Haley Bros., Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1973

201 N.L.R.B. 389 (N.L.R.B. 1973)

HALEY BROS., INC.
Haley Bros., Inc. and Boxmakers Local Union 3088,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and General Teamsters Local
No. 439, International Brotherhood Of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Party to the Contract . Case 20-CA-7166
January 23, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 18, 1972, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in opposition to Respondent's exceptions and
in support of the Decision.'
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 Decision2 in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions3 of the Administrative Law Judge
and to adopt his recommended Order.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified herein and hereby orders that Respondent,
Haley Bros ., Inc., Stockton, California, its officers,
agents , successors, and assigns , shall take the action
set forth in the said recommended Order.
i The General Counsel's motion to disregard respondent's exceptions to
the decision of the Administrative Law Judge is hereby denied , since, in our
view, said exceptions were filed in substantial compliance with Board rules.
Y The Administrative Law Judge made an inadvertent error in his
Decision which is corrected as follows:
In the first paragraph of the AL J D, change "December 12, 1971"
to "December 22, 1971."
3 We do not consider any possible defense which Respondent may have
under the rule enunciated in Keller Plastics Eastern, Inc., 157 NLRB 583.
since Respondent has failed to sustain its burden of affirmatively proving
the existence of such a defense . Woodmere, Inc, 175 NLRB 425, 429-430.
4 In ordering Respondent to reimburse the employees for the amount of
dues paid by them pursuant to the union -security provision in the contract,
the Administrative Law Judge inadvertently failed to order that 6 -percent
interest be paid on the amounts so reimbursed See Isis Plumbing & Heating
Co., 138 NLRB 716. In view of this oversight , the Administrative Law
Judge 's recommended Remedy is modified accordingly
DECISION
STATEMENT OF THE CASE
389
STANLEY GILBERT, Administrative Law Judge : Based on
a charge filed on December 10, 1971, as amended on
December 12, 1971, by Boxmakers Local Union 3088,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, hereinafter referred to as the Boxmakers, the
complaint herein was issued on May 31 , 1972. The
complaint alleges that Haley Bros ., Inc., hereinafter
referred to as the Respondent , violated Section 8(a)(2) and
(1) of the Act by executing a collective-bargaining
agreement with the Party in Interest , General Teamsters
Local No. 439, International Brotherhood of Teamsters,
Chauffeurs Warehousemen & Helpers of America, here-
inafter referred to as the Teamsters . In its answer,
Respondent denies that it violated the Act as alleged in the
complaint.
Pursuant to notice , a hearing was held in this matter
before me at Stockton , California , on July 27, 1972.
Appearances were entered on behalf of all the parties
except the Party in Interest . Briefs were received from the
General Counsel and Respondent on August 31, and
August 30, 1972, respectively.'
Upon the entire record in this proceeding, I make the
following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
Haley Bros., Inc., is , and at all times material herein has
been, a California corporation with a place of business at
Stockton , California , where it is engaged in the manufac-
ture of molding and other wood products. During the year
preceding the issuance of the complaint , Respondent, in
the course and conduct of its business operations , sold and
shipped goods valued in excess of $50,000 directly to
customers located outside the State of California.
As is admitted by the Respondent , it is, and at all times
material herein has been , an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED HEREIN
As is admitted by Respondent, the Boxmakers has been
i By letter dated September 14, 1972, counsel for the Boxmakers advised
that a copy of the Respondent 's brief had not been received by him and, in
effect , moved that said brief be stricken . A copy of a letter from
Respondent's counsel dated September 18. 1972 , was received by me which
was addressed to counsel for the Boxmakers asserting that a copy of
Respondent's brief had been mailed to said counsel for the Boxmakers on
August 29 . Two "additional copies" were apparently enclosed therewith.
Based on the representation contained in said letter , I find the bnef had
been timely mailed and the aforesaid motion is hereby denied . In any event,
it is noted the Charging Party has not been prejudiced by failure of its
counsel to receive a copy of the aforesaid brief within the appropriate time
201 NLRB No. 59
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at all times material herein a labor organization within the
meaning of Section 2 (5) of the Act. As is admitted by
Respondent , the Teamsters has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
There is no dispute as to the facts in this case . They are
set forth in the record by way of admissions to the
allegations in the complaint , by stipulations of fact, and by
pretrial statements which have been received in evidence
upon stipulations of the parties that the persons who gave
such statements would testify to the facts in their said
statements , if they were called as witnesses.
The bargaining unit involved in this proceeding (which is
an appropriate bargaining unit within the meaning of
Section 9(b) of the Act) is as follows:
All production and maintenance employees of Respon-
dent working at Respondent 's Stockton , California,
place of business , excluding office clerical employees,
professional employees , guards and supervisors as
defined in the Act.
The sole issue in this case is whether or not Respondent
unlawfully assisted the Teamsters by executing a collective-
bargaining agreement with said Union at a time when
Respondent had knowledge of the filing of a petition by
the Boxmakers which raised a real question concerning
representation.
The San Joaquin Employers Council is an employer
association which has been engaged in the Stockton,
California , area in the representation of its members for
the purpose of collective bargaining . On or about July 1,
1971, Respondent advised the Council that it was opening
a new plant in the Stockton area and desired to become a
member of the Council and have its labor relations
handled through it. On or about July 9, 1971, the
Teamsters notified the Council of its claim that it
represented a majority of the employees in the above
bargaining unit and requested recognition for the purpose
of collective bargaining . After a card check was made of
the Teamsters authorization cards , a recognition agreement
was entered into by the Teamsters and Respondent on July
12, 1971. A number of negotiating sessions ensued and on
December 3, 1971, the terms of a collective-bargaining
agreement were agreed on with the understanding that the
Teamsters would present the terms thereof to its member-
ship for ratification . On December 12, the agreement was
ratified by the membership.
On December 8, 1971, the Boxmakers filed a representa-
tion petition in Case 20-RC-10390 requesting that an
election be held in the above-described bargaining unit.2
On December 9, the Regional Office for Region 20 sent a
copy of the petition accompanied by a letter informing the
Respondent that the petition had been filed the previous
date . Said letter and copy of the petition were received by
Respondent in the morning of December 13, before the
2 It appears that there is no dispute that the Regional Director for
Region 20 determined that the aforementioned petition was supported by
an adequate showing of interest
3 It is well established that the Administrative Law Judge is bound by the
Board 's decision
written contract between Respondent and Teamsters had
been executed by either party. Later that day, December
13, the aforesaid contract was executed by Respondent and
on the following day, December 14, it was signed by the
Teamsters with knowledge of the filing of the petition. It
appears that said contract contains a union -security
provision (requiring membership in the Union after 30
days of employment as a condition of employment) and
that said contract subsequent to its execution has been
maintained and enforced including the payment of union
dues to the Teamsters.
It is well established that "an employer faced with
conflicting claims of two or more rival unions which give
rise to a real question of representation may not recognize
or enter into a contract with one of these unions until its
right to be recognized has finally been determined under
the special procedures provided in the Act." Novak
Logging Company, 119 NLRB 1573, 1574, citing Midwest
Piping and Supply Co., Inc., 63 NLRB 1060.
Since it appears that it has been administratively
determined that the above-mentioned petition filed in Case
20-CA-10390 was supported by an adequate showing of
interest , it follows that the petition raised a real question
concerning representation . Thus, it is concluded that the
execution of the contract with the Teamsters by Respon-
dent after it had notice of the filing of the petition violated
Section 8(a)(2) and (1) of the Act. Signal Oil and Gas
Company, 131 NLRB 1427, 1433, enfd. 303 F.2d 785 (C.A.
5, 1962); Peter Paul, Inc., 185 NLRB No. 64, reversed 467
F.2d 700 (C.A. 9).3 The Respondent argues that the above-
cited cases may be factually distinguished from the instant
case . However, I am of the opinion that the factual
differences are not of sufficient significance to make said
cited cases inapplicable to the instant case.
While it is a well-established rule that an oral agreement
is enforceable and, at the request of either party thereto,
must be reduced to writing and executed , said rule is not
applicable to the instant case. In the instant case , before
the parties executed the agreement and put it into effect
they received notice of the aforesaid representation
petition filed by Boxmakers. It is well established that a
petition for representation is not barred by an unsigned
agreement notwithstanding that the parties considered the
contract had been properly concluded . Appalachian Shale
Products Co., 121 NLRB 1160, 1161; Bowling Green Foods,
Inc., 196 NLRB No. 111.4 Since an unsigned agreement
between the Respondent and Teamsters would not have
served as a bar to the aforesaid petition in Case
20-RC-10390, it would be wholly inconsistent to hold that,
even though the unsigned agreement would not bar
proceeding with the petition, nevertheless the Respondent
was free to execute the agreement and put it into effect
despite its having prior notice of the petition. Consequent-
ly, it is determined that, in order to process properly the
aforesaid petition for representation , the contract between
the Respondent and Teamsters must be rescinded. It does
not appear that a fair election could be held on said
4 Cf Boise Cascade Corporation , 178 NLRB 673, in which the Board
concluded that an employer must have knowledge of the filing of the
representation petition before its signing of a contract can be ineffective as a
bar to the petition
HALEY BROS., INC.
petition of the Boxmakers in circumstances where a rival
union is supported by an executed contract with Respon-
dent which is being maintained and enforced.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent as described 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in the above
unfair labor practice, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
Having found that Respondent has violated Section
8(a)(I) and (2) of the Act by executing a contract with the
Teamsters while there was a real question concerning
representation, I shall recommend that Respondent with-
draw and withhold recognition from the Teamsters, or any
successor; cease and desist from enforcing and maintain-
ing its contract with the Teamsters as the collective-
bargaining representative of its employees unless and until
the Teamsters shall be certified by the Board; and rescind
said contract.
Having found that the contract has been maintained and
enforced since its execution and that it requires member-
ship in the Union as a condition of employment, I shall
recommend that Respondent reimburse its employees for
dues paid by them by reason of said contractual require-
ment (the union-security provision).
Because of the narrow scope of the unfair labor practice
found herein, I shalllecommend a narrow cease-and-desist
order. "
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in the case, I make the
following:
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 Teamsters and the Boxmakers are labor organi-
zations within the meaning of Section 2(5) of the Act.
3. A real question concerning representation existed at
the time Respondent executed a collective-bargaining
agreement with the Teamsters on December 13, 1971, for
the following bargaining unit:
All production and maintenance employees of Respon-
dent working at Respondent's Stockton, California,
place of business, excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
4. By executing said contract with the Teamsters while
there was a real question concerning representation, and
by enforcing and maintaining such contract, Respondent
391
engaged in an unfair labor practice within the meaning of
Section 8(a)(1) and (2) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:5
ORDER
Respondent , Haley Bros ., Inc., its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Enforcing or maintaining its collective -bargaining
agreement with the Teamsters , or any successor thereto, as
the statutory representative of its employees unless and
until the Teamsters shall have been certified by the Board.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the
Teamsters , or any successor thereto, unless and until such
organization shall have been certified by the Board as the
statutory representative of Respondent 's employees.
(b) Rescind its existing collective -bargaining agreement
with the Teamsters.
(c) Reimburse its employees for dues they have paid to
the Teamsters because of the union-security provision in its
aforesaid contract with the Teamsters.
(d) Post at its plant in Stockton, California, copies of the
notice marked "Appendix."6 Copies of such notice to be
furnished by the Regional Director for Region 20, shall,
after being duly signed by an authorized representative, be
posted immediately upon receipt thereof and be main-
tained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith.?
S In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
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.
6 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
I In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 20 , in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enforce or maintain our collective-
bargaining agreement with the General Teamsters
Local No. 439, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of Ameri-
ca, or any successor thereto, as the statutory represent-
ative of our employees unless and until said Union
shall have been certified by the Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL withdraw and withhold all recognition
from the said Union, or any successor thereto, unless
and until such organization shall have been certified by
the Board as the statutory representative of our
employees.
WE WILL rescind our existing collective-bargaining
agreement with the said Union.
WE WILL reimburse our employees for dues they
have paid to the said Union by reason of the union-
security provision in our contract with said Union.
Dated By
HALEY BROS., INC.
(Employer)
(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 , 13018 Federal Building, Box
36047, 450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-0335.
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