Crest Floors & Plastics, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1230 (N.L.R.B. 1985)

1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crest Floors & Plastics , Inc. and Orange County
District Council of Carpenters , United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO
Crest Floors & Plastics, Inc. and Michael T. Buck-
ley d/b/a Pacific Sun and Orange County Dis-
trict Council of Carpenters , United Brotherhood
of Carpenters and Joiners of America, AFL-
CIO. Cases 21-CA-19322, 21-CA-19936, and
21-CA-19662
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Crest
Floors & Plastics, Inc. and Michael T. Buckley
d/b/a Pacific Sun, Anaheim, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
29 March 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 February 1983 Administrative Law Judge
Maurice M. Miller issued the attached decision in
this proceeding. The Respondents filed exceptions
and a supporting brief, and the General Counsel
filed an answering brief.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings, findings,' and conclusions, as modi-
fied,2 and to adopt the recommended Order.
i The Respondents have excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
2 We adopt the judge's finding of a violation of Sec 8(a)(5) and (1) of
the Act for the Respondents' changes in the terms and conditions of em-
ployment covering the outside laminated countertop installers since 1
August 1980 In finding the violation, the judge noted that the Respond-
ents Crest and Buckley continued to have a statutory duty to comply
with and give effect to the terms and conditions of the contract after it
expired on 15 June 1981, and their obligations could only have been ren-
dered defeasible by proof that they had notified Complainant Union of
their intention to modify some specific condition of employment and that
the Union had either failed to request bargaining or that they had bar-
gained to impasse The Respondents except, contending that after sending
a timely notice to terminate the contract, the Union refused to bargain
over the matter, thereby relieving the Respondents of their obligation to
comply with the contract's terms In adopting the judge's finding of a
violation, we note that the Respondents merely notified the Union of
their intention to terminate the contract rather than giving notice of an
intention to modify a specific term or condition of employment, and that
the Respondents never offered to negotiate for a new contract and were
therefore still bound to comply with the terms and conditions of the ex-
pired contract Bay Area Sealers, 251 NLRB 89 (1980), enfd as modified
sub nom Rayner v NLRB, 665 F 2d 970 (9th Cir 1982)
In adopting the judge's conclusion that the Respondents violated Sec
8(a)(5) and (1) of the Act, we rely on his discrediting of Buckley's testi-
mony regarding his offers to sign a contract and make fringe benefit con-
tributions on behalf of Pacific Sun We therefore find it unnecessary to
pass on the judge's alternative rationale that, assuming Buckley made
such offers, the Union and the Trust Fund would have been justified in
refusing to accept such payments or otherwise deal with Pacific Sun
We agree with the judge's conclusion that Respondent Crest violated
Sec 8(a)(3) and (1) of the Act by the demotion and discharge of J Mag-
daleno and the discharges of D Magdaleno and R Torres Respondent
Crest excepts to this finding, arguing that the judge failed to apply the
causation test set forth in Wright Line, 251 NLRB 1083 (1980), enfd 662
F 2d 899 (Ist Cir 1981) We note, however, that with respect to evidence
of the alleged violation, the judge found a prima facie case of a violation
which Respondent Crest did not persuasively counter In these circum-
stances, we find the judge's analysis consistent with Wright Line, supra
See Limestone Apparel Corp, 255 NLRB 722 (1981)
Respondent Crest excepts to the judge's apparent finding that it violat-
ed Sec 8(a)(5) and (1) of the Act by denying union representatives access
to the plant, in contravention of the terms of the parties' expired collec-
tive-bargaining agreement While it is unclear from his decision whether
the judge specifically found such a violation, we nonetheless dismiss that
allegation because the General Counsel has failed to establish that there
was in fact a change in practice with respect to access by union repre-
sentatives We therefore also find it unnecessary to reach the issue of
whether a Union's right to access is a term or condition of employment
which survives an expired contract
Member Dennis believes the judge made no finding on the access alle-
gation and, because no exceptions to the failure to make a finding were
filed, finds it unnecessary to address the issue
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge. On
successive charges and amended charges filed on various
designated dates between July 23, 1980, and August 21,
1981, which were duly served, the General Counsel of
the National Labor Relations Board caused a second
amended order consolidating cases, and second amended
consolidated complaint and notice of hearing, dated Sep-
tember 24, 1981, to be issued and served on both Crest
Floors & Plastics, Inc. and Michael T Buckley d/b/a
Pacific Sun, designated collectively as Respondents
within this decision.
Herein, Respondents have denied, pro forma, the Gen-
eral Counsel's complaint allegation that Respondent
Buckley was served, personally or otherwise, with a
copy of Complainant Union's first amended charge in
Case 21-CA-19662 on September 16, 1981. The record,
however, contains a verified return of service, to which
reports that a copy of the first amended charge, ad-
dressed to Michael Buckley d/b/a Pacific Sun, was hand
delivered See NLRB Rules and Regulations, Section
102.111(a) Save for Respondent Buckley's formal denial,
noted, the General Counsel's verified return of service
has not been questioned. I find that proper service of the
document in question was effected.
Therein, Respondent Crest was charged with the com-
mission of unfair labor practices within the meaning of
Section 8(a)(5), (3), and (1) of the National Labor Rela-
tions Act. Further, both Respondent Crest and Respond-
ent Buckley, considered as a single "integrated" employ-
er for statutory purposes, were charged with the com-
mission of further unfair labor practices within the mean-
274 NLRB No. 185
CREST FLOORS & PLASTICS
mg of Section 8(a)(5) and (1) of the statute. Within their
joint answer, duly filed, Respondents concede certain
factual allegations within the General Counsel's second
amended consolidated complaint, but deny their commis-
sion of unfair labor practices
Pursuant to notice, a hearing with respect to these
consolidated matters was conducted on October 6, 7, and
8, 1981, in Los Angeles, California, before me The Gen-
eral Counsel, Respondents, and Complainant Union were
represented by counsel Each party was afforded a full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence with respect to per-
tinent matters. Since the hearing's close, the General
Counsel's representative, Respondent's counsel, and
Complainant Union's counsel have filed briefs, these
briefs have been duly considered
On the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following
FINDINGS OF FACT
I JURISDICTION
Respondent Crest, functioning as a California corpora-
tion, with a principal office and place of business located
in Anaheim, California, has been-throughout the period
with which this case is concerned-engaged in the manu-
facture and sale, inter alia, of floor coverings and lami-
nated plastic (formica) countertops. In the course and
conduct of its business operations, Respondent Crest pur-
chases and receives goods and products valued in excess
of $50,000 yearly, directly from suppliers located outside
the State of California At all times material herein, Re-
spondent Buckley, a sole proprietorship doing business as
Pacific Sun, has been engaged in the business of install-
ing carpets, various types of hard surface floor cover-
ings, and laminated plastic countertops, in commercial
and residential properties; the proprietorship has func-
tioned, primarily, as a labor contractor, in connection
with residential construction work. Respondent Buckley
currently maintains a facility located in Anaheim, Cali-
fornia, physically separated from Respondent Crest's
place of business Between May 1979 and December
1980, the designated sole proprietorship-so the record
shows-received payments totaling some $372,000 from
Respondent Crest, for contract labor services
On this record, I find-consistently with the General
Counsel's contention and despite Respondents' formal
denials with respect to Respondent Buckley particular-
ly-that Respondents Crest and Buckley are, and have
been, throughout the period with which this case is con-
cerned, employers engaged in commerce and business ac-
tivities which affect commerce, within the meaning of
Section 2(6) and (7) of the Act. Further, with due regard
for presently applicable jurisdictional standards, I find as-
sertion of the Board's jurisdiction in this case warranted
and necessary to effectuate statutory objectives.
Within his second amended consolidated complaint,
the General Counsel charges, and Respondents, within
their jointly filed answer, deny that-at all times material
herein-Respondents Crest and Buckley have functioned
as affiliated business enterprises, with common officers,
1231
ownership, directors, management, and supervision, that
they have formulated and administered a common labor
policy affecting employees of both enterprises, that they
have shared common premises and facilities, and have
provided services for, and made sales to, each other; and
that they have interchanged personnel With matteis in
this posture-so the General Counsel, by way of conclu-
sion, contends-these Respondents should be considered
a single "integrated" business enterprise and single em-
ployer, within the meaning of the statute With respect
to this contention, Respondents have noted their formal
denial The General Counsel's record presentation, prof-
fered in support of his contention, will be considered,
subsequently, within this decision
iI THE LABOR ORGANIZATION CONCERNED
Orange County District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Local 2172 of the United Brotherhood,
herein designated as Complainant Union and Local 2172,
respectively, are labor organizations within the meaning
of Section 2(5) of the Act, Local 2172 admits certain em-
ployees of Respondents Crest and Buckley to ^member-
ship
III THE UNFAIR LABOR PRACTICES CHARGED
A. Issues
This case, which derives from several developments,
managerial pronouncements purportedly related thereto,
and confrontations within an 8-month period, presents a
number of substantive questions, which have been thor-
oughly litigated For present purposes, these questions
may be summarized, generally, as follows.
1. Whether, under the particular circumstances re-
vealed within the present record, Respondents Crest and
Buckley should be considered a single employer, for stat-
utory purposes.
2. Whether Respondents Crest and Buckley, function-
ing as a single "integrated" business enterprise, commit-
ted 8(a)(5) and (1) unfair labor practices by unilaterally
changing certain employment terms and conditions
which had been maintained for their outside laminated
plastic countertop installers. The General Counsel
charges that Respondents effected such unilateral
changes when they failed and refused to continue contri-
butions to certain pension, health and welfare, and other
trust funds, established pursuant to the Master Labor
Agreement between Southern California general contrac-
tors and various constituent District Councils and Local
Unions affiliated with the United Brotherhood of Car-
penters and Joiners of America, currently in force, and,
further, when they failed to grant their installers paid
holidays
3 Whether Respondent Crest committed 8(a)(5) and
(1) unfair labor practices, likewise, when it discontinued
contributions, on behalf of inside carpentry employees,
which had previously been made to the Southern Cali-
fornia Lumber Industry's Welfare Fund, and separate
Retirement Fund, established pursuant to the so-called
Mill Cabinet Agreement, which had been negotiated and
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed by representatives of Respondent Crest, Com-
plainant Union and Local 2172, respectively
4. Whether Respondent Crest, further, violated Section
8(a)(5) and (1) by unilaterally changing certain employ-
ment terms and conditions which had been maintained
for its inside carpentry employees. The General Counsel
charges that Respondent Crest effectuated such unilateral
changes when it eliminated paid holidays, changed its
sick leave policy, limited the plant visitation rights of
union representatives, discontinued its past practice
whereby seniority was recognized and followed when
employees were selected for layoffs, and lowered rates of
pay for certain jobs.
5 Whether Respondent Crest, further, violated Section
8(a)(5) and (1) by withdrawing recognition from Com-
plainant Union and Local 2172 as collective-bargaining
representatives of its inside carpentry employees, and
thereafter refused to bargain in good faith with these
designated labor organizations as their collective-bargain-
ing representatives.
6 Whether Employee Robert Reynolds was function-
ing as Respondent Crest's agent when he circulated and
requested employees to sign a petition to remove Com-
plainant Union and Local 2172 as collective-bargaining
representatives of Respondent Crest's inside carpentry
employees, and purportedly made threatening statements
during the course of his solicitations.
7. Whether Respondent Crest, through the conduct of
Robert Reynolds while functioning as its agent, commit-
ted 8(a)(1) unfair labor practices.
8. Whether Michael Buckley, Respondent Crest's
president and Respondent Buckley's proprietor, commit-
ted 8(a)(1) unfair labor practices, by telling various em-
ployees that he would refuse to bargain, and would not
sign a contract, with Complainant Union and Local 2172,
and by making numerous other July 23-24, 1980 state-
ments calculated to interfere with, restrain, and coerce
employees, with respect to their exercise of rights statu-
torily guaranteed.
9. Whether Respondent Crest subsequently demoted
employee Jess Magdaleno from a nominal leadman posi-
tion , because of his union activities.
With respect to these several questions, the General
Counsel seeks consistently affirmative determinations
Within their joint answer, Respondents have conceded
the correctness of certain relevant factual allegations set
forth within the General Counsel's second amended con-
solidated complaint; further relevant factual allegations,
likewise set forth within the General Counsel's complaint
have, however, been denied. In this connection, Re-
spondents have proffered certain divergent or contradic-
tory allegations; they contend consistently with their
pleaded traverses and contradictory factual claims, that
their several courses of conduct, challenged herein,
should be considered legally privileged, and consequent-
ly immunized from statutory proscription.
B. Facts
1. Background
a Respondent Crest's business
(1) History
Some time during 1964, Respondent Crest was formed,
and commenced business; the corporation had been orga-
nized by Thomas Buckley, father of the firm's current
president, and Joseph Mezey, not otherwise identified
Since its formation, Crest's operations have been primari-
ly devoted to providing Southern California residential
and commercial contractors, in the building and con-
struction industry, with floor materials, floor covering
products, and related services; additionally, however,
drapery materials, ceramic tiles, and laminated plastic
countertops, for kitchen and bathroom counters, have
likewise been fabricated, sold, and installed.
Respondent Crest, throughout the period with which
this case is concerned, function therefore through five
principal departments: (1) outside floor coverings, (2)
draperies; (3) ceramic tile; (4) laminated plastic counter-
tops; and (5) sales. This case, however, presents ques-
tions, pursuant to the General Counsel's current com-
plaint, confined to Respondent Crest's laminated plastic
countertop operations, solely
In April 1979, Michael Buckley purchased a 90-per-
cent stock share in Respondent Crest, from his father; he
thereupon became the corporation's president Since that
time, concededly, he has maintained general oversight
and managerial direction with respect to Crest's diversi-
fied manufacturing and service operations
(2) Organization
Crest's president, Michael Buckley, designated as
Buckley herein, concededly provides no direct, personal,
day-to-day supervision with respect to his firm's various
departmental operations; he confers daily, however, with
his several department heads.
Throughout the period with which this case is con-
cerned, Robert Pinedo has functioned, and continues to
function, as Crest's plastic operations manager, directly
responsible for the supervision of the firm's laminated
plastic (formica) countertop fabrication department, fur-
ther Mary Curson has served, and continues to serve, as
Pinedo's departmental secretary, and designated assistant.
Within his complaint, the General Counsel alleges that
both Pinedo and Curson, at all times material , have func-
tioned as departmental supervisors, within the meaning
of Section 2(11) of the Act; the General Counsel's repre-
sentative contends that both should be considered Re-
spondent Crest' s agents, for present purposes, within the
meaning of Section 2(2) and (13) of the statute. In re-
sponse, Respondents have, herein, conceded Buckley's
and Pinedo's supervisory status. Within their definitive
answer, duly filed, Curson's supervisory and statutory
"agency" status, likewise, stands conceded. While the
hearing herein was in progress, however, counsel for Re-
spondent Crest reported that their formal concession,
particularly with respect to Curson's position, had been
CREST FLOORS & PLASTICS '
inadvertent, thereupon, they moved to amend their
answer to deny both her supervisory and statutory
"agency" status Since their motion had been belatedly
presented, following the conclusion of the General
Counsel's primary case, and likewise after certain of the
General Counsel's witnesses, presumptively qualified to
testify with respect to Curson's status, had been excused
and departed the hearing, Respondent's motion to amend
their answer was denied
Before August 1980, Respondent Crest's plastic oper-
ations department personnel had compassed manufactur-
ing workers-sometimes designated, within the present
record, as "inside" workers, "inside carpentry" employ-
ees, or "formica shop" workers plus countertop install-
ers. The department's fabrication workers, normally
somewhere between five and nine in number, with six a
normal complement, had functioned, and continue to
function variously, as layout men, sawyers, machine op-
erators, spraymen, and finishers Three countertop in-
stallers, however, performed so-called outside work, they
installed fabricated countertops at residential and com-
mercial construction jobsites
Throughout the period with which this case is con-
cerned, prior to August 1980, specifically Respondent
Crest's total personnel complement, within the several
departments previously noted, fluctuated as workloads
varied At material times, the firm's work force com-
passed some 55 employees, their departmental distribu-
tion within the firm, apart from the plastic operations de-
partment particularly, will not be found, however, pre-
cisely detailed within the present record
b. Collective-bargaining history
Concurrently with Respondent Crest's formation, col-
lective-bargaining contracts-specifically, short-form
memorandum agreements, whereby the firm consented
to be bound pursuant to master contracts, previously ne-
gotiated and currently in force-were concededly exe-
cuted with Orange County District Council of Carpen-
ters, United Brotherhood of Carpenters and Joiners of,
America, and certain locals unions affiliated with that or-
ganization The firm, likewise, became signatory to a col-
lective-bargaining contract-so the record shows-with
Carpet, Linoleum and Soft Tile Local Union No 1247,
of the Brotherhood of Painters, Decorators and Paper
Hangers of America, AFL-CIO, I so find
Herein, Respondent Crest further concedes, formally,
that-on various subsequent occasions since its forma-
tion-successive collective-bargaining agreements with
Complainant District Council have been executed These
agreements, while in force, covered-so the record
shows-wages, hours, and working conditions set for
various "outside" laminated plastic countertop installers
then in Respondent Crest's employ
Concurrently, Respondent Crest, so I find, has com-
mencing with its formation and, subsequently on various
occasions, likewise signed and became bound by succes-
sive collective-bargaining contracts with Complainant
Union and Local Union No 2172 specifically, which,
while they were in force, governed the wages, hours,
and working conditions set for Crest's variously classi-'
feed "inside carpentry" formica shop workers
1233
The firm's first contract, and successive contracts, ne-
gotiated and signed with Local Union No 1247 of the
Brotherhood of Painters, Decorators and Paper Hangers
of America, herein previously noted, covered, so the
record shows, wages, hours, and working conditions. set
for certain outside "floor covering" installers, these
workers installed carpets, plus linoleum, tile, wood,-and
other hard surface flooring materials. They were, and
still are, considered a distinguishable work force, sepa-
rate from those employed within the firm's plastic oper-
ations department, with which this case is particularly
concerned
Most recently, Respondent Crest has, concededly,
functioned as a contractual signatory, bound by a 3-year
Master Labor Agreement negotiated between several
Southern California general contractors associations, var-
ious District Councils and designated Local Unions, af-
filiated with the Carpenters Union, covering, residential
and commercial construction work performed within 11
designated Southern California counties That collective-
bargaining agreement had, originally, been negotiated
and signed on August 29, 1977; July 1, 1977, had, how-
ever, been designated as the contract's effective date. It
had, as previously noted, provided for a 3-year term,
with a June 15, 1980 termination date," subject to renew-
al, however, from year to year, therafter On February
17, 1978, Michael Buckley, then Respondent Crest's vice
president, had signed a proffered memorandum agree-'
ment whereby that firm had agreed to comply with "all
the terms" set forth within the Master Labor Agreement
noted, together with its various Carpenters appendices,
including those related to wages, hours, working condi-
tions, and work rules
Inter alia, Respondent Crest had, likewise, renewed
prior commitments to comply with various Trust Agree-
ments, whereby specific trust funds had-theretofore-
been established to provide health and welfare benefits,
pension benefits, funding for joint apprenticeship training
programs, and Vacation Savings and. holiday payments,
for covered workmen The firm had-so the record
shows-contributed to these designated funds previously
By virtue of Respondent Crest's memorandum agreement
signature, its commitment to continue to contribution
payments. monthly, was reaffirmed
The collectively bargained contract, noted, contained,
a broad bargaining unit description, basically, it purport-
ed to cover all carpentry workers, among others, hired
to perform work within their defined craft jurisdiction,
beyond the physical confines of their particular employ-
er's shop or yard facility, while on construction jobsites
Insofar as Respondent Crest was concerned, however,
the contract, so the record shows, had confirmed a con-
sensual understanding, shared by the concerned parties,
that the Master Labor Agreement, then in force, covered
the firm's several laminated plastic countertop installers,
solely
Within the specific 1977-1980 period now under con-
sideration, Respondent Crest had, likewise, become com-
mitted, so the record shows, to comply with a collective-
ly bargained agreement previously negotiated by Orange
County District Council of Carpenters and Local Union
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No 2172, specifically, with representatives of Orange
County's Residental Cabinet School and Full Mill Manu-
facturing , Laminate Fabricating , and Cabinet Finishing
industries That agreement , negotiated and drafted for a
3-year term running from August 1, 1977, through July
31, 1980, but subject to continuation from year to year
thereafter , unless "either party" gave written notice to
the other party "during the month of May preceding any
anniversary date" regarding its intention to seek their
agreement 's modification or termination , had been signed
on February 17, 1978, by Michael Buckley, then Re-
spondent Crest's vice president.
Crest's signed contract , designated as the Mill Cabinet
Agreement within the present record , reflects a nominal
February 17, 1977 execution date. Within the draft copy
of the contract which Buckley signed, however, the cal-
endar year designation , specifically , had been preprinted.
The record herein , clearly warrants a determination,
which I make , that Respondent Crest's vice president ac-
tually signed the document , for his firm, on February 17
within the calendar year immediately following its
August 1, 1977 effective date.
The agreement , so the record shows, governed wages,
hours, and conditions of work , defined therein , for Re-
spondent Crest 's several "inside" laminated plastic coun-
tertop fabricators . Within the designated document's Ex-
hibit "A-3" which set forth various hourly wage rates
payable, within the Laminate Fabricating industry, the
specific job classifications which the parties considered
covered , by their contract, were listed.
Inter alia, Respondent Crest was , therein , committed
to provide contributions-monthly-on behalf of quali-
fied "shop " workmen, payable to the Southern California
Lumber Industry Welfare Fund for medical , hospital,
and surgical benefits , plus supplemental contributions for
dental care benefits Further , monthly retirement fund
contributions were-likewise-required
The agreement provided , however, that whenever
covered "shop " employees performed work , outside
their contractually bound employer 's plant, particularly
at construction jobsites , their "minimum scale of wages
and other conditions" would have to conform with those
provided within the currently applicable Master Labor
Agreement , hereinabove noted . Further, required fringe
benefit contributions , for covered "shop" employees who
might perform outside work, regularly or irregularly, on
construction jobsites , would have to be made to trust
funds established pursuant to relevant Master Labor
Agreement provisions , for all their determinable jobsite
hours worked
Such business arrangements , likewise known as "dual
shop" operations , require the creation-normally by
unionized building and construction contractors-of sub-
sidiary or affiliated business enterprises In most cases,
such newly formed enterprises will, then , solicit new
business separately-within the building and construction
field-presumptively freed from their parent firm's col-
lectively bargained contractual commitments ; they will
compete for construction scheduled for performance by
nonunion workmen.
In August 1979 shortly following his April 1979 as-
sumption of Respondent Crest 's presidency , Michael
Buckley established a separate sole proprietorship enter-
prise, with a fictitious business name-Pacific Sun-
through which he proposed to function as a labor con-
tractor . The sole proprietorship , herein designated as Re-
spondent Buckley or , alternatively, as Pacific Sun, was
established , so Buckley testified , to provide Respondent
Crest , particularly , with "union or non-union" contract
labor , consistently with contractors' or builders ' requests,
qualified to install previously fabricated flooring, floor
covering materials , draperies , and laminated plastic coun-
tertops, on residential or commercial construction job-
sites.
Following Respondent Buckley's August 1979 forma-
tion , Respondent Crest's unionized floor covering install-
ers were purportedly "transferred" or "placed" with the
sole proprietorship (The record , however , does not es-
tablish , precisely, when this personnel "transfer" or
"placement " was effectuated .) Crest 's collective -bargain-
ing agreement with Local 1247, covering these floor
covering installation workers, was, so Buckley's testimo-
ny shows, thereupon permitted to expire , nothing within
the present record , however , would permit a determina-
tion regarding its consensually prescribed expiration date.
With regard to subsequent developments , Buckley's testi-
mony, proffered and received without challenge or con-
tradiction , reveals that:
A business agent from Local 1247 called me, after
receipt of the termination notice, and asked me
what the situation was. I told him we were opening
a double-breasted operation He said , "Fine " He
said , "Do you want me to bring over the contract
for your new firm?" I said , "Yes." He brought it
over and I signed it. The conditions , working con-
ditions, fringe benefits and everything [for floor cov-
ering installers] were exactly the same as we had
with Crest Floors. [Bracketed material inserted for
clarity.]
c Respondent Buckley 's establishment
Some time during "late 1978 and early 1979" Buckley
became concerned , so he testified, regarding the growing
number of construction contractors who were requiring
bids, from subcontractors within the floor covering indus-
try particularly , based upon their presumptive utilization
of nonunion labor . Respondent Crest 's vice president
conferred with a labor consultant , who suggested that he
might create a so-called double-breasted business oper-
ation
While a witness, Buckley declared, further: That Crest's
floor covering installers , who had purportedly been
"transferred " to Pacific Sun's payroll, continued to re-
ceive "the same quality and quantity of work" they had
received as Crest 's workmen; that their terms and condi-
tions of work were maintained without change; and that
"all this" had been effectuated with Local 1247's concur-
rence.
At some time subsequent to Respondent Buckley's
(i.e., Pacific Sun's) activation , never fixed , clearly, within
the present record , but possibly about August 1, 1980,
CREST FLOORS & PLASTICS
according to Buckley 's recollection , all three laminated
plastic countertop installers then in Respondent Crest's
employ-Gary Hoffman, John Gonzales, and John
David Gonzales-were, likewise, purportedly transferred
to Respondent Buckley's (i.e., Pacific Sun's) payroll.
While a witness, Buckley reported that those countertop
installers, nevertheless , continued to receive their previ-
ously determined hourly wage, that they "basically"
worked the same hours, and that their supervision, like-
wise, continued without change . (Whether their terms
and conditions of work were modified or revised , in var-
ious other respects , will be considered subsequently
within this decision )
Buckley's testimony , further , reflects his purported
recollection that prior thereto he had made known his
"intention " or "desire" that these laminated plastic coun-
tertop installers should be covered by a negotiated col-
lective-bargaining agreement , presumably with Com-
plainant District Council and its concerned Local Union
affiliates , whereby they would be assured the same
"quality and quantity " of work, the same terms , and the
same working conditions, they had previously enjoyed
while in Respondent Crest's hire. Pacific Sun's proprie-
tor declared , while a witness, that-because of the con-
ventional sequence pursuant to which various craft
workers customarily perform services on construction
projects-there was no demand for nonunion carpentry
installers; he claimed that he had, therefore , been faced
with no "need " to set up some "double -breasted" busi-
ness operation geared, particularly, to provide nonunion
workmen qualified to perform countertop installation
work.
With his separate crews of floor covering installers
and laminated plastic countertop installers purportedly
transferred to Pacific Sun's personnel roster , Respondent
Crest 's president , so his testimony shows, planned to
contunue that corporate firm 's business , functioning as a
nonunion manufacturer or fabricator of construction ma-
terials, whose productive efforts would be confined to
so-called inside shop work , exclusively.
2. Relevant developments
a. Respondent Crest's contract terminations
In the meantime, during the period within which Re-
spondent Crest's various personnel shifts, hereinabove
noted , were being planned and effectuated , President
Buckley was taking steps calculated to terminate his
firm 's collectively bargained contractual commitments,
with Complainant District Council and that organiza-
tion 's constituent Local 2172 particularly.
In a letter dated May 19, 1980, which he dispatched
by certified mail, Respondent Crest's president had noti-
fied both Complainant Union and Local 2172 that his
firm would "terminate" their about-to-expire Mill Cabi-
net Agreement , which , until then , had concededly cov-
ered the firm 's limited number of formica shop "inside
carpentry" workers.
Nothing in Buckley's termination letter, however, sug-
gested that copies had been sent to the Federal Media-
tion and Conciliation Service, or its State of California
counterpart Absent such an indication , I find that no
1235
copies were sent to these agencies Whatever conse-
quences might have followed from Respondent Crest's
omission, however, were subsequently rendered moot
when, as noted below, Complainant Union sent the re-
quired 8(d)(3) notice to the agencies mentioned Cf. Mar-
Len Cabinets, 262 NLRB 1398 (1982).
Concurrently, however, in a letter similarly dated,
which Respondent Crest 's management-so I find-re-
ceived on May 20, Complainant Union and Local 2172
had, together, notified "all [signatory] firms" privy to
their 3-year, 1977-1980, Mill Cabinet Agreement, regard-
ing their "intention" to seek that collectively bargained
contract ' s modification Copies of this communication
had been sent to both Federal and state mediation agen-
cies.
On June 19, thereafter, Complainant Union and Local
2172 had, further, forwarded, with a covering letter, cer-
tain proposals directed to "all firms" bound as signatories
with respect to their designated Mill Cabinet Agree-
ment 's provisions; those proposals , so the record shows,
dealt with various terms and conditions suggested for in-
corporation within a revised and renegotiated collective-
bargaining contract , which would cover so-called Mill
Cabinet workers, with a defined August 1, 1980 effective
date The specified communication 's recipients, a group
of employers which, so I find, compassed Respondent
Crest, among others , were likewise notified that a first
negotiating session , with a number of contractually
bound employers , had already been held; six definite
dates for further sessions , which any concerned employ-
ers might attend, were specified.
While a witness , Respondent Crest's president claimed
that he had not, at the time, been made "aware" regard-
ing his firm 's receipt of Complainant Union 's May 19
notice, or that organization 's June 19 contract modifica-
tion proposals , Buckley declared that, following his own
May 19 notice of contract termination , with particular
reference to his previously confirmed commitments re-
garding the wages, hours, and working conditions of Re-
spondent Crest's inside "formica shop" workers, he had
been waiting for a personal visit from Complainant
Union 's and Local 2172's business representatives, with
whom he had, previously, dealt directly. Mindful of cer-
tain subsequent developments , which will be catalogued
and considered , infra within this decision, I find no defin-
itive determination , with regard to Respondent Crest's
presumptive receipt of Complainant Union's June 19
contract modification proposals , required herein
Nothing within the present record would warrant a
determination that Respondent Crest's president partici-
pated in these prospectively designated contract negotiat-
ing sessions ; I find, rather , that he attended none of
them
Before these May-June company and union communi-
cations, I find, there had been "rumors" circulated,
within Respondent Crest's formica shop complement,
that the firm might "go" nonunion, or that it might be
struck and picketed , following their union contract's des-
ignated termination date At some time , during April
1980 possibly, Plastic Operations Manager Pinedo, who
then held Local 2172 membership, had notified his formi-
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ca shop leadman Jess Magdaleno that he planned to
withdraw from union membership, so that he would not
be confronted with a conflict of interest, should he find
himself, subsequently, required to cross a union picket
line. And, following his subsequent procurement of
Local 2172's withdrawal card, Pmedo had, so his testi-
mony shows, notified both Respondent Crest's president
and Jess Magdaleno with respect thereto.
With matters in this posture, speculation continued, so
I find, within Crest's formica shop crew, with respect to
whether their employer'would, or would not, sign a new
union contract Jess Magdaleno, functioning as their
spokesman, queried Pinedo repeatedly, with respect to
whether he knew "anything" with regard to "what was
going on" or "what was going to happen" relative to
Respondent Crest's prospective contractual commit-
ments Pinedo, so,he testified, promised, sometime during
July's first week, that he would request Crest's president
to speak with Magdaleno and his fellow formica shop
workers
When solicited, however, Buckley demurred, initially,
declaring that Complainant Union's representatives
should keep his firm's concerned workmen informed, re-
garding their contract situation. Pinedo's further re-
quests, repeated on several occasions within a 10-day
period, were, likewise, consistently disregarded.
,On Wednesday, July 23, however, Respondent Crest's
president finally met, informally, with some five or six of
his firm's formica shop workers Their synthesized, mu-
tually corroborative testimony, regarding Buckley's com-
ments during his brief conversation with them, which I
credit, despite their slightly deviant recollections and
somewhat imprecise phraseology, warrants a determina-
tion, which I make,. that Respondent Crest's president,
first, professed a lack of knowledge regarding their
"union" situation, since no union representatives had,
prior thereto, communicated with him directly. When
specifically queried, however, with respect to whether
Crest's formica shop, particularly, would "go" nonunion,
Buckley responded affirmatively, I so find, despite his
somewhat oblique witness-chair denials
While a witness, Respondent Crest's president conced-
ed that "it ' was already common knowledge" that his
firm's floor covering division, which accounted for some
85 'percent of the Company's business, would become a
nonunion operation He testified that, mindful of this, he
"might have mentioned something about going non-
union" so far as Crest's floor covering business, particular-
ly, was concerned I find, however, that-when queried,
specifically, with regard to whether his firm's formica
shop operations would "go" nonunion-Buckley's con-
cededly affirmative response was not, clearly, limited to
a declaration that Crest's floor covering division, particu-
larly, would function, thereafter, without a union con-
tract. Respondent Crest's president reported, I find, that
his firm, without specifying any particular _ division,
would become a, nonunion firm because his nonunionized
competitors were "bidding low" for construction work,
and that Crest would, therefore, be constrained to bid
low, likewise.
Essentially, Buckley declared, though not perhaps in
so many words, that should his firm's formica shop
"inside" workers choose to remain countertop fabrica-
tors, they would have to forgo union contract coverage,
that, should they wish, however, to retain their union
connection, they might procure union cards as qualified
"outside" workers (i.e., countertop installers); that Pacif-
ic Sun had been formed to contract for "outside" con-
struction work; and that, when retained for such work,
Crest's president, so I find, commented further that his
listeners were free to seek "other" jobs, and that, so far
as he was concerned, he would not blame them.
Buckley's last remark, noted, reflected his response, so
the record, considered in totality, suggests when "some-
one" commented that there was barely enough construc-
tion project work, then, for Respondent Crest's three
regular countertop installers; that job offers for counter-
top installation work, therefore, could not reasonably be
anticipated, and that it would, therefore, presumably be
useless for the firm's formica shop fabricators to solicit
such "outside" construction positions
While a witness, Buckley repudiated, or professed a
lack of recollection with respect to numerous statements,
within several previously prepared sworn affidavits
which he had signed, specifically with regard to his pur-
ported recapitulation of this conversation, he conceded,
however, that he "may have" told his firm's formica
shop workers they were welcome to stay with Respond-
ent Crest should it "go" nonunion, or to seek alternative
work with Pacific Sun, which would presumably be gov-
erned by some collectively bargained contract. With
matters in this posture, Buckley's purportedly limited tes-
timonial recollections regarding his July 23 comments,
within my view, carry no persuasion. Rather, the com-
posite recollections of Crest's several formica shop work-
men with respect thereto synthesized, considered in to-
tality, and recapitulated previously herein, merit cre-
dence; as noted, I have so found.
On Thursday, July 24, after work pursuant to Buck-
ley's prior request, Larry Nordstrom, Crest's formica
shop layout man, had a brief "office" conversation with
the firm's president. Nordstrom's forthright testimony
with respect thereto, which I credit, warrants a determi-
nation that Buckley, then, reiterated his previous day's
report that Crest's formica shop would shortly "go" non-
union; Nordstrom was queried regarding his plans in that
eventuality The layout man declared, so I find, that he
would "stay with the union" and do whatever Complain-
ant Union's representatives requested
Respondent Crest's president, likewise, called Robert
Magdaleno, the firm's formica shop laminator, to his
office, for a conference Magdaleno's testimony with re-
spect to their talk, which I credit, like Nordstrom's, de-
spite Buckley's clearly divergent, less comprehensive,
testimonial proffers, reveals that Crest's president, at the
outset, declared his belief that Magdaleno did "good"
work, that Buckley proclaimed his wish, therefore, that
the laminator would "stay" with Crest's formica shop
crew, but that, nevertheless, Magdaleno was plainly told
he would have to "go" nonunion, should he remain.
While a witness, Magdaleno testified that, from Buck-
ley's remarks, he "understood" he would have to with-
draw from union membership to retain his position The
CREST FLOORS & PLASTICS 1237
record, considered in totality, will not, within my view,
warrant a determination, however, that Buckley made or
intended to make such a suggestion; with due regard for
their conversation's situational context, I am satisfied that
Crest's president merely said, or meant to say, that Mag-
daleno, should he decide to stay, would have to work
under "non-union" conditions.
When Crest's formica shop worker asked what "bene-
fits" would be provided for those who remained, Buck-
ley reported, I find, that his firm had some "insurance"
which would cover employees, apart from Complainant
Union's plan Magdaleno declared, so I find, that he
would "stay" with the Union, Buckley replied, so Mag-
daleno credibly testified, that "You guys could picket if
you want, and if you guys win we are dust going to close
the back doors." Thus advised, Magdaleno declared that
he would look for another position, but that, should his
search prove fruitless, he "might" stay. The formica shop
worker told Manager Pinedo's secretary, the next day,
that he was taking a 2-week vacation; he never returned
to work thereafter
On July 31, 1980, Respondent Crest's formal contrac-
tual commitments, with particular reference to that firm's
formica shop fabrication workers, defined within the
Orange County Mill Cabinet Agreement, previously
noted, with respect to which Crest had previously
become privy, ceased, consistently with the firm's May
19 letter, giving notice to Complainant Union and Local
2172 of Crest's intention to close out their collectively
bargained relationship, on the designated contract's ter-
mination date.
Consequent upon their Mill Cabinet Agreement's July
31 expiration, Respondent Crest's contributions to Local
2172's several contractually defined Trust Funds, specifi-
cally on behalf of the firm's several formica shop
"inside" plastic countertop fabricators, were promptly
suspended
Within his second amended consolidated complaint,
the General Counsel charges that Respondent Crest's
management, further, modified several personnel policies,
work rules, fringe benefits, and conditions of employ-
ment for these "inside" workers, subsequent to August 1.
These contentions, and the General Counsel's testimonial
proffers with respect thereto, will be considered subse-
quently, within this decision
The record warrants a determination, which I make,
that no fringe benefit contributions for Respondent
Crest's formica shop fabricators have been made, since
the date designated
With respect to Crest's concurrent contractual com-
mitments relative to so-called outside construction jobsite
countertop installers, however, developments followed a
somewhat different course.
Sometime during July 1980, never specified for the
record, Carpenters Union negotiations with several
Southern California contractors associations, looking
toward a revised Master Labor Agreement which would
cover construction workers providing specified services
within 11 designated Southern California counties, had
produced a contractual consensus. This resultant agree-
ment, drafted to replace the multiemployer 1977-1980
Master Labor Agreement previously noted, provided a
July 1, 1980 effective date, with a July 15, 1983 termina-
tion date, and contained provisions for automatic "year
to year" renewals thereafter. Crest, which had, as previ-
ously noted, signed a February 17, 1978 memorandum
agreement, whereby it had become committed to comply
with the 3-year 1977-1980 Master Labor Agreement's
terms, had not served Complainant Union with timely
notice of its desire to close out its contractual commit-
ments with regard to jobsite countertop installers under
the February 17, 1978 memorandum agreement, concur-
rently with the expiring Master Labor Agreement's
scheduled June 15, 1980 termination date.
So far as Complainant Union was concerned, there-
fore, Respondent Crest remained committed to comply
with the renegotiated Master Labor Agreement's terms,
for that agreement's newly defined 1980-1983 term. The
positions taken by the parties with respect to Crest's pur-
ported contractual obligations, if any, bottomed specifi-
cally on the renegotiated Master Labor Agreement, will
be considered, subsequently, within this decision.
Further, Crest's management-which had, sometime
during the period now in question, transferred its plastic
operations department's three "outside" countertop in-
stallers to Pacific Sun's payroll-had not, concurrently,
notified Complainant Union, or Local 2172 specifically,
that it no longer employed such countertop installers,
who would presumptively be covered by the new Master
Labor Agreement's terms.
Likewise, Pacific Sun, which, of course, had never
since its comparatively recent formation, signed any
memorandum agreement whereby Respondent Buckley
might be considered committed to comply with Master
Labor Agreement terms, had not dispatched notices of
contract termination to Complainant Union or Local
2172; nor had these labor organizations communicated,
reciprocally, with Pacific Sun, functioning as a sole pro-
prietorship.
Sometime shortly after August 1, 1980, however, Re-
spondent Crest submitted monthly reports directed to
various Carpenters Union Trust Funds claiming that
during July 1980, particularly, Crest had not employed
jobsite countertop installers. No fringe benefit contribu-
tions, purportedly for the benefit of such employees,
were forwarded by the firm. And none have been for-
warded, so far as the record shows, since Crest's August
1980 report
b. Complainant Union's first charge
Shortly prior to these developments on July 23, 1980,
specifically, Complainant Union had filed its first Board
charge (Case 21-CA-19322) against Respondent Crest;
that firm had been charged with "attempting" to termi-
nate their collective-bargaining contract and with "refus-
ing.to bargain" for a new agreement Within an August
19 amended charge, Complainant Union had charged
Crest, further, with threats, coercion, and discrimination
against employees because of their union membership.
Considered in context, these charges clearly derived
from, and were bottomed upon, Buckley's July 23 con-
versation with his firm's formica shop workers, plus his
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 24 conversations with Nordstrom and Robert Mag-
daleno, previously noted herein.
c Subsequent developments
Meanwhile, on August 15, Ervan Osburn and Ernie
Beltran, Local 2172 business representatives, visited Re-
spondent Crest, they presented Buckley with two copies
of a draft "Memorandum Agreement" proffered to re-
place Complainant Union's and Local 2172's recently ex-
pired Mill Cabinet Agreement covering "inside" shop
workers. Copies of the document were then being dis-
tributed to so-called independent shops, not then privy to
Complainant Union's current multiemployer negotiations.
This contact, between Local 2172's business represent-
atives and Respondent Crest's president, however, was
brief The draft memorandum's terms were not discussed.
Osburn and Beltran merely requested Buckley to review
the document; they promised that they would "get back
in touch" with him thereafter.
About August 28, however, Complainant Union's de-
finitive draft proposal for a 3-year multiemployer Mill
Cabinet Agreement was submitted to the Cabinet Manu-
facturers Association, this final draft had been ratified,
presumably by Complainant Union's concerned members,
the previous day According to Business Representative
Osburn, copies of the draft were mailed to all concerned
employers; he testified without contradiction that such a
copy was dispatched, inter alia, to Respondent Crest's
president I so find.
Shortly thereafter, on September 11, Respondent
Crest's president, so the record shows, negotiated a
Board settlement agreement which, purportedly, dis-
posed of Complainant Union's previously filed charges.
Case 21-CA-19322's 8(a)(5) charges, however, were not
resolved, pending further investigation.
On September 23, Business Representatives Osburn
and Beltran again visited Respondent Crest's president.
They notified Buckley that Complainant Union and
Local 2172 had "settled" their 3-year, 1980-1983 agree-
ment with the Cabinet Manufacturers Association, and
that they were there to discuss contract proposals with
respect to Crest's shop fabrication workers
Buckley was asked whether he had reviewed Com-
plainant Union's previously submitted contract proposal;
he reported that he had done so. He was asked, then,
whether he had signed it; Crest's president responded
negatively. When queried regarding his reasons, Buckley
declared, so 1 find, that Respondent Crest would "go
non-union" so far as formica shop fabrication workers
were concerned.
While a witness, Respondent Crest's president con-
tended that, when pressed for his reasons, he had merely
reported his "impression" that some of Complainant
Union's contract proposals would be discussed, that he
had, further, declared his belief that Crest could not
"live" with a number of proposed provisions, and that he
had "assumed" negotiations would be pursued with re-
spect to such matters as health and welfare, pensions,
and fringe benefits. Previously, within this decision, how-
ever, I have found that Buckley had, earlier, made clear
his purpose to maintain "nonunion" conditions, with re-
spect to Respondent Crest's formica shop operations. I
cannot believe, therefore, that he would have dissem-
bled, when queried by Osburn and Beltran directly re-
garding his reasons for failing to sign their proffered con-
tract. His testimonial recapitulation, with regard to their
conversation's course, within my view, merits no cre-
dence.
Respondent Crest's president was asked why he pro-
posed to maintain a nonunion shop, he declared that
Complainant Union's contractually required contribu-
tions for health and welfare, dental benefits, and retire-
ment were too high, coupling this with a comment that
Crest's shop employees had not been "giving" full pro-
duction. According to Osburn, whose testimony within
my view merited credence, Buckley did not review par-
ticular contract proposals; further, I find, he asked no
questions
At some point during their conversation, Crest's presi-
dent declared, so I find, that, while his shop would "go"
nonunion, jobsite work would be handled by unionized
workers. He was asked what would happen with respect
to Crest's countertop installers Replying, Buckley stated,
I find, that Crest would "subcontract" installation work,
or that it "might" form a new company, Pacific Sun, to
perform that function He said nothing, however, calcu-
lated to suggest that Pacific Sun was already a function-
ing enterprise
Finally, when queried with respect to whether he
would "meet" with union representatives and eventually
reach some agreement, Buckley declared that he would
"meet" with Osburn and Beltran, but that he did not
"intend" to negotiate any contractual consensus Beltran
then commented that he thought Complainant Union had
better get its attorneys involved. On this note, their
meeting concluded
Directly thereafter, however, Crest's president tele-
phoned counsel He reported his concern about "possi-
ble" negotiations looking toward a contract for his firm's
inside carpenters, declared his "impression" that he had
been presented with a take-it-or-leave-it proposal, which
he had rejected, and requested legal representation. At
counsel's suggestion, Buckley telephoned Complainant
Union; he declared his current willingness to negotiate
regarding a contract, mentioned his "feelings" that Re-
spondent Crest should not be expected to accept Com-
plainant Union's contract as presented; and finally sug-
gested that a date for their next meeting, during which
negotiations might be pursued, should be determined
On October 9, pursuant to prearrangement, the parties
met. President Buckley and Attorney Richard Pace rep-
resented Respondent Crest; Complainant Union was pre-
sented by Business Representative Osburn, Attorney
Henry Felton, and employee Jess Magdaleno. Counselor
Pace, who had been vested with plenary authority to ne-
gotiate, and to conclude an agreement on behalf of Re-
spondent Crest, was presented with a copy of the con-
tract which Complainant Union and the Cabinet Manu-
facturers Association had recently negotiated Since Pace
had not seen that particular contract previously, he sug-
gested a prompt adjournment, following some general
discussion, with a further meeting to be scheduled after
he had been afforded an opportunity to review Com-
CREST FLOORS & PLASTICS
plamant Union's contract proffer. The union representa-
tives agreed
Pursuant to consensus, the parties met on Friday, Oc-
tober 17, again Buckley and Pace represented Respond-
ent Crest Business Representatives Osburn and Beltran,
Counselor Fenton, and Jess Magdaleno were present as
Complainant Union's spokesmen Pace, so his credible
testimony shows, reviewed the Union's proposed con-
tract provisions, section by section Some provisions
were rejected Some were set aside for further consider-
ation, or characterized as unnecessary Others were ten-
tatively designated acceptable, pending a final "agree-
ment" which would compass a complete contractual
consensus. Respondent Crest's negotiator, however, pre-
sented no counterproposals
While a witness, Counselor Pace did testify, credibly
within my view, that Crest's president and he had pre-
pared a complete "economic" proposal, during a brief
caucus, which they had been prepared to present. The
attorney was notified, however, that Buckley had misin-
formed him regarding Respondent Crest's currently re-
quired pension plan contributions. Since that misinforma-
tion had affected Pace's dollars and cents calculations,
and had necessarily influenced the nature and scope of
Respondent Crest's draft economic proposals, the attor-
ney had requested time to revise his calculations, and re-
assess his client's position relative to economic matters.
The union negotiators had acquiesced.
When Pace reached the provisions, within Complain-
ant Union's proposal, which dealt with "shop" workers
who might be required to perform "outside" jobsite
work, Buckley declared, so Osburn testified, credibly
and without contradiction, that he "thought" he had,
previously, terminated the contract or contracts which
covered "outside" countertop installers. However, Com-
plainant Union's counsel Fenton thereupon produced a
Master Labor Agreement copy. Buckley was reminded
that the recently terminated 3-year Southern California
Master Labor Agreement, which covered construction
jobsite workers, had provided for a different termination
date (June 15, 1980) than Crest's prior Mill Cabinet
Agreement commitment, that Respondent Crest had not
dispatched any timely notice specifically calculated to
terminate its February 17, 1978 memorandum agreement
commitment to comply with the Master Labor Agree-
ment then in force and, likewise, with successor con-
tracts; and that Buckley's firm, therefore, was still bound
to comply, within Complainant Union's view, with
newly renegotiated (1980-1983) Master Labor Agree-
ment requirements, whenever construction jobsite work
was being performed. Respondent Crest's counsel, there-
upon, declared that he would review his client's contract
situation
With matters in this posture, the parties recessed their
collective-bargaining session. October 22 was designated
as the date on which they planned to reconvene.
d. The employee petition
On Wednesday, October 15, Bob Reynolds, then a ce-
ramic tile layer working in Respondent Crest's floor de-
partment, had prepared a draft petition, for which he had
subsequently solicited signatures from "everybody"
1239
within the firm's worker complement. The document had
been headed, simply, with a declaration that-
THE FOLLOWING EMPLOYEES NO
LONGER WANT TO BE REPRESENTED BY
THE LOCAL CARPENTERS UNION
Within a 2-day period, the tile layer had procured 12 pe-
tition signatures On Monday morning, October 20, 1
find, he laid the document on President Buckley's desk;
however, Respondent Crest's president-so his credible,
undemed testimony shows-was not present, at the time
Buckley's proffered recollections warrant a determina-
tion, which I make, that he did not see it until sometime
later that day, clearly following the October 17 collec-
tive-bargaining session previously noted.
When he testified, herein, Reynolds had worked for
Respondent Crest for slightly more than 3 years; howev-
er, so far as the record shows, he had not worked in
Crest's formica shop, save for a brief period of service
some 18 months before his witness-chair appearance.
His testimony would date Reynolds' limited service,
concerned with countertop fabrication, some 6 months
pior to his petition's October 1980 circulation.
The tile layer is President Buckley's cousin, however,
he testified, without challenge or contradiction, that he
had not discussed his decision to prepare or circulate any
sort of petition beforehand with Respondent Crest's
president or any departmental supervisor. On this record,
no contrary determination could be considered warrant-
ed.
When Reynolds commenced his solicitation of possible
petition signatures, he knew, so I find, that the particular
collective-bargaining relationship which was currently
"up in the air" concerned formica shop workers previ-
ously represented by Carpenters Union affiliates. Never-
theless, the tile layer, despite his current job classification
within a Crest departmental unit which no Carpenters
Union local had ever claimed to represent, and despite
his conceded failure to procure, or maintain, Carpenters
Union membership, had solicited signatures calculated to
demonstrate that organization's loss of representative
status. Concededly, he had discussed the petition with
numerous fellow workers, whether they were "formica
side" or "carpet side" employees, while limiting his
direct solicitations, however, to those who presumably
might want to sign.
Among those solicited by Reynolds, I find, were two
plastic countertop "finishers" who had been hired, subse-
quent to August 1, as trainees.
One, Tom Bright, recalled two conversations with the
tile layer on Friday, October 17. Before work, on that
date, Reynolds had suggested, so Bright testified, that
there was "some kind of deal" whereby those who
signed a petition to reject union representation would get
a raise every 6 months, or "something like that." The tile
layer had not, however, produced his purported petition;
Bright had declared, during their conversation, that he
would not sign. Later, during the formica shop's morn-
ing break, so the finisher recalled, Reynolds had, further,
tried to persuade a group of some seven or eight shop
workers to sign his petition. Inter alia, the tile layer had
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declared, so Bright testified, that Crest's owner would
rather close the firm's doors than go union. However,
Reynolds, again, had not displayed or produced his peti-
tion. None of his listeners had signed.
With respect to Reynolds' October 17 morning "break
time" solicitation , Larry Nordstrom and Ramon Torres
testified corroboratively, that the tile installer 's several
listeners were told, inter alia, that should Respondent
Crest's concerned workers fail to sign a petition rejecting
union representation, Buckley would close "the whole
place" down, and that Reynolds would lose his job,
along with Crest's shop workers Nordstrom, however,
had seen no petition form; concededly he had signed
none.
Respondent Crest's second finisher trainee, Don
Hudson, likewise recalled two conversations with Reyn-
olds, regarding the latter's proposed petition. He, too, re-
called, inter alia, statements by Crest's tile installer,
during a conversation at Hudson's home, that, should
their shop "go" union, the firm's owner would close it,
so that they would "all" lose their jobs. When queried
regarding Reynolds' further solicitation , previously
noted, during the formica shop's October 17 morning
break period, however, the countertop finisher recalled,
merely, that Hudson had, then, disclaimed any personal
"opinion" with regard to union representation, he con-
tended that he had not been working for Crest long
enough, and did not know what was going on
Summoned as Crest's witness, Reynolds conceded that,
during a conversation with Bright, he had stated "[his]
own points" with regard to the desirability of union rep-
resentation , he denied, however, proferring any sugges-
tion that petition signers would get raises every 6
months, or that some "package deal" would be provided
for them The tile installer, further, conceded conversa-
tional references to rumors "going around" Crest's plant
that Buckley would shut the facility's doors; however, he
denied starting any such rumor, and denied, further, that
he had "expressed a view" regarding the rumor's accura-
cy
On this record, considered in totality, Reynolds' prof-
fered recollections with regard to his campaign for peti-
tion signatures, within my view, carry no persuasion
Both Hudson and Bright testified forthrightly. When he
testified Hudson was still in Respondent Crest's employ;
this Board has, frequently, found testimony by currently
employed workers, when presumptively contrary to their
employer's proclaimed interest, particularly worthy of
credence. Both Torres and Bright, though terminated
since by Crest, have proffered testimony which Nord-
strom, still with the firm, corroborates. On this record, I
find their testimonial recitals believable; whether Reyn-
olds' remarks, however, may properly be deemed
chargeable to Respondent Crest will be considered, sub-
sequently, within this decision.
When queried, finally, regarding his petition's specific
signers, Reynolds conceded, readily, that no more than
three were, at the time, presumptive formica department
workers, while seven of the remaining nine were, so far
as he knew, either carpet or tile installers
Respondent Crest's payroll records, which President
Buckley, while a witness, could neither interpret nor de-
scribe with confidence, suggest, however, that 4 of the
petition's 12 signers were then classified as floor cover-
ing or tile installers; that 2, during October 1980 particu-
larly, were classified as warehousemen, rather than
craftsmen, who, upon occasion, might have handled for-
mica shop materials, and that 3 held positions which
none of Respondent Crest's witnesses could identify.
During October 1980, Respondent Crest's working for-
mica shop crew, so the record shows, compassed five
craft employees with substantial seniority. Jess Magda-
leno, Ramon Torres, David Magdaleno, Larry Nord-
strom, and Steven Gonzales; plus five craft workers with
August-September 1980 hire dates. B. Cyrtner, G. L
Askins, C. R. Wharton, Tom Bright, and Don Hudson.
None of these formica shop craftsmen, however, had
signed Reynolds' petition.
The three petition signers whom the tile installer had,
so he testified, considered current formica shop employ-
ees, Pat Buckley, P Morrell, and B R Baker, were
really workers whose contacts with countertop fabrica-
tion work had been sporadic or who had previously been
transferred. Pat Buckley, President Buckley's brother,
was a high school student who had, previously, worked
part time in Respondent Crest's formica shop. Morrell,
who had been hired in January 1980 had never, thereaf-
ter, been considered qualified for fringe benefit contribu-
tions, within Respondent Crest's monthly Carpenters
Union Trust Fund reports, presumably because he had
never actually worked in the shop, or had never worked
a sufficient number of hours in contractually covered
formica shop employment. Baker, who had, likewise,
been hired during January 1980, had, indeed, been listed
on Crest's formica shop trust fund reports. The firm's
final report submissions, however, had revealed his ter-
mination, or possible transfer to noncovered work, on
June 18; he had not been listed on the firm's last report,
which had covered whatever July 1980 services formica
shop workers had performed.
With matters in this posture, Reynolds' petition, so I
find, could hardly have been considered reliable, substan-
tial, or persuasive evidence that a majority of Respond-
ent Crest's formica shop workers no longer desired union
representation
e Respondent Crest withdraws recognition from
Complainant Union
Confronted with Reynolds' proffered petition, some
time on Monday, October 20, Respondent Crest's presi-
dent, so his testimony claims, nevertheless formed a pur-
ported "belief' that 6 of the document's 12 signers, who
had theretofore performed some services "related to"
formica shop work, constituted a majority of that depart-
ment's current employees He promptly telephoned At-
torney Pace, reported the petition's receipt, and declared
his belief that some of its signers represented a majority
of Crest's formica shop workers
On the basis of President Buckley's October 20 tele-
phone report, Pace dispatched a mailgram, with a con-
firmatory, followup letter, notifying Complainant Union
that Respondent Crest currently had a reasonable doubt
with regard to that organization's continued majority
CREST FLOORS & PLASTICS
representative status, and would no longer recognize or
deal with it, as the collective-bargaining representative of
the firm's so-called inside carpentry workers. Their pro-
spective contract negotiating session, previously sched-
uled for Wednesday, October 22, was canceled.
On the latter date, Complainant Union's second Board
charge herein, docketed as Case 21-CA-19662, was filed
Respondent Crest was charged with a refusal to bargain.
No contract negotiations , specifically concerned with the
wages, hours, and working conditions of Respondent
Crest's plastic countertop fabricators, have been conduct-
ed since their October 22 session's cancellation.
f. Changes in wages and working conditions
1 Inside carpentry workers
Within his second amended consolidated complaint,
the General Counsel charges that, subsequent to August
1, 1980, Respondent Crest changed the terms and work-
ing conditions of formica shop fabrication employees,
without prior notification to, or bargaining with, Com-
plainant Union or Local 2172 particularly by.
[D]iscontinuing its contributions to certain pension,
health and welfare , and other trust funds . . . elimi-
nating paid holidays, changing its sick leave policy,
limiting plant visitations by representatives of the
Union, discontinuing its practice of following se-
niority in selecting employees to be laid off, and
lowering rates of pay for certain jobs . .. .
Herein, Respondent Crest's discontinuance of fringe ben-
efit contributions, for the benefit of formica shop work-
ers covered by the Mill Cabinet Agreement which had,
prior thereto, been terminated , has been conceded,
Crest's responsive claim that, nevertheless, such a discon-
tinuance , following the designated agreement 's termina-
tion, was privileged and will be considered, subsequent-
ly, in this decision Within their joint answer , however,
Respondents Crest and Buckley have denied that any
further unilateral changes in wage rates or terms and
conditions of employment, properly subject to proscrip-
tion as unfair labor practices, were concurrently effectu-
ated.
The record, with respect to some of the General
Counsel's charges in this connection, stands without
challenge or contradiction. However, with respect to
other questions raised by the General Counsel' s presenta-
tion , the proffered evidence can hardly be considered
sufficient to warrant definitive conclusions . In that
regard.
First, two of five formica shop workers hired by Crest
after August 1, Tom Bright and Don Hudson Jr testi-
fied, credibly and without contradiction, that they were
hired as trainees , receiving a starting wage rate ($4.50
per hour) less than the terminated Mill Cabinet Agree-
ment 's defined scale
Second, the General Counsel's several witnesses testi-
fied, rather inconsistently, with regard to Respondent
Crest's vacation policy. Ramon Torres claimed that his
yearly paid vacation allowance had been reduced from 3
weeks to 2 weeks; Larry Nordstrom recalled, however,
1241
that no more than 2-week paid vacations had been grant-
ed, consistently, before the contract's termination and
likewise thereafter. Hudson reported that, subsequent to
his September 1980 hire, he could qualify for no more
than 1-week paid vacation, yearly; Jess Magdaleno
claimed, generally, that Respondent Crest's vacation
policy had been modified, but provided no details
Third, with respect to Crest's paid sick leave policy,
the General Counsel's witnesses again provided some di-
vergent testimony. Torres and Jess Magdaleno, both, re-
ported that, subsequent to August 1, no paid sick leave,
whatsoever, was available
According to Magdaleno, whose testimony was, in
part, corroborated by Torres, Respondent Crest had,
previously, granted formica shop workers 6 days of paid
sick leave annually with any days not used, within a des-
ignated 12-month period, credited as separately compen-
sable days thereafter.
Nordstrom, Hudson and David Magdaleno testified,
however, that Respondent Crest continued to grant shop
workers paid sick leave, limited to 5 days yearly.
Fourth, the General Counsel's witnesses, likewise, prof-
fered variant recollections regarding certain changes pur-
portedly effectuated with respect to Crest's holiday pay
policy. Everyone testified, and President Buckley con-
ceded, that Crest's formica shop workers were not paid
for their Labor Day 1980 holiday
The parties have stipulated that Complainant Union
susbequently demanded Labor Day holiday pay for
Crest's inside carpentry workers "in accordance with the
contract," and that Respondent Crest refused, basing its
position on the fact that its contract with Complainant
Union had been terminated.
While a witness, Ramon Torres contended that Re-
spondent Crest, thereafter, recognized none of the five
specified holidays for which shop workers had, thereto-
fore, been paid The General Counsel's further witnesses,
however, recalled various nonwork holidays for which,
so they thought they had, indeed, received pay. Don
Hudson Jr testified that he had received holiday pay for
Labor Day 1981 among other days Employees Bright,
Nordstrom, and David Magdaleno claimed that they had
received no pay for the Friday following Thanksgiving
Day 1980, scheduled as a nonwork day for which com-
pensation was supposed to be payable, consistently with
the terms of the recently terminated Mill Cabinet Agree-
ment None of their fellow workers, however, were
queried with respect thereto; relevant payroll records
kept by Respondent Crest, which conceivably might
have resolved doubts in this connection, were neither
produced for inspection, verbally summarized, or prof-
fered for the record herein.
Confronted with this testimony, Respondent Crest's
president, when subsequently queried directly, denied
that his firm's vacation pay, sick leave, and holiday pay
policies, for formica shop workers, had been changed,
following the Mill Cabinet Agreement's termination
When cross-examined, however, Buckley finally conced-
ed that, within a previous sworn statement, he had,
indeed, reported the August 1, 1980 effectuation of some
"different" holiday pay, vacation, and sick leave pay
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policies, which were not based on Complainant Union's
contract Respondent Crest's president, then, proffered a
purported explanation for his patently inconsistent state-
ments, he contended that his sworn prehearing affidavit
had pertained, particularly, to Crest's currently em-
ployed, nonunion, floor covering installers, those who
had replaced the firm's unionized workers, represented by
Local 1247 of the Painters and Decorators Union, who
had previously been transferred to Pacific Sun's payroll
On this record, Buckley's bare, unsupported denials
with respect to Crest's reported postcontract changes af-
fecting vacation, sick leave, and holiday pay policies for
formica shop workers, within my view, carry no persua-
sion The General Counsel's presentation relative to Re-
spondent Crest's policy changes, however, will support a
determination, merely, that some modification of condi-
tions was effectuated. Save in several limited respects,
the General Counsel's witnesses have provided no con-
sistent, mutually corroborative, or persuasive testimony
sufficient to justify findings with regard to precisely
what those modifications amounted to Should a determi-
nation be found warranted, therefore, that Buckley's
course of conduct really involved proven unfair labor
practices, the nature and scope of reparation which
might be required would have to be determined in fur-
ther proceedings.
(2) Outside installers
Within her brief, the General Counsel's representative
contends that President Buckley, by his failure to give
proper, timely notice of Respondent Crest's intent to ter-
minate its contractual commitments, pursuant to Com-
plainant Union's 1977-1980 Master Labor Agreement,
became bound to comply with that agreement's negotiat-
ed 1980-1983 replacement contract Accordingly, the
General Counsel's representative charges, Crest commit
ted unfair labor practices when it concededly discontin-
ued contributions, on behalf of the firm's three "outside"
countertop installers, which had previously been for-
warded to various construction worker trust funds main-
tained pursuant to Complainant Union's designated 1977-
1980 Master Labor Agreement, and that document's ne-
gotiated successor contract
Confronted with President Buckley's claim that Crest's
countertop installers had, some time prior to August 1,
1980, never specified, been transferred to Pacific Sun's
payroll, and that Respondent Crest, therefore, no longer
employed workmen for whom contributions to Master
Labor Agreement trust funds might be required the Gen-
eral Counsel's representative contends, herein, that Crest
and Pacific Sun, because of their functional interrelation-
ship, should be considered a single employer, Respond-
ent Buckley, therefore, should be considered bound to
comply, so the General Counsel's representative claims,
with the terms and conditions of Complainant Union's
currently viable Master Labor Agreement, for its stated
1980-1983 term, by which Respondent Crest was pre-
sumptively bound
Basing her position on these legal premises, the Gener-
al Counsel's representative seeks a determination herein
that the conceded failure and refusal of Respondents
Crest and Buckley to continue health and welfare and
pension fund contributions, or other trust fund payments,
on behalf of their jobsite countertop installers , which the
negotiated 1980-1983 Master Labor Agreement requires,
pursuant to unilateral decisions reached without notice
to, or consultation with, Complainant Union herein,
should be considered violative of law.
Respondents Crest and Buckley do not dispute the
General Counsel's charge that Crest's trust fund contri-
butions have been suspended, and that Pacific Sun has
never formally submitted such contributions pursuant to
Master Labor Agreement commitments. Their responsive
pleas, namely, that their failure to provide such contribu-
tions flouted on contractual or statutory mandate, will be
considered within this decision.
Further, however, the General Counsel's representa-
tive contends that, since their transfer to Pacific Sun's
payroll, the countertop installers have been deprived of
some other fringe benefits . Installer John R. Gonzales
testified, badly and without proferring circumstantially
corroborative details, that he no longer received holiday
pay, and that he was likewise denied paid sick leave.
The countertop installer did not report that his vaca-
tion pay benefits had not been affected by his transfer to
Pacific Sun's payroll. However, so his testimony shows,
he currently receives his vacation pay, directly, from
Mary Curson, Manager Pinedo's assistant, rather than
from a separate vacation benefit trust fund.
While a witness, Respondent Buckley claimed, con-
trariwise, that when Crest's countertop installers were
transferred to Pacific Sun's payroll they were told that
he "intended" to sign a contract with Complainant
Union, covering that sole proprietorship's jobsite carpen-
try workers, that "all [their] conditions" would remain
unchanged, and that he had seen no reason to change
those working conditions
Though, previously herein, Respondent Buckley has
not been considered a thoroughly credible, reliable wit-
ness, the record, considered in totality, with regard to his
treatment of Crest's transferred countertop installers,
within my view, merits qualified credence And, since
Gonzales' testimony, that he and his fellow installers
have, since August 1, 1980, been deprived of paid sick
leave and holiday pay, compasses no persuasively rele-
vant circumstantial details, and stands, herein, without
corroborative documentation. That testimony, when
compared with Buckley's clearly intended contradiction,
presents a record basically in equipoise With respect to
her contentions, in this particular regard, the General
Counsel's representative, of course, carries the burden of
proof Herein, that burden, within my view, has not been
preponderantly sustained Though Crest's transferred
countertop installers have, clearly, been deprived of their
contractual health and welfare benefit coverage, and,
likewise, their contractually defined right to maintain re-
tirement plan participation, I find no further determina-
tions warranted, upon this record, that they have further
been unilaterally deprived of sick-'leave and holiday pay
privileges
CREST FLOORS & PLASTICS
g. Claimed interference, restraint, and coercion
At some time never specified for the record but, subse-
quent to Buckley's July 23 conversation, previously
noted, with Respondent Crest's formica shop workers,
Plastic Operations Manager Pinedo's departmental assist-
ant Mary Curson, so I find, had asked Jess Magdaleno
and Ramon Torres, concededly, however, during casual
worktime conversations, what they were planning to do
now that Crest's formica shop would become, or had
become, a nonunion operation. Torres replied, so his
credible, uncontradicted testimony shows, that, since he
would be losing too many benefits, he would resign and
seek regular work with some other formica fabrication
shop Magdaleno, who had likewise been, separately,
plied with several such queries, had declared, I find, that
he would "take his chances" waiting to see whether the
shop's operations would "go [non?] union" but would
not look for another job until that happened
Previously, within this decision, Respondent Crest's
formal concession, with respect to Curson's supervisory
and statutory "agency" status has been noted And coun-
sel's belated motion to withdraw that concession has
heretofore been rejected Whether Curson's concededly
casual queries, however, really merit characterization as
statutorily proscribed interrogation, chargeable to Re-
spondents herein, will be discussed subsequently within
this decision.
While a witness, Torres reported, further, that, con-
trary to Respondent Crest's prior permissive policy, he
was not, subsequent to August 1, allowed to use the
firm's telephone; the shop fabricator's testimony, in this
connection, stands in the record without dispute
Prior to Respondent Crest's July 31, 1980 termination
of Complainant Union's Mill Cabinet Agreement, previ-
ously noted, Business Representative Osburn had, occa-
sionally, conferred with Crest's formica shop workers,
during working hours, within the firm's facility; he had
never, so his credible testimony shows, been denied plant
access. During a September 1980 plant visit, however,
Plastic Operations Manager Pinedo told the business rep-
resentative, so the latter credibly testified, that he should
no longer seek to confer with Crest's formica shop work-
ers during their working hours.
While a witness, Pinedo claimed that, pursuant to
President Buckley's request, he had, merely, requested
Complainant Union's business representative to solicit
opportunities for working time consultations with Jess
Magdaleno through Respondent Crest's front office. The
plastic operations manager testified that Osburn had been
told Magdaleno would be summoned from the firm's
shop, whenever discussions with him were desired. With
particular reference to this matter, Complainant Union's
representative impressed me as credible, Pinedo's sani-
tized version of their conversation, within my view, car-
ries no persuasion.
Despite Pinedo's directive, I find, Osburn continued to
meet with Respondent Crest's formica shop workers. His
testimony, proffered with Business Representative Bel-
tran's corroboration, warrants a determination, which I
make, that both union representatives met with Crest's
countertop fabricators, on three occasions at least, within
the confines of their working day, foregathering in Re-
1243
spondent Crest's parking lot nearby. Developments with
respect to Complainant Union's never-relinquished claim,
that it was still entitled to function as their collective-
bargaining representative, were reported According to
Jess Magdaleno, these repeated parking lot conferences
could be "seen" from vantage points within Crest's facili-
ty Magdaleno testified that Pinedo had seen several, and
that one had been observed by Respondent Crest's presi-
dent. While a witness, Buckley denied that he had ob-
served any parking lot meeting, his denial, within my
view, carries no persuasion
3 Demotions and discharges
a Jess Magdaleno's demotion
Subsequent to Respondent Crest's decision to continue
countertop fabrication without union contract coverage
for the firm's formica shop workers, Jess Magdaleno,
designated as Crest's shop "foreman" throughout the
present record, was demoted The General Counsel
charges that his demotion was discriminatorily motivat-
ed
Magdaleno had been employed by Respondent Crest
since its corporate formation. His testimony reveals,
without contradiction, that he had been engaged as
Crest's formica shop foreman and that he had been serv-
ing continuously in that capacity since his hire, save for
a single year (1970-1971) and a 3-week August 1980
period during which Employee H. Hoogerbrugge had,
nominally, held the position
Though designated as the formica shop' s foreman,
throughout the record herein , Jess Magdaleno does not
appear to have been vested with discretionary superviso-
ry authority sufficient to warrant a conclusion that he
functioned as something more than a regular workman,
statutorily protected. None of the parties, herein, cur-
rently contend that he was a supervisor, within the
meaning of the Act. On this record, I find that he merely
functioned, as Crest's senior shop worker rather than as a
leadman
On November 5, 1980, Plastic Operations Manager
Pinedo held a shop meeting, however, during which he
announced that Jess Magdaleno would no longer be re-
sponsible for the distribution or routing of shop work
orders Steven Gonzales, who had been newly hired
slightly more than a year previously, was designated as
his replacement. Crest's plastics department manager,
however, cited no reasons for this change.
Magdaleno was retained as Crest's countertop finisher,
his wage rate, however, was reduced from $9.54 to $8.94
per hour
The record, considered in totality, will support a de-
termination, which I make, that Pinedo had, previously,
upon occasion, discussed formica shop production with
Magdaleno, the shop "foreman's" testimony, which I
credit in this connection, will support a factual finding,
however, that he had never been told his work record as
Crest's putative shop supervisor was considered defi-
cient; nor had he ever been told that, should the shop's
production fail to improve, he would be demoted When
Magdaleno protested that a younger worker, such as
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gonzales, lacked sufficient experience to run Respondent
Crest's shop , Pinedo replied , so I find, that the replaced
"foreman 's" demotion had not been his decision, he de-
clared that "upstairs" had directed Magdaleno 's replace-
ment . Thereby, he necessarily conveyed a message, I
find, that it was something President Buckley had
wanted
Shortly thereafter , on November 26 specifically, the
Board's Regional Director for Region 21 set aside the
partial settlement , previously negotiated , with respect to
Case 21-CA- 19322, Complainant Union 's first charge
herein
b. Formica shop discharges
During August 1980, following Respondent Crest's
claimed release from its prior Mill Cabinet Agreement
commitments , the firm had hired some five , possibly
more, formica shop workmen . As previously noted, some
of these newly hired workers , none of them union mem-
bers, were being paid below Complainant Union's con-
tract scale
The record herein provides little more than suggestive
evidence regarding the identity of all those hired, or
their respective periods of service . Crest's payroll
records warrant determinations , merely, that four men
were taken on with August 1980 starting dates: Brian
Curtner, G. F. Askins, C. R Wharton , and Tom Bright.
On September 4, Don Hudson was hired.
While a witness , Manager Pinedo claimed that these
workers had been engaged , not because their productive
services were required , but because he had heard
"rumors" that subsequent to the Mill Cabinet Agree-
ment's termination there might be a strike
Nothing within the record would warrant determina-
tions, now , with regard to how long Askins and Whar-
ton worked , Crest's payroll records reveal , merely, that,
as of January 16, 1981, new hires Curtner , Bright, and
Hudson were still in Respondent Crest's employ
On Friday , January 16 , 1981, Shop "Foreman" Gon-
zales failed to report for work . When Pinedo, who was,
then , scheduled to visit a construction jobsite, was ready
to leave, Jess Magdaleno reported that there was
"nobody" present who was currently authorized to
direct shop production ; Magdaleno was thereupon re-
quested, I find , to get the shop's work started. The
record, considered in totality , warrants a determination,
which I make, that Larry Nordstrom was, thereupon,
given some work tickets for routine jobs, which the
shop's fabricators proceded to handle for a Woodhaven
housing tract Shortly after noon, however, Departmen-
tal Secretary Curson, I find, relayed a telephone direc-
tive from Pinedo that the shop 's work on Woodhaven
countertop "units" should be set aside, and that some
specifically designated countertop "units" for a Socaland
tract should be fabricated.
According to Magdaleno , these particular countertops
then , had to be cut to size, painted , and laminated, from
scratch.
When the shop crew had the required number of So-
caland countertops "lined up" on saw horses , Magdaleno
queried Curson regarding the precise size of the sink
holes which would have to be cut within each of them,
she declared that she would have to telephone Pinedo
for that information . At that point , Magdaleno learned,
so he testified , that a properly sized template , required to
provide shop workers with guidance, for the sink hole
cutting operation which remained to be done, could not
be located His testimony establishes that, with matters in
this posture , Magdaleno determined , within his discre-
tion , to set aside Pinedo's required Socaland tract "units"
and resume work on the Woodhaven tract order, which
had been, temporarily , set aside earlier that day.
According to Magdaleno , Departmental Secretary
Curson was told that he planned to complete work on
the necessary Socaland sink hole cuts on Monday morn-
ing, January 19; while a witness , the workman reported
his expectation that the countertops which Pinedo re-
quired could then be completed , seriatim , sufficiently
early that day to permit Respondent Buckley's installers
to load them on trucks for transportation to their tract
jobsite during two successive early morning trips.
When Pinedo returned to Crest's shop, he learned that
some 14 sink holes for Socaland 's countertops had not
been cut, reportedly because the template required had
not been located. The plastics department manager,
whose testimony I credit in this particular connection,
became "very upset" because he believed that the shop
crew's Friday failure to complete Socaland 's countertop
order would cause a chain reaction of construction
delays, within the forthcoming week, for which Crest
would be held responsible.
Crest 's formica shop employees , however, had by then
"punched out" and gone home . At 5:30 p. m., approxi-
mately, Pinedo directed Secretary Curson to telephone
the shop's workers ; she was instructed to tell them they
were laid off for lack of work , and that they should not
report for further work until notified regarding their
recall
Thereupon, so Pinedo testified , he, personally , cut the
required sink holes, and completed Crest's work on So-
caland's order . He could not recall whether he had
"found " the necessary template, or had made one him-
self. While a witness , he claimed that the sink hole cut-
ting operation had merely taken him one-half hour.
On Monday , January 19 , as Crest's departmental man-
ager reported , he called back five shop workers Jess
Magdaleno , David Magdaleno , Ramon Torres , and Tom
Bright, however , were not recalled.
When queried with respect to his recall decision,
Pinedo testified , initially, that the crewmembers sum-
moned weie the "only" workers , within his view, who
had been trying to maintain acceptable production levels.
Subsequently , however, Crest's plastic operations manag-
er declared that Jess and David Magdaleno , Torres, and
Bright were not "laid off ' or "fired" for failing to main-
tain acceptable overall production on Friday , January 16;
he testified , rather, that-
I laid them off because they didn 't cut the sink
holes in those tops for that day [I did] not [lay
them off] for not finishing the tops that day for the
next day [Interpolations supplied to promote clar-
ity]
CREST FLOORS & PLASTICS
On Wednesday morning, January 21, Jess and David
Magdaleno, who had not received recall notices, re-
turned to Crest's formica shop, on their own initiative,
prepared to resume work. Six crewmembers, so Jess
Magdaleno credibly testified, were already working.
Pinedo would not permit them to "punch in" however,
he told both men that there was no work for them, and
that they had been laid off. The department manager
suggested that both men should file unemployment com-
pensation claims; he declared, so Jess Magdaleno testi-
fied, that, when Crest got more work, they would be
called back None of the four countertop fabricators ter-
minated, however, have since been recalled
4. Respondent Buckley's countertop installers
Within this decision references have been made to Re-
spondent Crest's August 1980 suspension of monthly
contributions to various Carpenters Union trust funds,
specifically on behalf of the firm 's three "outside" coun-
tertop installers Since they had been putatively trans-
ferred to Respondent Buckley's payroll , Crest reported,
so the record shows, that it no longer employed work-
men for whom such contributions , pursuant to Master
Labor Agreement provisions , could be considered re-
quired.
At some time, subsequent to August 1 presumably,
John R. Gonzales , Crest's former countertop installer,
currently on Respondent Buckley's payroll , received a
letter from the Carpenters Union trust funds ; he was no-
tified, so his testimony shows, that , since monthly contri-
butions were no longer being made on his behalf, he
would no longer be considered "eligible" for health and
welfare benefits , or continued retirement plan coverage.
Concerned about this development , Gonzales consult-
ed Pacific Sun's proprietor Buckley told him, substan-
tially, that functioning on behalf of Pacific Sun, he had
sought contract negotiations with Complainant Union,
which would restore and maintain fringe benefit cover-
age for the countertop installers , but that Complainant
Union's representatives had not been receptive to his
suggestion Gonzales was then referred to Richard Pace,
Buckley's counsel About November 13, Pace advised
him that, since Pacific Sun had "tried " to submit trust
fund contributions for its newly transferred installers,
which had not been accepted , his current employer
could do nothing further . He suggested that Pacific Sun's
three installers should, personally , solicit union represen-
tation as Pacific Sun employees.
On November 21, Gonzales , his son, and Gary Hoff-
man visited Complainant Union's headquarters ; there,
they conferred with Business Representative Osburn and
William Pendleton , Complainant Union's administrative
officer With respect to their conference 's general tenor,
Gonzales, Osburn , and Pendleton testified , at consider-
able length.
Their somewhat divergent , but generally consistent,
recollections , synthesized and reconciled for summariza-
tion within this decision, will, within my view , warrant
determinations first, that the three countertop installers
reported they were no longer being paid by Respondent
Crest, but were, instead, listed on Pacific Sun's payroll,
second, that the Complainant Union's representatives
1245
were, further, notified with regard to Respondent Buck-
ley's claims, conveyed to his firm's installers, that Pacific
Sun was currently setting aside sums calculated to cover
the monthly trust fund contributions which their contin-
ued fringe benefit coverage would require, but that Com-
plainant Union's trust funds, however, had "refused to
accept" such fringe benefit contributions, proposed for
submission in Pacific Sun's name, and that Pacific Sun
would, therefore, hold these sums segregated for eventu-
al remittance, should Complainant Union subsequently
negotiate a contract covering their wages, hours, and
working conditions, with Buckley's sole proprietorship,
third, that the three countertop installers, since they de-
sired continued fringe benefit coverage, were requesting
Complainant Union to reaffirm or reinstate their mem-
bership, to represent them for collective-bargaining pur-
poses, and to negotiate a contract with Pacific Sun, their
nominal current employer, forthwith
Essentially, Gonzales, his son, and Hoffman were, so I
find, told. first, that, despite their reportedly changed
status, Complainant Union considered Respondent Crest,
still bound to comply with the renegotiated Master
Labor Agreement for its newly defined 3-year term;
second, that Crest's failure to submit monthly contribu-
tion reports, listing them as contractually covered con-
struction jobsite workers, violated that firm's ongoing
contractual commitments; third, that Complainant Union
was still their collective-bargaining representative, de-
spite their putative transfers to Pacific Sun's payroll;
fourth, that, however, trust funds established and main-
tained, pursuant to Master Labor Agreement provisions,
which would accept Respondent Crest's remittances,
could not, legally, accept fringe benefit contributions,
forwarded specifically in Pacific Sun's name, since Re-
spondent Buckley's sole proprietorship was neither a
Master Labor Agreement signatory, nor contractually
committed to comply with that document's terms; fifth,
that Complainant Union would not negotiate a separate
contract or memorandum agreement with Pacific Sun,
since they did not consider Buckley's putative sole pro-
prietorship a separate firm, distinct from Respondent
Crest herein With matters in this posture, Respondent
Buckley's installers were, so I find, notified that Com-
plainant Union would use "whatever resources [it] had
and [its] command" and take whatever steps it could
possibly take, to remedy their situation, and to restore
their fringe benefit coverage
Gonzales' testimony clearly reveals that, following his
transfer from Crest's payroll to Pacific Sun's roster, he
had subjectively concluded that his loss of contractually
mandated fringe benefit coverage signified his concurrent
loss of union membership, together with a cancellation of
his right to claim union representation. I am, however,
satisfied, with due regard for the record, reviewed in to-
tality, that he and his fellow countertop installers were
still considered union members. Concededly, they were
never given union withdrawal cards
While a witness, Gonzales conceded that he had never
requested Complainant Union's representatives to file a
grievance bottomed upon Respondent Crest's failure or
refusal to continue providing for his contractual fringe
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefit coverage; the countertop i nstaller declared, how-
ever, that had he "known" he could, he would have
done so.
Shortly following his November 21 discovery that Re-
spondent Crest's installers had, indeed, been transferred
to Pacific Sun's payroll, Administrative Officer Pendle-
ton requested representatives of the Master Labor
Agreement Trust Funds to audit Crest's books
That requested audit, conducted on January 6, 7, and
8, 1981, revealed that checks totaling $372,000 had been
turned over to Pacific Sun, by Crest, within the 1979-
1980 period which the review covered. Respondent
Crest's books showed merely that these payments had
been made for "contract labor" never further specified.
The trust funds' auditor, Carl Evans, testified that
Buckley had "said" these Crest payments to Pacific Sun
had not covered work performed by carpentry workers.
When requested, then, to provide Pacific Sun's
records, for further audit review, so that some determi-
nation could be made regarding the specific "contract
labor" for which Respondent Crest had paid, Buckley
suggested, merely, that a second "special" query should
be presented.
Shortly thereafter, specifically on January 13, William
Terpenning, Complainant Union's special representative,
pursuant to Administrative Officer Pendleton's request,
telephoned Respondent Crest's president. Buckley was
told, so the record shows, that Terpenning wanted to
discuss "getting these problems resolved" and "getting
things squared away " However, nothing more specific
was said.
While a witness, Terpenning conceded that his conver-
sation with Buckley had compassed generalities merely.
The word "contract" had not been used ; Pacific Sun had
not been mentioned Nor had any references been made
to trust fund contributions
Their conference was scheduled for January 19.
Within a few days, however, Buckley notified Terpen-
mng that he could not " make" their planned January 19
meeting, on advice of counsel , he promised to call back.
When Respondent Crest's president failed to do so, Ter-
penning, again , telephoned the firm's office. Having been
told that Buckley was not in, he left his name and tele-
phone number Neither Buckley nor anyone else repre-
senting Pacific Sun has communicated with Complainant
Union's representative, since his January 27 telephone
call.
On February 2, 1981, however, Richard Kane, chief
auditor for the Master Labor Agreement trust funds,
telephoned Pacific Sun's sole proprietor When requested
to produce the firm's records for review, Respondent
Buckely claimed, without specifying his reasons , that he
had "no authority" to provide them. He suggested, how-
ever, that trust fund auditors would not be required to
pursue legal action to gain access to Pacific Sun's
records. Alternatively, the firm's proprietor, Buckley, de-
clared his willingness to become bound by Complainant
Union's current Master Labor Agreement, which would
cover Pacific Sun's three countertop installers , trust fund
auditors, he promised, would then be permitted to review
his sole proprietorship's records, back to the firm's July
1979 formation
Chief Auditor Kane, so the record shows, passed this
message to Complainant Union's administrative officer,
so far as he knows, however, Pacific Sun has never been
requested to sign Complainant Union's contract
Within a letter, dated April 10, 1981, which Complain-
ant Union received on April 13, Respondent Crest's
president gave notice regarding his firm's desire to termi-
nate its previously negotiated memorandum agreement
commitment to comply with Master Labor Agreement
terms and conditions, so far as they might affect counter-
top installers working on construction jobsites; Crest's
notice of termination was purportedly, to become effec-
tive on June 15, 1981, the Master Labor Agreement's
forthcoming yearly anniversary date
Buckley's letter, so Complainant Union's administra-
tive office testified, was promptly referred to union
counsel Within a response dated April 14, Respondent
Crest's president was advised that, since the Master
Labor Agreement had been renegotiated for a 3-year
(1980-1983) term, his notice of termination, with a pur-
ported June 15, 1981 date, could not be recognized as
proper or timely, within Complainant Union's view
c. Conclusions
1 Preliminary statement
The General Counsel 's presentation , herein , has been
concerned , primarily , with President Michael Buckley's
conceded design or scheme, whereby Respondent Crest
might , so the firm 's president hoped , win freedom from
union contractual commitments , specifically those which
had, theretofore , governed wages, hours, and conditions
of work for Crest 's various flooring and floor covering
installers , laminated plastic countertop installers, and des-
ignated "inside" countertop fabrication workers.
With particular reference to his firm 's formica shop
fabrication employees , Buckley's plan, so the record
shows, required timely notices of termination calculated
to forestall a renewal of Respondent Crest's about-to-
expire Mill Cabinet Agreement commitments, followed,
eventually by Buckley 's conceded withdrawal of recog-
nition , and refusal to negotiate , further, with Complain-
ant Union and Local 2172, as their jointly designated
collective-bargaining representative. On this record, the
timeliness and presumptive effectiveness of President
Buckley's contract "termination" notice, in this connec-
tion , have not been formally challenged . The General
Counsel contends, however , that Respondent Crest's sub-
sequent unilateral determinations : first, to discontinue
several monthly trust fund contributions , for the benefit
of formica shop workers , contractually mandated previ-
ously , second, to modify some of their contractually de-
fined working terms and conditions ; and third, to with-
draw recognition from Complainant Unions as their bar-
gaining representative , and suspend negotiations , then in
progress, for a new 3-year contract covering their wages,
hours, and conditions of work , flouted statutory require-
ments.
With reference to Crest's three "outside" countertop
installers, however , Respondent 's president, so the
record shows, pursued a different course Though a cur-
CREST FLOORS & PLASTICS
rently viable Southern California Master Labor Agree-
ment, which, inter aha, defined their wages, hours, and
conditions of work, was, then, nearing its previously ne-
gotiated June 15, 1980 termination date, President Buck-
ley, who had previously committed Respondent Crest to
comply with that agreement for a fixed term, and from
year to year thereafter, filed no notice calculated to fore-
stall its automatic yearly renewal Nor did Crest,
through Buckley, provide Complainant Union with any
notice that negotiations, looking toward some modifica-
tion of his firm's memorandum agreement commitments,
were being sought Rather, Respondent Crest's president
determined to deprive the jobsite workers covered by
Crest's Master Labor Agreement commitments of con-
tractual protection by stripping them of their corporate
payroll status
Crest could then contend, presumably, that, since it no
longer had craftsmen, directly employed, who were per-
forming services within the Southern California Master
Labor Agreement's defined bargaining unit coverage, the
collective-bargaining contract thus designated had been
rendered "inoperative" so far as the corporation was
concerned. Further, President Buckley could contend, so
he presumably believed, that Respondent Crest could no
longer be considered bound to comply, despite its previ-
ously conceded memorandum agreement commitments,
with a purportedly terminated Master Labor Agreement,
or that document's renegotiated, and renewed, successor
agreement
Previously, within this decision, President Buckley's
professed belief, that his timely notice of termination
with respect to Complainant Unions' Mill Cabinet
Agreement had, concurrently, conveyed a comparable
notice of termination with respect to his contractual
commitments covering Crest's jobsite countertop install-
ers, has been noted. Clearly, however, his notice had not,
in haec verba, conveyed two comparable messages.
Whether Buckley's professed belief that it had, when
conveyed, belatedly, to Complainant Unions' representa-
tives, derived from ignorance, carelessness, or naivete,
need not, herein, be determined Suffice it to say that,
both in fact, and in law, he was mistaken.
Respondent Crest claims, herein, that, while it had
previously employed countertop installers, such crafts-
men had been transferred, some time before August 1,
1980, to Pacific Sun's payroll, that "since on or about
August 1, 1980, and for a period of time prior thereto"
Buckley, functioning as a sole proprietor with Pacific
Sun designated as his proprietorship's trade name, had
employed Respondent Crest's former "outside" laminat-
ed countertop installers, that, functioning as Pacific Sun's
proprietor, Buckley had, specifically, requested Com-
plainant Union's representatives to negotiate with him,
personally, regarding a collective-bargaining contract
which would cover these employees; but that Complain-
ant Union's spokesman had rejected his request.
The General Counsel and Complainant Union seek de-
terminations, however, that Respondent Crest and Buck-
ley have, despite Pacific Sun's nominally separate status
as a sole proprietorship, functioning as a labor contrac-
tor, been, throughout the period with which this case is
concerned, affiliated business enterprises, that they
1247
should be considered a currently viable "single business
enterprise and single employer" for statutory purposes;
and that Respondent Crest's purely pro forma transfer of
the firm's three countertop installers, from a corporate
payroll to Pacific Sun's purported employee roster,
therefore, could not, and did not, relieve Respondents
Crest and Buckley, jointly, from contractual commit-
ments regarding the wages, hours, and working condi-
tions maintainable for these craftsmen, or from their stat-
utory obligation to bargain collectively, regarding possi-
ble changes with respect thereto
The questions raised by these clearly contradictory
contentions will be considered, in due course, herein
2. Jobsite installation workers
a. The relationship between Respondents Crest and
Buckley
(I) The General Counsel's single-employer
contention
While a witness , Respondent Crest's president called
his nominally distinguishable sole proprietorship a sepa-
rate "labor firm " which , pursuant to contract , provides
Crest , particularly, with craft personnel qualified to per-
form jobsite installation work with respect to carpets,
hard surface flooring, and laminated plastic countertops.
Though Pacific Sun, therefore , purportedly functions
merely as a labor contractor , so far as Crest is concerned,
the proprietorship does not-so far as the record
shows-negotiate comparable labor contract arrange-
ments with other firms, particularly commercial or resi-
dential building contractors or their material suppliers,
whereby Buckley's enterprise might become committed
to provide craftsmen jobsite installation work on projects
with which Respondent has no connection In short, Pa-
cific Sun cannot , on this record , be considered a sole
proprietorship generally engaged in the labor contracting
business It functions , merely, as Crest 's captive source of
supply, for craft workers with certain specialized skills.
Further, President Buckley testified that, when Pacific
Sun was established , he proposed to maintain a so-called
double-breasted operation , whereby Respondent Crest,
free of directly negotiated collective-bargaining agree-
ments, particularly with regard to floor covering installa-
tion work , could bid for contracts to supply materials
and provide required installation services on nonunion
building projects, while concurrently relying on Pacific
Sun, Buckley ' s wholly owned labor contracting enter-
prise, to provide recognized "union" craftsmen, when-
ever Crest might procure comparable business contracts
from builders or general contractors performing union-
ized construction work.
Conventionally , within the building industry, unionized
contractors, or subcontractors , who might wish to compete
more effectively with their nonunionized counterparts
within the burgeoning nonunion construction market,
have established subsidiary or affiliated enterprises, staffed
with nonunuion craftsmen , ready to solicit and perform
work within their particular field of expertise, on nonun-
ionized construction projects See Robert V Penfiled,
The Double -Breasted Operation in the Construction Indus-
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
try, Labor Law Journal, Feb. 1976, pp 89-93, Tim Born-
stein, The Emerging Law of the "Double-Breasted" Oper-
ation in the Construction Industry, Labor Law Journal,
Feb. 1977, pp 77-88 President Buckley's program, how-
ever, reflected his determination to reverse this process.
He created a purportedly distinguishable "spin-off" busi-
ness enterprise, Pacific Sun, which would be staffed by
unionized workers. That business entity, so Buckley con-
cededly thought, would continue to maintain collectively
bargained contractual relations with concerned construc-
tion unions, and would provide his corporate enterprise
with qualified craftsmen whenever it might require
union-represented workers, for jobsite service on union-
ized construction projects. Meanwhile, Crest would
divest its payroll of such workers, presumably pursuant
to President Buckley's manifest belief that such action
would relieve his corporate enterprise from collectively
bargained contractual commitments, and forestall any
need for the firm to negotiate or comply with successor
contracts
Since such arrangements would , so President Buckley
clearly hoped, enable Respondent Crest, particularly, to
provide both construction materials and jobsite installa-
tion services, within its field, for non unionized builders
and general contractors, freed from any commitment to
pay jobsite workers "union" wages, or provide contrac-
tually mandated fringe benefits, Crest's costs of doing
business, while performing such nonunion work, would
presumably be reduced. In that specific sense, I find,
Buckley conceived that Crest's financial "liabilities"
would be minimized or limited, the record considered in
totality clearly warrants a determination , which I make,
that this cost-saving consideration, substantially conced-
ed by Buckley within a prehearing statement, contribut-
ed to his decision, with regard to Pacific Sun's formation
and Crest's subsequent personnel transfers, whereby vari-
ous union-represented workers were purportedly stripper:
from the corporation's payroll.
On this record, however, the General Counsel's repre-
sentative and Complainant Union's counsel contend, per-
suasively, that Buckley's plan to create a viable "double-
breasted" operation failed. Their contention merits Board
concurrence. Respondents Crest and Pacific Sun cannot,
within my view, properly be considered "separate" en-
terprises, for present statutory purposes.
Though each firm, nominally, constitutes a separate
legal entity, namely, a family-owned corporation and
sole proprietorship, respectively, they were, and remain,
subject to common, unitary ownership (Buckley's) and
common financial control. They have been, throughout
the period with which this case is concerned, commonly
managed; Crest's plastic operations manager has, despite
the nominal designation of his corporate employer's
former countertop installers as Buckley's employees, con-
tinued to give them their "work order" directives They
report daily to Crest's facility, rather than Buckley's pur-
portedly separate "office" location nearby, where they
pick up their work orders, load countertops fabricated in
Crest's shop for transportation to construction jobsites,
and collect their Pacific Sun paychecks from Pinedo,
Crest's departmental manager, or Mary Curson, his de-
partmental assistant.
With particular reference to countertop installation,
there can be no doubt that Respondents Crest and Buck-
ley were, and continue to be, linked in closely interrelated
operations, Pacific Sun's craftsmen concededly install fab-
ricated countertops, solely for Crest, functioning as
workmen hired by the corporation's labor subcontractor
The proprietorship's three-man countertop installation
crew has, throughout, been composed of workmen Crest
previously employed They continue to perform the
same functions, work the same hours, receive compensa-
tion calculated at the same hourly rate, and work subject
to direction by the supervisor who had directed their
job-related functions while they were, for the record,
Respondent Crest's employees Indeed, Pacific Sun's
countertop installers continue to use the selfsame equip-
ment which they had used, previously, while in Crest's
hire; further, they provide installation services on
projects handled by the very same commercial and resi-
dential contractors, who remain Respondent Crest's
rather than Respondent Buckley's customers
As the General Counsel's representative notes, cogent-
ly, within her brief, the record, herein, clearly warrants a
determination that Crest and Pacific Sun maintain uni-
form personnel record forms. The payroll records main-
tain for several Pacific Sun employees reveal initial hire
dates which match those found on their previously main-
tained Crest records.
Finally, with due regard for the General Counsel's
clearcut testimonial and documentary evidence showing
that Crest's laminated plastic countertop fabricators and
Pacific Sun's countertop installers report directly to Plas-
tic Operations Manager Pinedo, and that both employee
groups provide services subject to his supervision, deter-
mination would, clearly, be warranted that centralized
control of labor relations, with respect to both companies,
certainly at day-to-day operational levels, has been, and
remains, a notable feature of their concededly close rela-
tionship Should any doubts on that score still be pro-
fessed, nevertheless, they certainly cannot be reasonably
maintained ; note should be taken of the General Coun-
sel's credible, nondisputed, record showing that Crest's
three countertop installers were never formally terminat-
ed by their corporate employer, and that they were
never formally hired by President Buckley's proprietary
enterprise, they were merely "transferred" without prior
notice or fanfare, from Crest's payroll to Pacific Sun's,
pursuant to Buckely's fiat. No clearer demonstration that
Respondent Crest's president wears "two hats" simulta-
neously, and maintains ultimate unitary control, with
regard to personnel and labor relations policies, within
both his corporate fiefdom and sole proprietorship, could
be conceived.
On this record, Respondents Crest and Buckley may,
properly, be deemed a single employing entity See Sak-
rete of Northern California, 137 NLRB 1220, enfd 332
F 2d 902 (9th Cir 1962); Edward J. White, Inc., 237
NLRB 1020 Compare Jacob Wirth Restaurant, 248
NLRB 191 (1980), Douglas Lantz, 235 NLRB 994 (1978),
enfd. 607 F 2d 290, 295 (9th Cir 1972) President Buck-
ley's plan to establish a purportedly "double-breasted"
combination venture, within which Respondent Crest,
CREST FLOORS & PLASTICS 1249
particularly, might be free to retain a nonunion fabrica-
tion and jobsite installation crew, qualified to handle con-
tracts negotiated with nonunion builders and general con-
tractors, has clearly failed to produce a genuinely distin-
guishable coordinate enterprise, qualified to conduct
comparable full-scale, business operations while handling
contracts confined to unionized construction projects.
Compare Peter Kiewit Sons' Co., 206 NLRB 562 (1973),
Frank N. Smith Associates, Inc, 194 NLRB 212 (1971),
Gerace Construction, Inc, 193 NLRB 645 (1971) See
Bornstein, Labor Law Journal (Feb. 1977), supra, for a
discussion of several factors which have, heretofore, per-
suaded this Board that two more or less related business
enterprises should, nevertheless, be considered separate
firms, for labor relations purposes, none of the factors
discussed, save for the conceded fact that Respondents
Crest and Buckely constitute nominally distinguishable
legal entities, have been demonstrated as present herein.
Within her brief, the General Counsel's representative
notes Respondent Buckley's formal denial that assertion
of this Board's jurisdiction would be warranted, so far as
his sole proprietorship's course of conduct might be con-
cerned In response, the General Counsel's representative
contends that:
[T]he Board may assert jurisdiction over Respond-
ent Buckley as a single employing entity with Re-
spondent Crest . In its answer, Respondent
Crest does admit that the Board has jurisdiction
over the Crest operation; accordingly, jurisdiction
over Pacific Sun (Respondent Buckley) attaches by
virtue of the undisputed appropriateness of its being
asserted over Respondent Crest. It is further argued
that Respondent Crest and Respondent Buckley, as
components comprising the single employing entity
involved herein should be both jointly and severally
bound by and responsible for conduct and acts done
in the name of either and/or both
I find these contentions persuasive , and will recommend
that this Board rule consistently therewith See Douglas
Lantz, 235 NLRB 994 at 997 ( 1978); Burgess Construction
Corp., 227 NLRB 765 (1977), enfd 596 F.2d 378, 384
(9th Cir. 1978), Pacific Pollution Control, 227 NLRB 293
( 1976), in this connection.
(2) Buckley's status as Crest's disguised continuance
The General Counsel's representative proffers no
clearcut contention, spelled out specifically that Pacific
Sun should be considered a fragmented alter ego or dis-
guised continuance of that circumscribed portion of Re-
spondent Crest's business which has been concerned, par-
ticularly, with jobsite installation work on construction
projects. Nevertheless, there can be no doubt that upon
the present record considered in totality such a determi-
nation would be warranted. Compare J. M. Tanaka Con-
struction, Inc, 249 NLRB 238 (1980), cf. NLRB P. Tri-
umph Curing Center, 571 F 2d 462, 467 (9th Cir. 1978),
likewise, see Los Angeles Marine Hardware v. NLRB, 602
F 2d 1302 (9th Cir 1979), in this connection
Clearly, Respondent Buckley's proprietorship was
never designed to function as a supplier of construction
materials and labor, paralleling Crest's business oper-
ations, while dealing with unionized contractors Sub-
stantially undisputed testimony, herein, provides cogent
proof, within my view, that Pacific Sun was created
rather for the sole purpose of relieving Respondent Crest
from supposedly high labor costs, generated consistently
with Complainant Union's contract terms and consequent
upon Crest's compliance therewith. Enterprises formed
for such a limited purpose, which do little more than
function under their creator's control merely as neces-
sary adjuncts of that creator's previously established busi-
ness, have consistently been deemed deserving of legal
alter ego characterization. Patently, Respondent Buck-
ley's sole proprietorship merits such designation. I so
find
b Complainant Union's contractual relationship with
Respondents Crest and Buckley
Previously within this decision references have been
made to President Buckley's professed belief that - Re-
spondent Crest's formica shop "inside" fabrication work-
ers and countertop "outside" installers were both cov-
ered by the same collective-bargaining agreement Clear-
ly, however, the Southern California Master Labor
Agreement, negotiated for a 3-year, 1977-1980 term, and
the Mill Cabinet Agreement, separately negotiated for a
comparable 3-year period, constituted two different col-
lectively bargained contracts, covering distinctively de-
fined "bargaining units" composed of carpentry crafts-
men with distinguishable functions.
The relevant Mill Cabinet Agreement, by which Re-
spondent Crest had previously been bound, contained
two provisions which referred, specifically, to Master
Labor Agreement requirements, those provisions reveal
clearly that these distinguishable collective-bargaining
contracts covered different craft groups. See section 6 of
the Mill Cabinet Agreement, which provided that
"inside" carpentry workers required to perform "out-
side" services at construction jobsites should receive the
minimum wage scale fixed for such temporary services
within the Master Labor Agreement, and should work
under conditions defined therein The Mill Cabinet
Agreement's section 19, further, prescribed different pro-
cedures to be followed, with respect to the payment of
fringe benefit contributions, depending on whether a
given craftsman's services were being rendered "inside"
or "outside" some contractually bound employer's shop
As previously noted, the contracts in question provided
for separately maintained fringe benefit trust funds, con-
tained different duration provisions, and defined their
termination procedures differently
Necessarily, therefore, President Buckley's concededly
timely notice-that Respondent Crest proposed to termi-
nate its Mill Cabinet Agreement commitments-could
not, and did not, constitute a concurrent declaration, in
haec verba or sub silentio, that the corporation likewise
proposed to terminate its prior memorandum agreement
commitment, to comply with a currently viable Master
Labor Agreement's terms, or those which might be set
forth within some negotiated successor contract
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, Complainant Union's business representatives
Osburn and Beltran both testified credibly herein, con-
sistently with Administrative Office Pendleton's compa-
rably proffered recollection, that Respondent Crest never
gave Complainant Union any separately drafted, timely
notice, within the 90-to 60-day period preceding their
memorandum agreement's previously fixed July 1, 1980
expiration date, regarding President Buckley's professed
desire to terminate his firm's commitments thereunder,
pursuant to provisions concededly set forth within that
document's duration clause Necessarily, therefore,
Crest's memorandum agreement commitments remained
viable beyond the date noted; the designated contract's
duration clause provided, clearly, that a signatory firm's
commitments should "continue" from year to year there-
after, absent some written notice dispatched to one com-
mitted party by another, declarative of the moving
party's "desire to change or cancel" them, effective as of
their predetermined July 1 anniversary date.
This Board has routinely held that, whenever a con-
tractually committed employer has failed to give proper,
timely notice regarding his desire to terminate some col-
lective-bargaining agreement, by which he has, up to
that point, been bound, that employer remains obligated
or bound thereby. Arco Electric Co., 237 NLRB 708
(1978) In this case, of course, the particular 3-year
Master Labor Agreement with respect to which Re-
spondent Crest had initially committed itself, through
Buckley's memorandum agreement signature herein pre-
viously noted, had expired, consequent upon notices of
termination properly served by Complainant Union and
other labor organizations, upon several employer associa-
tions privy thereto That agreement, however, had,
within a short time, been replaced by a successor South-
ern California master contract. The parties' replacement
agreement had been negotiated with a designated July 1,
1980 commencement date, for a 3-year term Thus, con-
sistently with this Board's well-established decisional
principle previously noted, Respondent Crest, which had
failed to give proper notice of its desire to terminate the
signed memorandum agreement pursuant to which it had
previously become separately committed to comply with
Complainant Union's then current 1977-1980 Master
Labor contract, remained bound to comply with that
document's newly negotiated Southern California multi-
craft, multiemployer successor contract I so find
Though Respondent Crest's president, presumably, be-
lieved that his determination to transfer three countertop
installers to Pacific Sun's payroll had nullified his corpo-
ration's contractual obligations, so far as they were con-
cerned, since such "outside" craftsmen, though possibly
covered by a viable Southern California Master Labor
Agreement, were no longer Crest employees, he was
clearly mistaken The corporation's contractual obliga-
tions were not affected thereby; President Buckley re-
mained, I find, committed to comply with contractual re-
quirements, certainly for some defined term, whenever
Respondent Crest might, during that term, rehire previ-
ously transferred countertop installers, or hire new car-
penter craftsmen for such jobsite work. And, since it has
been found herein, that Respondents Crest and Buckley,
with the latter functioning as the corporation's labor con-
tractor providing Crest with construction jobsite coun-
tertop installers, constituted, and still constitute, a statu-
tory "single employer" for present purposes, the corpora-
tion's continued obligation to comply with a currently
viable Master Labor Agreement's terms cannot, within
my view, be gainsaid
Respondent Buckley, herein found functioning as
Crest's nominally "spun-off' labor contractor, clearly
must, likewise, be considered obligated to comply with
those collectively bargained contractual terms and condi-
tions. Such a conclusion, within my view, follows, logi-
cally, from several determinations previously set forth
herein First that Respondents Crest and Buckley consti-
tute a statutory "single employer" for present purposes;
and second that Respondent Buckley's sole proprietorship
may, upon this record, properly be considered Crest's re-
sponsible alter ego, certainly insofar as that corporate en-
tity's contribution to jobsite carpet, hard flooring, and
countertop work, on Southern California construction
projects, has been, and continues, active.
It follows, necessarily, with Respondents Crest and
Buckley, both, herein found committed to comply with
relevant contractual provisions contained in successive
Southern California Master Labor Agreements, though
neither could, properly, be considered a formal signatory
party with respect thereto, that, when Respondent
Crest's designated "outside" countertop installers were
transferred to Pacific Sun's payroll, without notice to
Complainant Union or prior consultation, their putative
removal from Master Labor Agreement coverage, there-
by, reflected a determination by Michael Buckley, func-
tioning in his dual capacity as Respondent Crest's presi-
dent and Pacific Sun's proprietor, to bypass his statutori-
ly defined duty to bargain with respect to changes affect-
ing a contractually defined bargaining unit . For that fail-
ure or refusal to bargain, within the meaning of the stat-
ute, Respondents Crest and Buckley may, properly, be
held accountable.
c. Unilateral changes
Another principle, well established in Board decisional
doctrine, must, now, be considered. This Board has' con-
sistently held that, once a collective-bargaining relation-
ship has been generated, the particular employer contrac-
tually bound may not revise or modify those specific
wage rates, hours, or terms and conditions of employ-
ment, which might affect workmen compassed within
the contract's defined bargaining unit, without first
giving their union representative some opportunity to
bargain regarding possible changes. NLRB v. Katz, 369
U.S 736 (1962). Thus, when Respondent Crest, effective
August 1, 1980, discontinued unilaterally those monthly
fringe benefit contributions which it had theretofore been
making, on behalf of three "outside" countertop install-
ers, to particular trust funds, established pursuant to
Complainant Union's recently terminated 1977-1980
Master Labor Agreement, and continued pursuant to re-
negotiated 1980-1983 Master Labor Agreement provi-
sions, that unilaterally determined discontinuance consti-
tuted a refusal to bargain Further it constituted, so I
find, statutorily proscribed interference, restraint, and co-
CREST FLOORS & PLASTICS
ercion calculated to deny Crest's nominally "transferred"
countertop installers their contractually specified entitle-
ments, which should call for Board interdiction and re-
medial directives.
Respondent Buckley, so the record shows, likewise
failed and/or refused to make contractually mandated
monthly contributions , on behalf of Crest's purportedly
transferred "outside" countertop installers , currently on
Pacific Sun's payroll , to health insurance and pension
funds which were being maintained , inter alia , for their
benefit His failure to provide such contributions, which
presumably could have been made in Respondent Crest's
stead, clearly reflected a personal decision, reached uni-
laterally, paralleling the decision which he had reached
as Crest's president , without notice to Complainant
Union , and without any consultation with union repre-
sentatives The fact that Buckley, functioning as Pacific
Sun, a sole proprietorship , may not have been , personally,
signatory to contractual arrangements , pursuant to which
fringe benefit contributions might have been considered
required , provides no exculpation , within my view, for
his delinquency . Since determinations have been found
warranted , herein , that his proprietary enterprise has not
been, effectively, severed from Respondent Crest's busi-
ness, both entities , though purportedly differentiated, still
constitute a single employer within the Act's contempla-
tion Thus , whether Respondent Buckley may properly
be considered Crest's legal alter ego, replacing a distinct
portion of the corporation's business , or merely a sepa-
rately designated part of Respondent Crest's substantially
"integrated " manufacturing , sales, and service enterprise,
he must be deemed , parr passu , committed to satisfy the
contractually mandated terms and conditions with re-
spect to which Crest , within my view , remains bound
While a witness, Buckley claimed that Complainant
Union 's representatives have, heretofore , been solicited
to negotiate a collective -bargaining contract , presumably
with him , personally , functioning as Pacific Sun's sole
proprietor , which would set wages , hours, and condi-
tions of work for his firm's countertop installers , consid-
ered as Pacific Sun's, rather than Crest 's, employees, he
testified that his proposal has been rejected . Respondent
Buckley's testimony , further, reflects a contention that
fringe benefit contributions , calculated to cover what-
ever sums Complainant Union's trust funds might proper-
ly require , with respect to his sole proprietorship 's coun-
tertop installation personnel , proffered in Pacific Sun's,
rather than Respondent Crest's, name have, likewise, been
rejected.
Buckley claims , with respect to both proposals noted,
stand, herein , without testimonial or documentary cor-
roboration . Neither Business Representative Osburn nor
Beltran could recall any Buckley suggestion or request
that Complainant Union should sign a contract negotiat-
ed on behalf of Pacific Sun particularly . Upon this
record , no determination would be warranted , within my
view , that negotiations, looking toward a contractual
consensus which Complainant Union and Pacific Sun's
proprietor might conceivably reach, were seriously solic-
ited Nor, I conclude, would a comparable determina-
tion , that Buckley had proffered fringe benefit contribu-
tions, specifically on behalf of Pacific Sun 's designated
1251
personnel , be warranted . Should the record, herein, be
deemed, nevertheless , sufficiently reliable to warrant de-
terminations consistent with Buckley' s purported recol-
lections, his shared responsibility for Respondent Crest's
refusal to bargain after August 1, with respect to coun-
tertop installers , would still, as I see it , remain.
Assuming , arguendo , that Buckley 's testimony , noted,
might be deemed worthy of credence , neither Complain-
ant Union 's representatives , nor spokesmen for the possi-
ble trust fund recipients of his purported proffer, could
be faulted , within my view, for their parallel refusals to
respond positively . Clearly, neither of the trust funds di-
rectly concerned could, currently, accept contributions
proffered , on behalf of Crest's former countertop install-
ers, by Pacific Sun's proprietor, personally , since he has
never signed a definitive "written agreement " pursuant
to which Pacific Sun's direct liability for fringe benefit
contributions stands memorialized And Complainant
Union' s representatives, within my view, cannot present-
ly be constrained or compelled to negotiate a contract,
with Pacific Sun's proprietor , personally , whereby the
status of Respondent Crest's nominally "transferred"
countertop installers , as Pacific Sun's employees would
necessarily be conceded
On this record , then, I conclude that Respondent
Buckley's involvement or participation in Crest's failure
or refusal to make monthly contributions , specifically on
behalf of three designated "outside" countertop installa-
tion workers , to designated health insurance and pension
funds established and maintained pursuant to successive
Master Labor Agreements , coupled with Buckley's
placement of Crest's countertop installers on Pacific Sun's
payroll following which they received compensation on
checks bearing Pacific Sun's, rather than Crest's, name,
reflected a statutorily proscribed refusal to bargain on
Respondent Buckley's part , concurrently with Respond-
ent Crest's refusal to bargain, previously noted
3. Crest's formica shop workers
a. Local 2172 s contractual relationship with
Respondent Crest
Previously within this decision, references have been
made to Respondent Crest's May 19 written notice, dis-,
patched to Complainant Unions herein, that it wished to
terminate its then-current Mill Cabinet Agreementncom-
mitments when that collective -bargaining contract's
stated July 31 expiration date arrived Concurrently, as
previously noted , Complainant Unions had given Re-
spondent Crest written notice of their desire to negotiate
with regard to the designated agreement 's renewal with
modifications.
On July 31, 1980, pursuant to these concurrently trans-
mitted notices, the Mill Cabinet Agreement to which
they referred expired . Since no steps had been taken,
prior thereto , particularly looking toward Respondent
Crest's renewal or renegotiation of their contractual con-
sensus, Complainant Unions, concededly, no longer en-
joyed a formal collective-bargaining relationship with
that corporate enterprise , memorialized within a written
agreement , whereby the wages, hours of work, and fur-
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther employment conditions previously negotiated for
the firm's formica shop fabrication workers might remain
regulated
Respondent Crest, however, clearly remained obligat-
ed to bargain with Complainant Unions as the designated
and selected representative of those "inside" carpentry
workers who continued to perform services regularly
within its plastics operations department See Sacramento
Union, 258 NLRB 1074 at 1075 (1981) and the cases
cited at fn. 6, therein
Respondents contend, within their formal answer, that,
subsequent to July 31, Complainant District Council and
Local 2172 could no longer be considered the jointly
designated and selected collective-bargaining representa-
tive of Crest's formica shop "inside" carpentry workers.
The law remains well settled, however, that the proven
or conceded existence of some prior contract, lawful on
its face, covering a group of workers serving within a
defined "unit" considered appropriate for collective-bar-
gaining purposes, raises coordinate presumptions: First,
that the labor organization privy to the prior contract
represented a majority of the workers covered thereby
when the contract was executed, and, second, that the
contracting union's majority representative status contin-
ued, at least, throughout the given contract's term. Fol-
lowing the contract's expiration, further, a presumption
of fact, with regard to the contracting union 's continued
majority representative status, remains viable. And,
though rebuttable, that final presumption suffices to es-
tablish, prima facie, the concerned employer's continued
obligation to bargain collectively with a previously rec-
ognized labor organization. See NLRB Y. Tragniew, Inc.,
470 F 2d 669 (9th Cir. 1972), compare Cartwright Hard-
ware Co., 229 NLRB 781 (1977), in this connection.
Mindful of the decisional principles noted, I find it
clear beyond doubt, despite the contrary claims which
Respondent Crest has herein proffered, that, specifically
on July 31,, 1980, when the Mill Cabinet contract, which
had, theretofore, defined the particular relationship
which various parties, privy thereto, had until then main-
tained, expired, Respondent Crest remained, neverthe-
less,, obligated to recognize and bargain collectively with
Complainant Unions, regarding any changes in wages,
hours, and conditions of work, for Crest's formica shop
workers who had until then been covered thereby.
Crest's obligations, with regard to collective bargaining,
may have been defeasible, but circumstances which
might, herein, reasonably be deemed likely to constrict
or nullify them had not yet, so I find, been manifested,
b Unilateral changes
(1) Respondent Crest's cessation of fringe benefit
contributions
As previously noted, this Board's longstanding deci-
sional principle, that unilateral changes of wages, hours,
or terms and conditions of employment, effectuated by a
concerned employer obligated to bargain with the repre-
sentative of its employees within a defined "unit" appro-
priate for collective-bagaining purposes, constitute a
statutorily proscribed refusal to bargain, may currently
be considered well settled. See, e g., Master Slack and/or
Master Trousers Corp, 230 NLRB 1054 (1977), in this
connection.
Employee fringe benefits, such as contractually re-
quired employer contributions to health and welfare and
pension funds, remitted on behalf of union represented
and contractually covered workers, constitute both a sig-
nificant "aspect" of their wages and a term or condition
of their employment And, along with their right to con-
tinue receiving contractually determined wage rates, the
rights of contractually covered employees to claim fringe
benefits, supported by their employer's continued contri-
bution payments to concerned trust funds, clearly sur-
vive a collective-bargaining agreement's expiration. Nei-
ther their right to claim such benefits, nor their particu-
lar employer's contractual commitment to provide re-
quired trust fund contributions supportive of such bene-
fits, can be limited, or modified, without collective bar-
gaining . Hen House Market No 3, 175 NLRB 569 (1969),
enfd 428 F 2d 133 (8th Cir 1970), Sac Construction Co ,
235 NLRB 1211, 1218 (1978) Thus, Respondent Crest's
concededly unilateral August 1, 1980 determination to
discontinue trust fund contributions, previously contrac-
tually mandated, on behalf of union-represented formica
shop countertop fabricators, I find, constituted a statuto-
rily proscribed refusal to bargain , which currently merits
Board interdiction.
(2) Further unilateral changes
Within this decision, however, references have been
made to further unilateral changes, purportedly effectuat-
ed pursuant to directives for which Respondent Crest's
president must herein be considered responsible, whereby
various terms and conditions of employment, maintained
for the benefit of Crest's formica shop "inside" carpentry
workers, were significantly modified These changes
with respect to terms and conditions of employment, so I
find likewise manifested Respondent Crest's failure or re-
fusal to bargain. The record herein, however, provides
something less than substantial , reliable, probative evi-
dence regarding the precise nature and scope of some
shop-centered changes which were presumably effectuat-
ed, unilaterally, directly following the Mill Cabinet
Agreement's expiration, or shortly thereafter.
First, it reveals that craftsmen hired for countertop
fabrication work within Respondent Crest's formica
shop, subsequent to the Mill Cabinet Agreement's expira-
tion, were concededly paid starting hourly wages below
those specified, within the contract noted, for the posi-
tions they filled. (Neither the precise number of workers
hired at below contract-specified rates, between July 31,
1980, and the date when this case was heard, nor their
precise periods of service, can be determined definitively,
however, from the record Further, Respondent Crest's
personnel records, some of which were produced and re-
viewed when this case was heard, provide information,
particularly with regard to names and job classification
for the workers presumably concerned, which may,
charitably, be characterized as both less than complete,
and confusing.)
Second, it reveals that Respondent Crest's vacation pay
policy, so far as the firm's formica shop workers were
CREST FLOORS & PLASTICS 1253
concerned, was somewhat restrictively modified subse-
quent to the Mill Cabinet Agreement's expiration (The
General Counsel's witnesses, however, could not agree,
with respect to precisely how much Crest's policy
changed)
Third, it reveals that Crest's paid sick leave allowances
for formica shop workers were likewise reduced (How-
ever, the General Counsel's several employee witnesses,
again, proffered divergent testimony with regard to their
conception of Respondent Crest's revised policies, con-
cerned with paid sick leave)
Fourth, it reveals that, subsequent to July 31, 1980,
Crest's shop workers were no longer being paid for all
the holidays which had, theretofore, been designated as
compensable nonworking holidays within Complainant
Union's terminated contract (The record reflects a gen-
eral consensus that formica shop employees received no
Labor Day 1980 holiday pay President Buckley claimed
that he had not directed such a holiday pay omission,
which he characterized as presumptively inadvertent. He
proffered no testimony, however, calculated to suggest
that Crest's omission had subequently been corrected,
following his belated discovery that Labor Day 1980 had
not pro forma been considered a compensable day. With
respect to whether compensation allowances for other
holidays, previously considered compensable, have been
suspended, the General Counsel's witness proffered di-
vergent testimony.)
Fifth, it reveals that one formica shop craftsman,
Ramon Torres, was denied permission to use the compa-
ny telephone, subsequent to the Mill Cabinet Agree-
ment's expiration. (No other Crest worker has reported a
similar restriction It should be noted, further, that the
record provides no reliable information, whatsoever,
with respect to whether Crest's purportedly restrictive
ukase represented a permanent change of past policy, ef-
fectuated pursuant to some purpose of reprisal, or consti-
tuted merely a single, possibly justifiable, instance.)
Sixth, it reveals that Business Representative Osburn
was notified, some time after July 31, 1980, never speci-
fied for the record, that he would no longer be permitted
to meet with Crest's formica shop craftsmen, within the
firm's shop during working hours, without prior employ-
er permission. (The record suggests, however, that Plas-
tic Operations Manager Pinedo's conversational com-
ment, to this effect, may merely have been precatory in
character, and that union representatives were not, there-
after, denied shop access, even during working hours.)
With matters in this posture, determinations would
seem warranted, merely, that Respondent Crest's man-
agement had, indeed, changed certain terms and condi-
tions of work, unilaterally, for union represented formica
shop craftsmen Such unilaterally effectuated modifica-
tions of company policy and practice, save for a few
which might, arguably, merit characterization as de mini-
mis changes, merely, must be considered generally viola-
tive of law Determinations with respect to particular
workers affected by such changes, and their precise
nature and scope, however, will require deferral, within
my view, pending further investigation, and possibly fur-
ther proceedings
c. Respondent Crest's refusal to bargain
(I) President Buckley's contacts with Complainant
Union's representatives
Within her brief, the General Counsel's representative
contends, shortly and simply, that Respondent Crest vio-
lated Section 8(a)(5) and (1) of the National Labor Rela-
tions Act when, specifically on October 20, 1980, Presi-
dent Buckley notified Complainant Union's representa-
tives that their organization would no longer be recog-
nized as the majority representative of his firm's regular,
"inside" carpentry craftsmen, Buckley's notification
letter, coupled with his concurrently dispatched mail-
gram, conveying the same message, so the General
Counsel's brief suggests, signalized Crest's refusal to bar-
gain, which the General Counsel's representative would,
consequently, have this Board currently proscribe.
The General Counsel's claim, that Respondent Crest's
president thereby flouted his statutorily defined duty to
bargain, necessarily rests, however, upon broader
grounds. Within her brief, the General Counsel's repre-
sentative suggests, cogently, that.
The course of action taken by Respondent Crest,
which includes . engaging in such unlawful con-
duct as unilaterally changing . terms and condi-
tions of employment [for] its inside carpentry em-
ployees and openly stating [to them] that it did not
intend [to sign] a union contract . . engaging in
dilatory bargaining tactics, such as delaying its
response to the Union's request to bargain, [a] fail-
ure to present counterproposals, [a] delay in meet-
ing with the union and its postponement of [their
next] meeting; and most particularly its [withdraw-'
al] of recognition from the Union without 'a good
faith doubt as to the Union's majority representative
status based on objective standards, clearly indicates
that Respondent Crest [never intended to negotiate' and
reach] an agreement with the Union. [Emphasis
added.]
These references to certain relevant background circum-
stances, relied on to buttress a contention that Pres`ident
Buckley's particular October 20 conduct violated the
statute, carry persuasion within my view. They deserve
detailed consideration
At this point, however, no comprehensive chronologi-
cal review, regarding the negotiations conducted prior to
Crest's October 20 communication, would seem required.
Suffice it to note First, that Complainant Union's June
19, 1980 letter, which suggested a number of dates with
respect to which negotiations looking toward a new Mill
Cabinet Agreement had been scheduled, and requested
Respondent Crest to designate another date, for such ne-
gotiations should the dates listed be found unacceptable,
elicited no response from Crest, whatsoever; second, that,
when Complainant Union's business representatives vis-
ited Crest's facility on August 15 to deliver a, draft
memorandum agreement which a number of so-called in-
dependent shops were signing, their visit sparked no dis-,
cussion, whatsoever, with regard to specific union pro-
posals; third, that Complainant Union's August 28 com-
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
munication , whereby Crest was supplied with a definitive
copy of that organization 's recently renegotiated and
ratified multiemployer Mill Cabinet contract , produced
no response . With matters in this posture , Crest's presi-
dent had, within my view, demonstrated , beyond any
doubt , his complete lack of interest regarding possible
collective-bargaining negotiations , looking toward some
contractual consensus , following Respondent Crest's pur-
posive July 31 surrender of Mill Cabinet Agreement cov-
erage.
On September 23, when Crest 's president met, next,
with Business Representative Osburn and Beltran, he de-
clared , freely and openly, that he planned to "go non-
union" within his facility 's formica countertop fabrica-
tion shop. In that connection , further, he stated, as I
have found , previously , within this decision that he
would "meet" with Complainant Union's representatives,
but would not sign a proffered union contract
Having demonstrated conclusively, thereby, his deter-
mination to participate in contract discussions with a
closed mind , Respondent Crest's president reconsidered.
He consulted counsel; then, presumably basing his rever-
sal of position upon specific "advice" which he had re-
ceived, he notified Business Representative Osburn, most
promptly, regarding his newly developed willingness to
meet and confer "in good faith" regarding a possible
contractual consensus.
Conceivably , Buckley's initial September 23 statement
that he would meet with union representatives but would
not sign a proposed union contract , could be considered
a statutorily proscribed "anticipatory" refusal to bargain.
However, since he promptly reversed his field, and de-
clared his willingness to participate in possibly meaning-
ful contract discussions , no useful purpose would , within
my view, be served , should this Board presently hold
that President Buckley's September 23 statement consti-
tuted a refusal to bargain , without regard for its context,
and without reference to its prompt sub silentio retrac-
tion
With their situation finally clarified , Crest's president,
his counsel , and Complainant Union 's representative pro-
ceeded to plan the first of several prospective collective-
bargaining sessions I so find
The bargaining conference in question convened on
October 9 Though briefly sustained; with no discussion
of specific contract proposals , the session does' not
appear to have been marred by demonstrations of bad
faith , mindless intransigence , or purely dilatory tactics. It
was adjourned , however , pursuant to a request proffered
by Crest's counsel, who claimed he needed time to study
a comprehensive union proposal , which he had just seen
for the first time Both parties planned to convene their
second "bargaining" session on October 16.
When that date had closely approached , Crest's coun-
sel learned , belatedly, that he would be required to
handle a conflicting commitment . Pursuant to consensus,
the parties recessed their planned bargaining session for
one day.
Within her brief, the General Counsel's representative
suggests that this 1-day postponement may have been
sought by Crest's counsel for suspect, dilatory reasons
The record, within my view, provides no warrant for
such a determination
When it convened , October 17 's bargaining session
lasted several hours , the parties discussed a number of
Complainant Union's proposals Crest's spokesmen, how-
ever, presented no counterproposals
While a witness , Crest's counsel claimed that, with
Buckley's help, he had prepared an initial economic pro-
posal When he discovered , however, that the proposal
had been premised, partially, on misinformation which
Buckley had supplied, Counsel Pace suggested a recess,
during which he planned to revise it . I find nothing in
this contretemps suggestive of a purpose to delay the ne-
gotiations.
When the session concluded , both sides , so I find, had
settled upon October 22 , as the date for their next sched-
uled meeting
Despite President Buckley's clearly manifested initial
reluctance to consider Complainant Union 's proposals, or
participate in serious, good-faith discussions with respect
thereto, I am satisfied that , following his initial consulta-
tion with legal counsel , he relaxed his previously pro-
claimed determination not to bargain Nothing in the
present record , within my view, would warrant a factual
finding that Buckley 's stance, during the October bar-
gaining sessions which have hereinabove been reviewed,
reflected bad faith , or conveyed a rejection of collective-
bargaining principles , warranting statutorily sanctioned
interdiction.
(2) The petition signed by Crest 's workers
On October 20, as previously noted, Respondent
Crest 's president received a roughly drafted petition with
respect to which a Crest employee, Robert Reynolds,
had solicited signatures . The single-page document had
been signed by 12 Crest workers , who, by subscribing
their names , had purported to declare that they "no
longer want to be represented" by the local Carpenters
Union organization.
The petition had been drafted for circulation by Rey-
nolds, President Buckley's first cousin ; he was, at the
time, working in Crest 's floor covering department,
where he was classified as a tile installer , although he
had previously rendered services, never clearly defined
for the present record, within the firm's formica shop,
for some never specified but relatively brief period
Prepared by Reynolds, presumably on October 15, the
document had been "carried" through various depart-
ments within Crest's facility , by the tile layer , during the
2 days which followed . Within that period, despite a pur-
portedly wide-ranging solicitation campaign , Reynolds
had procured no more than the 12 signatures previously
noted On October 20 , he had dropped the petition, bear-
ing those signatures , on President Buckley's desk, Crest's
management head, however , had not been present.
As will be seen, hereinafter , Respondent Crest's presi-
dent concededly relied solely on the document in ques-
tion, which Reynolds had drafted , circulated and submit-
ted, when , shortly thereafter , he determined to withdraw
recognition from Complainant Unions as the majority
representative of his firm 's formica shop craftsmen
CREST FLOORS & PLASTICS
The General Counsel's representative, however, chal-
lenges the legitimacy of Buckley 's claimed reliance on
Reynolds' petition, purportedly to justify Respondent
Crest's withdrawal of recognition
With issue thus joined, some factual findings , particu-
larly with regard to the circumstances under which the
document in question circulated , would seem to be pre-
liminarily required.
In that connection , I find, the present record , consid-
ered in totality , will support factual determinations - First,
that Reynolds was not, himself, a Carpenters Union
member, when the petition was drafted and circulated,
second, that most of his signature solicitations had been
directed to fellow workers within departments other
than Crest ' s plastic operations department ; he had, how-
ever, carried his message , without success, to most of the
firm's formica shop regulars , with whom he had spoken
during break periods, or before work , third, that Presi-
dent Buckley's cousin , while soliciting petition signa-
tures, particularly , from Crest 's inside carpentry workers,
had, several times , proclaimed his belief that Buckley
would "close [Respondent Crest's] doors" should Com-
plainant Unions prevail
Nothing within the present record would warrant a
determination that Reynolds ever delineated the precise
nature of the contest , between Respondent Crest and
Complainant Unions, which he then considered in
progress.
While a witness, Reynolds conceded that his petition
had not been subscribed by a majority of Respondent
Crest 's Union represented "inside" carpentry craftsmen
Most of the 12 Crest workers who did sign had never
been formica shop fabrication employees ; no more than 3
signers could conceivably claim prior work experience,
full time or part time , within the precise bargaining unit
with respect to which Complainant Unions claimed rep-
resentative status During October 1980 when Reynolds'
petition was being circulated , Crest's formica shop was
staffed, so the firm's payroll records show , with 10 regu-
larly assigned , presumably full-time, carpentry craftsmen;
only one, clearly less than a majority , became a petition
signer
With matters in this posture , Reynolds' petition , I find,
could hardly be considered persuasive documentation for
any claim that Complainant Unions no longer represent-
ed a majority of Respondent Crest's employees within a
bargaining unit limited to formica shop carpentry crafts-
men
(3) Crest's refusal to bargain
Previously, within this decision , references have been
made to this Board ' s settled decisional principle that, fol-
lowing a collective -bargaining contract 's expiration, the
labor organization which had, during its term , been privy
thereto continues to enjoy a presumption of majority
representative status See Club Cal-Neva, 231 NLRB 22
(1977). The presumption noted, though concededly re-
buttable, can only be overcome by some affirmative show-
ing that the union involved no longer represents a major-
ity of workers, within the bargaining unit contractually
defined, or by some demonstrative showing that the em-
ployer concerned entertains a good faith doubt, regarding
1255
the previously recognized Union 's continued representa-
tive status, bottomed on objective considerations. Fur-
ther, the concerned employer's claim, with respect to his
good-faith doubt, can only be raised within a situational
context free of prior unfair labor practices
Mindful of these principles , we may now consider the
propriety of Respondent Crest's reaction, following
President Buckley's October 20 receipt of Reynolds' pu-
ported 12-man petition.
As previously noted, the parties' October 17 bargain-
ing session , attended by Respondent Crest's and Com-
plainant Union 's several negotiators , had been concluded
with a consensual arrangement , looking toward further
discussions , with an October 22 resumption planned.
However, when Respondent Crest's president , on Octo-
ber 20, was supplied with Reynolds' petition , he conclud-
ed, following a brief review of the document , that a nu-
merical majority of his firm 's formica shop employees no
longer desired union representation.
Buckley, while a witness , provided no detailed, com-
prehensible testimony or documentation , calculated to
validate or justify his conclusion The record suggest,
rather , that he reached a purely "snap " judgment, with-
out consulting available personnel records
Having reached this conclusion, Buckley consulted
counsel Decisions were reached- First, that the parties'
scheduled October 22 collective -bargaining session
should be canceled ; and, second , that Counselor Pace
should notify Complainant Union's negotiators, prompt-
ly, with regard to Crest 's determination that their organi-
zations would no longer be recognized as majority repre-
sentatives , so far as the firm 's formica shop craftsmen
were concerned As previously noted, herein , this was
done
However, the petition document upon which President
Buckley relied, when he withdrew recognition from
Complainant Union and Local 2172 , can hardly be con-
sidered sufficient to overcome the presumption, previous-
ly noted , that these organizations continued to enjoy ma-
jority representative status
Clearly, Reynolds' submission provided no reliable
support for a required determination that more than 5
members of Crest's presumptive 10-man formica shop
crew had, really, forsworn union representation , at most,
no more than 3 of the 12 petition signers could have
claimed connections some of them presumably stale, and
some of them rather tenuous , with the bargaining, unit
which Complainant Unions had, up to that point , repre-
sented
Further, President Buckley's facile claim, that he en-
tertained a genuine good-faith doubt with respect to
Complainant Unions' continued representative status,
cannot be considered worthy of credence , when viewed
within the context of Respondent Crest's antecedent
unfair labor practices These had, inter alia, compassed
Buckley's unilaterally determined changes, with respect
to various employment terms and conditions affecting
both "inside" carpentry workers and countertop install-
ers, questions directed to some workers by Mary Curson
with respect to what they would do should their corpo-
rate employer "go" nonunion , and statements by Presi-
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent Buckley that he did not propose to sign a union
contract, plus other statements and conduct, all reason-
ably calculated to persuade Crest's workers that collec-
tive bargaining , with Complainant Unions as their
spokesman , might well prove futile . Doubts purportedly
raised , within a situational context marked by such unfair
labor practices , cannot overcome the presumption , previ-
ously noted, that a contractually recognized union,
whose recent contract may have expired , nevertheless
continues to enjoy majority representative status.
When this case was heard, and within her brief, the
General Counsel's representative argued, further, that
Reynolds' petition could not be considered sufficient to
provide Respondent Crest with a credible defense, in this
connection, since Reynolds had functioned as President
Buckley's agent, when he solicited petition signatures
and suggested, while doing so, that Respondent Crest's
president would "close the shop" should Complainant
Union win whatever it was seeking to gain Essentially,
the General Counsel's representative is seeking a deter-
mination that Reynolds' petition should be deemed taint-
ed
Additionally, the General Counsel's representative
contends, herein, that, since the record will warrant a de-
termination that Respondent Crest's president "spon-
sored" the petition's circulation, the firm should be con-
sidered responsible for Reynolds' statements regarding a
possible shop closing. Counsel suggests, in short, that, by
sponsoring the petition and tacitly authorizing Reynolds'
statements, Respondent Crest directly violated Section
8(a)(1) of the statute
Certainly, there can be no doubt on this record that,
should Reynolds' comments with regard to some possible
shop closure be found properly chargeable to Respond-
ent Crest's management, they would merit characteriza-
tion as statutorily proscribed interference, restraint, and
coercion. I have not, however, been persuaded that, with
due regard for the record herein, Reynolds should really
be considered Respondent Crest's voice within the shop
Though President Buckley and Reynolds are related,
their relationship is not an immediate family one. Noth-
ing within the record would warrant a finding that
Reynolds performs managerial or supervisorial functions,
or that he shares managerial responsibilities, nor is there
any evidence, beyond mere supposition, that his family
connection-though known to his fellow workers-has
privileged him to claim some special status which those
workers might consider indicative of managerial ties Cf.
Air Express International Corp., 245 NLRB 478 (1979)
The mere fact that his statements to fellow workers,
cited herein, may have been "consistent" with certain
similar, but clearly distinguishable, statements charged to
Buckley cannot be considered proof that they were
preauthorized, or that both derived from some common
source, namely, Crest's president
The tile installer's petition has been herein character-
ized as facially "insufficient" to generate doubts with
regard to Complainant Unions' representative status
which could reasonably have been considered "good
faith" doubts And, having been circulated subsequent to
a period within which Respondent Crest had, so I have
herein found, been responsible for numerous unfair labor
practices, the petition, likewise, might well be considered
"tainted" sufficiently to require its rejection as reliable
proof of employee sentiment. On this record, however,
no determination would be warranted that Reynolds'
conduct in circulating it, constituted a separately cogni-
zable unfair labor practice, chargeable to Respondent
Crest herein
However, President Buckley's course of conduct, con-
sidered in totality with due regard for its situational con-
text, would certainly seem to warrant determinations that
his October 20 withdrawal of recognition, coupled with
his concurrent refusal to bargain, further, on behalf of
Respondent Crest's formica shop workers, flouted the
statute's mandate Consistently with this view, I so find.
d Interference, restraint, and coercion
Within her brief, the General Counsel 's representative
seeks factual findings , herein , that President Buckley,
Plastic Operations Manager Pinedo, and Mary Curson,
Pinedo's departmental assistant separately , at various
times, made statements , to concerned employees, that
Respondent Crest would "go" nonunion . Further, Re-
spondent Crest's several spokesmen have concurrently
been charged with questioning various company crafts-
men, particularly with regard to their "intentions"
should Crest become a nonunion business enterprise
Save in certain limited respects , I find merit in these
several contentions With respect thereto, credible testi-
mony, within my view, warrants particularized determi-
nations, as follows-
First. Early in July 1980 Pinedo advised the Magda-
leno brothers , Jess and Robert , that Crest 's formica shop
was "going" nonunion . He asked both brothers , presum-
ably, what they were going to do. Jess declared that he
would look for another job with a union shop.
Second : During his July 23, 1980 conference with
Crest's formica shop workers, previously noted within
this decision , President Buckley declared , inter alia, that
their shop was "going" nonunion , and that he was plan-
ning to activate and maintain another firm, Pacific Sun,
with which Respondent Crest 's jobsite countertop install-
ers would become affiliated. He suggested that craftsmen
who could not adjust, when required to work under non-
union conditions , could seek another position
Third On July 24 , 1980, when he discussed their pre-
vious day's conference , fiist, with Larry Nordstrom, and
later with Robert Magdaleno , President Buckley repeat-
ed his declaration that Respondent Crest 's formica shop
would be "going" nonunion Further, Buckley queried
both workers , separately , with regard to their plans, if
they had any, for dealing with such an eventuality Both
men, so they testified, told Respondent Crest's president
that they would "stay" unionized.
Fourth: During their July 24 conversation, noted,
Buckley told Robert Magdaleno that , without regard for
any fringe benefit coverages which might be provided
pursuant to union contracts , his firm had insurance cov-
erage for qualified workers.
Fifth. On several occasions during July 1980, and
during August, presumably following the expiration of
Respondent Crest 's Mill Cabinet Agreement commit-
CREST FLOORS & PLASTICS
ments, Mary Curson, Pinedo's departmental assistant,
queried Jess Magdaleno and Ramon Torres with respect
to what they would do, should Crest's formica shop
become a nonunion facility She was told, separately, by
each man, that they would feel impelled to look for an-
other position (Curson's status as Respondent's supervi-
sor and recognized "agent" was, initially, conceded
within Respondent's answer When counsel subsequently
sought to withdraw that concession, belatedly, following
a decision, by the General Counsel's representative, to
rest her case-in-chief, their request for permission to do
so was denied. That denial, which I now reaffirm, need
not, however, affect this matter's disposition. With due
regard for the record, considered in totality, I am satis-
fied, in any event that Curson's status as Respondent
Crest's statutory "agent" has been sufficiently estab-
lished Clearly, she functions as Crest's managerial repre-
sentative, within Pinedo's department, throughout his pe-
riods of necessary absence, she has been consistently rec-
ognized, as such, by Crest's formica shop workers and
countertop installers
Statements made to employees, by their employer, that
a firm will go nonunion, that it will henceforth continue
doing business under nonunion conditions; and/or that
company management will not sign a union contract,
have consistently been found violative of the statute Co-
lumbia Building Materials, 239 NLRB 1342, 1346 (1979);
Gary Maughan & Michael Walsh, 231 NLRB 383 (1977).
Further, employer statements subject to construction as
messages that support for a labor organization, and con-
tinued employment with a given firm, will be deemed in-
compatible, have been found coercive in nature and, like-
wise, violative of law. Rolligon Corp, 254 NLRB 22
(1981) Statements that disaffected employees, who might
rather work in some unionized shop, should seek em-
ployment elsewhere, further transgress permissible limits;
I so find Compare L. A. Baker Electric, 265 NLRB 1579,
1580 (1983), in this connection.
Within her complaint, the General Counsel's represent-
ative charges that President Buckley's comments during
his July 24 conversations with Nordstrom and Robert
Magdaleno constituted "direct bargaining" which by-
passed Complainant Unions, in derogation of their repre-
sentative status, thus violating Section 8(a)(5) as well as
Section 8(a)(1) of the statute. On this record, however,
such a determination, within my view, would be surplus-
age.
Mindful of the record summarized herein, I find Re-
spondent Crest responsible for statutorily proscribed in-
terference, restraint, and coercion, heremabove noted
e Discrimination
(1) Jess Magdaleno's demotion
Jess Magdaleno's employment record with Respondent
Crest, within its formica shop, dates from 1964, for some
10 years, prior to his demotion on November 5, 1980, he
had served, save for a brief interruption, as the shop's
leadman/foreman directly responsible to Crest's plastic
operations manager.
On November 5, some 2 weeks subsequent to Presi-
dent Buckley's decision that contract talks with Com-
1257
plamant Unions, herein, would be suspended, Manager
Pinedo summoned Crest's formica department craftsmen
to a departmental meeting During that meeting, those
present were told, inter alia, that Jess Magdaleno would
no longer give them orders; Pinedo declared that Steve
Gonzales would serve as the department's new foreman.
Magdaleno's testimony, which I credit in this connec-
tion, warrants a determination that Pinedo had never
warned or reprimanded him, for purportedly "poor"
work, before his demotion, further, he had been given no
prior notice, whatsoever, with regard to his prospective
demotion, for any reported reason, prior to Pmedo's No-
vember 5 announcement While a witness, further, Mag-
daleno reported, credibly, that Pinedo had specified no
reason, whatsoever, for his demotion, during the Novem-
ber 5 meeting when he was first notified with respect
thereto
Shortly after that meeting, when Magdaleno queried
Pinedo regarding the reason for his demotion, Crest's
Plastic Operations Manager reported, so I find, that the
formica shop's foreman/leadman had been demoted "be-
cause Mike [Buckley] wanted it" merely. Following his
demotion, Magdaleno continued working within the for-
mica shop; he worked as a finisher until January 16,
1981, when he, together with his brother David, and
Ramon Torres was given a layoff which, as will be
noted, subsequently, within this decision, later became a
discharge
The General Counsel's representative, within her brief,
contends, flatly, that Jess Magdaleno was demoted be-
cause "he was a union supporter in a nonunion shop"
following the Mill Cabinet Agreement's expiration.
With respect to Magdaleno's union involvement, the
record, herein, reveals: That, between April and August
1980, during which period President Buckley's rumored
plan to "go nonunion" with Respondent Crest's laminat-
ed plastic countertop fabrication work had become a
matter of growing concern, and frequent discussion,
within the formica shop's crew complement, Jess Magda-
leno had queried Pinedo frequently seeking to determine
"what was going to happen" when the Mill Cabinet
Agreement, then still in force, expired, that the formica
shop leadman/foreman had, several times, requested
Pinedo to set up a conference, during which President
Buckley could, so Magdaleno hoped, clarify the develop-
ing situation for his formica shop's crew; that, when Re-
spondent Crest's president finally met with the shop's
craftsmen, on July 23, Magdaleno had participated ac-
tively in their discussion; that, subsequently, the formica
shop foreman had "attended" both of the contract nego-
tiating sessions held, during October, before Respondent
Crest withdrew union recognition and suspended con-
tract talks, that, within this general time period, Magda-
leno had, together with several of his fellow crew mem-
bers, conferred with union representatives within the
open confines of Respondent Crest's parking lot, and that
these parking lot conferences, specifically, several which
took place within a September-October 1980 period, had
been "observed" both by Manager Pinedo and Respond-
ent Crest's president While a witness, Magdaleno report-
ed, credibly, within my view, that, during a September
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1980 conversation , Pinedo had told him President Buck-
ley did not want Magdaleno to meet and confer with
union representatives.
Cognizant of Magdaleno 's testimony with regard to
these matters , Pinedo was queried , while a witness, with
regard to his "reason" for the long -time leadman/-
foreman 's November 5 demotion . Initially, Crest's de-
partmental manager claimed that he had, several times
previously discussed with Magdaleno their department's
failure to meet reasonable production standards, which
Pinedo considered attributable to the formica shop
crew's preoccupation with their "union problem" par-
ticu l arly Pinedo testified that he had urged Magdaleno
not to get " involved" with the developing labor dispute.
Later , however, Pinedo testified , with a somewhat differ-
ent emphasis , that Magdaleno had been demoted because
Pinedo felt that the shop leadman had been "using the
shop" to retaliate against President Buckley, by control-
ling and manipulating production levels Finally, the de-
partmental manager testified , without qualification, that
Magdaleno had been demoted because he was "insubor-
dinate" and because of the formica shop's "lack of pro-
duction."
Within my view, Pinedo's variously stated reasons for
Magdaleno 's demotion , though generally consistent,
carry no persuasion His reference to purported " insubor-
dination " stands without record support , lacking any de-
scriptive elaboration which might , conceivably, have
"lent verisimilitude to an otherwise bald and unconvinc-
ing narrative ." See "The Mikado," Act II, (Pooh Bah's
song). And his various comments , hereinabove noted,
calculated to suggest some subjective belief that Magda-
leno's preoccuption with "union" problems, particularly,
had conceivably impaired his capacity or willingessto en-
courage or facilitate his crew's achievement of accepta-
ble production levels, likewise stand isolated, lacking in
circumstantial detail, and devoid of testimonial and/or
documentary corroboration Their ipse dixit character,
within my view, suggests contrivance
Should this Board deem Pinedo's proffered rationale
for Magdaleno ' s demotion, nevertheless , worthy of seri-
ous consideration , note should be taken of the depart-
mental manager 's testimonial acknowledgement that his
shop leadman 's purported lack of fervor , and leadership
deficiencies , had seemingly become manifest only "after
the Union problem started " That comment , within my
view , suggests a tacit concession, chargeable to Pinedo,
that Magdaleno ' s various manifestations of concern, re-
garding his possible loss of union representation, had
really prompted or provided a motivating factor for his
demotion . Mindful of the fact that Magdaleno had
openly manifested his personal interest with regard to
continued union representation , the fact of President
Buckley's declared determination to "go nonunion," par-
ticularly with respect to his facility 's formica shop oper-
ations, and the corporate president 's demonstrated readi-
ness to commit unfair labor practices , calculated to pro-
mote the successful realization of his proclaimed objec-
tive, I conclude that Jess Magdaleno 's demotion derived,
not purely and simply from Pinedo's perturbation with
regard to formica shop production levels, but from the
departmental manager's concern that Respondent Crest's
presumed interest would not be well served by a union
supporter' s presence functioning in some leadership role,
however minor , within a nonunion facility . So motivat-
ed, Magdaleno 's demotion, I find, reflected discrimina-
tion , reasonably calculated to discourage union member-
ship , which , presently , should call for Board proscrip-
tion, coupled with a remedial directive.
(2) The January 1981 terminations
Shortly following the July 31 termination of Respond-
ent Crest's Mill Cabinet Agreement commitments , signifi-
cant changes , previously noted herein, had been initiated,
within the firm's formica shop. Some five new workers,
possibly more, were then engaged ; they were to be
"trained" for countertop fabrication work, which was
then being performed by Crest's regular formica shop
craftsmen.
Within her brief, the General Counsel' s representative
characterizes this personnel expansion program as part of
Respondent Crest's planned "campaign " to transform the
formica shop' s fabrication crew, by hiring nonunion
workers. Those hired were, indeed , given starting hourly
rates of pay below Complainant Union 's contractually
defined scale, further, they were not required to become
union members. The validity of the General Counsel's
charge, with respect to Respondent Crest' s allegedly sus-
pect rationale for their hire, will be considered, should a
determination with respect thereto prove required, subse-
quently within this decision.
Herein, Respondent Crest proffers no claim , currently,
that these newly hired workers were needed to handle a
greater number of orders, or to raise gross production
levels . Pinedo's testimony reflects his contention , rather,
that they were engaged , primarily, to serve as possible
replacements for Respondent Crest's regular crew, be-
cause he had heard "rumors" circulating within the for-
mica shop, regarding a possible strike.
It should be noted , however, that Crest' s management
representatives never sought to verify these purported
strike rumors, before hiring possible strike replacements;
Complainant Union 's business representatives , who, so
far as the present record shows, had never mentioned a
possible strike directed against Crest particularly, were
never questioned , I find, with regard to such a conceiva-
ble development
With matters in this posture, namely , with a cadre of
replacement workers available, Crest's management, so
the General Counsel's representative contends, engi-
neered the termination of three union supporters- Jess
Magdaleno , David Magdaleno , and Ramon Torres. Con-
sistently with her contention , previously noted herein,
that corporate management was, throughout this period,
pursuing a campaign to staff the firm's formica shop with
nonunion workers, the General Counsel's representative
seeks a determination that the three discharges , noted,
really represented a continuation of Crest's campaign,
despite management 's claim, now , that they were effectu-
ated for statutorily privileged business reasons.
Previously, within this decision , Respondent Crest's
Friday, January 16, shop situation which had, conceded-
ly, triggered Manager Pinedo's late afternoon decision to
CREST FLOORS & PLASTICS 1259
decree a purported layoff, described as prompted by a re-
duced workload but presumably laid on for disciplinary
reasons has been described At this point, that situation,
within my view, requires no further, detailed recapitula-
tion Suffice it to say. the General Counsel's' representa=
tive presses no contention, herein, that Pinedo's Friday
night complete staff "layoff' decision, which Crest's situ-
ation had prompted, derived -from statutorily proscribed
consideration Within my view, likewise, no such deter-
mination would be warranted. '
At some point, however, following his Friday, night
"layoff' directive, Pinedo decided to recall several, but
not all, shop workers. Four workers, Steve Gonzales,
Mike Morrell, Brian Curtner, and Larry Nordstrom,
were instructed to report for work on Monday, January
19, four others, Jess Magdaleno, David Magdaleno,
Ramon Torres, and Tom Bright, were not recalled
Within her brief, the General Counsel's representative
notes, cogently, that, despite, Respondent Crest's past
practice with respect to employee layoffs, pursuant to,
which layoff and recall sequences have, both, been pre-
mised upon comparative seniority, three of Pinedo's 're-
called workers, with Larry Nordstrom the, sole excep-
tion, had less seniority than Jess and David Magdaleno, or
Ramon Torres
On this record, the General Counsel's representative
seeks a determination, finally, that Torres, Jess Magda-
leno, and ^ his brother were- really terminated whether
their terminations should be dated from Friday evening,
January 16, when they last worked, from Monday morn-
ing, January, 19, when Pinedo first manifested his deter-
mination not to recall them; or from Wednesday, Janu-
ary 21, when Jess and David Magdaleno were told, per-
sonally, to consider themselves "laid off' indefinitely for
statutorily impermissible reasons.
Respondent Crest, however, contends,, contrariwise,
that all three countertop fabrication workers designated
as "laid off' were really discharged because'Plastic Op-
erations Manager Pinedo had, for some 'time, considered
them, generally, poor producers'
Within his brief, Respondent Crest's counsel contends,
essentially,_ that his client's departmental- 'manager' had
considered January 16's formica'shop contretemps, previ-
ously discussed herein, merely a trigger incident, the
"final straw" capping a series 'of shop discussions and
confrontations; generated by supposedly repeated in-
stances of low production
In' support of this contention, Respondent Crest has
produced a statistical summary of formica shop 'produc-
tion records, buttressed with a purported, graphic repre-
sentation. Both documents, however, had concededly
been prepared, specifically, for presentation herein, Re-
spondent produced 'no "original" records. When sum-
moned as Crest's witness, Pinedo supplemented-this pur-
ported "documentary" material, he testified, inter alia,
that he, himself, had frequently seen-both Magdaleno•
brothers,' Torres and Tom `Bright together, "standing
around" their workplace, talking when they were sup`
posed to be working Concededly, however, Crest's plas-
tic operations manager knew that Jess and David Magda-
leno, Torres, and Tom Bright, particularly, were con-
cerned-about Complainant Unions' collective-bargaining
prospects, and worried over the possibility . that they
might soon lose fringe benefit protection and be denied
union representation' He testified, further, that therefore'
he knew their workplace conversations dealt with such
"union" matters
Within my view, the General Counsel's representative
has, herein, demonstrated prima facie that Respondent
Crest's January •1981 terminations were, indeed, discri-
minatorily motivated
I note, in this connection First, Jess Magdaleno's con-
cededly sustained role as Complainant Union's principal
protagonist, within Respondent Crest's formica shop
(David Magdaleno and Ramon Toires, though less forth-
coming, had clearly made their union sympathies known,.
I find, when they consulted, openly, with David's broth-
er); second, Pinedo's concession, herein, that, when he
saw both Magdaleno brothers, and Torres, conversing
together, 'he "knew" they were discussing' their shared
union concerns, third, the departmental supervisor's fur-
ther concession that he considered Jess Magdaleno's al-
legedly "frequent" shop floor discussion, which he knew-
to be concerned with union matters, deliberately calculated
to slow down production
When he so testified, Pinedo, within 'my view, re-
vealed his subjective belief that Magdaleno's known pre-,
occupation with "union" concerns had generated shop
floor discussions conducted, consciously and deliberately, ,
during Respondent Crest's working hours, that such dis-
cussions, when conducted during working hours, neces-
sarily meant lost production time; and that lost produc-'
tion time, likewise necessarily, had resulted in lower day-
to-day production
In short, Pinedo's testimony reveals that he considered
Jess Magdaleno's demonstrated concern, with regard to
"what was, going to happen" which might affect his
union representation and contractually defined fringe
benefits, causally related to some purported production
problems. Crest's claim, therefore,' that Magdaleno was
laid off, together with his two fellow workers, because
Pinedo considered them responsible for some production
'declines, necessarily reflects a concession that their union
concerns, noted, constituted a cognizable "motivating
factor" when the departmental manager, somewhat ob-
liquely, effectuated their terminations
Respondent Crest has not, within my view, persuasive-
ly countered the General Counsel's showing prima facie
that Pinedo's concern with regard to Jess Magdaleno's,
David Magdaleno's, and Ramon Torres' preoccupation
with Complainant Union's contract prospects, and their
prounion orientation, constituted a motivating factor,
when he "notified" them of their layoff/discharge. The
firm's defensive presentation, I find, carries no persua-
sion.
First. I note that President Buckley's record summary,
with respect to Crest's laminated plastic countertop pro-
duction, provides no reliable showing that particular shop
craftsmen were, in fact, failing or refusing to maintain
"acceptable" production levels The proffered summary
merely reveals the "total square footage" produced
weekly by Respondent Crest's shop complement of fabri-
cation workers; no individual craftsman's . production
1260. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records, daily or weekly, can be gleaned . therefrom The
summary's - figures which purport to reveal, 'week by
week , the square footage produced, per crewmember,,
daily, reflect , computations derived entirely from those
weekly figures which show the square footage produced
by the entire crew, necessarily, therefore , they represent
mere averages , which provide no clues regarding the
productive efficiency of particular workers, and which
may conceal significant daily fluctuations , derived from
changes in backlog order levels, within particular calen-
dar weeks ., Respondent Crest, nevertheless , makes much
of certain figures, set forth within its proffered record
summary, which purport to reveal that square footages
produced , on the average , by each crewmember, daily de-
clined from previous levels during August 1980 and
thereafter Clearly, however no reliable inferences can
reasonably be considered warranted regarding any cause,
or , cconjunction 'of causes , conceivably responsible for the
putative declines shown ' While a witness , Respondent
Crest's president conceded that his firm 's sales, and con-
sequent backlog of orders received, may fluctuate for a
variety of business-related reasons . Further, it should be
noted that ,- subsequent 'to August 1, 1980, the number of
craftsmen and trainees working, more or less regularly,
in Crest's formica shop expanded significantly Since
nothing within the present record would warrant a factu-
al finding that Crest's backlog of orders for countertops
had likewise grown ' proportionately the shop 's total pro-
duction daily, regardless of fluctuation , would have to be
statistically apportioned (i.e.,' averaged ) between a great-
er number of crewmembers working a greater number of
man 1i6urs -, per week . ' 'Necessarily , therefore , average
square footage figures "per' man per day" would reflect
declines. And, 'since'such declines with respect to daily
production-per-man averages would merely have been
derived from calculation , rather than specified data, they
could neither be considered persuasively demonstrative
of some presumed "goofing off"- by particular workers,
norbe considered chargeable to-planned , or even sponta-
neous, slowdowns
Second. Before they heard Pinedo's testimony, when
this case was tried , neither the Magdaleno brothers nor
Ramon 'Torres had been given any reason, bottomed on
Crest's purported production records or their . departmen-
tal • manager 's purported observations , for his failure to
recall them . They had merely been told, baldly, that they
were being laid off and 'would be well advised to file un-
employment compensation claims.
'Plastic Operations Manager Pinedo testified that he
used the term "laid •of `^' because he was not supposed to
discharge them . The source,of this limitation on his au-
thority, and the reason for it, have not been detailed for
the present record.
When summoned as Respondent ' s witness , however,
Pinedo provided several somewhat divergent rationales.
Initially, he suggested that the four particular craftsmen
who were not. recalled on January 19 had not, so far as
he had .observed , been trying ,to maintain acceptable pro-
duction levels. -
-Elsewhere , within his , testimony, Pinedo conceded,
however, that ',- formica shop production levels, had,
within ^ his, view , been - low, whatever the reasons may
have been, within the 2-year, period which preceded the
layoff/discharges now, in question , - ,
Subsequently, within his testimony, the departmental
manager declared that he, had not decided these four
shop workers deserved termination because they' had
failed to finish required.countertop work on:January 16,
he reported that they were laid off specifically because.
"they didn't cut- the sink holes" required to complete the
job that day The precise distinction Pinedo was presum-
ably trying to draw, between "not finishing the tops'that
day for the next day" and failing to "cut [required] sink,
holes for that day," was never explained for the record.
He conceded, however, that. in the past, work orders
had sometimes not been completed; nevertheless, his tes-
timony shows, no one had been discharged in conse-
quence
Third: Respondent` Crest's further contention, . bot-
tomed solely on, Pinedo's testimony and proffered, for
the first time, within counsel's posttrial brief, that Jess
Magdaleno, together with his colleagues, had "apparent'
ly"'planned and conducted intermittent production slow-
downs for which Respondent Crest was privileged to
discharge them shortly and simply lacks record support
Jes's Magdaleno and his fellow workers may have' been
concerned, they may even have been fearful, with regard
to possible developments affecting their Union's repre-
sentation rights. 'Prompted by ' their concern, they may'
have felt impelled' to discuss their possible union prob-
lems, or matters of mutual'interest, while on Respondent
Crest's shop floor Nothing in the present record, how-
ever, would warrant a determination, within my view,
that, concurrently therewith, they had, consciously and
deliberately lowered their productive pace to a level
which they "knew" their supervisor would consider less
than satisfactory, or that they had fostered intermittent
slowdowns, calculated to pressure Respondent Crest into
signing a union contract Pinedo's allegedly -maintained
belief that they were purposefully pursuing that objec-
tive if, indeed,"he really held that view derived, I find, , ,
from nothing more than suspicion.' Concededly, the de-
partmental manager routinely spends a significant amount
of•his time in the, field, visiting- construction projects, his
opportunities to observe sustained shop operations would
necessarily have been limited Perry Mason, so Erle
Stanley Gardner reports, once commented that his court-
room opponent had "taken a button and sewn a vest on
it:" Respondent Crest's supervisor, within my view,
would seem to have followed a similar course His pur-
portedly proffered justification for Magdaleno's layoff/-
discharge, I find, merits rejection.
Within his brief, Respondent Crest's counsel comments
that Pinedo was a presumptively "unlikely company
hatchet man" when required to deal with. union-related
matters Since he.,had been a, rank-and-file worker for
many years before he became a supervisor, and had re
tained his union membership until President Buckley's
decision to terminate Complainant Union's Mill Cabinet
Agreement became foreseeable, counsel suggests that he
lacked "personal" union animus That suggestion may be,
valid The departmental manager's freedom from deeply,
felt, -personal antiunion feelings, however,, is considered
CREST FLOORS & PLASTICS
immaterial If Jess Magdaleno and his fellow workers
were denied January 19 work recalls because Pinedo be-
lieved, among other things, that they could -not keep
their concern about "union" matters from affecting their
productive pace, or working relationships within Crest's
formica shop, the departmental manager's decision to re-
frain from recalling them may properly be•characterized
as derived from a statutorily proscribed consideration. I
find that it was
Absent some persuasive showing, bottomed on objec-
tively verifiable evidence, that manifestations of union
concern, by these craftsmen, had impermissibly affected
their work (i.e., had led to purposeful slowdowns), Re-
spondent Crest cannot legitimately contend now that
such a work-related consideration, independent of their
presumptive discussions with regard to union-related mat-
ters, had generated Pmedo's discharge decision. No such
persuasive showing has, within my view, been made.
In short, Respondent Crest has failed to demonstrate,
convincingly, that Jess and David Magdaleno, and
Ramon Torres would have been denied January 19 re
calls, even absent their previously demonstrated concern'
with regard to Complainant Union's contract renewal
prospects
On this record, then, I conclude and find that Jess
Magdaleno, his brother, and Ramon Torres were laid off,
purportedly temporarily, during January 16 evening
hours, and that they were subsequently denied January'
19 recall under circumstances reasonably calculated to
discourage their union membership, and to interfere
with,,restrain, and coerce Respondent Crest's employees,
with respect to their exercise of statutorily guaranteed
rights. -
IV. THE EFFECT OF RESPONDENTS' UNFAIR LABOR
PRACTICES ON COMMERCE
The unfair labor practices, described in section III,
above, herein found to have been committed by Re-
spondents Crest and Buckley, since they occurred in
connection with the business operations described within
section I of this decision, had, and continue -to have, a
close, intimate , and substantial relationship to trade, traf-
fic, and commerce among the several States. Absent cor-
rection, they would tend to lead to labor disputes bur-
dening and obstructing commerce, and the free flow of
commerce
In view of the findings of fact and conclusions set
forth, previously, within this decision, and on the entire
record in this case, I find the following
CONCLUSIONS OF LAW
1 Respondents Crest Floors & Plastics, Inc., and Mi-
chael. T Buckley d/b/a Pacific Sun, have, throughout
the period with which this case is concerned, conducted
business as affiliated business, enterprises; they constitute
a single-integrated business enterprise and single employ-
er, within the meaning of Section 2(2) of the Act, en-
gaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
1261
2 Orange County District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO and Local 2172, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO are labor
organizations within the meaning 'of Section 2(5) of the
Act
3 All outside laminated countertop installers, em-
ployed by Respondent Crest and Respondent Buckley,
who perform services at commercial and residential con-
struction jobsites located in the counties of Los Angeles,
Inyo, Mono, Orange, Riverside, San Bernardino,- Imperi-
al, Ventura, Santa Barbara, San Luis Obispo, and Kern,
California, constitute a, unit appropriate for the purposes
of collective bargaining, within the meaning of Section
9(b) of the Act
4 Since calendar year 1964, and continuously to date,
Orange County District Council of Carpenters, function-
ing on behalf of various' affiliated local unions of the
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO has been the representative of a majority,
of the outside laminated countertop installers performing
services within the unit herein found appropriate for col-
lective-bargaining purposes. By virtue of Section 9(a) of
the Act, the labor organization designated has been, and
remains, entitled to recognition as the exclusive repre-
sentative of all employees within the bargaining unit de-
scribed, for the purpose of collective bargaining with re-
spect to their rates of pay, wages, hours of employment,
and other employment terms and conditions.
5 Commencing on August 1, 1980, and continuing
thereafter, Respondent Crest and Respondent- Buckley
have failed, or refused, to honor their previously execut-
ed contractual commitment to observe, comply with, and
give effect to successive collective-bargaining agree-
ments, negotiated by Orange County District Council of
Carpenters and' various affiliated labor organizations,
which, inter alia, cover the wages, hours, and working
conditions of outside laminated countertop installers em-
ployed by them for services performed within the unit
herein found appropriate for collective-bargaining pur-
poses They have, unilaterally, changed terms and condi-
tions of employment for outside laminated plastic-coun-
tertop installers , in their hire, by failing or refusing to
make required monthly contributions to certain pension,
health, and welfare, and other trust funds established .
consistently with the provisions of Section 302 of the
Act By so doing, Respondents have committed unfair
labor practices, within 'the meaning of Section 8(a)(5)
and (1) of the Act. .
6. All inside carpentry employees, including but not
limited to laminated plastic countertop manufacturers,,
machine operators, layout men, spraymen, finishers and
sawyers, employed by- Re'spond`ent Crest within its Ana-
heim, California facility, constitute a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act -
7: Since calendar year 1964, and continuously to date,
Orange County District Council of Carpenters and Local
2172 have jointly represented a majority of Respondent
Crest's inside carpentry employees, performing services
within the unit herein found appropriate forcollective-
1262 DECISIONS OF NATIONAL;LABOR RELATIONS BOARD
bargaining , purposes By virtue of Section 9 (a) of the
Act, the labor organizations designated have been, and
remain , entitled to,recognition as the exclusive represent-
ative of all employees , within the bargaining unit de-
scribed , for the purpose of collective bargaining with re-
spect to their rates of pay, wages , hours of, employment,
and other, employment terms and conditions
8. By. its = failure to acknowledge or respond positively
to collective -bargaining overtures proffered- by Com-
plainant Unions ' representatives, between May 19 and
October 9, 1980, and by its subsequent October 20, 1980
withdrawal of recognition from Orange County District
Council of, Carpenters and Local 2172 as, the exclusive
representat ive, for collective -bargaining purposes, of its
inside carpentry employees performing services within
the unit hereinabove found appropriate for such pur-
poses, Respondent Crest has failed and refused , and con-
tinues to fail and refuse, to bargain collectively , in good
faith, with the labor organizations designated , as the ex-
clusive representative of its inside carpentry employees
performing services within the bargaining unit described.
By so doing ,, Respondent Crest has committed unfair
labor practices , within the meaning of Section 8(a)(5)
and (1) of the Act,
9 Commencing on August 1, 1980, and continuing
thereafter , Respondent Crest has , unilaterally , changed
certain terms and conditions of employment for inside
carpentry employees in its hire by discontinuing its
monthly contributions , previously submitted on their
behalf to certain 'pension , health and welfare , and, other
trust funds established consistently with the provisions, of
Section 302 of the Act; by lowering rates of pay for, cer-
,tain bargaining unit positions , and by modifying certain
personnel and pay practices, described previously herein,
which had theretofore , been maintained . By so doing,
Respondent Crest has committed unfair labor practices,
within the meaning of Section 8(a)(5) and (1) of the.Act
10 On July 23, 1980, and various dates thereafter, Re-
spondent ,Crest, through President Buckley and certain
other management spokesmen - threaten employees that it
would -refuse to bargain collectively or sign a collective-
bargaining . agreement with-the labor organizations here-
inabove designated concerning rates of pay , wages, hours
of work ; 'and. jother employment . terms and conditions,
for its inside carpentry -workers; notified such employees
that 'it planned to maintain formica shop operations under
nonunion conditions , and that they could continue to
work under those nonunion conditions ; and questioned
employees with regard to their willingness to continue
working under such conditions By so doing, Respondent
Crest has committed unfair labor practices , within the
meaning of Section 8 (a)(1)-of the Act, as , amended. .
11. On November 5,,•1980,-Respondent Crest, through
Plastic Operations ' Manager Pinedo , demoted Jess Mag-
daleno from his previously held position as the firm's for-
mica shop leadman, because of his involvement with, or
participation in, union or other protected ,. concerted ac-
tivities for the purposes of collective bargaining or other
mutual aid or protection . Subsequent to Magdaleno's de-
motion , Respondent Crest failed and refused to return
him. to his former leadman position . By so doing, Re-
spondent Crest committed unfair labor practices, within
the meaning of Section 8(a)(3) and (1) of the Act.
12. Following the close of Respondent Crest's January
16, 1981 business day,, the firm, through Plastic Oper-
ations Manager Pinedo, laid off, and thereafter failed, to
recall, or discharged, Jess Magdaleno, David Magdaleno
and Ramon Torres, and has since then failed or refused
to reinstate them, because of their involvement with, or
participation in union or other protected , concerted ac-
tivities, for the purposes of collective bargaining or other
mutual aid or protection By so doing, Respondent Crest
committed unfair labor practices, within the meaning-of
Section 8(a)(3) and (1) of the Act
13. The unfair labor practices herein found .to have
been committed are unfair labor practices affecting com-
merce, within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
1. Respondent Crest's formica shop- workers
Since I have found that Respondent Crest Floors &
Plastics, Inc. has committed, and has thus far failed to
remedy, certain specific unfair labor practices which
affect commerce, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirma-
tive action , including the posting of appropriate notices,
designed to effectuate the policies of the Act.
Specifically,- I have found that Respondent Crest has
refused to bargain collectively, in good faith, with Com-
plainant Unions, as the designated exclusive representa-
tive of its inside carpentry workers. I shall, therefore,
recommend that Respondent Crest be required to recog-
nize and, on request, bargain collectively with Orange
County District Council of Carpenters and Local 2172 of
the United Brotherhood of Carpenters and Joiners of
America, as the designated and selected representatives
of inside carpentry workers in the firm's employ, with
respect to their 'rates of pay, wages, hours of work, and
their othei employment terms and conditions . If an un-
derstanding is reached , Respondent Crest will be re-
quired to embody such understanding within 'a signed
agreement
Further , I shall recommend that Respondent Crest be
required to revoke and rescind all changes which ' may
have been 'effectuated , unilaterally, on August 1, 1980, or
thereafter , with regard to the wages, hours, and condi-
tions of employment previously maintained , pursuant to
contract * or practice , for that '' firm 's inside carpentry
workers. Those workers should be made whole for any
loss of wages, or benefits, which they may have suffered
as a result of Respondent Crest 's unilateral changes, and
as a result of that firm 's refusal to bargain with Com-
plainant Unions designated herein.
I have found, further, that Section 8(a)(3) and (1) of
-the statute was violated when Jess Magdaleno was de-
moted, and yet again when Jess Magdaleno, David Mag-
daleno, and Ramon Torres were, subsequently, laid off,
denied recall, or discharged • I shall , therefore , recom-
mend that Respondent Crest be required to offer David
Magdaleno and Ramon Torres immediate and full rein-
CREST FLOORS,& PLASTICS 1263
statement to their former positions as formica shop fabri-
cation workers or, should those positions no longer exist,
to substantially equivalent positions without prejudice to
their seniority and other . rights and privileges Jess Mag-
daleno should be offered immediate . and full , reinstate-
ment to his former . position as Respondent Crest's nomi-
nal "foreman/leadman" within its formica shop or,
should that position no longer exist , likewise to a sub-
stantially equivalent position without prejudice to his se-
niority and other rights and privileges
Respondent Crest should, further, be required to make
Jess Magdaleno , David Magdaleno , and Ramon Torres
whole for. any pay losses , or losses of benefits, which
they may have suffered , or may suffer , by reason of the
discrimination practiced against them. Jess' Magdaleno
should be made whole for his pay losses, by the payment
of sums of money equal to- first, the difference between
the total amount of wages which he would have earned
as Respondent Crest's formica shop foreman/leadman be-
tween November 5, 1980, and January 16, 1981, and the
total amount he earned as Crest 's formica shop finisher
within the period designated ; second, the amount which
he normally would have earned as wages, while serving
in his foreman/leadman position, from the date of his dis-
criminatory layoff/discharge, herein found , to the date
on which Respondent Crest offers him reinstatement, less
his net earnings during the period last designated David
Magdaleno and Ramon, Torres should, likewise, be made
whole for their' pay losses by the payment of sums of
money equal to the amounts which they normally would
have earned as wages ' between their January 16, 1981
layoff/discharge and the date or dates on which Re-
spondent Crest offers them reinstatement , less their net
earnings during the period designated.
Whatever backpay these discriminatees may be entitled
to claim should be computed by calendar quarters, pur-
suant to the formula which the Board now uses F. W.
Woolworth Co., 90`NLRB '289, 291'-296(1950) Interest
thereon should likewise be paid , computed in the manner
prescribed in Florida Steel Corp ; 231 NLRB 651 (1977).
See generally Isis Plumbing Co., -138 NLRB 716(1962),
in this connection
2. Jobsite carpentry workers
Since I have found that Respondent Crest and Michael
T Buckley, a sole props ietorship , d/b/a Pacific Sun,
have, while functioning as a single employer, committed
and, thus far ; have failed ' to remedy certain unfair. labor
practices which affect commerce , I shall recommend that
they be- required , jointly and severally , to cease and
desist therefrom , and to take certain affirmative action,
including the posting of appropriate notices, designed to
effectuate the policies of the Act
Specifically , I have found that Respondents Crest and
Buckley, herein considered a single employer for statuto-
ry purposes , were, by virtue of Michael Buckley's con-
ceded status as signatory to a short -form memorandum
agreement with Complainant Union herein , contractually
committed throughout the period with which this case is
concerned to observe , comply,'with , , and give effect to
certain designated ' provisions of Southern California
Master Labor, Agreements , for the latter portion.of one
such agreement ' s defined ( 1977-1980 ) term, and for the
first year , at least , of that agreement 's renegotiated
(1980-1983 ) term,
. In view of Respondent Crest's most , recent ' notice of
contract termination , timely' served on Complainant
Union prior to their previously executed memorandum
agreement ' s yearly ( 1981) anniversary date, Crest and
Respondent Buckley may no longer be contractually
bound to comply with relevant Master Labor Agreement
provisions-governing wages, hours , and working ' condi-
tions for their-outside laminated plastic countertop in-
stallers-now. See Carpenters Local 743 (Armstrong &
Smith Construction), 261 NLRB 425 - at 427 ( 1982) For
present purposes , however, questions regarding the con-
tinued contractual commitment , if any, binding Respond-
ents Crest and Buckley , subsequent to their memorandum
agreement 's designated anniversary date, need not be
herein resolved . Terms and conditions of employment es-
tablished pursuant to relevant Master Labor Agreement
provisions which, so I have found , continued to govern
the relationship between the parties prior to-Respondent
Crest's timely - anniversary .year notice , clearly survived
their memorandum agreement 's presumptive termination.
Subsequent thereto, I-find, Respondents Crest and Buck-
ley, were, pursuant to statute and well-settled principles,
still. committed to comply with and give effect to terms
and conditions previously contractually defined , Com-
pare Bay Area Sealers , 251-NLRB - 89 (1980), in this con-
nection . Their particular obligations , in this connection,
could only have been rendered defeasible by, proof . first,
that they had, timely , notified Complainant Union of
their intention to modify some specific ' condition of em-
ployment , and secondly , that Complainant Union had
either failed to request bargaining with respect thereto,
in timely fashion , or that it had negotiated to impasse,
during good -faith bargaining over such a proposed modi-
fication. `
Thus,. their determinations, presumably reached on
August 1, 1980 , or, possibly some never -specified date
prior thereto, that Crest's ,three "outside" countertop in-
stallers' should be transferred ' from. the firm's corporate
payroll' to Respondent ' Buckley's personnel roster, and
that monthly , contractually mandated , fringe benefit con-
tributions to certain designated trust funds, on their
behalf, should be discontinued , have been found refusals
to bargain;' subject'to ' Board proscription . I shall, there-
fore, recommend that Respondents Crest and Buckley
be, jointly, required to recognize Complamanf ' Union's
continued right to claim representative status, at material
times, 'as the exclusive spokesman for particular laminat-
ed plastic countertop installers whom Crest and Buckley
may have ' employed; that they be required, further, to
acknowledge their continued commitment ,* jointly, to
maintain and comply with, relevant contractual provi-
sions, within the Southern California Master Labor
Agreement negotiated with a July 1, 1980 effective date;
and that they be required , finally, to apply the provisions
of that collective-bargaining contract , retroactively to
August 1 , 1980, insofar as those provisions may govern
the wages , hours, and . working conditions of laminated
plastic countertop installers in their employ
1264
t -
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In that connection, Respondents Crest and 'Buckley
will be required, specifically, to revoke all changes, with
respect to wages, hours, and conditions of employment
set for countertop installers in their employ, which they
may have effectuated, unilaterally, since July 31, 1980;-to
provide sums, sufficient to cover their contractually man-
dated monthly contributions for such employees, retroac-
tively to August 1, 1980, which should then be transmit-
ted to various trust funds, -established pursuant to Section
302 of the Act for the benefit, among others, of their
countertop installers; and to make whole such employees
for any loss of wages or benefits. which they may have
suffered, consequent upon their transfer from Respond-
ent Crest's to Buckley's payroll, and further unilateral
changes, if any, with respect to their employment terms
and conditions'
Respondents Crest and Buckley have herein been
found responsible, jointly and severally, for the commis-
sion of serious unfair labor practices. Their course of
conduct, however, would seem to have been premised
upon President Buckley's mistaken views with respect to
various actions which he considered himself legally priv-
ileged to pursue, no persuasive showing has been made,
within my,view, that. Respondents have demonstrated a
general proclivity, to violate' the Act, or that both legal
entities, herein, have engaged in such egregious or wide-
spread misconduct, jointly or severally, as to demon-
strate a general disregard for their employees' fundamen-
tal statutory rights. See Hickmott Foods, 242 NLRB •1357
(1979). Respondents will, therefore, merely be required
to cease and desist from.the,unfair labor practices found,
and from violating the statute, in any, like or related
manner , hereafter.
On these findings of fact ,and conclusions of law and
on the entire record, I.issue the following recommend-
ed' °
ORDER '
A. Respondents Crest Floors & Plastics,' Inc. and Mi-
chael T." Buckley d/b/a Pacific Sun, Anaheim, Califor-
nia, their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively, with Orange
County District Council of Carpenters, by failing and re-
fusing, specifically on August 1, 1980, and thereafter, to
honor,, apply, or give full effect to Respondent Crest's
memorandum agreement commitments' to comply with
Southern California Master Labor Agreement provisions
which governed and continue to govern rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment for laminated plastic countertop in-
stallers employed by them, performing services on con-
struction jobsites within the bargaining unit •iherein con-
tractually defined,- and by withholding current recogni-
tion from Orange County District Council of Carpenters
' If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations,' the findings ,' conclusions , and recommended
Order shall, as, provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses. , . -
as the exclusive representative of such laminated plastic
countertop installers -
(b) Unilaterally changing terms and conditions of em-
ployment previously provided for laminated plastic coun-
tertop installers, or their payroll status, without notice to
Complainant Union, and without prior' consultation and
bargaining, on'request with the labor organization desig-
nated.
(c) Unilaterally discontinuing contractually mandated
monthly contribution payments to specified appropriate
trust funds, for the benefit of their laminated plastic
countertop installers , without notice to Complainant
Union, and without prior consultation and bargaining, on
request, with the labor organization designated.
(d) Interfering with, restraining, or coercing their em-
ployees, in' any like or related manner, with respect to
their exercise or enjoyment of rights which Section 7 of
the Act guarantees
2 Take the following affirmative action, which will ef-
fectuate the purposes and policies of the Act.
(a) Commit themselves, jointly and severally, to honor,
effectuate; and comply with Respondent Crest's previ-
ously negotiated memorandum agreement 'commitments
to Complainant Union, retroactively to August 1, 1980,
insofar as those commitments purport to guarantee their
compliance, subsequent to the date specified, with South-
ern California Master Labor Agreement provisions
which define rates of pay, wages, hours of employment,
and other terms and conditions of employment for lami-
nated plastic countertop installers performing services on
construction jobsites within a contractually defined bar-
gaining unit.
(b) Commit themselves, further, to recognize,Com-
plainant Union, currently, as the exclusive representative
of their laminated plastic countertop installers, and bar-
gain. collectively hereafter, on request, with that labor
organization concerning rates of pay, wages, hours of
employment, and relevant employment terms and condi-
tions, for such craftsmen.
(c) Resume contractually mandated monthly contribu-
tions to various appropriate fringe benefit trust funds es-
tablished, consistently with Section 302 of the statute, for
the, benefit of their laminated plastic countertop install-
ers, together with other construction trades craftsmen,
and remit to those trust funds whatever required month-
ly contribution payments they, may have heretofore
failed or refused to transmit, since August 1, 1980, when
such contributions were unilaterally discontinued, togeth-
er with interest thereon, hereafter to be computed in
conformity with this Board's current practice. See
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979), and DMR Corp. Electric Contractors, 258 NLRB
1063 fn. 4 (1981), in this connection.
. (d) Make whole all laminated plastic countertop in-
stallers employed by either or both of Respondents
herein, since August 1, 1980, for any losses of wages or
benefits which they may have suffered, and for any
direct expenses' which.they may have been required to
bear, consequent upon Respondent Crest's and Respond-
ent Buckley's unilateral changes, described previously
CREST FLOORS & PLASTICS
herein, with regard to their job tenure, payroll status, or
other employment terms and conditions
B Respondent Crest Floors & Plastics, Inc , Anaheim,
California, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Withholding recognition, and refusing to bargain
collectively with Orange County District Council of
Carpenters and Local 2172, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, as the exclu-
sive representatives of the designated firm's "inside" car-
pentry employees, with respect to rates of pay, wages,
hours of employment and other terms and conditions of
employment for such employees
(b) Unilaterally changing terms and conditions of em-
ployment previously maintained for such "inside" car-
pentry employees, without notice to Complainant Union
and Local 2172, and without prior consultation and bar-
gaining, on request, with the labor organizations desig-
nated
(c) Unilaterally discontinuing monthly contribution
payments to various trust funds, designated within the
firm's most recent collective-bargaining contract with
Complainant Union and Local 2172, for the benefit of
the firm's inside carpentry employees, without notice to
Complainant Union and Local 2172, and without prior
consultation and bargaining, on request, with those labor
organizations.
(d) Interfering with, restraining, or coercing employees
with respect to their exercise or enjoyment of rights
statutorily guaranteed, by threats that it would refuse to
bargain collectively, or sign a collective-bargaining con-
tract, with their designated bargaining representative, by
notices given, that it would, thereafter maintain its formi-
ca shop's countertop fabrication operations under non-
union conditions, and by questions directed to employees
with regard to their willingness to continue working
under such conditions.
(e) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
(f) Laying off, refusing to recall, discharging or demot-
ing workmen, or discriminating in any other manner
with regard to their hire or tenure of employment, or
their terms and conditions of employment, because of
their involvement with, or participation in union activi-
ties, or other concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection,
which involve their exercise of rights statutorily guaran-
teed
2. Take the following affirmative action, which will ef-
fectuate the purposes and policies of the Act
(a) Recognize, and bargain collectively, on request,
with Orange County District Council of Carpenters and
Local 2172, United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO as the exclusive representa-
tive of inside carpentry workers in the firm's employ,
with respect to rates of pay, wages, hours of employ-
ment, and other employment terms and conditions, and,
if an understanding is reached, embody such understand-
ing in a signed agreement
1265
(b) Resume monthly contribution payments to various
fringe benefit trust funds established, consistently with
Section 302 of the statute, for the benefit,, inter alia, of
their inside carpentry employees, and remit to those trust
funds whatever required monthly contributions the firm
may have heretofore failed or refused to transmit, since
August 1, 1980, when such contributions were unilateral-,
ly discontinued, together with interest thereon computed
in conformity with this Board's current practice See
Merryweather Optical Co., 240 NLRB 1213, 1216 fn 7-
(1979) and DMR Corp., 258 NLRB 1063 fn. 4 (1981), in
this connection.
(c) Make whole all inside carpentry workers employed
by the firm since August 1, 1980, for any losses of wages
or benefits which-they may have suffered, and for any
direct expenses which they may have been required to
bear, consequent upon the firm's, unilateral changes with
regard to their employment terms and conditions
(d) Offer employee Jess Magdaleno immediate and full
reinstatement to his former position as leadman/foreman
within the firm's formica shop or, should that position no
longer exist, to some substantially equivalent position,
without prejudice to his seniority and other rights and
privileges, and make him whole for any losses of pay and
other benefits, which he may have suffered, or may
suffer, because of his discriminatory November 5, 1980
demotion and his subsequent January 16, 1981 discrimi-
natory separation, plus interest, in the manner and to the
extent set forth within the "Remedy" section of this de-
cision
(e) Offer employees David Magdaleno and Ramon
Torres immediate and full reinstatement to their former
positions as fabrication workers within the firm's formica
shop or, should those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority and other rights and privileges, and make them
whole for any losses of pay and other benefits which
they may have suffered, or may suffer, because of the
discrimination practiced against them, plus interest, in
the manner and to the extent set forth within the remedy
section of this decision.
(f) Expunge from its files any references to the demo-
tion of Jess Magdaleno on November 5, 1980, and the
separations of Jess Magdaleno, David Magdaleno, and
Ramon Torres subsequent to January 16, 1981, and
notify them in writing that this has been done and that
evidence of these discriminatory actions will not be used
as a basis for future personnel action against them
C Respondents Crest Floors & Plastics, Inc. and Mi-
chael T Buckley d/b/a Pacific Sun, Anaheim, Califor-
nia, their officers, agents, successors, and assigns, further,
shall
1. Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
2. Post within Respondent Crest's Anaheim, California
place of business, and likewise within Pacific Sun's Ana-
heim, California office, copies of the attached notice
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
marked "Appendix "2 Copies of the notice, on forms
provided by the Regional Director for Region 21, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
3. Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
2 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice. We intend to
comply with this requirement , and to abide by the fol-
lowing commitments.
WITH RESPECT TO LAMINATED PLASTIC
COUNTERTOP INSTALLERS EMPLOYED BY
US
WE WILL NOT refuse to bargain collectively with
Orange County District Council of Carpenters, or with-
hold recognition from that organization, as the exclusive
representative of laminated plastic countertop installers
previously or currently employed, whether by Crest
Floors & Plastics, Inc or Michael T. Buckley d/b/a Pa-
cific Sun, to perform services on construction jobsites,
compassed within the construction workers' bargaining
unit defined within, and covered by Southern California
Master Labor Agreements previously or currently in
force.
WE WILL NOT change, unilaterally, terms and condi-
tions of employment previously maintained or provided
for laminated plastic countertop installers employed by
us, nor will we effectuate changes affecting their job
tenure or payroll status, without notice to Orange
County District Council of Carpenters, or without prior
consultation and bargaining, on request, with that labor
organization.
WE WILL NOT continue to refrain from transmitting
contractually required monthly contribution payments to
specific, appropriately designated trust funds, for the
benefit of laminated plastic countertop installers previ-
ously or currently employed, without notice to Orange
County District Council of Carpenters, or without prior
consultation and bargaining, on request, with that labor
organization
WE WILL honor, give effect to, and comply with Crest
Floors & Plastics' previously negotiated memorandum
agreement commitments to Orange County District
Council of Carpenters, retroactively to August 1, 1980,
insofar as those commitments require our compliance
with Southern California Master Labor Agreement pro-
visions regarding rates of pay, wages, hours of employ-
ment, and other employment terms and conditions for
laminated plastic countertop installers employed by us.
WE WILL recognize and bargain collectively, on re-
quest, with Orange County District Council of Carpen-
ters as the exclusive representative of laminated plastic
countertop installers, employed by either or both of us,
regarding their rates of pay, wages, hours of employ-
ment, and other employment terms and conditions. If an
understanding is reached, we will embody such under-
standing in a signed agreement.
WE WILL resume monthly contribution payments to
those trust funds with respect to which such contribu-
tions, on our part, have heretofore been contractually re-
quired, for the benefit of laminated plastic countertop in-
stallers employed by us Further, we will transmit to
those funds whatever contractually required contribu-
tions we have, heretofore, withheld, since August 1,
1980, with interest thereon computed in accordance with
whatever contractual provisions may be found relevant
and determinative in that connection.
WE WILL make whole all laminated plastic countertop
installers, employed by either or both of us, for any
losses of wages or benefits which they may have suf-
fered, and for any direct expenses which they may have
been required to bear because of changes, effectuated by
us unilaterally, with regard to their job tenure, payroll
status or other employment terms and conditions.
WITH RESPECT TO INSIDE CARPENTRY
WORKERS EMPLOYED IN OUR
COUNTERTOP FABRICATION SHOP
WE WILL NOT withhold recognition or refuse to bar-
gain collectively with Orange County district Council of
Carpenters and Local 2172, United Brotherhood of Car-
penters and Joiners of America as the exclusive repre-
sentative of inside carpentry workers employed by Crest
Floors & Plastics, Inc with respect to their rates of pay,
wages, hours of employment, and other employment
terms and conditions.
WE WILL NOT change, unilaterally, terms and condi-
tions of employment previously maintained or provided
for inside carpentry workers employed by Crest Floors
& Plastics, Inc. without notice to the labor organizations
designated above, or without prior consultation and bar-
gaining, on request, with those labor organizations.
WE WILL NOT withhold monthly contribution pay-
ments to specific, contractually designated trust funds for
the benefit of Crest Floors & Plastics' inside carpentry
employees, without notice to the labor organizations de-
signed above, or without prior consultation and bargain-
ing, on request, with those labor organizations.
CREST FLOORS & PLASTICS
WE WILL NOT interfere with, restrain, or coerce em-
ployees, with respect to their exercise of rights which
the Act, guarantees, by threatening that Crest Floors &
Plastics, Inc would refuse to bargain collectively or sign
a collective-bargaining contract, by notifying employees
that Crest's formica shop would henceforth operate sub-
ject to nonunion conditions, or by questioning employees
with regard to their willingness to continue working
under such conditions
WE WILL NOT lay off, refuse to recall, discharge, or
demote employees, or discriminate in any other manner
with regard to their hire or tenure of employment, or
their employment terms and conditions, because of their
involvement with, or participation in, union activities or
other concerted activities, for the purposes of collective
bargaining or other mutual aid or protection
WE WILL recognize and bargain collectively, on re-
quest, with Orange County District Council of Carpen-
ters and Local 2172, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO as the exclusive rep-
resentative of Crest Floors & Plastics' inside carpentry
workers, with respect to rates of pay, wages, hours of
employment, and other employment terms and condi-
tions If an understanding is reached, we will embody
such understanding in a signed agreement
WE WILL resume monthly contribution payments to
those trust funds with respect to which such contribu-
tions, by Crest Floors & Plastics, Inc., have heretofore
been contractually required, for the benefit of Crest's
inside carpentry workers. Further, we will transmit to
those funds whatever required monthly contributions
Crest Floors & Plastics, Inc. may have heretofore with-
held, since August 1, 1980, with interest thereon comput-
ed in accordance with whatever contractual provisions
may be found relevant and determinative in that connec-
tion.
WE WILL make whole all inside carpentry workers
employed by Crest Floors & Plastics, Inc. for any losses
of wages or benefits which they may have suffered, and
for any direct expenses which they may have been re-
quired to bear, because of changes, effectuated by Crest
1267
unilaterally with regard to their employment terms and
conditions.
WE WILL offer employee Jess Magdaleno immediate
and full reinstatement to his former position as
leadman/foreman within Crest Floors & Plastics' formica
shop, and likewise offer employees David Magdaleno
and Ramon Torres immediate and full reinstatement to
their former positions as fabrication workers within
Crest's shop. If those positions no longer exist, we will
offer these workers reinstatement to substantially equiva-
lent positions. The workers named will be offered rein-
statement without prejudice to their seniority rights or
other rights and privileges.
WE WILL make Jess Magdaleno, David Magdaleno,
and Ramon Torres whole for any losses of pay and other
benefits which they may have suffered, or may suffer,
because of the discrimination practiced against them, plus
interest.
WE WILL expunge from our files any references to the
demotion of Jess Magdaleno, and the subsequent separa-
tions of Jess Magdaleno, David Magdaleno and Ramon
Torres. Further, we will notify them in writing that this
has been done and that evidence of these discriminatory
actions will not be used as a basis for future personnel
actions against them.
The National Labor Relations Act gives all employees
rights to engage in self-organization; to form, join, or
assist unions ; to bargain collectively through representa-
tives of their own free choice; to act together for collec-
tive bargaining or other mutual aid or protection, and to
refrain from doing any or all of these things. We will not
interfere with, restrain or coerce our employees with re-
spect to their exercise of these rights, by threatening that
we will refuse to bargain collectively or sign a collec-
tive-bargaining contract, by notifying employees that we
will maintain formica shop fabrication operations under
nonunion conditions; by questioning employees with
regard to their willingness to continue working under
such conditions; or by like or related conduct.
CREST FLOORS & PLASTICS, INC MICHAEL
T. BUCKLEY D/B/A PACIFIC SUN