H. C. Lien Rubber Co.

National Labor Relations Board - Board Decisions

Nov 13, 1973

207 N.L.R.B. 233 (N.L.R.B. 1973)

H. C. LIEN RUBBER CO.
H. C. Lien Rubber Co. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, U.A.W., Local
509. Case 21-CA-11602
November 13, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On July 11, 1973, Administrative Law Judge David
E. Davis issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
The Administrative Law Judge found, and we
agree, that Respondent's unilateral grant of a general
wage increase greater in amount than that it offered
the Union was a violation of Section 8(a)(5) and (1).
N.L.R.B. v. Benne Katz, d/b/a Williamsburg Steel
Products Co., 369 U.S. 736, 745 (1962); N. L. K B. v.
Crompton-Highland Mills, 337 U.S. 217.
Although the notice of such increase, effective the
pay period commencing January 4, was posted on
the employee bulletin board on January 11, 1972, the
credited evidence shows that Respondent never
notified the Union and that the Union's negotiator,
Elbert E. Petersen, first had knowledge of the
increase from the ' Federal mediator on February 22,
1973. The charge was filed shortly thereafter, on
March 2.
Furthermore, assuming, as alleged by Respondent,
that by virtue of the statement to Unit Chairman
Gonzales the Union had effective notice of the
proposed increase the day before it was granted, the
i day which elapsed prior to the Respondent's
implementation of its proposal was hardly sufficient
to enable the Union adequately to consider it and
engage in any meaningful bargaining.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, H.C. Lien Rubber
233
Co., Los Angeles, ,California , its officers , agents,
successors, and assigns , shall take the action set forth
in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judge: This
proceeding was tried before me at Los Angeles, California,
on May 7, 1973, pursuant to a charge filed on March 2,
1973,1 and a complaint issued on April 13, 1973, alleging
that H. C. Lien Rubber Company, herein called Respon-
dent, engaged in violations of Section 8(aX5) and (1) of the
Act in that on or about January 11, 1973, Respondent,
without notification to the Union or bargaining with the
Union, changed the terms and conditions of certain
employees of Respondent who were represented by the
Union in an appropriate collective-bargaining unit. Res-
pondent in its answer, filed on April 18, 1973, admitted
certain allegations of the complaint but denied it had
engaged in any unfair labor practices within the meaning
of the Act.
All parties appeared and were afforded full opportunity
to be heard and to examine and cross-examine witnesses.
Both the General Counsel and Respondent filed briefs.
Upon the entire record and my observation of the
demeanor of the witnesses when they testified, I make the
following:
Findings and Conclusions
I. BUSINESS OF RESPONDENT; LABOR ORGANIZATION
INVOLVED
Respondent is a California corporation with its principal
place of business located in Los Angeles, California, where
it is engaged in the manufacture and sale of molded rubber
goods. It annually purchases and receives products valued
in excess of $50,000 from suppliers located outside the
State of California or from California suppliers who
receive products from outside the State of California. In
addition, Respondent annually sells and ships goods and
products valued in excess of $50,000 directly to customers
located outside the State of-California. Accordingly, I find
that Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
assertion of jurisdiction herein would effectuate the
policies of the Act.
I further find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
I The charge was filed by International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America. U.A.W., Local
509, herein called the Union.
207 NLRB No. 26
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. Preliminary Findings
As the answer admits the pertinent allegations of the
complaint which. establish the following, I find that:
1. All production and maintenance employees of
Respondent's facility at 1171 East 63rd Street, Los
Angeles, California, excluding all office clerical employees,
watchmen, guards, professional employees, 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.
2. On June 16, 1972, a majority of the employees of
Respondent in the unit described above, by a secret-ballot
election conducted under the supervision of the Regional
Director for Region 21 of the National Labor Relations
Board, designated and selected the Union as their
representative for the purposes of collective bargaining
with Respondent, and on June 26, 1972, the Regional
Director for Region 21 certified the Union as the exclusive
collective-bargaining representative, by virtue of Section
9(a) of the Act, of all the employees of Respondent in the
unit described in the above paragraph.
3. Since June 26, 1972, the Union- has been ` -the
representative for the purposes of collective bargaining of a
majority of the employees in the above-described unit and,
by virtue of Section 9(a) of the Act, has been, and is now,
the exclusive representative of all the employees in said
unit for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, or other
conditions of employment.
4. Since on or about July 1972, and at all times
thereafter, the Union has requested, and continues to
request, that Respondent bargain collectively with it as the
exclusive collective-bargaining representative of all the
employees in the appropriate unit referred to above with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment of said
employees.
5. Warren H . Lien is, and has been at all times material
herein, president of Respondent, acting on its behalf, and
is, and has been at all times material herein, a supervisor
within the meaning of Section 2(11) of the Act and an
agent of Respondent within the meaning of Section 2(2)
and (13) of the Act.
B. The Evidence
At the outset of the hearing it was stipulated by way of a
written document2 that on the pay period ending January
11, 1973, all the employees in the above-described unit
received a wage increase of 3-1/2 percent amounting to 9
cents per hour.
Elbert E. Peterson, vice president and service representa-
tive of the Union, testified that since October 1972 be had
full responsibility for the negotiation of a collective-
bargaining agreement for Respondent's employees in the
unit represented by the Union; that negotiations with
Respondent had commenced sometime in June 1972; that
there had been approximately 20 negotiation sessions
without an agreement having been reached; that he
attended about 16 of these meetings ; that Respondent was
represented at these sessions by Richard D. Cords, a
management consultant in labor relations , and a Mr.
Froelich , vice president of Respondent ; that initially the
Union was represented by International Representative
Clarence Wright , later by International Representative
Robert Davis ; that in addition an employees' committee
consisting of Joe Gonzales , Roy Bradley , and Tyson
Harvey, sat in on the negotiations so that they could
administer the agreement and adequately represent the
employees in the initial stages of grievances once an
agreement was reached ; that in August the Union
presented Respondent with a proposal that the employees
be granted a 10-percent wage increase; and that Respon-
dent's representatives stated that such an increase could
not be granted because of the wage freeze in effect which
limited wage increases to 5-1 /2 percent. Discussions
concerning wages continued at other subsequent meetings.
At the negotiation meeting of October 31, 1972, the Union
modified its wage proposal to 5-1/2 percent . Respondents
countered by offering a 5-cents-per-hour wage increase.
Peterson then testified that at no time did he agree to the
wage increase granted by Respondent on January 11, 1973;
that there was a negotiation session on January 6, 1973,
which was attended by Gonzales, Bradley, Cords, Froelich,
David Mejia,, financial secretary of another local of
U.A.W., and himself; that at the January 6, 1973 , meeting
the Union was still proposing a 5-1/2 percent increase; that
there were further negotiation sessions on February 6, 13,
and 22, 1973; that wage increases were discussed at each of
these meetings ; that Respondent did not propose a cost of
living increase for the employees at any of the meetings;
that Cords on February 22, 1973, gave the Union a final
contract proposal which was to be submitted to the
membership ; that the proposal to be submitted was for a
wage increase of 5 cents per hour ; that it was on ` February
22, 1973, that he (Peterson) first learned of the January 11,
1973, wage increase from a conversation he had with the
Federal Mediator; and that on March 1, 1973, he discussed
this with Cords ; that after ascertaining from Cords that
Respondent had granted the employees a wage increase on
January 11, 1973, he asked Cords if he had in any way
communicated with the Union or himself concerning the
wage increase and Cords replied that he had not. Peterson
further testified that the Union received no communication
or notification of the wage increase prior to its implemen-
tation ; that Gonzales had no authority to bargain or
commit the Union to any matter in negotiation with
Respondent ; and that Gonzales at no time informed' the
Union concerning the wage increase or of any company
proposals concerning a wage increase.
Joe Gonzales , called by the General Counsel , testified
that he was employed by Respondent as a pressman; that
he was elected as chairman of the plant negotiating
committee; that he attended all the negotiation sessions;
that he did not have , nor was Respondent ever told, that he
(Gonzales) could bargain with Respondent on behalf of the
Union ; that on one occasion after one of the meetings,
Cords asked him if he understood what Respondent had
2 G.C. Exh. 2.
H. C. LIEN RUBBER CO.,
offered; that he replied in the affirmative, that this was the
only occasion anyone from the. Company discussed wage
increases for the, employees with him; and that he learned
about the wage increase, by reading the notice3 on the
bulletin board on January 10 or 11, 1973. Continuing his
testimonial account, Gonzales stated f that prior to the
bulletin notice he had never been informed by anyone
concerning the wage increase which amounted to 9 cents
per hour; and that during the 4 years he had worked for
Respondent he had never received a cost-of-living wage
increase.
On cross-examination, Gonazles stated that he did not
remember any conversation with Warren Lien concerning
a wage increase on or about January 9, 1973.4
Basil R . Bradley, called by the General Counsel, testified
he had been employed by Respondent for about 2 years as
a millman and that he was on the Union' s negotiating
committee; that he attended all the negotiation sessions
and had never heard Respondent suggest or propose a cost
of living increase; and that the first he knew of the increase
which was paid, on January 11, 1973, was the notices he
read on the bulletin board.
On cross-examination,, Bradley testified that the employ-
ees went on strike on, March 12, 1973, and are still on
strike; and that the current union representative negotiat-
ing on behalf of the Union is a man by the name of Santos.
Warren H. Lien, called by Respondent, testified that he
was general manager and president of Respondent since
1968; that in January 1973 he gave an increase to
Respondent's production and maintenance employees;
that the increase was designed to accomplish two objec-
tives, first to give the employees a cost of living increase
and secondly to alleviate an absentee problem; and that to
achieve these objectives a 10-cents-an-hour wage decrease
was instituted and a 6-hour-a-week bonus was granted for
40 hours of work. As a result the employees could earn an
additional $2 per week by working 40 hours and thereby
earn the cost of living increase; 6 he testified that in
January 1973 he read in "The Wall Street Journal" that as
of December 1972 the cost of living had increased 3-1/2
percent and he decided to put that amount into effect. As
the first workweek in January 1973 was January 4 through
January 10 or 11, Lien testified he attempted to discuss the
matter with Gonzales; that he was unable to contact
Gonzales until January 9 at which time "I discussed with
him this particular subject matter. And I requested of him`
that he communicate this with his committee and the
necessary people at the Union." Lien further testified that
Froelich informed him that "we had permission from the
Union to talk directly to Joe"; that he (Lien) had not sat in
on any of the negotiating sessions but had delegated that
function to Cords and Froelich; and that he had received a
letter from the Union in August informing him that
Gonzales was the unit chairman. Recalling his conversa-
tion with Gonzales on January 9, Lien testified as follows:
As I can best recall the actual conversation, I told Joe
that the cost of living had in fact gone up during 1972.
3 G.C. Exh. 4.
4 Questioned further by the undersigned , Gonzales stated that Lien
never talked to hun about wages. Despite some equivocation by Gonzales, I
am inclined to credit his testimony in this regard.
235
And that the figures had been published-three, and a
half percent. And that the, company intended to give all
employees a cost of living increase unless we heard
differently from the Union, since - we were required to
talk to them.
We would put into effect the cost of living increase
that we were discussing-of three and a half percent
-unless we heard differently from the Union.
Lien then testified that Gonzales said "O .K."; that he
heard nothing from Gonzales or anyone else and as a result
posted the notice 7 on January 10.
Lien, testifying further, admitted that he knew the Union
had been certified as the collective-bargaining representa-
tive of the employees in June 1972 and that in January
1972 there was no collective -bargaining representative of
the employees.
Richard D. Cords, called by Respondent, testified that
he is a management consultant in labor relations ; that he
has been in private practice 'since 1961 ; that he was the
chief negotiator representing Respondent in its negotia-
tions with the Union since the first negotiation meeting,
July 26, 1972; and that he has attended every negotiation
session and that there was a meeting on August 2, 11972.
Cords then testified as follows concerning this meeting:
We were talking about a particular article of
negotiation called "Union Representation ," and my
notes read "Section one . Company has no objection to
this if the Union will try to break up the committee as
to classifications."
- 'In other words , we didn't want all of the representa-
tives of the bargaining committee to be from a single
classification . And Clarence Wright says, "We will try
to cooperate. You 'can talk to Chairman of Committee,
re: anything pertaining to the shop and working
conditions, rates , classifications, etcetera.""
Q. And who was the Chairman of the Committee?
A. Joe Gonzales.
Q. And did he have the title of Unit Chairman?
A. Yes, he was referred to as the Unit Chairman of
the bargaining committee.
Q. All right.
Was there any other conversation , or conversations,
that day relative to Mr. Gonzales?
A. My-
Q. Or the authority of Mr. Gonzales?
A. My notes don't indicate so, no.,
Testifying concerning the meeting of August 17, 1972,
Cords testified that Peterson at that meeting said, "Notifi-
cation to the Chairman of the bargaining committee or any
member of the committee is the same as notification to the
Union"; that his notes indicate in parenthesis, "this means
notification to the chairman or other member is O.K. of all
leaves of absences granted under this section."
Cords further testified that on September 19, 1972, when
Robert Davis,- International representative , and Peterson
were present, he said to the union representatives, "To
confirm once again what Clarence Wright , Harold Cle-
5 G.C. Exh. 4.
6 It is admitted that absences on the part of any employee could result in
that employee receiving a wage decrease
7 G. C. Exh. 4.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men`s, and Pete Peterson said, that with regard to anything
that has to do with the operation of - the plant, the
Company can talk to Joe Gonzales as Chairman of the
negotiation committee." Davis agreed and Cords said, "We
are contemplating some shift hours and personnel changes
for today. We told Joe about that last week." Peterson
replied, "Yes, Joe told me about this and talking to Joe
about things like that is O.K." Cords also testified that at a
meeting on April 9, 1973, in discussing grievance proce-
dure, Cords asked what is Joe's position as committee
chairman, referring to the provision in the grievance
procedure reading, "Committee man may be present at
such meeting if the employee so requests." Santos, who was
then active as chief negotiator for the Union, said "Joe
Gonzales represents the Union and the Employees the
same as I do." Cords further testified that at the May 2,
1973, meeting he had the following interchange with
Santos after the Federal Mediator asked when the
Company granted the 3-1/2 percent increase:
coRDs: On January 10th, effective: The payroll
period of January 4.
sANTOS: We didn't know about it.
coRDS: The Company notified Joe Gonzales and
told him to tell you.
sANTOS: Yes, I know that.
Analysis and Conclusions
Respondent in its brief presents the contention that Lien,
having granted a cost of living increase in 1972 had made a
determination to grant a cost of living increase in January
1973. The argument then goes on to say that Lien, by
consulting "The Wall Street Journal" in December 1972,
concluded that the increase should be 3-1/2 percent.
Thereupon Lien decided to put it into effect for the pay
period commencing January 4. Having made this determi-
nation, Lien sought out Gonzales who was not available
for discussion until January 9, 1973, at which time
Gonzales was requested to communicate "the discussion
and negotiations" with his committee and the necessary
people and the Union. The wage increase was paid to the
employees on January 10 and 11, 1973. Counsel argued
that the foregoing absolves Respondent from the allegation
that Respondent unilaterally granted the wage increase
and thereby violated Section 8(a)(5) and (1) of the Act. I do
not agree. On the contrary, I find that the unlawful refusal
to bargain in this case is so clear that no purpose would be
served by a prolonged discussion of the evidentiary details
in support of the allegation.
It must be plain that Lien's alleged notification to
Gonzales" that he was going to put the wage increase into
effect, unless Gonzales reported the Union's opposition,
hardly meets the most rudimentary elements of collective
bargaining.
Additionally, Lien and Respondent must be charged
with the knowledge and awareness that the negotiations
were being conducted by the Union and that the chief
negotiator at all previous negotiation sessions was the
particular International representative present. The eviden-
ce shows that Gonzales and the other members of the plant
committee were at all times present in an advisory capacity
and took no part in the actual negotiations. Whatever
authority Gonzales and the committee would have was
intended to accrue only after an agreement was reached
and included processing of grievances and plant condi-
tions, not negotiations.
I find that the circumstances demonstrate that Respon-
dent, while refusing to grant more than a 5-cent increase
per hour to the Union in numerous negotiating sessions,
instituted on January 4, 1973, a unilateral wage increase of
9 cents per hour in derogation of the Union's status as the
exclusive bargaining representative of Respondent's em-
ployees. By this conduct Respondent violated Section
8(a)(5) and (1) of the Act. I so find.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 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. The following employees of Respondent constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed
at the Employer's facility located at 1171 East 63rd
Street, Los Angeles, California; excluding all office
clerical employees, watchmen, guards, professional
employees and supervisors as defined in the Act.
4. At all times since June 26, 1972, the Union has been
and is the exclusive representative of all employees within
the above appropriate unit for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By unlawfully and unilaterally granting a wage
increase to the employees in the above appropriate unit on
January 4, 1973, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act, I shall recommend that it be required to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. Such
affirmative action will include the requirement that, upon
request, Respondent bargain collectively in good faith with
the Union as the exclusive representative of its employees
in the appropriate unit and, if an understanding is reached,
embody such understanding in a signed, written agree-
ment.9 Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
8 Assuming Lien's testimony to this effect is credited. However, I fully 9 Nothing in this Decision shall be construed to require Respondent to
credit Peterson's testimony and reject testimony that is contrary. withdraw the wage increases found herein to have been granted unlawfully.
H. C. LIEN RUBBER CO. 237
ORDER 10
H. C. Lien Rubber Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
International Union, Aerospace and Agricultural Imple-
ment Workers of America, U.A.W., Local 509, as the
exclusive representative of its employees in the following
appropriate unit with respect to rates of pay, hours of
employment, and other terms and conditions of employ-
ment:
All production and maintenance employees employed
at the Employer's facility located at 1171 East 63rd
Street, Los Angeles, California; excluding all office
clerical employees, watchmen, guards, professional
employees and supervisors as defined in the Act.
(b) In any like or related manner interfering with the
efforts of the above-named labor organization to bargain
collectively on behalf of the employees in the above-
described unit.
2. Take the following affirmative actions which will
effectuate the policies of the Act:
(a) Upon request, meet and bargain with the above-
named labor organization as the exclusive representative of
all of its employees in the above-described appropriate
bargaining unit with respect to wages, rates of pay, hours
of employment, and other terms and conditions of
employment, and embody any understanding reached in a
signed, written agreement.
(b) Post at its place of business in Los Angeles,
California, copies of the notice attached hereto as
"Appendix."" Copies of said notice, on forms provided by
the Regional Director for Region 21, shall, after being duly
signed by Respondent, be posted immediately upon receipt
thereof in conspicuous places, and be maintained for a
period of 60 consecutive days. Reasonable steps shall be
taken by 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 this Order, what
steps Respondent has taken to comply herewith.
10 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions and Order, and all objections thereto shall
be deemed waived for all purposes.
It In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, it has been decided that we, H. C. Lien Rubber
Company, have violated the National Labor Relations Act,
and we have been ordered to post this notice and comply
with its terms.
The National Labor Relations Act gives you, as
employees, certain rights, including the right to self-
organization and to bargain collectively through a repre-
sentative of your own choosing. Accordingly, we give you
these assurances:
WE WILL NOT unilaterally grant wage increases to
our employees in the bargaining unit described below.
WE WILL, upon request, bargain in good faith with
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
U.A.W., Local 509, as the exclusive bargaining repre-
sentative of all employees in the unit described below;
and shall embody in a signed agreement any under-
standing reached. The bargaining unit is:
All production and maintenance employees
employed at the Company's facility located at
1171 East 63rd Street, Los Angeles, California;
excluding all office clerical employees, watchmen,
guards, professional employees and supervisors as
defined in the Act.
H. C. LIEN RUBBER
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Eastern Columbia Building,
849 South Broadway, Los Angeles, California 90014,
Telephone 213-688-5229.