Charles Manufacturing Company

National Labor Relations Board - Board Decisions

Sep 19, 1979

245 N.L.R.B. 39 (N.L.R.B. 1979)

CHARLES MANUFACTURING COMPANY
Charles Manufacturing Company and United Furni-
ture Workers of America, AFL-CIO. Cases 15-
CA-6640-2 and 15-CA-6815
September 19, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDAI.E
On June 18, 1979, Administrative Law Judge Rob-
ert Cohn issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel and the Charg-
ing Party each filed exceptions and supporting briefs,
and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I We agree with the Administrative Law Judge that Respondent did not
violate Sec. 8(aX5) of the Act when it automatically implemented a set of
wage increases for unit employees on October 10, 1977. Respondent had
unconditionally committed itself to making those wage increases when its
president promised both their specific amount and effective date in a speech
to employees on October 11, 1976, prior to the representation election cam-
paign which resulted in the Union's certification. The wage increases there-
upon became established "conditions of employment." See Libery Telephone
& Communications, Inc., 204 NLRB 317 (1973). Respondent did not violate
its bargaining obligation when it subsequently implemented the increases as
promised because its conduct was devoid of any element of discretion. See
State Farm Mutual Automobile Insurance Company, 195 NLRB 871, 890
(1972). This situation is distinguishable from cases wherein an employer
continues, after a bargaining agent has been selected, unilaterally to exercise
its discretion with respect to wage increases granted pursuant to certain wage
review programs. See, e.g., Allis Chalmers Corporation, 237 NLRB 290
(1978). The Board has held that in such cases "[w]hat is required is a main-
tenance of preexisting practices, i.e., the general outline of the program,
however, the implementation of that program (to the extent that discretion
has existed in determining the amounts or timing of the increases), becomes a
matter as to which the bargaining agent is entitled to be consulted." (Empha-
sis supplied.) See Oneita Knitting Mills, Inc., 205 NLRB 500, fn.l (1973); and
see N. LR.B. v. Katz, Benne, etc., dibla Williamsburg Steel Products Co, 369
U.S. 736, 746 (1962).
DECISION
STATEMENT OF THE CASE
ROBERr COHN, Administrative Law Judge: The above-
captioned consolidated cases came on for hearing before
me in Dothan, Alabama, on December 6, 1978, upon due
notice. The issues presented for decision are: (1) whether
Charles Manufacturing Company (Respondent herein), vio-
lated Section 8(a)(5) and (1) of the National Labor Rela-
tions Act, as amended (herein the Act), by granting certain
wage increases to its employees in an appropriate unit rep-
resented by the Union' in October 1977 during collective-
bargaining negotiations with the Union; (2) whether, dur-
ing the period from January 23-March 31, 1978, Respon-
dent violated the same sections of the Act by failing and
refusing to meet with the Union with sufficient frequency;
(3) whether Respondent violated the same sections of the
Act by refusing to continue negotiations with the Union
following the receipt by Respondent of a petition from a
majority of the employees in the unit indicating that they
no longer wished to be represented by the Union; and (4)
whether the economic strike called by the Union, on or
about July 11, 1977, was converted into an unfair labor
practice strike as a consequence of Respondent's aforesaid
unfair labor practices.2
At the hearing the parties entered into a stipulation of
facts which constitutes the entire record in the case. There-
after, counsel for the General Counsel and counsel for Re-
spondent filed post-hearing briefs which have been duly
considered.'
Upon the entire record, including arguments of counsel, I
hereby make the following:
FINDINGS AND CONCLUSIONS'
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
At all times material Respondent has operated a plant in
Dothan, Alabama, where it is engaged in the manufacture
and sale of furniture. Prior to 1977 its production and main-
' United Furniture Workers of America, AFL-CIO
2The original charge in Case 15-CA-6640-2 was filed October 17, 1977;
the original charge in Case 15-CA-6815 was filed March 16, 1978. The
original Order consolidating cases and notice of hearing was issued Apnl 25.
1978, and was amended on August 25, 1978.
3 Also subsequent to the hearing counsel for Respondent filed a motion to
correct the record in certain respects, in which it was stated that such motion
was made with prior knowledge and concurrence of counsel for the General
Counsel. No objections to such motion having been filed by any party, the
motion is hereby granted.
' There is no issue in this proceeding respecting the jurisdiction of the
National Labor Relations Board or of the status of the Union as a labor
organization within the meaning of the Act. The complaint alleges sufficient
facts respecting the interstate operations of Respondent which are admitted
in the answer of Respondent, upon which I may and do hereby find that
Respondent is and has been at all times material an employer engaged in
commerce within the meaning of Sec. 2(6) and (7) of the Act.
The complaint alleges, the answer admits, and I find that at all times
material the Union is a labor organization within the meaning of Sec. 2(5) of
the Act.
245 NLRB No. 12
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenance employees were not represented for purposes of
collective bargaining by a labor organization.
On October 11I, 1976, the employees were called together
by Respondent's president, Charles Heyman. Jr., for the
purpose of announcing to them certain changes in their
wages and working conditions.5 Among other changes an-
nounced by Heyman at that time were: (I) a discontinu-
ance of the present retirement plan; (2) the institution of
"funeral pay;" (3) an addition of"call-in pay": (4) a change
in insurance coverage and contribution; and (5) a wage in-
crease above the regular pay to employees who reach the
age of 50 and have 10 years of continuance service on or
before October 10, 1976, plus a general wage increase of
approximately 27 cents per hour as of that date. It was also
stated by Heyman, "On October 10, 1977, all hourly rated
employees will receive an increase of 20 cents per hour and
the hiring rate will go to $2.95 per hour."
The record shows that on January 24, 1977, the Union
filed a petition with Region 15 of the National Labor Rela-
tions Board for an election to be held at Respondent's plant
in a production and maintenance unit. Pursuant to such
petition the Regional Director for Region 15 of the Na-
tional Labor Relations Board conducted, on March 17,
1977, an election which the Union won. Consequently, on
or about March 25, 1977, the said Regional Director certi-
fied the Union as the exclusive collective-bargaining repre-
sentative of the employees in the aforesaid production and
maintenance unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
The record shows that commencing on or about March
27, 1977, the Union, by letter, requested collective bargain-
ing of Respondent, and the negotiations commenced on
April 18, 1977, and continued until March 31, 1978. During
this period the Company and the Union met in negotiations
24 separate times, the length of such negotiations ranging
from 4 to 4-1/2 hours. During this period of time each
party made proposals and counterproposals, and agreement
was reached on a substantial number of provisions on a
proposed contract. However, complete agreement was nev-
er reached. On or about March 31, 1978, Respondent re-
fused and at all times thereafter is continuing to refuse to
meet and bargain collectively with the Union because Re-
spondent was presented, on or about March 29, 1978, with
a petition signed by a majority of the employees in the
bargaining unit which read:
We want to get rid of the U.F.W. Union. We are the
people that wish to petition for a revote (sic) on a
union at the company that we work at.
Meanwhile, on or about July 11, 1977, certain employees
in the unit ceased work concertedly and went on strike and
since that date have engaged in and are engaging in said
strike. At its inception the strike was economically moti-
vated. However, as noted above, the General Counsel con-
tends that as a consequence and result of the Employer's
alleged unfair labor practices commencing in October 1977
the strike became an unfair labor practice strike.
' As Heyman described it, he had some "good news and bad news" for
them, but that the good news outweighed the bad news by many times.
B. The Alleged Unilateral Wage Increase
As previously described. on or about October 12, 1976.
the president of Respondent, in a meeting in the plant with
unit employees, announced a 20-cent across-the-board
wage increase, effective October 10, 1977. During the nego-
tiations between the Company and the Union which com-
menced in late March 1977 which continued through
March 1978, the parties concentrated initially on noneco-
nomic items, putting off negotiations on monied items until
the end of the negotiations. Accordingly. when time came
in October 1977 for the implementation of the wage in-
crease there had been no bargaining respecting that subject
matter in the negotiations. On September 27, 1977, the
president of Respondent wrote the Union's chief negotiator
the following letter:
I'm sure you and your committee are aware of our
announcement last October 12. concerning the $.20
across the board wage increase, effective October 10,
1977. Unless you present valid reasons why we should
not go ahead with the previously announced increase
we will plan on implementing said increase effective
October 10, 1977. Of course this increase would be
without prejudice to further bargaining in our efforts
to reach a contract.
By letter dated September 30, 1977, the union represent-
ative wrote the following letter in reply:
I am in receipt of your letter of September 27, 1977
in which you advise that you plan to implement a 20C
across-the-board wage increase on October 10, 1977.
It is our position that such increase is too little and
too late. It is also ill timed as we are currently in nego-
tiations in an effort to reach a Union-Company Agree-
ment.
We feel that this is an issue subject to collective bar-
gaining which should be properly discussed with the
Union's committee at the bargaining table. Our Union
will be proposing a substantial wage increase and it
will be our proposal that such substantial wage in-
crease be made retroactive to April 18, 1977.
We look forward to discussing this matter with you
at the bargaining table.
There is nothing in the record to disclose that there were
any negotiations at that time concerning the wage increase,
and, accordingly, the Company implemented such wage in-
crease on October 10, 1977, as announced. It is the conten-
tion of the General Counsel that such wage increase consti-
tuted a unilateral change in conditions of employment in
violation of Section 8(a)(5) of the Act. It is the position of
Respondent that since the announcement of such wage in-
crease occurred in 1976, prior to the advent of the Union,
the increase in 1977 was part of a preexisting program of
wages and benefits, so that the implementation of the wage
increase did not constitute a change in wages, hours, or
working conditions in violation of the statute. In other
words, Respondent contends that because the Employer,
had committed itself to such wage increase the implementa-
tion thereof was a mere continuation of the status quo, cit-
ing N.L.R.B. v. Benne Katz, Alfred Finkel, and Murray
40
CHARLES MANUFACTURING COMPANY
Katz, d/bla Williamshurg Steel Products Company. 369 U.S.
736 (1962). 6
Analysis and Concluding Findings
In N.L.R.B. v. Katz, supra, the Supreme Court held that
generally an employer may violate Section 8(a)(5) of the
Act by making a unilateral change in conditions of employ-
ment without necessarily finding the employer guilty of
overall subjective bad faith. There is no allegation or con-
tention of overall bad faith on the part of the Employer in
this case. Rather, as previously noted, the issue on this as-
pect of the case is whether Respondent's implementation of
the wage increase in October 1977 constituted a change in
working conditions in view of the announcement of such
wage increase to the employees in October 1976.
In Liberty Telephone & Communications, Inc., and Cen-
tury Telephone Enterprises, Inc.,7 the Board, in reversing the
Administrative Law Judge, stated as follows:
Contrary to the Administrative Law Judge, logic
and relevant authority decree that the definition of
'condition of employment' includes not only what the
employer has already granted, but also what he 'pro-
poses to grant.' The terms and conditions of employ-
ment in a labor contract are fixed not by rigid formulas
or stipulations but by the relationship between the em-
ployer and the employees. It is the normal foreseeable
expectations arising out of the relationship, including
the expected weekly wage, the usual promotion policy,
anticipated wage increases, customary bonuses and va-
cations, and other announced or expected benefits,
which constitute the terms and conditions of employ-
ment. Hence in determining whether a particular mat-
ter or program is a term and condition of employment
which is subject to collective bargaining, the Board
and courts have properly considered whether the pro-
gram is a reasonable expectancy of the employment
relationship, i.e., whether the program in fact acted as
an inducement to employees to accept or continue em-
ployment.
In the Liberty Telephone case the Board found a Section
8(aX5) violation in respondent's action there in withdrawal
of a previously announced wage increase even though it
was subject to Internal Revenue Service approval since it
created "a reasonable expectation of an increase to take
place upon a contingency."' The Board concluded at 318:
. . .the cancellation of the wage increase to the unit
employees after they had selected the Union as their
exclusive bargaining representative without consulting
the Union or affording it an opportunity to negotiate
constituted a change in their working conditions. By
effecting such change without prior consultation with
the certified bargaining representative of the employ-
ees, Respondents violated Section 8(a)(5) of the Act
and also interfered with the employees' right to have
'The parties stipulated that there had been no impasse on this issue, so
there is no issue that the increase was implemented in connection with an
impasse in negotiations.
7204 NLRB 317. 318 (1973).
a In the instant case. of course. no such contingency existed.
their representative consulted about changes in their
conditions of employment in violation of Section
8(a)( 1 ) of the Act.
In the instant case the Employer notified the Union of its
intent to implement the wage increase unless the Union
presented valid reasons why the Company should not carry
out its promise and further stated that the increase would
be without prejudice to further bargaining. Thus, Respon-
dent clearly afforded the Union an opportunity to negotiate
concerning the matter.9
There is no contention or allegation that Respondent
subsequently refused to bargain about this or any other
condition of employment in the negotiations.
In view of all of the foregoing I find that Respondent did
not violate Section 8(a)(5) of the Act by implementing the
wage increase to unit employees on or about October 10.
1977. shall therefore recommend that this allegation and
the complaint be dismissed.
C. The Alleged "Frequency of Meetings" Violation
The complaint alleges that since on or about January 23.
1978, Respondent refused to bargain with the Union in vio-
lation of the Act by failing and refusing to "meet at reason-
able times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment."
The facts show that during the time under consideration,
i.e., January 23, 1978, until March 31, 1978 (when Respon-
dent withdrew from bargaining because it was presented
with a petition from a majority of its employees, discussed
more fully infra), the parties met on five separate occa-
sions. '°0 Additional meetings were scheduled in advance for
April 3 and April 13 but were not held due to the filing of
the employees' petition.
The record reflects that during the period in question the
Union requested Respondent to meet more frequently, to
which Respondent's reply was, generally, that it was not
available to meet more frequently than the dates which it
suggested. On at least one occasion it cited as a reason for
its failure to meet the fact that the company president was
away on a business trip, which was undisputed in the rec-
ord. The record also reflects that the union representative
stated that he was unavailable to meet on five dates in
March. The record further reflects that on one occasion
Respondent's attorney, noting that a scheduled Board hear-
ing for March 9 had been postponed, suggested to the union
representative that an additional bargaining session be held
on March 8. Finally, I note the statement in the stipulation
that:
The Respondent does not contend that, by reason of
the schedules of its committee members, it was unable
'Thus, this case is clearly distinguishable from Chatham Manufacturng
Company, 172 NLRB 1948 (1968), relied upon by counsel for the General
Counsel, where the Board found that respondent made changes in the rates
of pay of unit employees without giving the union advance notice of such
changes.
Compare Allis Chalmers Corporation. 237 NLRB 290. 291 (1978), where
the Board found that "unilateral actions are violative even when they are
made pursuant to an established company policy. f they are taken without
affording the representative an opportunity to bargain.
° Januarv 23, February 9. February 27, March 8. and March 13.
41
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to meet more frequently than it did in the period be-
tween January 23, 1978 and March 31, 1978, but con-
tends that the number of times it agreed to meet was
reasonable under the circumstances.
Analysis and Concluding Findings
Pertinent to the issue under consideration is the require-
ment in the statute for the parties "to meet at reasonable
times and confer in good faith with respect to wages, hours,
and other other terms and conditions of employment.""
As previously noted, there is no allegation in the com-
plaint of overall lack of good faith bargaining, surface bar-
gaining, or independent violations of Section 8(a)(1) of the
Act. The record reflects that during the overall period of
negotiations the parties met on numerous occasions and
exchanged proposals and counterproposals-reaching
agreement on some and not reaching agreement on others.
No doubt, after a period of extended negotiations the
Union was becoming more impatient and was extremely
desirous of winding up the negotiations and arriving at an
agreement. In a different context, one might view the Com-
pany's conduct in not scheduling more meetings during the
critical period to be further evidence of bad-faith bargain-
ing. However, in the backdrop of the Company's overall
conduct, previously described, its willingness to schedule a
meeting voluntarily upon the postponing of the Board hear-
ing, and the Union's unavailability on at least five occasions
in March lead me to the conclusion that Respondent's con-
duct in this regard was, under the circumstances, in reason-
able compliance with the requirements of the statute, and I
will therefore recommend that this allegation of the com-
plaint be dismissed.
D. The Alleged Refusal To Meet with the Union after
March 31, 1978
The complaint alleges that since on or about March 31,
1978, and at all times thereafter Respondent has refused
and is continuing to refuse to meet at any time and bargain
collectively with the Union as the exclusive bargaining rep-
resentative of the employees in the appropriate unit. As
previously noted, Respondent concedes that it has refused
to meet and negotiate with the Union since on or about
March 31, 1978, in view of the receipt by it on March 29,
1978, of the petition signed by a majority of the unit em-
ployees cited above.'
In my view, the disposition of this issue is controlled by
the principles explicated by the Board in Southern Wipers,
Inc.,:"
The principle applicable in the present situation has
long been established. After the certification year has
run, an Employer may lawfully withdraw recognition
from an incumbent union because of an asserted doubt
of the union's continued majority of (sic) its assertion
of doubt is raised in a context free of unfair labor prac-
" See Sec. 8(d) of the Act.
n1 Thereafter, in April Respondent filed with the Regional Office of the
Board, an RM petition (15-RM-338). Such petition was dismissed by the
Region because of the issuance of the instant complaint.
1 192 NLRB 816 (1971).
tices and is supported by a showing of objective con-
siderations providing reasonable grounds for a belief
that a majority of the employees no longer desire union
representation. Here the Respondent engaged in no in-
dependent unfair labor practices and Respondent's re-
fusal to meet with the Union occurred more than a
year after the certification. Consequently. the issue to
be resolved is whether or not those 'objective consider-
ations' existed justifying Respondent's doubt concern-
ing the Union's majority status.
Here, as in Southern Wipers, Respondent and the Union
engaged in a number of bargaining sessions during the cer-
tification year from March 1977 through March 1978.
While such sessions were not fruitful as far as resulting in a
collective-bargaining agreement, there is no context of un-
fair labor practices or evidence of employer instigation or
participation in the petition signed by a majority of the
employees in the unit to the effect that they no longer desire
to have the Union represent them in collective bargaining.
Under the circumstances, these factors provide, in my opin-
ion, "an objective basis which would properly furnish rea-
sonable grounds for the Respondent to believe that the
Union had lost its majority status."' Accordingly, I find
that Respondent did not violate Section 8(a)(5) and (I) of
the Act when, on or about March 31, 1978, it refused to
recognize the Union as the agent of its employees. Accord-
ingly, I shall recommend that this allegation of the com-
plaint be dismissed.
E. The Alleged Unfair Labor Practice Strike
It having been found that Respondent did not commit
the unfair labor practices alleged in the complaint, it fol-
lows that the economic strike which commenced on or
about July 11, 1977, was not prolonged and converted into
an unfair labor practice strike as alleged in the complaint.
CONcLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. Respondent did not, as alleged in the consolidated
complaint, engage in conduct violative of Section 8(a)(5)
and (1) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record, and pursuant to
Section IO(c) of the Act, I hereby issue the following recom-
mended:"
ORDER
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
" Ibid
m~ In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations, be adopted b the Board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
42