Harding Glass Industries

National Labor Relations Board - Board Decisions

Apr 2, 1980

248 N.L.R.B. 902 (N.L.R.B. 1980)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harding Glass Industries and Glaziers and Glass-
workers Local Union No. 558, affiliated with
the International Brotherhood of Painters and
Allied Trades, AFL-CIO. Case 17-CA-7964
April 2, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On October 31, 1979, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 3
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry WIbll Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
The General Counsel excepts to the Administrative Law Judge's find-
ings that there was no discussion of substantive issues at the negotiating
session between the Union and the Topeka Area Glazing Contractors As-
sociation on August 24, 1977. In light of our disposition of this case, we
find it unnecessary to pass on this exception.
2 We agree with the Administrative Law Judge's conclusion that Re-
spondent unlawfully withdrew its Manhattan facility from the negotia-
tions between the Union and the Association for a new contiact, as there
was no impasse at the time of withdrawal. See also our decision in
Charles D. Bonanno Linen Service. Inc., 243 NLRB No. 140 (1979), reiter-
ating our conclusion that impasse alone is not an unusual circumstance
justifying withdrawal from multiemployer bargaining. Accordingly, we
find it unnecessary to pass on the Administrative Law Judge's further
conclusion that Respondent could not lawfully withdraw its Manhattan
facility from mutiemployer negotiations while continuing to negotiate on
behalf of its Topeka facility.
We also agree with the Administrative Law Judge's conclusion that
Respondent's unlawful withdrawal of its Manhattan facility from the ne-
gotiations prolonged the strike against Respondent and converted it into
an unfair labor practice strike, at least with respect to the employees of
its Manhattan facility. See, e.g., Acme Wire Works, Inc.. 229 NLRB 333
(1977), enfd. 582 F2d 153 (2d Cir. 1978).
3 We shall modify par. 2(b) of the Administrative Law Judge's recom-
mended Order to include the appropriate remedial reinstatement lan-
guage. In par. (d) of his recommended Order, the Administrative Law
Judge used the broad cease-and-desist language, "in any other manner."
However, we have considered this case in light of the standards set forth
in Hickmorr Foods, Inc., 242 NLRB No. 177 (1979), and ha'e concluded
that a broad remedial order is inappropriate, inasmuch as it has not been
shown that Respondent has a proclivity to violate the Act or has en-
gaged in such egregious or widespread misconduct as to demonstrate a
general disregard for the employees' fundamental statutory rights. Ac-
cordingly, we shall modify the recommended Order so a; to use the
narrow injunctive language, "in any like or related manner."
248 NLRB No. 91
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Harding Glass Industries, Manhattan, Kansas, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) In any like or related manner refusing to
bargain with representatives of its employees in ap-
propriate bargaining units, or interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the
Act."
2. Substitute the following for paragraph 2(b):
"(b) Offer all its employees at its Manhattan fa-
cility who requested reinstatement on or about No-
vember 7, 1977, or thereafter, reinstatement to their
former positions, or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
pay or other benefits they may have suffered by
reason of the refusal to reinstate them, with inter-
est, in accordance with the provisions of the
Remedy section, above, and the Board's usual re-
medial policies."
3. Substitute the attached notice for that of the
Administrative Law Judge.
The Administrative Law Judge inadvertently failed to include a de-
scription of the unit found appropriate in the notice to employees. We
shall modify the notice accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An agency of the United States Government
After a hearing the National Labor Relations
Board has ruled that we unlawfully withdrew our
Manhattan facility from contract negotiations on
August 24, 1977, with the Topeka Area Glazing
Contractors Association. The Board has further
held that we unlawfully refused to abide by the
1977 contract agreed to between the Association
and Glaziers and Glassworkers Local Union No.
558, affiliated with the International Brotherhood
of Painters and Allied Trades, AFL-CIO, on
behalf of the bargaining unit described below. It
has further held that we unlawfully locked out and
refused to permit Manhattan employees who had
formerly been on strike to return to work at their
HARDING GLASS INDUSTRIES 903
jobs. To remedy the effects of such actions by us,
the Board has directed that we take certain remedi-
al action. In compliance with the Order of the
Board, we hereby notify our employees that:
WE WILL NOT, (1) during negotiations for
the renewal of a collective-bargaining con-
tract, withdraw from the negotiations, in
whole or in part, without the consent of the
Union; (2) refuse to abide by the terms of the
1977 collective-bargaining agreement negotiat-
ed between the Association and the Union;
and (3) lock out or refuse to reinstate employ-
ees to their jobs because they have engaged in
strike or other concerted activity protected by
the National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
refuse to bargain with representatives of our
employees in appropriate bargaining units, or
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL recognize and abide by the 1977
contract between the Association and the
Union with respect to all of our facilities
within the appropriate bargaining unit, specifi-
cally including the Manhattan facility. The ap-
propriate bargaining unit is:
All glazing employees employed by mem-
bers of the Association, excluding office and
clerical employees, professional employees,
guards and supervisors as defined in the Act
and all other employees.
WE WILL also offer all Manhattan employ-
ees who had gone on strike during the 1977
negotiations, and who were refused reinstate-
ment to their jobs on or about November 7,
1977, following their request, immediate and
full reinstatement to their former positions, or,
if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges.
WE WILL reimburse such employees for any
loss of pay or other benefits suffered by them
by reason of the refusal of reinstatement, with
interest.
WE WILL also make appropriate payments
of any other kind required by the 1977 con-
tract, such as for health and welfare, pension,
or other funds.
HARDING GLASS INDUSTRIES
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: On
November 4, 1977, Glaziers and Glassworkers Local
Union No. 558, affiliated with the International Brother-
hood of Painters and Allied Trades, AFL-CIO, herein
called the Union, filed the instant unfair labor practice
charges against Harding Glass Industries, herein called
Respondent, pursuant to the National Labor Relations
Act, as amended.' On December 20, 1977, the Regional
Director for Region 17 (Kansas City, Kansas), issued a
complaint on the charge alleging that Respondent com-
mitted various unfair labor practices in violation of Sec-
tion 8(a)(l) and (5) of the Act. Service was duly made
on Respondent and the Union. Respondent filed an
answer denying the allegations of unfair labor practices.
Pursuant to notice, a hearing was held before me in
Manhattan, Kansas, on April 3, 4, and 5, 1978. The Gen-
eral Counsel, the Union, and Respondent appeared at the
hearing, and all parties were afforded full opportunity to
be heard, to introduce and to meet material evidence, to
present oral arguments, and to file briefs. Thereafter
briefs were filed by the General Counsel and Respondent
and have been considered.2 Upon consideration of the
entire record, the briefs, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a State of Missouri corporation, is en-
gaged in the production, manufacture, distribution, retail
sale, nonretail sale, and installation of glass and related
products at various facilities, including a facility located
at Manhattan, Kansas, Respondent, in the course and
conduct of its business operations within the State of
Kansas, annually purchases goods and services valued in
excess of $50,000 directly from sources located outside
the State of Kansas. Respondent, in the course and con-
duct of its business operations within the State of Kansas.
annually sells goods and services valued in excess of
S50,000 directly to customers located outside the State of
Kansas. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION
Glaziers and Glassworkers Local Union No. 558, affili-
ated with the International Brotherhood of Painters and
Allied Trades, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
The official reporter's identification stamp on exhibits erroneously
identifies the case number as Case 17-CA-7966.
2 In his brief the General Counsel moved to correct the transcript of
testimony in specified particulars. No objection has been received. It ap-
pearing appropriate, the motion is granted and the transcript is corrected
accordingly.
HARDING GLASS INDUSTRIES
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE UNFAIR LABOR PRACTICES
The Issue
In late August 1977, Respondent, a member of an em-
ployer association and a multiemployer bargaining unit,
withdrew Manhattan, one of its branches, from contract
negotiations between the Association and the Union for
the unit. There was an accompanying strike. In early
November 1977, after the Association reached agreement
with the Union, Respondent refused to recognize the
new agreement, and refused to reinstate the strikers em-
ployed by it at Manhattan on the terms provided in that
agreement. The basic issue is whether Respondent's ac-
tions constituted violations of Section 8(a)(1) and (5) of
the Act. The defense is that there was an impasse in ne-
gotiations, that Respondent then validly withdrew Man-
hattan from the negotiations, and that the strikers who
were refused reinstatement had been replaced. Alternati-
vely, it is contended by Respondent that the strikers
were offered reinstatement.
The Facts
The Union is, and for some years has been, the collec-
tive-bargaining representative, pursuant to contract, of
glaziers employed by members of the Topeka Area Glaz-
ing Contractors Association, in a multiemployer appro-
priate bargaining unit. At the time of the beginning of
the controversy, the Association was the collective-bar-
gaining representative of its employee-members, among
them Respondent. Respondent's operations included in
the bargaining unit consisted of two facilities, cine locat-
ed in Topeka, Kansas, the other located in Manhattan,
Kansas.
The Negotiations
The negotiations began on July 20, 1977. Hugo Town-
send was chairman of the negotiations and the Associ-
ation's negotiating team. Except for the first day, when
Joe Jones, manager of Respondent's Manhattan branch,
attended, and August 24, when Galbraith withdrew from
the negotiations, Bobby Atchison, manager of Respon-
dent's Topeka branch, and Victor Galbraith, contract
manager of the Manhattan branch, were also on the As-
sociation team. The union negotiators were Jack Zander
and other union representatives.
Further negotiating meetings were held on July 26, 27,
and 29, August 5, 17, and 24, September 19, October 27,
and November 3. On the latter date, the Association and
the Union reached agreement on the contract, and it was
duly ratified by the union membership.
In the interim, on August 1, the Union commenced a
strike against all but one of the Association members. By
mutual agreement, the U.S. Mediation and Conciliation
Service entered the picture, and, beginning with the
meeting on August 5, a mediator attended the remaining
sessions.
On August 17, 1977, the Association presented further
proposals. At that time, the parties were in disagreement
over several substantial issues: wages, holiday, a surety
bond, hiring hall, and rotation. Rotation involved a union
proposal for sharing the work in slack times, rather than
laying off employees. It was resisted by the Association
and Respondent, and particularly opposed by the man-
agement of the Manhattan branch, though Project Man-
ager Galbraith testified that such a policy was normally
followed at Manhattan. In additton, the Association was
insisting that its proposals, including Respondent's posi-
tion on rotation, be submitted to the union membership
for vote-a demand adamantly resisted by the union rep-
resentatives. 3
During the August 17 meeting, which concluded in
some heat over the rotation issue, Union Representative
Zander said, in apparent exasperation, that, if it were not
for Manhattan and the rotation issue, "We could settle
this damn thing" and that it "might be better" if the
Union negotiated separately with Manhattan. The session
concluded without agreement.
Though the union representatives at the August 17
meeting had adamantly refused to submit the Associ-
ation's proposals to the union membership, that evening
they called a union meeting and submitted the proposals
for vote. The membership overwhelmingly rejected
them.
Contract Manager Galbraith's testimony is that, prior
to opening the August 17 negotiating session, he told the
other employer representatives that the Association's
August 17 proposals represented Manhattan's "final
offer," but there is no indication in the evidence that that
characterization was communicated to the Union.
On August 22, 1977, Project Manager Galbraith tele-
phoned Union Representative Zander and told Zander
that he thought that negotiations were at a "standstill,"
and asked if Zander did not agree. Zander replied "I
guess so." Galbraith then said that, in view of Zander's
suggestion of August 17, Manhattan should negotiate
separately. Zander replied that there should be a meeting
to discuss the matter, and the conversation on that point
apparently terminated.
No meeting was held or further discussion had be-
tween the Union and Respondent concerning whether
Manhattan should withdraw from the negotiations. How-
ever, on August 24, 1977, another negotiating meeting
was held, apparently at the initiative of the mediator. At
the beginning of that meeting, Respondent Representa-
tive Galbraith presented to Union Representative Zander
a letter on the letterhead of Respondent's Manhattan fa-
cility, dated August 23, from Manager Joe Jones. The
letter stated that, "because of the impasse and your sug-
gestion," Manhattan was withdrawing from the negotia-
tions. The letter further stated that if Zander did not
agree to the action or thought it improper, "we" would
consider any observation that Zander might have. Jones
also offered in the letter to meet respecting Manhattan at
a convenient time and location.
When that letter was presented to Zander, Zander
stated that he did not know whether he could permit
such action or not. Zander then asked for a recess in the
meeting, during which he consulted the Union's attorney
by telephone, following which he returned to the meet-
ing to say that the Union would not consent to the with-
drawal. During Zander's telephone conversation, Gal-
3 Respondent Representative Atchison's testimony is that Zander's
blunt response to such suggestions was, "Absolutely not."
HARDING GLASS INDUSTRIES 905
braith left the meeting and did not return to the negotia-
tions thereafter. Topeka Branch Manager Atchison, how-
ever, remained as an Association negotiator and repre-
sentative of Respondent during the rest of the negotia-
tions. There was no discussion of the substantive issues
during the August 24 meeting.
There is dispute, unnecessary to resolve, as to whether
Chairman Townsend stated, at or after the August 24
meeting, that Manhattan continued to be bound by the
negotiations, despite its withdrawal.
On August 22, before the public announcement of its
decision to withdraw, but quite obviously in contempla-
tion of it, Respondent hired two new employees at Man-
hattan. On September 19, 26, and 31 and October 14 and
31, it hired a total of five more.4
Near the end of August, Union Representative Zander
advised the mediator that he had some new language to
propose on the rotation clause and suggested that an-
other meeting be held. However, Chairman Townsend
was out of town. Ultimately the meeting of September
19 was arranged, at which time Zander modified the
Union's rotation proposal. The Association then present-
ed a counterproposal. Positions of both parties on other
outstanding issues were also modified. At the meeting of
October 27, the Union withdrew its rotation proposal en-
tirely, thus abandoning the issue, and, on November 3,
1977, the Association and the Union reached final agree-
ment, which was ratified by the union membership on
either that evening or on November 4.
Reinstatement
On November 7, 1977, the striking employees reported
for work at all employers. They were reinstated at all
shops except Manhattan, where they were denied em-
ployment by Manager Jones, on the ground that the
Union had no contract with the Manhattan facility. No
other reason was assigned. 5
Thereafter, about November 20, 1977, Branch Man-
ager Jones and Contract Manager Galbraith offered em-
ployment to the former strikers, but at wages and other
conditions of employment substantially less than pro-
vided in the new contract. None of the strikers accepted
the offer.
Under date of December 22, 1977, Chairman Town-
send, in answer to a letter from Union Representative
Zander inquiring as to whether Respondent's Manhattan
4 The fact and dates of hiring are from the testimony of Manhattan
Manager Jones.
5 As a witness called by the General Counsel on the first day of hear-
ing, Jones testified. "I did say we would not be needing them because
they did not have a contract with us"., and "because they had no contract
they could not work." Later. as a witness for Respondent on the final
day of the hearing, Jones testified that by November 7 he had hired per-
manent replacements for the strikers, and that there were no openings or
vacancies available for the strikers. Jones' testimony as to the fact and
dates of his hiring from August 22 to November 7, cited above, is accept-
ed. However, there appears to be no clear evidence that, prior to the in-
stitution of this litigation, Respondent informed the strikers or the Union
that the men had been replaced, and there were no positions available for
them. It also seems worthy of note that in neither of his two appearances
on the witness stand did Jones specifically testify that there were no posi-
tions which the strikers could fill on November 7 and that their requests
for reinstatement ere rejected for that reason.
facility was bound by the new contract, replied that it
was bound.
Conclusions
The employees of different employers may constitute a
single appropriate bargaining unit when all such employ-
ers have consented, as they have here. Agreements
reached by the representatives of those employers in ne-
gotiations in such units are binding on all employers in
the unit. It is well established that, once bargaining nego-
tiations in such a unit have commenced, individual em-
ployers may not withdraw from the relationship and its
accompanying obligations except by mutual consent, or
in unusual circumstances. See, for example, Retail Asso-
ciates, Inc., 120 NLRB 388, 395 (1958); Sheridan Cre-
ations, Inc., 148 NLRB 1503 (1964), affd. 357 F.2d 245
(2d Cir. 1966), cert. denied 385 U.S. 1005 (1967); Univer-
sal Insulation Corp., 361 F.2d 406 (6th Cir. 1966), enfg.
149 NLRB 1397 (1964); Acme Iron [Wire] Works, Inc.,
582 F.2d 153 (2d Cir. 1978).
In the instant case, Respondent asserts the following
defenses: (1) On August 17, the parties had reached an
impasse in negotiations, and in such circumstances Har-
ding Manhattan could lawfully withdraw from negotia-
tions without the consent of the Union, and (2) in any
event, the strikers at Manhattan had been permanently
replaced by October 31, 1977, there were no positions
available for them, and the refusal to reinstate was there-
fore lawful. Alternatively, Respondent contends that, in
any event, the strikers were offered reinstatement on or
about Novemeber 20 on terms which Respondent could
lawfully prescribe, and the offer was rejected.
Whether an impasse in negotiations is such an "unusual
circumstance" as to justify withdrawal of an employer
from a multiemployer bargaining unit or negotiations is a
question of law on which there have been differences of
opinion between the Board and some circuit courts. For
a number of years the Board has uniformly held that an
impasse is not such an unusual circumstance. See, for ex-
ample, Hi-Way Billboards, Inc., 206 NLRB 22 (1973); Bill
Cook Buick, Inc., 224 NLRB 1094 (1976); Florida Fire
Sprinklers, Inc., 237 NLRB 1034 (1978). A number of cir-
cuit courts have held to the contrary. See, for example,
Independent Association of Steel Fabricators, 582 F.2d 135
(2d Cir. 1973); Beck Engraving Co., 522 F.2d 475 (3d Cir.
1975); Hi-Way Billboards, Inc., 500 F.2d 181 (5th Cir.
1974); Fairmont Foods Co., 471 F.2d 1170 (8th Cir. 1972);
Associated Shower Door, 512 F.d 230 (9th Cir.), cert.
denied 423 U.S. 893 (1975).
Absent contrary opinion by the U.S. Supreme Court,
applicable Board precedents are binding on the adminis-
trative law judge, despite adverse authority in the courts
of appeals. See, for example, Sierra Development Co., 231
NLRB 22 (1977); Fred Jones Mfg. Co., 239 NLRB No. 9
(1978). The Supreme Court's denial of certiorari in a par-
ticular case "carries no implication whatever regarding
the Court's view of the merits of the case which it has
declined to review." Maryland v. Baltimore, 338 U.S.
912, 919 (1949).
In its brief, Respondent has requested a decision by the
Administrative Law Judge as to whether there was a
bargaining impasse on or after August 17. In view of that
HARDING GLASS INDUSTRES
906 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
request, a determination of that question will be made,
even though, because of the Board authority cited, that
determination cannot, at this stage of the adjudication, be
available to Respondent as a defense.
In my judgment, the state of negotiations after August
17 did not constitute an impasse.
An impasse is defined by Webster's New World Dic-
tionary as "a situation from which there is no escape; dif-
ficulty without solution, deadlock." The Board's test as
to whether there is an impasse, as reflected and approved
in the case of American Federation of Television and
Radio Artists [Taft Broadcasting Co.], 395 F.2d 622, 628
(D.C.Cir. 1968), appears to be whether there is "no real-
istic possibility that continuation of discussion at that
time would have been fruitful." The record here indi-
cates that the number of negotiating sessions required to
reach agreement in the 1977 negotiations was not materi-
ally different from the experience in prior years; strikes
generally accompanied prior negotiations in comparable
situations; and the services of a mediator were usually re-
quired. In the 1977 negotiations, discussion of new pro-
posals limited to a single session, without agreement at
its end, scarcely appears to warrant a conclusion that
there was no realistic possibility that continuation of dis-
cussion at that time would have been fruitful. Except for
the August 24 meeting, where discussion was confined to
the withdrawal issue, there was progress at each session
in the direction of a solution. That there was no total or
even substantial agreement at the end of each meeting
does not establish an impasse. Otherwise, any negotiating
session which did not result in total or substantial agree-
ment would constitute an impasse. Indeed, the fact that
each session produced forward movement tends to
negate a conclusion of deadlock. That the parties may
have expressed intrasigent attitudes is not controlling. In
negotiations those may be no more than tactical declara-
tions. But even if they are not, the purpose of negotiation
is to dissolve such attitudes and to find a common basis
of understanding. Strong expression of rejection is not
the equivalent of unyielding resolution. "
I therefore conclude that the evidence does not war-
rant a conclusion that the parties had reached an impasse
in their negotiations on August 24, 1977, authorizing
withdrawal of the Manhattan facility from the negotia-
tions. The statement of Union Representative Zander, in
the telephone conversation of August 22, in answer to
Company Representative Galbraith's question as to
whether Zander did not agree that "we are at a stand-
still," scarcely constitutes probative evidence that the
parties were at impasse. The fact that the Association
may have had nothing further to offer at the end of the
day on August 17 establishes nothing more, in the con-
text, than all of the Association's proposals had been pre-
sented, and that it was determined to insist on their ac-
ceptance. If such declarations or determinations consti-
tute an impasse warranting withdrawal from the negotia-
tions, few disputes would ever be resolved.
6 Globe Cotton Mills, 103 F.2d 91, 94 (5th Cir. 1939); resistance in dis-
cussion may have been only strategy and not a fixed final intention."
In this respect, note the Union's abrupt about-face concerning submis-
sion of Respondent's proposals to the union membership on August 17.
But even if it be concluded that there was in fact an
impasse, Respondent's withdrawal of Manhattan from ne-
gotiations, while continuing negotiations on behalf of
Topeka, constituted a refusal to bargain. I am cited to no
authority which permits an employer during negotiations
to withdraw a portion of his employees from a bargain-
ing unit because an impasse has been reached over the
terms applicable to that group of employees. The fact
that an individual employer may withdraw completely
from multiemployer negotiations in certain situations in
order to preserve the integrity of the multiemployer unit,
does not authorize withdrawal of a portion of its oper-
ations. Though Union Representative Zander stated at
the August 17 meeting that, if Manhattan were not in the
negotiations they could settle the controversy, and that it
might be better if the Union negotiated with Manhattan
separately, that statement does not constitute a consent
to the withdrawal-even if it be inferred that the state-
ment, made in the heat of the final moments of the
August 17 meeting, constituted anything more than a re-
flection of Zander's frustration over what he apparently
regarded as the intransigence of Manhattan. In any
event, it has been seen that the Union at no time consent-
ed to the withdrawal, and at the August 24 meeting it
specifically objected.
It is consequently found that Respondent's withdrawal
of Manhattan from the negotiations constituted a refusal
to bargain, and converted the hitherto economic strike
against Respondent into an unfair labor practice strike.
Respondent's consequent refusal to recognize at Manhat-
tan the terms and conditions of the contract ultimately
reached between Respondent and the Association for the
bargaining unit, therefore, also constituted a refusal to
bargain in violation of Section 8(a)(5) and (1) of the Act.
The Refusal To Reinstate
As has been seen, when the Manhattan strikers pre-
sented themselves to Branch Manager Jones on Novem-
ber 7 to return to work, they were denied reinstatement
and work because they had no contract with Respon-
dent. Respondent's defense now is that the positions of
the strikers had been filled and there were no vacancies
or openings on November 7. It has been seen that no
such justification was advanced by Jones then, or, so far
as the record discloses, at any time for the denial of rein-
statement. It is also seen that, on November 20, Jones
and Galbraith offered reinstatement to the strikers on
terms less than prescribed by the new contract, and this
they rejected. If the Manhattan strikers had continued
throughout to be economic strikers, and had been re-
fused reinstatement because their positions had been
filled by bona fide replacements before August 24, the
date the strike became an unfair labor practice strike, re-
fusal of reinstatement on November 7 and the offer of re-
instatement on November 20 would have been valid.
However, I find Respondent's refusal and offer to be in-
valid.
In the first place, only two new employees had been
hired by August 24. Even if those were valid replace-
ments, the later five could not be. Thus, the blanket re-
jection of all returnees on November 7 could not lawful-
ly be predicated on their replacement.
HARDING GLASS INDUSTRIES 907
Secondly, it has been found that the August 22 hirings
by Manhattan were in comtemplation of Manhattan's un-
lawful withdrawal from the negotiations. The August 22
hirings being an element in the withdrawal program, the
hirees of August 22 are to be considered as replacements
of unfair labor practice strikers, and, like the other five,
subject to replacement when the strikers requested rein-
statement. The refusal on November 7 to reinstate the
strikers constituted a lockout of the strikers because of
their protected concerted activity and was therefore vio-
lative of Section 8(a)(1) of the Act. In view of its con-
text, the action also constituted violation of Section
8(a)(5).
The November 7 refusal was not cured by Respon-
dent's offer of reinstatement on November 20, since it
was conditioned on terms of employment inferior to
those prescribed in the 1977 contract, which Respondent
was required to honor. Respondent's November 20 con-
ditions thus further violated Section 8(a)(1) and (5) of the
Act.
IV. THE REMEDY
It having been found that Respondent has committed
unfair labor practices, it will be recommended that Re-
spondent cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of the
Act.
It will be recommended that Respondent take the fol-
lowing affirmative action: (1) Notify the Union and the
Association that it will honor and abide by the 1977 col-
lective-bargaining agreement between the Association
and the Union; (2) reinstate the striking employees who
were denied reinstatement on or after November 7, 1977,
to their former jobs; (3) make them whole for any losses
of wages or other benefits, plus interest, incurred by
reason of (a) Respondent's refusal to reinstate them, and
(b) its refusal to abide by the 1977 agreement; and (4)
make appropriate payments to any funds required by the
contract, such as health and welfare, pension, holiday,
vacation, or similar programs. The loss of earnings shall
be computed as prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950), plus interest as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation., 231 NLRB 651 (1977). See
Warren L. Rose Castings, Inc., d/b/a V & W Castings, 231
NLRB 912, 914 (1977).
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
i. The Respondent, Harding Glass Industries, Manhat-
tan, Kansas, is an employer engaged in commerce, and
the Union a labor organization, within the meaning of
the Act.
2. All glazing employees employed by members of the
Topeka Area Glazing Contractors Association, including
Respondent's Topeka and Manhattan branches, excluding
office and clerical employees, professional employees,
guards and supervisors as defined in the Act and all
other employees, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
3. At all material times Glaziers and Glassworkers
Local Union No. 558, affiliated with the International
Brotherhood of Painters and Allied Trades, AFL-CIO,
was, and is, the exclusive representative for the purposes
of collective bargaining of the employees in the appro-
priate unit, within the meaning of Section 9(a) of the
Act.
4. Respondent has violated Section 8(a)(5) and (1) of
the Act by (1) withdrawing the Manhattan facility from
negotiations in the collective-bargaining unit on August
24, 1977; (2) refusing to honor and abide by the collec-
tive-bargaining agreement agreed upon between the
Union and the Association on or about November 3,
1977; (3) locking out and refusing to permit its Manhat-
tan employees to return to work on November 7, 1977,
and thereafter.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER
The Respondent, Harding Glass Industries, Manhattan,
Kansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Withdrawing from the appropriate bargaining unit
of the Topeka Area Glazing Contractors Association
during negotiations without the consent of the Union.
(b) Refusing to abide by collective-bargaining agree-
ments reached with the Union.
(c) Locking out employees, or refusing to permit them
to return to work, because they have engaged in con-
certed activity protected by the Act.
(d) In any other manner refusing to bargain with rep-
resentatives of its employees in appropriate bargaining
units, or interfering with, restraining, or coercing em-
ployees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Abide by the collective-bargaining agreement
reached between the Topeka Area Glazing Association
and Glaziers and Glassworkers Local Union No. 558, af-
filiated with the International Brotherhood of Painters
and Allied Trades, AFL-CIO, on or about November 3,
1977, for all Respondent's employees covered by the
agreement.
(b) Offer to all its employees at its Manhattan facility
who requested reinstatement on or about November 7,
1977, or thereafter, reinstatement to their former posi-
tions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay
or other benefits they may have suffered, in accordance
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 find-
ings, 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.
HARDING GLASS INDUSTRIES
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the provisions of the section of this Decison entitled
"The Remedy," and the Board's usual remedial policies.
(c) Make appropriate payments of any other sums of
money required by the 1977 contract.
(d) Preserve and, upon 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 re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its business places copies of the attached
notice marked "Appendix ." 8 Copies of said notice, on
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading 'Posted by
forms provided by the Regional Director for Region 17,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by the Respondent for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."