F & J Wire Products Co.

National Labor Relations Board - Board Decisions

Feb 6, 1969

174 N.L.R.B. 340 (N.L.R.B. 1969)

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry R. Pickett and Eva M . Pickett d/b/a F & J
Wire Products Co. and Chauffeurs , Salesdrivers,
Warehousemen & Helpers, Local No. 572,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 21-CA-7850
February 6, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Co., herein called Respondent . The complaint was issued
on January 31, 1968, on a charge filed December 4, 1967,
and alleges that Respondent has refused to bargain in
good faith with the Union and thereby violated Section
8(a)(5) of the National Labor Relations Act, herein called
the Act.
A brief has been filed by the General Counsel and it
has been carefully considered .' Upon the entire record and
my observation of the witnesses , I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
On October 23, 1968, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the
Respondent had not engaged in the other unfair
labor practices alleged in the complaint. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Harry R. Pickett and
Eva M. Pickett d/b/a F & J Wire Products Co.,
Long Beach, California, their agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case, with all
parties represented, was heard in Los Angeles, California,
on April 15 and 16, May 14, and August 28, 1968, upon a
complaint of the General Counsel and answer of Harry R
Pickett and Eva M. Pickett dba F & J Wire Products
Respondent is owned by Harry R. Pickett and his wife,
Eva M. Pickett, and is engaged in the business of
manufacturing wire products. During the calendar year
1967, Respondent sold and shipped products valued in
excess of $50,000 to customers located within the State of
California and each of said customers sold and shipped
products valued in excess of $50,000 directly to customers
located outside the State of California.
Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Salesdrivers , Warehousemen and Helpers,
Local No. 572, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
herein called the Union , is a labor organization within the
meaning of Section 2 (5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in'this case are (1) whether or not
Respondent agreed to the terms and conditions of a
collective-bargaining agreement and then repudiated it,
and/or (2) whether or not Respondent bargained in bad
faith by offering new contract proposals containing more
onerous terms than previously offered.
B. Statement of Facts
On October 27, 1967, the Regional Director for Region
21 of the Board approved a settlement agreement in Case
21-CA-7763 between Respondent and the Union whereby
Respondent agreed to recognize and bargain with the
Union as the exclusive bargaining representative of all
production and maintenance employees of Respondent,
excluding office clerical employees, guards, and
supervisors as defined in the Act.
Although the General Counsel offered no direct
evidence that the Union has at any time represented a
majority of Respondent's employees and although a
settlement of a case is not an admission or proof of facts,
nevertheless, there is a presumption of regularity in the
execution of the agreement, as it would have been illegal
for Respondent to extend recognition to a union that did
not represent a majority of its employees in an
'Counsel for General Counsel filed motion to correct transcript on
September 26, 1968. No opposition has been filed. The motion has been
duly considered and is granted.
174 NLRB No. 59
F & J WIRE PRODUCTS CO.
appropriate bargaining unit. Furthermore, at no time
during negotiations did Respondent raise a question as to
the Union's majority status nor has it offered any
evidence, to refute the presumption of regularity of the
settlement agreement.2
Respondent designated attorney Melvin Harris as its
agent for the purposes of collective bargaining with the
Union. Attorney Harris met with Union Representative
Neal Shores on October 30, November 8, 13, and 20,
1967, in contract negotiations. They met with the
understanding that any agreements reached by them were
subject to the approval of the Respondent and of the
employees. At the meeting of October 30, the Union
presented its contract proposal. Harris discussed this with
the Picketts, and on the basis of that discussion he
prepared a counterproposal, which was shown to the
Picketts prior to his meeting with Shores on November 8.
The meeting of November 8 lasted approximately 7 1/2
hours, and following this meeting Harris prepared a
resume of the meeting to clarify what had been
accomplished and to show areas of tentative agreement.
He then prepared a document that he used as a worksheet
for his discussion with Shores at their next meeting on
November 13 Harris testified that he did not know
whether this document was submitted to the Picketts, but
he did have some meetings and telephone conversations
with them between November 8 and 13.
Following the meeting of November 13, Harris
prepared a proposed agreement "as promulgated during
out negotiation conference of 11-13-67," and forwarded a
copy of it to Shores by letter dated November 16, 1967,
wherein he informed Shores,
I am forwarding a copy to my clients and have
arranged to go over the entire contract with them on
Friday, November 17, 1967. If both my clients and the
employees approve it as now constituted, we should be
able to finalize the entire matter sometime next week. It
looks like a very good Agreement, and I have so
informed my clients, but I do not know how he is going
to react to the "Union Shop Clause" or the "Health
and Welfare Clause."
Harris met with the Picketts and went over this
proposed contract, but they did not approve of certain
provisions, and judging from the notes that Harris made
in the margin of a copy of the proposal, they wanted
numerous changes made in the agreement. Harris
informed Shores that the Picketts were not happy with the
agreement and would not sign it. He met again with
Shores on November 20, and following this meeting, he
prepared a draft of a contract representing the results of
this meeting, but Harris was unable to obtain the Union's
agreement to some of the changes that the Picketts had
wanted, one of which was a deletion of a union shop
clause. However, Harris delivered and left with Mr.
Pickett a copy of this proposed contract.
Harris had indicated to Shores that he would try to
have the matter completed by November 28, and when he
had not heard from the Picketts by November 27, he
called Pickett regarding the contract. Pickett had been
tied up at the plant and had not spent much time
reviewing the proposal; however, he went to Harris' office
with the contract. He told Harris that he did not
understand the contract thoroughly, but Harris urged him
to sign it. According to Harris, Pickett appeared to be
agitated and not to be concentrating on his explanations
'N.L R.B v. Local 3, 1 BE W, (C A. 2) 362 F 2d 232, 235; Crown
Drug Co., 136 NLRB 865, 869 ; Shamrock Davy, Inc., 124 NLRB 494.
341
of the contract. Finally, Pickett signed the draft, but
stated to Harris that he was not certain in his mind about
it and wanted to take it home and digest it more
completely and discuss it with his wife. Harris, who
testified that he had been putting on a little pressure to try
to get the contract matter cleared up, concurred that
Pickett should take the contract home, discuss it with his
wife, and obtain her signature.
Several hours later Pickett brought the contract back to
Harris with his signature scratched out and informed
Harris that the contract was not acceptable. Harris then
had a meeting with the Picketts and drafted another
contract proposal in which he incorporated changes that
they wanted. When he discussed this with them , he found
that there were still some areas of misunderstanding and
disagreement. He redrafted the contract to reflect the
additional changes they desired. After inserting a few
corrections or changes that Harris' secretary had failed to
make, both Mr. and Mrs. Pickett signed a copy of the
contract.
On November 28, 1967, Harris delivered the signed
contract to Union Representative Shores and informed
him that the signed document was not identical to the
agreement promulgated by them during their last
conference and contained several changes which he hoped
would meet with Shores' approval and that Shores would
submit it to his members for their vote. Following this
communication to the Union, Respondent and Harris
received no further word from the Union on the matter of
the contract proposal or contract negotiations.
C. Conclusions
The General Counsel contends that Respondent has
bargained in bad faith (1) by signing and then repudiating
a collective-bargaining agreement, and (2) by substituting
in its last contract proposal terms that were more onerous
than those previously offered.
Shores and Harris negotiated with the understanding
that any agreement they might reach was subject to the
approval of the Picketts and of the employees. Mr.
Pickett signed the agreement on November 27 at the
insistence of Harris although he had not digested it
completely and was not certain as to his agreement with
its terms. Although he had authority to sign an agreement
on behalf of and to bind Respondent, he wanted to go
over the contract with his wife who was a part owner of
the business. Harris suggested that he do so and obtain
her signature. Within a few hours Pickett scratched
through his signature and notified Harris that the contract
was not acceptable.
Harris then immediately met with the Picketts and
drafted a new contract which contained several deletions
and other more onerous terms that had not previously
been proposed by Respondent. Respondent' s initial
proposal submitted on November 8 contained a provision
guaranteeing a 40-hour workweek, and this proposal
remained in Respondent's subsequent proposals until its
deletion from its last proposal of November 27. Also,
Respondent's initial proposal and subsequent proposals,
until deleted in the November 27 proposal, contained a
provision for an extension of the contract to new branches
and locations of Respondent, and a provision for a
contribution by Respondent of the sum of $2.60 per
month per employee to the Union's health and welfare
trust fund for prescription drugs. In its November 27
proposal, Respondent added the following more onerous
terms: To be eligible for a vacation or a pro rata vacation
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employee was required to be on Respondent ' s active
payroll on his anniversary date of employment ; vacations
were required to be taken within the calendar years that
said vacations become ': due; in order for an employee to be
entitled to holiday pay where he has been absent
immediately preceding or immediately following the
holiday, his absence has to be excused in, writing ' by
Respondent . In Respondent ' s initial proposal the term of
the contract was left blank ; in the subsequent drafts the
term was 1 year; in the November 27 proposal the term
was changed to 3 years without reopening. After
bargaining the Union down on the wage rate for shop
utility craftsmen (after 90 days ) from its initial proposal
to $1.90 on November 20, Respondent further reduced the
rate in its November 27 draft to $1.85.
From the sequence and turn of events , it is apparent
that the Picketts were not giving the time and attention to
their collective-bargaining responsibilities that would make
it effective or that would manifest any real desire or intent
to reach a mutually acceptable agreement . Before and
after each contract conference Harris discussed contract
terms and proposals with one or both of the Picketts.
Although he was not experienced . in the negotiation of
labor agreements , he negotiated in good faith, made
concessions and obtained concessions , and sought to arrive
at contract terms that the Union would agree to and he
hoped would be agreeable to the Picketts . He urged Mr.
Pickett to sign the draft resulting from his negotiations of
November 20, which contained a provision for a union
shop but deleted the Union ' s proposal for contributions to
its fund for death , medical and hospital benefits. Then, on
November 27, when negotiations were expected to be
consummated , the Picketts made significant withdrawals
and changes which, if they were to, be made , certainly
should have been brought out in earlier stages of
negotiations . I find that by this last minute "negotiation
in reverse" and by the Picketts ' failure either to
participate directly in negotiations or to maintain a closer
contact with the course of negotiations and to provide
their negotiator with more complete instructions and
knowledge of their desires, Respondent has engaged in
conduct that is disruptive and in derogation of the
collective -bargaining process and constitutes a failure to
bargain in good faith.
The General Counsel also urges that a contract was
executed when Mr. Pickett signed the draft submitted to
him by Harris following the negotiations of November 20,
but I find that when Pickett placed his signature on the
draft, he had not fully reviewed and agreed to its terms.
When he reviewed it, his signature was quickly scratched
through. I cannot find that there has been a meeting of
the minds of the parties to the terms and provisions of a
collective -bargaining agreement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent, set forth in section III,
above, found to constitute unfair labor practices,
occurring in connection with its business operations as set
forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes,
burdening and obstructing commerce and the free flow of
commerce.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed
by Respondent excluding office clerical employees, guards,
and supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times' material herein the Union has been the
representative for the purposes of collective bargaining of
the employees of the Respondent in the unit described in
paragraph 3.
5. Since October 30, 1967, Respondent has refused to
bargain collectively with the Union as the exclusive
bargaining representative of the employees in the
above-described appropriate unit, and has thereby engaged
in an unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in a certain
unfair labor practice, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
which I find necessary to remedy and to remove the
effects of the unfair labor practice and to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record herein and
pursuant to Section 10(c) of the Act, I hereby issue the
following:
RECOMMENDED ORDER
Harry R. Pickett and Eva M. Pickett d/b/a F & J
Wire Products Co., its officers, agents; successors, and
assigns, shall-
1. Cease and desist from:
(a) Refusing to bargain collectively with Chauffeurs,
Salesdrivers, Warehousemen & Helpers, Local No. 572,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the exclusive
representative of its employees in the following
appropriate unit:
All production and maintenance employees employed
by Respondent excluding office clerical employees,
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfeiing with,
restraining, or coercing its employees in the exercise of.
rights guaranteed in Section 7 of the Act
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act.
(a) Upon request, bargain collectively with the Union
as the exclusive bargaining representative of its employees
in the aforesaid bargaining unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and if an undersl anding is
reached, embody such understanding in a written and
signed agreement.
(b) Post at its Long Beach, California facility, copies of
the attached notice marked "Appendix."' Copies of said
'in the event that this Recommended Order is adopted by the Board, the
F & J WIRE PRODUCTS CO. 343
notice, on forms to be provided by the Regional Director
for Region 21 of the Board, shall, after being duly signed
by an authorized representative of Respondent, be posted
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals enforcing an Order" shall be substituted for the words "a Decision
and Order "
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 21, in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith."
employees that:
WE WILL NOT refuse to bargain collectively with
Chauffeurs, Salesdrivers, Warehousemen & Helpers,
Local No 572, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America as the exclusive representative of our
production and maintenance employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed in Section 7 of the National Labor
Relations Act.
WE WILL, upon request, bargain collectively with the
above-named Union, and if an understanding is
reached, embody such understanding in a written and
signed agreement.
Dated By
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
HARRY R. PICKETT AND
EVA M. PICKETT d/b/a
F& J WIRE PRODUCTS CO.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California 90014, Telephone
688-5229.