therefore
the Company's alter ego.
The Company's answer to the complaint admits that
Fidler was its president and sole stockholder. Verser's
testimony that Fidler ran the Company and made all
policy decisions is unchallenged and credited.
I therefore find and conclude that, in view of Fidler's
domination of company affairs and his actual knowledge
of the contents of the amended complaint, he is a proper
party-Respondent in this proceeding and was properly
served.
B. Labor Organization
The amended complaint alleges, the answer admits, and
I find that the Union at all pertinent times was a labor
organization within the meaning of Section 2(5) of the Act.
C. Unit and Union Representative Status
The amended complaint alleges, the answer admits, and
I find that at all times pertinent the production and
ii Palley represented the Company at the hearing
12 Fidler apparently refuses to accept registered mail delivery ; a subpena
mailed to him by return receipt registered mail requiring his appearance at
the hearing was returned , so indicating.
13 This finding is based on a representation to that effect made at the
maintenance employees employed by Allied and its
successors, Fidler and the Company, constituted a unit
appropriate for collective-bargaining purposes within the
meaning of Section 9 of the Act.
On either April 10, 1972, or July 12, 1972,14 Allied and
the Union executed a collective-bargaining agreement for a
term extending to July 12, 1974, wherein Allied recognized
the Union as the exclusive collective-bargaining represent-
ative of its production and maintenance employees.
The amended complaint alleged, the answer admitted,
and I find that at all times pertinent since July 12, 1972, the
Union has represented a majority of the employees within
the aforesaid unit, both while they were employed by
Allied and while they were employed by Fidler and the
Company.
D. The Alleged Failure To Bargain in Good Faith,
Unilateral Changes, and Discharges
At the time Fidler and the Company assumed the
operation of the business on December 4, 1972, they
continued in effect unchanged the wages, hours, and
working conditions of the unit employees.
The Union learned of the change in ownership in mid-
December 1972 and immediately arranged a conference
with Fidler and Verser. The Union was represented at the
conference by Business Representatives John Kurth and
Mario Salazar. The union representatives informed Fidler
of the Union's majority representative status among the
employees within the unit, the terms of the contract
between the Union and Allied covering those employees,
and asked Fidler to assume the contract for the balance of
its term. Fidler accepted the Union's representation of
continued majority representative status and expressed a
willingness to assume the contract but stated he wished to
have his attorney check it over before signing it. The union
representatives agreed to this proposal.
In succeeding visits in December and January, the union
representatives inquired of Fidler regarding the contract
and were uniformly informed by Fidler that the contract
was still in the hands of his attorney but had not been
reviewed yet. On each occasion Fidler reiterated his
willingness to sign the contract following such review.
The Union's shop steward, while the business was
operated by Allied, was Josephine Vasquez. She continued
in Fidler and the Company's employ (along with all the
other employees within the unit) following the change in
ownership and continued to act as the Union's steward. In
early January, Vasquez received a complaint from unit
employees concerning their receipt of only I day of holiday
pay (for Christmas Day) in view of the contract provision
requiring holiday pay both for Christmas Eve and
Christmas Day. Vasquez called Kurth and Salazar.
Vasquez, Kurth, and Salazar conferred with Fidler and
Verser regarding the grievance in mid-January. Kurth and
Salazar pointed out to Fidler the contract language
hearing by counsel for the General Counsel and corroborated by remarks
made at the hearing by counsel for the Company, Palley
14 Union Business Representative Kurth testified the contract was signed
on April 10. 1972. The contract recites that it was entered into on July 12,
1972 The difference is immaterial
CERTIFIED BUILDING PRODUCTS, INC.
requiring holiday pay both for Christmas Eve and for
Christmas Day. Fidler at first tried to argue an interpreta-
tion of the contract which would not require such payment
but, eventually, after asking for the cost of the additional
day, agreed to pay holiday pay for Christmas Eve and paid
it shortly thereafter.
While union dues were deducted from the unit employ-
ees' wages during the months of December and January,
they were not remitted to the Union.15 The health and
welfare payments set out in the contract never were sent to
the Union.16
Shortly after hearing the Union's requests for health and
welfare payments to avoid lapse of the unit employees'
hospital and medical coverage, Fidler told Verser the costs
of continuing to meet the wage rates and conditions in
effect since December 4 were too high, he was going to
shut down the plant and terminate the unit employees in
order to get nd of them.
On Thursday, February 1, Plant Superintendent Kline
called a meeting of the unit employees. There were 24
employees in the unit at that time.1-7
Kline told the employees they were terminated, effective
that day. He stated the plant would probably reopen at a
later date, with fewer employees, and that applications for
employment would be accepted commencing Monday,
February 5. He also stated that when and if the plant did
reopen, it would be nonunion and lower wage rates and no
fringe benefits would be paid.
Employee Richard Mangaser was employed by Allied on
November 2, 1971, as a punch press operator. He
continued in Allied's employ through December 3, 1972.
He was employed by Fidler and the Company on
December 4, 1972. in the same capacity. He worked
continuously for Fidler and the Company through Febru-
ary 1, when he was terminated by Kline in the manner set
out in the preceding paragraph. Mangaser appeared at the
plant on February 5 and saw Kline. Kline stated he would
have to sign an agreement to disclaim representation by
the Union and accept a wage rate of $2.50 per hour in
order to be rehired.18
Mangaser received $3.62 an hour prior to his February 1
discharge. Mangaser asked Kline what other benefits he
would receive if he accepted ajob under the conditions set
out by Kline. Kline replied he would receive $2.50 per
hour, that it would be a nonunion shop, and there would
not be any fringe benefits. Mangaser refused to sign the
document and was not hired.
On February 9, Mangaser returned to the plant and
signed the agreement proferred by Kline to the unit
employees. The agreement read as follows:
I, [Employee's name] am being hired by Certified
Building Products, Inc. I realize that my beginning rate
of pay will be $2.50 per hour and that that rate will be
15 On February 5, after the discharge of the unit employees, these dues
deductions were sent to the employees by mail
16 Union requests therefor were made shortly before the discharge of all
the unit employees
17 Daniel Andrade, Felipe Arreola, Benjamin Banderas, Elpidio Bande-
ras, Josephine Barron, Tomas Nevares Cervantes, Margaret Cisneros, Joe
Phillip Concha, Elsa Cossio, Jesus Cossio, Gary Fonnesbeck, Wade
Hudyshere, Lola Mae Jones, Transtto Lomeli, Richard Mangaser , Anthony
McClure, Sheila Outen , Daniel Rivas , Gilberto Rodriguez, Maria Segura,
519
in effect until union scales are determined. I have not
been requested to join any union and am free to join
any union decided upon by a majority of employees. I
further realize that I may be discharged at any time
during the first thirty days of employment, at the
option of the employer.
1. [Employee's name], have read and do understand
the above information and accept employment under
the conditions noted.
APPROVED
DATE
Approximately nine unit employees were rehired by
Fidler and the Company following February 5 and
remained in Fidler and the Company's employ until they
ceased doing business in late March. Their wages, etc.,
were those set out in the above agreement.
In the leading case of N.L.R.B. v. Burns International
Detective Agency, Inc., 406 U.S. 272 (1972), the Court held
that, in instances in which it was clear that a new employer
plans to retain all the employees in his predecessor's
employ, he is obligated to consult with the exclusive
collective-bargaining representative of those employees
before fixing or changing the terms of their employment.
The Board has since ruled that, even in the absence of a
preconceived plan to retain all of the predecessor employ-
er's employees, the successor employer is nevertheless
obligated to notify and bargain with the union representing
his and his predecessor's employees prior to making any
changes in the wages, hours, and working conditions of the
unit employees subsequent to the change in ownership.19
Fidler and the Company obviously planned to and did
continue all unit employees in their employ following the
change in ownership. In the 2-month period following their
takeover, they did comply with the rule of the Burns case
enunciated above-continuing in effect unchanged the
rates of pay, wages, hours, and other working conditions
enjoyed by the unit employees while working for Allied.20
Faced with union demands in January for payment of
the health and welfare contributions in order to maintain
employee coverage under the health and welfare plan,
Fidler advised Verser he had decided to get out from under
the prevailing rates of pay, wages, and other conditions
(including the health and welfare obligation) by discharg-
ing the unit employees.
He therefore caused Kline on February 1, without prior
notice to or bargaining with the Union, to discharge the
unit employees and, after a brief hiatus, to rehire
approximately nine of them at substantially lower rates,
without any of the preexisting fringe benefits, without
regard to seniority, and on condition they renounce
representation by the Union.
Freddie Smith , Jose Vasquez, Luis Vasquez , and Josephine Vasquez.
18 Other unit employees who reported on February 5 and subsequently
received the same message.
19 Ranch - Way, Inc., 203 NLRB No. I I8.
20 With two exceptions ; while Fidler and the Company deducted union
dues from the unit employees' wages, they failed to remit the dues to the
Union ; they also failed to remit to the trustees the health and welfare
payments due to the fund under the health and welfare provision of the
agreement.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find and conclude that Fidler and the Company
violated Section 8(a)(5) and (1) of the Act by Fidler's
stalling tactics when requested to sign a contract with the
Union setting forth the wages, rates of pay, hours, and
working conditions of the unit employees; by Fidler and
the Company's February 1 discharge of the unit employees
without prior notice to or bargaining with the Union; by
Fidler and the Company's failure to maintain unit
employee coverage under the health and welfare plan; by
Fidler and the Company's rehire of unit employees on and
after February 5 without regard to seniority status, at
different wages, rates of pay, hours, and working condi-
tions than those in effect on February 1 without prior
notice to or bargaining with the Union; and by Fidler and
the Company's February 5 and subsequent negotiation of
individual contracts of hire with unit employees.
I further find and conclude that Fidler and the Company
discharged the unit employees on February 1 in order to
avoid their obligation to bargain collectively with the
Union either to impasse or agreement prior to making any
changes in the rates of pay, wages, hours, and working
conditions of the unit employees and thereby violated
Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. At all times material Fidler and the Company were
employers engaged in commerce in a business affecting
commerce and the Union was a labor organization, as
those terms are defined in Section 2(2), (5), (6), and (7) of
the Act.
2. At all times pertinent a unit consisting of all of Fidler
and the Company's production and maintenance employ-
ees constituted an appropriate unit for collective-bargain-
ing purposes within the meaning of Section 9 of the Act.
3. At all times pertinent the Union was the duly
designated exclusive collective-bargaining representative of
a majority of the employees within that unit.
4. For purposes of the Act, at all times pertinent Fidler
and the Company were successor employers to Allied.
5. By stalling the Union in its request for execution of a
contract containing the wages, rates of pay, hours, and
working conditions carved over from Allied and covering
their production and maintenance employees subsequent
to their assumption of operation of the business; by failing
to pay the requisite health and welfare payments to
continue unit employee coverage in the health and welfare
fund; by changing rates of pay, wages, hours, and working
conditions of unit employees without prior notice to or
bargaining with the Union; by terminating the unit
employees without prior notice to or bargaining with the
Union; by requiring the unit employees to sign individual
contracts prior to recall; and by recalling unit employees
without regard to seniority, Fidler and the Company
violated Section 8(a)(1) and (5) of the Act.
6. By discharging their unit employees in order to avoid
their obligation to bargain collectively either to impasse or
agreement prior to making any changes in those employ-
ees' rates of pay, wages, hours, and working conditions,
21 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
Fidler and the Company violated Section 8(a)(1) and (3) of
the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Fidler and the Company
engaged in unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the Act, I shall recommend that
Fidler and the Company be directed to cease and desist
therefrom and to take affirmative action designed to
effectuate the policies of the Act.
In order to make the unit employees whole for losses
they suffered by reason of Fidler and the Company's
unfair labor practices, I shall recommend that Fidler and
the Company be directed to pay to the health and welfare
fund, which provided a schedule of benefits to the unit
employees prior and subsequent to Allied's sale of the
business to Fidler and the Company, the sums that would
have been paid to that fund for the months of December
1972, January, February, and March but for Fidler and the
Company's nonpayment thereof; and that Fidler and the
Company compensate the unit employees for any out-of-
pocket expenditures they may have been obligated to pay
by virtue of the fact Fidler and the Company did not make
such payments. For the same purpose, I shall recommend
that the Company be directed to pay to the nine unit
employees who would have been recalled on and after
February 5 but for the Company's disregard of the recall
practices adopted by the predecessor employer, Allied, the
difference between the wages and other benefits such nine
employees earned between the date the nine unit employ-
ees were recalled and the date the Company and Fidler
ceased to do business, calculated in the manner set out in
F W Woolworth Company, 90 NLRB 289, with interest on
the sums due at the rate of 6 percent per annum (see
N L R.B. v. Isis Plumbing & Heating Co., 322 F.2d 913
(C.A. 9, 1963)). 1 shall further recommend that Fidler and
the Company be directed to recognize the Union as the
exclusive collective-bargaining representative of their
production and maintenance employees, to employ them at
the rates of pay, wages, hours, and working conditions they
enjoyed prior to their discharge, and to continue such rates
of pay, wages, hours, and working conditions in effect until
such time as Fidler and the Company and the Union have
negotiated concerning same either to impasse or agree-
ment, in the event Fidler and the Company resume
business.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER21
Fidler, the Company, their officers, agents, successors,
and assigns, shall:
1. Cease and desist from making any changes in the
rates of pay, wages, hours, or working conditions of their
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
CERTIFIED BUILDING PRODUCTS, INC.
production and maintenance employees without prior
notice to and consultation with the Union.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make their employees whole in the manner set forth
in the section of this decision entitled "The Remedy"
(b) In the event Fidler and the Company resume
business operations, they shall reemploy unit employees at
the rates of pay, wages, hours, and working conditions
followed prior to February 1 and continue same in effect
until and unless they and the Union bargain and either
reach an agreement for changes therein or reach an
impasse in such bargaining.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, health
and welfare payment records, pension payment records,
personnel records and reports, and all other records
22 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
521
necessary to analyze the amount of money or other
payments or benefits due under the terms of this
recommended Order.
(d) Mail to the 24 unit employees whose names appear in
footnote 17, at their last known addresses, copies of the
attached notice marked "Appendix B.1122 Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by authorized represent-
atives of Fidler and the Company, shall be mailed by them
immediately upon receipt thereof. Proof shall be provided
to the Regional Director for Region 21 that such notices
have been mailed to each of the 24 unit employees in the
manner specified.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Fidler and the Company have taken to comply
herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."