Harding Glass Co.

National Labor Relations Board - Board Decisions

Mar 31, 1995

316 N.L.R.B. 985 (N.L.R.B. 1995)

985
316 NLRB No. 148
HARDING GLASS CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 reversing the findings.
2 The General Counsel excepts to the judge’s failure to specifically
order the Respondent to cease and desist from threatening employees
with shop closure and to include such a provision in the notice to
employees. The record supports the judge’s factual findings that the
Respondent’s president, Mark Goldstein, repeatedly threatened em-
ployees within the 10(b) period, including on November 5, 1993,
that he would close down if they did not get rid of the Union. We
find merit in the General Counsel’s exception and will modify the
judge’s conclusions of law, recommended Order, and notice accord-
ingly.
We also find merit in the General Counsel’s exception to the
judge’s failure to order the Respondent to reinstate unfair labor prac-
tice strikers on their unconditional offer to return to work. We will
modify the judge’s recommended remedy, Order, and notice accord-
ingly.
3 All dates are in 1993 unless otherwise indicated.
4 In adopting the judge’s finding that there was no valid impasse
in bargaining prior to the Respondent’s unilateral implementation of
its offer, we do not rely on the Respondent’s hiring of replacement
glaziers on October 18 at reduced wages or on the Respondent’s
postimplementation sponsorship of the decertification effort.
5 Member Browning does not agree with precedent holding that
employers have no obligation to bargain about the terms and condi-
tions of employment for striker replacements during the course of
an economic strike. In her view, the employer’s duty to bargain with
the union encompasses all unit employees, including both the strikers
and the replacements (as well as any nonstrikers and returning strik-
ers who may be working), because all such employees are members
of the bargaining unit. As part of its obligation to bargain with the
union in good faith, the employer must maintain existing terms and
conditions of employment during the pendency of negotiations until
a lawful impasse is reached, at which point the employer is privi-
leged to implement only those terms and conditions that are consist-
ent with its last offer to the union. Member Browning believes that
these principles should be applied to govern the terms and conditions
of all unit employees, including replacement workers during an eco-
nomic strike. Accordingly, in this case, she would find that the Re-
spondent’s unilateral establishment of a wage scale for the two re-
placement glaziers on October 18 was unlawful, because the scale
differed from that offered to the Union in negotiations. Thus, the
economic strike was converted to an unfair labor practice strike on
the day that it commenced, October 18.
Harding Glass Company, Inc. and Glaziers Local
1044, International Brotherhood of Painters &
Allied Trades, AFL–CIO. Cases 1–CA–31148
and 1–CA–31158
March 31, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On November 3, 1994, Administrative Law Judge
Michael O. Miller issued the attached decision. The
General Counsel and the Respondent filed exceptions
and supporting briefs, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified,2 and to adopt the recommended
Order as modified.
The judge found that the Respondent unlawfully im-
plemented certain unilateral changes in employment
conditions on October 18, 1993,3 in the absence of a
valid impasse in bargaining. He also found that these
changes rendered the October 18 strike an unfair labor
practice strike from its inception. We agree with the
judge that the Respondent violated Section 8(a)(5) by
unilaterally implementing its last and final offer in the
absence of a valid impasse in bargaining.4 However,
we do not agree that this unlawful implementation oc-
curred on October 18. Concededly, on that date, the
Respondent unilaterally established a wage scale for
replacement glaziers. However, this action was lawful
because the Respondent was privileged to establish
unilaterally the terms and conditions of employment of
strike replacements. GHR Energy Corp., 294 NLRB
1011, 1012 (1989); Service Electric Co., 281 NLRB
633, 642 (1986).5
We find that the Respondent’s unlawful implementa-
tion became effective on October 23. On that day, the
Respondent announced its intent to implement its final
proposals as to the regular (i.e., nonreplacement) em-
ployees. On the same day, it implemented these
changes.
Union representatives did not actually inform the
striking glaziers of the Respondent’s changes until Oc-
tober 25. Because the Respondent’s initial bargaining
proposal contained significant reductions in the com-
pensation paid glaziers and caused them to strike on
October 18, we conclude that the unlawful implemen-
tation of these very changes had a reasonable tendency
to prolong the strike. Accordingly, we find that the
strike converted to an unfair labor practice strike on
October 25 when the striking glaziers became aware of
the Respondent’s unlawful implementation of its offer.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclu-
sion of Law 2.
‘‘2. By threatening employees with discharge and/or
shop closure and by promising them higher wages in
order to discourage them from supporting or remaining
members of the Union, by interfering in the Board’s
investigation of unfair labor practices, and by encour-
aging and assisting employees in the filing of a decer-
tification petition, the Respondent has engaged in un-
fair labor practices affecting commerce within the
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Where, as here, it is unclear whether an employer’s unilateral
changes in their entirety have been detrimental to employees or ben-
eficial, the Board’s customary policy is to issue a restoration order
conditioned on the affirmative desires of the affected employees as
expressed through their bargaining agent. E.g., Dura-Vent Corp., 257
NLRB 430, 433 (1981).
7 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the Employer’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.’’
2. Substitute the following for the judge’s Conclu-
sion of Law 5.
‘‘5. The strike which began on October 18, 1993,
converted to an unfair labor practice strike on October
25, 1993.’’
AMENDED REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of the
Act, we shall order it to cease and desist and to take
certain affirmative action designed to effectuate the
policies of the Act. We have found that the economic
strike that began on October 18, 1993, was converted
to an unfair labor practice strike on October 25, 1993.
Accordingly, the Respondent shall, on application,
offer immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights or privileges, to all striking employ-
ees who were not permanently replaced before October
25, 1993.
Having found that by implementing its last contract
proposal in the absence of a valid impasse, thereby
unilaterally and unlawfully changing the terms and
conditions of employment of the employees in the ap-
propriate units, the Respondent shall, on request of the
Union, restore the terms and conditions of employment
which were in effect on October 23, 1993, and make
its employees whole for any losses they experienced as
a result of this unilateral action.6
Specifically, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing since Octo-
ber 23, 1993, to make contractually required payments
to various benefit funds, the Respondent shall, on re-
quest of the Union, make whole its unit employees by
making all payments that have not been made since
October 23, 1993, and that would have been made but
for the Respondent’s unlawful failure to make them,
including any additional amounts applicable to such
delinquent payments as determined in accordance with
the criteria set forth in Merryweather Optical Co., 240
NLRB 1213, 1216 (1979). In addition, the Respondent
shall reimburse unit employees for any expenses ensu-
ing from its failure to make such required payments as
set forth in Kraft Plumbing & Heating, 252 NLRB 891
fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981),
such amounts to be computed in the manner set forth
in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).7 Nothing in our remedial order
should be construed as authorizing the Respondent to
take back benefits conferred without a request from the
Union.
ORDER
The National Labor Relations Board orders that the
Respondent, Harding Glass Company, Inc., Worcester,
Massachusetts, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with discharge or shop
closure and promising them higher wages in order to
discourage them from supporting or remaining mem-
bers of the Union, interfering with the Board in its in-
vestigation of unfair labor practice charges, and en-
couraging and assisting employees in the filing of a
decertification petition.
(b) Unilaterally changing the terms and conditions
of employment of its employees in the appropriate
units without first bargaining to impasse with the
Union.
(c) 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Union, restore all terms and
conditions of employment to the status quo as it ex-
isted on October 23, 1993.
(b) On request of the Union, make whole all em-
ployees for any losses they suffered as a result of the
unilateral changes in terms and conditions of employ-
ment, with interest in the manner set forth in the rem-
edy section of this decision.
(c) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate units concerning terms and conditions of
employment and, if agreements are reached, embody
those agreements in signed understandings:
All glaziers employed by Respondent perform-
ing the work described in the preamble of the
Glaziers Agreement between Glass Employers
Group of Greater Boston, Inc., and the Union,
which expired on October 16, 1993.
All glassworkers employed by the Respondent
as described in Article III of the Glassworkers
Agreement between Glass Employers Group of
987HARDING GLASS CO.
8 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
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.’’
Greater Boston, Inc., and the Union, which ex-
pired on October 16, 1993.
(d) On application, offer immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, to all those employees who went on strike
on October 18, 1993, and were not permanently re-
placed prior to October 25, 1993, discharging if nec-
essary any replacements hired on or after October 25,
1993.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its facility in Worcester, Massachusetts,
copies of the attached notice marked ‘‘Appendix.’’8
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with loss of their
jobs or shop closure or promise them higher wages in
order to discourage them from supporting or remaining
members of the Union.
WE WILL NOT interfere with the National Labor Re-
lations Board in its investigation of unfair labor prac-
tice charges.
WE WILL NOT encourage or assist employees in the
filing of a decertification petition.
WE WILL NOT unilaterally change the terms and con-
ditions of employment of our employees without first
bargaining to impasse with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request of the Union, restore all terms
and conditions of employment to the status quo as it
existed on October 23, 1993.
WE WILL, on request of the Union, make whole all
our employees for any losses they suffered as a result
of the unilateral changes in terms and conditions of
employment, with interest.
WE WILL, on request, bargain collectively with the
Union with respect to rates of pay, wages, hours of
work, and other conditions of employment of employ-
ees represented by the Union in the appropriate units
set forth below and, if agreements are reached, embody
those agreements in signed understandings:
All glassworkers employed by us performing
the work described in the preamble of the Gla-
ziers Agreement between Glass Employers Group
of Greater Boston, Inc., and the Union, which ex-
pired on October 16, 1993.
All glassworkers employed by us as described
in Article III of the Glassworkers Agreement be-
tween Glass Employers Group of Greater Boston,
Inc., and the Union, which expired on October 16,
1993.
WE WILL, on application, offer immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges to all those employees who went on strike
on October 18, 1993, and were not permanently re-
placed prior to October 25, 1993, discharging if nec-
essary, any replacements hired on or after October 25,
1993.
HARDING GLASS COMPANY, INC.
Karen Hickey, Esq., for the General Counsel.
Robert Weirauch, Esq., for the Respondent.
James Farmer, for the Charging Party.
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1993 unless otherwise indicated.
2 For some or all of the period involved here, Respondent main-
tained a second facility, known as Harding Auto Glass Company,
Inc., at a separate nearby location. Respondent stipulated, for the
purposes of this case only, that it and Harding Auto Glass Company,
Inc. constituted a single employing entity.
3 The appropriate unit for glaziers consists of all glaziers employed
by Respondent performing the work described in the preamble of the
Glaziers Agreement between Glass Employers Group of Greater
Boston, Inc. and the Union, which expired on October 16, 1993.
4 The appropriate unit for glassworkers consists of all glassworkers
employed by the Respondent as described in art. III of the Glass-
workers Agreement between Glass Employers Group of Greater Bos-
ton, Inc. and the Union, which expired on October 16, 1993.
5 Farmer apparently said this to Goldstein on several occasions
during the brief course of the negotiations.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Boston, Massachusetts, on July 13 and 14,
1994, based on charges filed on November 23 and 29, 1993,1
by Glaziers Local 1044, International Brotherhood of Paint-
ers & Allied Trades, AFL–CIO (the Union), as thereafter
amended, and a consolidated complaint issued by the Re-
gional Director for Region 1 of the National Labor Relations
Board (the Board) on February 28, 1994, as thereafter
amended. The complaint alleges that Harding Glass Com-
pany, Inc. (the Respondent or the Employer) violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act)
by making threats and promises to discourage continued
union adherence, by encouraging and assisting employees in
the filing of a decertification petition, by interfering with the
Board’s investigation of unfair labor practice charges, and by
unilaterally implementing its contract offer in the absence of
a bona fide impasse in collective bargaining. Respondent’s
timely filed answer denies the commission of any unfair
labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by counsel for the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS—
PRELIMINARY CONCLUSIONS OF LAW
The Respondent, a corporation, is engaged in the whole-
sale and retail sale and installation of glass for automobiles
and commercial and industrial buildings at its facility in
Worcester, Massachusetts.2 In the course and conduct of its
business operations during the calendar year ending Decem-
ber 31, 1993, Respondent purchased and received goods and
materials valued in excess of $50,000 which were shipped to
it directly from points located outside the Commonwealth of
Massachusetts. During that same period of time, Respondent
performed services within the Commonwealth of Massachu-
setts valued in excess of $50,000 for enterprises which were
directly engaged in interstate commerce. The Respondent ad-
mits and I find and conclude that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The complaint alleges, Respondent admits, and I find and
conclude that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. Background
The Employer and the Union have had a longstanding col-
lective-bargaining relationship wherein the Union has rep-
resented Respondent’s employees in two units, one of gla-
ziers3 and another of glassworkers.4 The most recent agree-
ments ran from November 2, 1991, to October 16, 1993. Re-
spondent is the last unionized glass company in the Worces-
ter area and the only one west of the Boston area. Mark
Goldstein is Respondent’s president. James Farmer is the
Union’s business manager.
In October, Respondent had three glassworkers, Dana
Whitney, Roger Demers, and Robert Mosely, and two gla-
ziers, James Tritone and Charles Jones. The glassworkers re-
paired and replaced automobile glass, cut glass, and fab-
ricated metal. They sometimes assisted the more highly
skilled, and more highly paid, glaziers, who could repair,
fabricate, and install storefronts and install windows in new
commercial construction.
B. The Negotiations
On June 30, Goldstein notified Farmer that Harding Glass
desired to negotiate its new agreements separately from the
Glass Employers Association. Farmer responded, terminating
the existing agreements on their expiration date, October 16,
and indicating a willingness to meet and bargain. Goldstein
proposed that negotiations begin in early October; the first
meeting was held on October 8.
Goldstein, Farmer, and Business Representative Joe
Guliano met at a coffeeshop on the afternoon of October 8
for the initial bargaining session. Goldstein laid out his con-
cerns; as the only union glass shop in the Worcester area,
Harding Glass was not competitive, he asserted. In particular,
he complained about the wages and benefits of the glaziers,
which totaled over $30 per hour. The Union made no spe-
cific offer but suggested that Goldstein was not taking ad-
vantage of several provisions of the existing agreements, pro-
visions which would permit him to use the lower paid glass-
workers to do more of the work which Respondent was pay-
ing glaziers to do and allow him to pay a reduced wage rate
(80 percent of their wage rate) under the market recovery
program to the glaziers when they worked on open shop
projects. Goldstein recalled Farmer criticizing the way he ran
his business, in particular the size of his office staff.5 He also
recalled Farmer suggesting that he eliminate his glaziers,
continuing his business with lower paid glassworkers. Gold-
stein maintained that this was impractical and unsafe. The
meeting ended with an agreement to meet again; no date was
established.
On October 12, Goldstein asked, in writing, to ‘‘meet one
more time to discuss my position with an effort to reach an
agreement.’’ Farmer agreed to meet, but again, no date was
set. Goldstein responded with a letter, dated October 13, set-
ting out his positions. He proposed a 1-year agreement which
included provisions to reduce the glaziers’ hourly wage rate
from $22.05 to $13.73 per hour, raise the auto glass mechan-
989HARDING GLASS CO.
6 The essence of Farmer’s proposal was that Respondent would be
able to do all of its current work, except prevailing wage jobs, with
employees designated and paid as glassworkers. It would not be per-
mitted to retain the existing glaziers under a glaziers’ agreement at
the reduced rate, but would be permitted to hire anyone, including
those who had formerly been glaziers or who possessed the requisite
skills to perform the required work. While, as noted infra, this is
what Respondent ultimately did, it appears that Respondent did not,
or purported not to, so understand Farmer’s proposal.
ics’ pay by 50 cents (to a top rate for glassworkers of
$13.73), eliminate all contributions to the health, welfare,
pension, and annuity funds, substituting other health insur-
ance and a promise to look into profit sharing, and include
the glaziers in the vacation and holiday benefits of the glass-
workers (which they did not previously receive), but with the
elimination of the existing birthday and Christmas Eve holi-
days for everyone. He asked to meet as soon as possible,
noting that the current agreement expired on October 16.
Goldstein and Farmer met again on October 14. Goldstein
stated that he had to have what he had proposed in order to
stay in business; Farmer protested that he was looking for a
lot of givebacks, virtually everything that the glaziers had ne-
gotiated over the years, and stated that the glaziers would not
agree to his proposal. He agreed to Goldstein’s proposed
wage rate for the glassworkers and suggested that Goldstein
just sign a glassworkers’ agreement. Then, if Respondent bid
work requiring glaziers, i.e., larger or prevailing wage jobs,
the Union would provide them from the hall.6
Farmer indicated that the Union could work with the
health, welfare, pension, and annuity benefits as proposed by
Goldstein. However, he noted that if contributions to the an-
nuity fund ceased, the employees would lose those contribu-
tions which had already been made on their behalf. He sug-
gested that some money be deducted from their wages to
maintain annuity fund contributions. Goldstein promised to
get back to Farmer on that issue.
On October 15, Goldstein rejected the Union’s suggestion
for taking the pension or annuity money from the wage pack-
age. He wrote that he did ‘‘not want to be faced with any
potential contingent liability.’’ Farmer’s subsequent attempts
to convince him that the funding was more than adequate to
avoid any such liability were unavailing.
The Union held separate membership meetings for the gla-
ziers and the glassworkers on October 17 to consider the
contract offers of the employer association and those pro-
posed by Respondent. Respondent’s glaziers came to the
meeting, were presented with Goldstein’s proposal, noted
that it appeared as if the Employer was seeking to get rid
of them, and rejected it. In addition, they voted to strike and
to establish a picket line. Respondent’s glassworkers did not
come to the meeting scheduled for their consideration of the
glassworkers’ contracts but agreed not to cross the glaziers’
picket line.
On the conclusion of the meeting, the Union sent a fac-
simile message to Respondent, rejecting its offer. It stated,
‘‘We are ready and willing to continue negotiations’’ and
asked that Goldstein indicate when he was available. The fax
contained no reference to the strike vote. However, a picket
line was set up on October 18 and no employees worked.
Goldstein responded on October 20, indicating an availability
to meet on either of the next 2 days.
They met again on October 22 or 23. As credibly related
by Farmer and Guliano, the discussions revolved around
making Respondent competitive while keeping the men
working and maintaining a union relationship. Farmer reiter-
ated and expanded on the earlier suggestions that Respondent
utilize the market recovery rate and that it operate solely
under a glassworkers’ agreement, with those glassworkers
being allowed to work on any jobs up to a contract value
of $20,000, including that work which had previously been
done by glaziers. On larger jobs, the Union would refer gla-
ziers, as needed. The wage increase for glassworkers, as pro-
posed by Goldstein, which was the same as had been agreed
to by the employer association, was accepted, and there was
at least a tentative agreement with respect to the health and
welfare benefits. There was discussion of eliminating the an-
nuity but continuing some pension benefits; Farmer’s testi-
mony as to this was vague. Farmer did not offer to let Re-
spondent employ the glaziers under the terms of the glass-
workers’ contract but, as he explained, Respondent could
have hired them, if they were willing, or anyone else, as
glassworkers.
As Goldstein recalled the discussions, he insisted that he
needed glaziers to operate his business and was never told
that he could hire glaziers and pay them the glassworkers’
rate. Goldstein continued to object to making pension fund
contributions, asserting a fear of a future liability. Farmer
made no wage proposal and, from Goldstein’s point of view,
had offered nothing to settle the strike.
Farmer and Guilano left that meeting feeling that agree-
ment was close. Goldstein had just the opposite impression,
believing that the Union was not going to make a proposal.
On October 23, Goldstein rejected what he deemed to be
the Union’s proposal, as unacceptable. In his testimony, he
claimed that he was referring to the Union’s verbal proposal
that he use the 80-percent market recovery rate and get rid
of his glaziers. In testifying further, he stated that he did not
consider Farmer’s suggestion to continue under the glass-
workers’ agreement, with a 50-cent raise for those employees
as Goldstein had proposed, for all jobs up to $20,000, to be
a proposal ‘‘because its an unworkable proposal.’’ His type
of business, he said, had to have glaziers. His faxed letter
went on to state that he was implementing his last offer.
Following receipt of the October 23 letter, Farmer called
Goldstein, told him that he was destroying the business his
father had built, and suggested that they should sit down and
work something out. Goldstein insisted that there was ‘‘noth-
ing to work out.’’
C. Dealings with the Employees
About October 18, Goldstein had called Whitney, asking
to meet with the inside glassworkers and threatening them
with replacement if they failed to return to work. As Whit-
ney recalled the conversation, Goldstein stated that he could
not afford the Union, that he had to get rid of it because he
could not make a profit or be competitive. This statement
was a reiteration of statements repeatedly made to Whitney
and other employees throughout the spring and summer.
Both Charles Jones and Tritone credibly recalled Goldstein
making statements to the effect that he would either get rid
of the Union or close the doors (as recalled by Jones) or that
he would not be able to stay in the Union if he had to con-
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Goldstein acknowledged telling his employees that he was paying
more than twice what his competition was paying and was unable
to bid jobs and make a profit and admitted telling Tritone that he
would not be able to stay in the Union if he had to pay union wages.
He denied making statements about ‘‘getting out of’’ or ‘‘getting rid
of’’ the Union. I find the mutually corroborative testimony of these
employees more convincing than Goldstein’s denials.
8 On direct examination, Whitney had testified to a statement by
Goldstein to the effect that the offer ‘‘wasn’t written in stone’’ and
could be changed in discussions between them. He made no ref-
erence to any such offer in describing this conversation on cross-ex-
amination. Accordingly, while I find him to be a generally more
credible witness than Goldstein, I find the evidence insufficient to
warrant a conclusion that Respondent offered to engage in such di-
rect dealing. I do find, based on Whitney’s testimony, that these dis-
cussions were initiated by Goldstein.
9 Whitney testified that he resigned following his meeting with
Goldstein because he knew that it was against union rules to work
in a nonunion shop. He typed and mailed the letter himself; the lan-
guage was Goldstein’s.
10 Goldstein denied the foregoing account in its entirety. The detail
contained in Whitney’s account, together with his overall demeanor,
the fact that two striking employees related conversations with Whit-
ney, immediately after the petition was filed, substantiating aspects
of that account, and Respondent’s failure to adduce the testimony of
the bookkeeper satisfy me that Whitney’s testimony was truthful. I
note, moreover, that Whitney’s payroll records for November 8 show
that he not only clocked in for a full 8 hours on that day, but that
he also was on the clock for overtime. That Whitney’s affidavit con-
fused the location of the conversation concerning his signing of the
resignation letter with the one about the filing of the petition does
not, in my opinion, warrant a contrary conclusion.
11 I credit Whitney’s account. I am constrained to comment that
an investigative technique which reveals the identity of witnesses to
a respondent jeopardizes both the investigation and the job security
of those witnesses.
tinue paying the wages he was paying (as recalled by Tri-
tone).7
On October 18, Respondent hired James Waszkiewicz and
James Gabrielle as glaziers. They had only limited experi-
ence; their duties included replacing small pieces of plate
glass, cutting glass for tabletops, and doing some fabrication.
Because of their limited experience, they were paid $11 per
hour. Unlike the glassworkers’ agreement, which provided a
sliding scale of wages, depending on the grade to which an
employee is assigned, the glaziers’ contract contained no
lower rate for less experienced employees. It did provide for
an apprenticeship program, with a sliding scale, but partici-
pation in that program required union participation. Wasz-
kiewicz and Gabrielle were not apprentices.
Goldstein and the inside glassworkers, Whitney, Demers,
and Mosely, met on the same day that Goldstein rejected the
Union’s proposal, October 23. Goldstein told them that he
needed them at work, showed them the proposal he had
made to the Union, and said he was willing to give them the
same terms. He repeated his threat to replace them if they
failed to return.8
The Union maintained its picket line and the glaziers did
not return to work. However, Whitney, Demers, and Mosely
resigned from the Union and returned to work on October
25.9 They were paid under the terms which Goldstein had of-
fered the Union, a 50-cent raise and Blue Cross HMO health
insurance but no contributions to the Union’s health, welfare,
pension, or annuity funds. Respondent’s last contribution to
those funds was for the month of October. The employees
also lost two holidays. Goldstein subsequently hired another
employee as a glazier, paying him $13.73 per hour; Tritone
returned to work in April, as a glazier, at that same rate.
On November 5, Goldstein spoke with Whitney, Mosely,
and the two new employees, Gabrielle and Waszkiewicz, in
the office, with his bookkeeper, Carol Hamilton, present. He
told the employees that they had to get rid of the Union, that
he could not afford the benefits and that, if they couldn’t get
rid of the Union, he would close down. He said that they
should submit a letter stating that they no longer wanted to
be represented by the Union. Hamilton typed that letter,
using language provided by Goldstein, and everyone signed
it in his presence.
After work that day, Goldstein spoke with Whitney at a
pool hall across from the Employer’s facility. He asked
Whitney to come in early on Monday so that he could go
to Boston and file a petition with the Labor Board. Whitney
was told that he should be the one to do it because he was
the senior employee and Goldstein promised him a raise to
the foreman’s rate (to replace Demers who had quit on No-
vember 5) when the Union was gone.
On Monday, November 8, Whitney punched in early.
Goldstein drove him to a restaurant where Whitney waited
while Goldstein took his daughter to school. Goldstein re-
turned and they drove, in Goldstein’s vehicle, to Boston.
Along the way, they stopped at another restaurant where
Goldstein gave Whitney a completed decertification petition
and a second, blank, petition form. He told Whitney to copy
the petition over; the signature list, which had been signed
on Friday, was appended to it. They then got back in Gold-
stein’s van and drove to the NLRB office in Boston. Whit-
ney was dropped off at the donut shop across from the Fed-
eral building, with instructions to go in and talk to the Board
agent, while Goldstein drove around so as not to be seen.
Whitney did as he was instructed, filed the petition, and met
Goldstein after he had completed this task and the two men
returned to Worcester. Whitney was paid for a full day’s
work.10
After the initial unfair labor practice charges were filed, a
Board agent attempted to contact Whitney, calling him at
work. Goldstein told Whitney that he did not have to talk
with the Board, that he did not need the aggravation; Whit-
ney refused to give a statement. About a week later, that in-
vestigator appeared at Whitney’s home in Gardner, Massa-
chusetts. Whitney again refused to cooperate, expressing a
fear for his job. When he returned to work the next day,
Whitney told Goldstein of the agent’s visit. Goldstein replied
that the agent had spoken with him about an hour before ap-
pearing in Whitney’s driveway and had asked Goldstein
where Gardner was. Goldstein then told Whitney to ‘‘keep
his mouth shut,’’ say nothing to the Labor Board, and addi-
tionally told Whitney that if he pulled the petition, he
wouldn’t have a job.11
D. Analysis
1. Section 8(a)(1)
Threats—Contrary to Respondent’s contentions, I find that
Goldstein did more than merely complain that the union
wages made his business noncompetitive. He went further,
991HARDING GLASS CO.
repeatedly threatening, from early spring through late fall,
that he would have to either get out of the Union or ‘‘close
his doors.’’ These statements went beyond lawful predictions
of the economic consequences of continued union representa-
tion supported by objective facts. See NLRB v. Gissel Pack-
ing Co., 395 U.S. 575, 618 (1969). They were threats posing
an unlawful alternative to the employees, either get rid of the
Union or suffer the loss of their jobs. As such, they are coer-
cive and violative of Section 8(a)(1). Debber Electric, 313
NLRB 1094, 1097 (1994); Ideal Elevator Corp., 295 NLRB
347, 351 (1989).
An additional threat, coercive and in violation of Section
8(a)(1), occurred in December when Goldstein told Whitney
that he would not have a job if he ‘‘pulled the petition.’’
Promises—I have credited Whitney’s testimony and found
that Goldstein promised him a raise, to the foreman’s rate of
$15.23, ‘‘when the Union was gone’’ in order to induce him
to file the decertification petition. Such a promise violates
Section 8(a)(1). Yale New Haven Hospital, 308 NLRB 363,
368–369 (1992). See also Marriott Corp., 310 NLRB 1152
fn. 1 (1993). It is irrelevant that Whitney never got the raise
or that he may have bragged about the raise he expected to
receive.
Involvement in the Decertification Petition—The decision
whether or not to decertify their Union and the responsibility
to prepare and file a decertification petition belong solely to
the employees. Other than to provide general information
about the process on the employees’ unsolicited inquiry, an
employer has no legitimate role in that activity, either to in-
stigate or to facilitate it. Lee Lumber & Building Material,
306 NLRB 408 (1992). An employer may not solicit its em-
ployees to circulate or sign decertification petitions and it
may not threaten employees in order to secure their support
for such petitions. Caterair International, 309 NLRB 869
(1992). An employer may not provide more than ministerial
aid in the preparation or filing of the petition. Pic Way Shoe
Mart, 308 NLRB 84 (1992).
Respondent went far beyond the above-stated limits. It so-
licited employee support for the decertification, backing that
solicitation with threats, and it solicited, with the promise of
a raise, one employee to file that petition in his own name.
It then provided the form and the language for the petition,
without any request by an employee that it do so, and pro-
vided both the time (on the clock) and transportation nec-
essary to see that the petition was filed. Its conduct in this
regard clearly interfered with rights reserved to the employ-
ees and violated Section 8(a)(1). The petition resulting from
this conduct is, of course, tainted. Tyson Foods, 311 NLRB
552, 569 (1993); Lee Lumber, supra.
Interference with Board Proceedings—By advising an em-
ployee that he or she need not honor a Board subpoena, an
employer violates Section 8(a)(1) because such conduct tends
‘‘to impede the Board in the exercise of its power to compel
the attendance of witnesses in its proceedings’’ and tends,
further, ‘‘to deprive employees of the vindication or their
rights through the participation of witnesses in a Board pro-
ceeding.’’ Bobs Motors, 241 NLRB 1236 (1979). See also
Windsor Castle Health Care Facilities, 310 NLRB 579, 592
(1993). The Act’s protections, moreover, extend beyond its
formal proceedings and exist independent of the issuance of
a subpoena. Employees have the right to assist the Board in
its investigation of unfair labor practice charges; they have
the right to have the Board conduct complete investigations
of their charges without interference by the employer. The
Board’s ‘‘channels of information’’ must be maintained free
from ‘‘employer intimidation of prospective complainants
and witnesses.’’ NLRB v. AA Electric Co., 405 U.S. 117,
121, 123 (1972), quoting from John Hancock Mutual Life
Ins. Co. v. NLRB., 89 U.S. App. D.C. 261, 263, 191 F.2d
483, 485 (1951). See Art Steel California, Inc., 256 NLRB
816, 821–822 (1981), and Debber Electric, supra at 1100.
In mid-December, and on several occasions prior thereto,
when a Board agent sought to interview Whitney in reference
to the decertification petition, Respondent told Whitney that
he did not have to speak to that agent, that he should not
talk to that agent, and that he should order the agent off of
his property. Goldstein told him, further, that he should
‘‘keep his mouth shut’’ and threatened his job security if he
‘‘pulled the petition.’’ I find that by such statements, Re-
spondent impeded the Board in the course of its investigatory
functions and thereby interfered with the employees in the
exercise of their statutory rights in violation of Section
8(a)(1).
2. Section 8(a)(5)
Respondent does not dispute that it unilaterally imple-
mented what it deemed to be its final offer, changing pay
rates, and fringe benefits. It raised the pay of the glass-
workers, reduced the pay of the glaziers, eliminated health,
welfare, pension, and annuity fund contributions, and
changed the holiday and vacation benefits. For the most part,
the changes took effect on and after October 23 and were
consistent with Respondent’s offer. However, for the two
new glaziers, the wage changes were implemented on Octo-
ber 18. Those wage changes did not comport with what Re-
spondent had offered the Union.
Unilateral changes are not unlawful under all cir-
cumstances. As the Board stated in Taft Broadcasting, 163
NLRB 475, 478 (1967), enfd. sub nom. Television Artists
AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968):
An employer violates his duty to bargain if, when nego-
tiations are sought or in progress, he unilaterally insti-
tutes changes in existing terms and conditions of em-
ployment. On the other hand, after bargaining to an im-
passe, that is, after good-faith negotiations have ex-
hausted the prospects of concluding an agreement, an
employer does not violate the Act by making unilateral
changes that are reasonably encompassed within his
pre-impasse proposals. [Citations omitted.]
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties, the length of the negotiations, the importance of
the issue or issues as to which there is disagreement,
the contemporaneous understanding of the parties as to
the state of negotiations are all relevant factors. . . .
Application of the foregoing standards to the facts of this
case leads me to conclude that there was no impasse reached
here. Bargaining had only begun on October 8 and the par-
ties had met but three times, for no more than a total of 3
hours. Respondent had proposed Draconian cuts, cuts war-
ranting more extensive discussion that these truncated nego-
tiations permitted. Contrary to Goldstein’s opinion, the Union
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had made suggestions and proposals, major concessions
which were intended to meet Respondent’s needs. Signifi-
cantly, although the Union was putting economic pressure on
Respondent, negotiations continued during the strike and the
Union had sought and not rejected further negotiations. There
was agreement on the wages for glassworkers and on the
elimination of contributions to most of the fringe benefit
funds.
I view the Union’s offer to permit Respondent to use
glassworkers to perform all of the work of the glaziers ex-
cept for work done on major projects as essential agreement
to what Respondent had asked for with regard to the glaziers.
Respondent’s proposal was to reduce the pay of the glaziers
by approximately 40 percent, paying them at the same wage
as the class I glassworkers. The Union’s proposal would
have freed Respondent from all of the obligations of the gla-
ziers’ agreement, permitting it to hire whomever it could, in-
cluding experienced glaziers, to perform, under the glass-
workers’ agreement, virtually all of the work previously done
under the two contracts. The limited exception pertained to
larger jobs, those exceeding $20,000, for which the Union
would provide him with glaziers, to be paid on the glaziers’
scale. These would, by and large, be jobs requiring union
scale and were not the market in which Respondent was
competing.
I note that what the Union proposed is essentially what
happened after Respondent implemented its proposal. The
glaziers refused to accept Respondent’s proposal and went on
strike. Goldstein then hired others to work as glaziers, paying
them at the rate he had offered for class I glassworkers, or
less, and providing them with the benefits he had offered for
both the glaziers and the glassworkers.
On October 23, the parties were in disagreement with re-
spect to pension fund contributions but there is nothing in
this record to suggest that their positions were fixed and im-
mutable. There had not been enough discussion on the issue
to have reached that point and the Union had not foreclosed
further discussion of the issue.
Finally, I must take note of Respondent’s other conduct
and its attitude toward continued union recognition, Thus,
while the General Counsel does not contend that Respondent
bargained in bad faith, I cannot ignore Respondent’s repeated
statements, before, during, and after bargaining, that it not
only had to have relief from union wages but that it intended
to be free of any union obligations. I cannot ignore the fact
that Respondent unilaterally determined what wages it would
pay to Waszkiewicz and Gabrielle when it hired them on Oc-
tober 18 to do work coming under the glaziers’ jurisdiction,
wages which comported with neither the terms of the just ex-
pired agreement nor those which Goldstein had proposed.
Neither can I ignore Respondent’s subsequent actions di-
rected toward effectuation of its intention to eliminate the
Union. Even if Respondent had bargained in good faith, he
was predisposed to rush to a conclusion that an impasse had
been reached. He apparently had so concluded after only one
brief meeting, asking on October 12 only to ‘‘meet one more
time to discuss my position with an effort to reach agree-
ment.’’
There was, I find, no impasse. In the absence of impasse,
Respondent’s unilateral implementation of its last and only
offer, breaches its duty to bargain in good faith and violates
Section 8(a)(5) of the Act.
3. The strike
Respondent’s employees commenced an economic strike
on October 18. On that same date, Respondent commenced
on a course of unilateral changes, changes which I have
found occurred before any impasse in bargaining. Within 2
to 3 weeks, Respondent also began to undermine the Union’s
status among its employees, with threats, promises, and un-
lawful support and encouragement of a decertification peti-
tion. Such conduct, I must find, prolonged the strike, which
continues to this date, and converted that strike to one which
must be deemed an unfair labor practice strike.
CONCLUSIONS OF LAW
1. The following constitute units appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act:
All glaziers employed by Respondent performing the
work described in the preamble of the Glaziers Agree-
ment between Glass Employers Group of Greater Bos-
ton, Inc., and the Union, which expired on October 16,
1993.
All glassworkers employed by the Respondent as de-
scribed in Article III of the Glassworkers Agreement
between Glass Employers Group of Greater Boston,
Inc., and the Union which expired on October 16, 1993.
2. By threatening employees with discharge and by prom-
ising them higher wages in order to discourage them from
supporting or remaining members of the Union, by interfer-
ing in the Board’s investigation of unfair labor practice
charges, and by encouraging and assisting employees in the
filing of a decertification petition, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
3. By unilaterally changing the terms and conditions of
employment of its employees without first bargaining to im-
passe with the Union, the Respondent has violated Section
8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The strike which began on October 18 was prolonged
by Respondent’s unfair labor practices and was converted to
an unfair labor practice strike as of that same date.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take affirmative action designed to effec-
tuate the policies of the Act.
Having found that by implementing its last contract pro-
posal in the absence of a valid impasse, thereby unilaterally
and unlawfully changing the terms and conditions of employ-
ment of the employees in the appropriate units, I shall rec-
ommend that Respondent be required to restore the terms and
conditions of employment which were in effect on October
18, 1993, and make its employees whole for any losses they
experienced as a result of this unilateral action, with interest
993HARDING GLASS CO.
as provided in New Horizons for the Retarded, 283 NLRB
1173 (1987).
[Recommended Order omitted from publication.]