Hartford Glass Co.

National Labor Relations Board - Board Decisions

Jun 10, 1977

230 N.L.R.B. 103 (N.L.R.B. 1977)

HARTFORD GLASS CO.
Hartford Glass Co. of Mishawaka, Inc. and Glazier's
Local Union No. 1152, a/w International Brother-
hood of Painters and Allied Trades of America,
AFL-CIO. Cases 25-CA-7148 and 25-CA-7901
June 10, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On January 26, 1977, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed an answering brief and cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: These con-
solidated cases were heard at South Bend, Indiana, on
September 16 and 17, 1976. The charge in Case 25-CA-
7148 (herein sometimes referred to as the original case) and
the charge in Case 25-CA-7901 (herein sometimes referred
to as the Snook case) were filed respectively on June 13,
1975, and April 22, 1976, by Glazier's Local No. 1152,
(herein called the Union). The complaint in the original
case, first issued on July 31, 1975, and amended on August
20, 1975, was withdrawn upon approval of an informal
settlement agreement by the Regional Director on Novem-
ber 5, 1975, and reissued as consolidated with the Snook
case on June 30, 1976, following a determination by the
Regional Director that the settlement agreement should be
230 NLRB No. 22
revoked for noncompliance with its terms. The consolidat-
ed complaint alleges, in sum, that Hartford Glass Co. of
Mishawaka, Inc., (herein called the Company or Respon-
dent), violated Section 8(aXI) and (5) of the National
Labor Relations Act, as amended, by refusing to sign a
collective-bargaining contract which was allegedly negoti-
ated by a multiemployer bargaining association which
represented the Company for collective-bargaining purpos-
es, and violated Section 8(aXl) and (3) by refusing, at the
conclusion of an economic strike, to reinstate its three
glazier employees to their former jobs assertedly (as the
Company contended) because the Company had no
contract with the Union. The complaint further alleges that
following the settlement agreement the Company violated
that agreement and Section 8(aX)() and (3) of the Act by
failing and refusing to reinstate Donald Snook, one of the
three glaziers, to his former position, and by laying off
Snook on February 6, 1976. The Company's answer denies
the commission of the alleged unfair labor practices. The
principal issues in the original case are whether the 1975
contract was negotiated by a multiemployer bargaining
association of which the Company was a member, and
whether the Company was bound by that contract. All
parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
Upon the entire record in the case and from my
observation of the demeanor of the witnesses, and having
considered the briefs submitted by General Counsel and
the Company, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, an Indiana corporation, maintains its
principal office and place of business at Mishawaka,
Indiana. At all times material the Company has been, and
is, engaged in the manufacture, retail and wholesale, sale,
distribution, and installation of glass and related products.
For the purpose of applying the Board's jurisdictional
standards, the Company is a nonretail operation. The T H.
Rogers Lumber Cornpany, 117 NLRB 1732, 1733 (1957).
General Counsel contends that the Company meets the
Board's self-imposed standards for asserting jurisdiction
either by virtue of its membership and participation in the
association or by its own annual inflow across state lines.
The Company denies both assertions, although in its
answer to the original complaint it admitted having an
annual inflow in excess of $50,000. During 1975, which was
the last full calendar year immediately preceding this
hearing, and the year in which the original unfair labor
practices allegedly took place, the Company purchased and
received at its Mishawaka facility goods and materials
valued at $54,161.59, which were transported to that
facility directly from States other than the State of Indiana.
During the 12-month period immediately preceding this
hearing, the Company's inflow of such goods and materials
amounted in value to $49,763.89. Nevertheless, the Compa-
ny's operations, standing alone, by reason of the 1975
volume meet the Board's nonretail standard. Langlade
Veneer Products Corp., 118 NLRB 985, 986 (1957).
Therefore, it is unnecessary for me to determine whether
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board's jurisdiction may be asserted on any other basis.
I find that the Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act and that it would effectuate the policies of the Act to
assertjurisdiction herein.
1. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background: The Nature of the Company's
Operations and the History of Alleged Association
Bargaining
The Company has been engaged in business at the
Mishawaka facility since 1959, when it took over the
business of a predecessor corporation. Since at least 1955,
certain of the Company's employees, herein referred to as
"glaziers," have been represented by the Union and
covered by a series of collective-bargaining contracts. Their
work as defined in article I, section 1, of the current
contract (executed by the Company pursuant to the
settlement agreement), and substantially as defined in the
previous contract which was effective from May 9, 1972, to
May 8, 1975, is as follows:
Recognition and Jurisdiction of Work. The Employer
recognizes the Union as the collective bargaining agent
for its employees who are employed by the Employer
for the work of installation of all types of glass, mirrors,
structural glass, skylight glass, either wire or corrugat-
ed: The removal of existing glass and putty: The setting
of all plastics or similar products when used as a
substitute for glass: Cutting, fabricating and assembly
of all nonresidential architectural metal fabricated by
the Employer in the shop or on the job (Employer has
the right to purchase fabricated metal), the setting of all
metal used in connection with store front installations:
The setting of all types of tempered glass doors, metal
doors, either bolted, welded or otherwise, including all
hinges, accessories and hardware: The exterior and/or
interior sealing of all glass and panels installed in
openings. The assembly and glazing of residential doors
and windows performed in the shop shall not be the
work of glaziers unless temporarily assigned by the
Employer. The manufacturing of and/or assembly of
insulated glass units shall not be the work of the
glaziers unless temporarily assigned by the Company.
The last sentence of section I was initially inserted in the
1969 contract at the request of the Company. Originally, all
of the Company's production employees were glaziers
represented by the Union, whose normal work, at least for
representational purposes, consisted of glazing installation
work at jobsites. However, about 1966, the Company
began manufacturing insulated glass units known as seal
light. Thereafter, an increasing proportion of their work
was performed in the shop and comprised work which did
not normally come under the Union's jurisdiction. Nev-
ertheless, the glaziers were paid union scale and received
contractual fringe benefits for all of their working time.
The Company also hired nonunion inside or "shop"
employees who did not perform unit work. Their wages
were considerably less than that of the glaziers, although
this was somewhat offset by the fact that, unlike the
glaziers, they were normally assured of working a steady
40-hour week. The union contract contains a hiring hall
arrangement whereby if additional glaziers are required,
the Company must give the Union an opportunity to
furnish qualified employees. The Company has from time
to time utilized this method of obtaining glaziers. However,
as of early 1975, the Company's three glazier employees,
Gustaff Cornelis, Eugene Verduin, and Donald Snook, had
achieved a certain stability of employment, in large part
due to the fact that they were regularly performing both
unit and nonunit work. All three men were long-time
company employees, Snook having worked at the Misha-
waka facility since 1956. In the winter of 1974-75, at a time
when work was slow, Company Vice President and Plant
Manager Charles Breisch worked out an arrangement
whereby the glaziers each worked 3 days per week, for a
total of 24 hours, in accordance with a schedule set among
themselves which would assure the Company of always
having at least one glazier available on any workday.
Breisch did this to avoid laying off any of the glaziers. On
their off days, the glaziers were free to or sometimes did
obtain work with other glazing firms thru the union hiring
hall. In early 1975, the work force also included an average
of two shop employees, plus Breisch's son, Michael, who
began working part time while he was a student, and was
now working full time. Two other sons, Timothy and
Joseph, also performed part-time work. Since the Company
began making insulated glass units, the proportion of
nonunit work has gradually increased. By May 1975, about
50 percent of the Company's operations consisted of
manufacturing, and the balance was about equally divided
between construction work and wholesale distribution. As
of September 1976, the manufacture of insulated glass
accounted for 55 to 60 percent of the Company's business,
with the balance divided between construction work and
wholesale distribution. Prior to the strike in May 1975,
Snook was spending about 80 percent of his time doing
inside, mostly nonunit work; e.g., running and cutting
glass, loading or unloading trucks, and answering questions
for the office clericals. The other two glaziers spent most of
their time on jobsite work, but also performed a substantial
amount of nonunit work in the shop. In sum, several
developments were taking place which were gradually but
nevertheless adversely affecting the status of the glazier
employees. The Company was shifting more of its opera-
tions into manufacturing, the Company had hired shop
employees who were paid considerably less than glazier's
rates, and Charles Breisch was seeking to make a place in
the business for one son and possibly for his other sons.
There are, and have been for many years, about 14
glazing firms within the Union's territorial jurisdiction,
including the Company, which are signatory to identical
contracts with the Union. The largest of these has some 12
to 14 glazier employees, the next largest has about 5, and
the remainder have on the average 3 unit employees or less.
Some firms have no employees as such, e.g., they may
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HARTFORD GLASS CO.
consist of a father and son, both union members, who
perform the work, and so long as they remain union
members, will sign any contract which is negotiated by the
larger firms. The number of signatories has fluctuated
slightly over the years. Some firms have gone out of
business or sold their businesses to firms which did not sign
a contract with the Union. There is no evidence to indicate
that prior to the present case any of the larger firms
terminated their bargaining relationship in any other
manner. At least one owner-member went nonunion by
resigning from the Union, with the approval of a vote of
the membership, and he was thereafter not asked to sign
the negotiated contract.
The manner in which the contract has been negotiated
has for many years followed substantially the same pattern.
Prior to the expiration date of each contract (contracts in
recent years having had a duration of 3 years) the Union
sends a letter to each signatory employer, requesting
negotiations for a new contract. One employer then calls a
meeting of the employers, who elect a negotiating commit-
tee, usually consisting of three employer representatives.
The employers also discuss anticipated issues and the
position to be taken on those issues.' The committee then
meets with the Union and eventually arrives at the terms of
a contract. Worda Stanton of Interstate Glass Company,
who was chairman of the 1975 negotiating committee,
testified that the committee remains in contact with the
employers, informs them of developments, and consults
with them on the position to be taken in negotiations. His
testimony is corroborated by the events which took place
in May 1975, for it is unlikely that the employers would
have sustained a strike simply on the basis of negotiating
positions taken by three of them.
When the contract is negotiated the committee informs
the employers of its terms, and the Union presents the
contract to each employer for its respective signature.
There is no evidence that, prior to the present case, any
employer has ever signed a contract with the Union which
differed essentially from that executed by the other
employers. In 1969, the Company refused to sign the
negotiated contract unless the (present) last sentence of
article 1, section 1, was inserted therein. The Union agreed,
the contract was accordingly revised, and as revised was
signed by the Union and all of the employers. The matter
did not arouse any prolonged, if any, controversy. The
Company and Interstate Glass were the only union firms
which manufactured insulated glass units, and Interstate
employees engaged in that work were represented by the
Teamsters Union. During the contract term, employer
representatives (usually those who indicate a willingness to
serve) serve on the apprenticeship and pension committees
established pursuant to the contract. Otherwise, no associa-
tion structure exists between contract negotiations. There
are no charter or bylaws, dues, officers, or staff or regular
meetings.
I I do not credit the testimony of Breisch that the committee automati-
cally consists of the three largest employers. Breisch admitted in his
investigatory affidavit that the 1975 negotiating committee was elected by
B. The 1975 Negotiations and Strike, and the
Company's Refsal To Sign the Contract and To
Reinstate the Glaziers
Charles Breisch testified that, at an apprenticeship
committee meeting in December 1974, he made certain
statements to the union committee representatives, includ-
ing Business Representative Theo Hennings, concerning
his position with respect to the forthcoming negotiations.
Breisch also testified concerning additional statements
which he made to the union representatives at an
apprenticeship committee meeting in early March 1975.
Hennings was not present at this point in the meeting,
although Union Secretary-Treasurer Duncan Slates was
there. Hennings, although a witness for General Counsel,
did not testify concerning any of these alleged statements,
and neither Slates nor any other union committee member
was presented as a witness. However, Breisch's testimony
was so contradictory as to render much of it suspect.
Breisch variously testified that he told Hennings in
December that he was not going to bargain or be a part of
it, that he was not going to be a glazing contractor, and
that he was not going to sign another glazing contract
because his payroll was exceeding the price of glazing.
Breisch testified that at the March meeting that he said he
was not going to sign a bargaining contract. However,
Breisch made no mention of the December meeting in his
investigatory affidavit, and his affidavit version of his
statement in March was that he would not sign another
union contract until his personal problems were taken care
of, meaning that he wanted his son to have the right to
work at the trade without becoming a union member. I find
Breisch's affidavit version to be a more reliable indicator of
the truth than his belated attempts to conform his
statements to applicable law. Moreover, as will be
discussed, Breisch's subsequent actions were more consis-
tent with the affidavit version. On March 5, 1975, the
Union sent a letter to each of the signatory employers,
informing them that it wished to reopen the contract for
the purpose of negotiating changes, including the wage
scale. The coincidence in time of the reopener letter and
the apprenticeship meeting suggests that Breisch was
indicating his position with respect to the forthcoming
negotiations. While Breisch had at a previous time or times
probably threatened to go nonunion, Hennings did not
take these threats seriously, and, as indicated by his
subsequent actions and statements, Breisch did not intend
this blustering to be his final say in the matter.
Within a few days of receiving the Union's reopener
letter, the signatory employers held a meeting at the office
of PPG (one of the signatories) for the purpose of choosing
a negotiating committee and to discuss the Union's
anticipated proposals and the employers' position in the
negotiations. I do not credit the testimony of Breisch and
Stanton that this meeting took place on May 8. The
meeting was called as a result of the Union's reopener letter
and was held prior to the negotiating sessions between the
committee and the Union, which in turn commenced prior
the employers. In 1963, Breisch was chairman of the negotiating committee,
and he continued to serve on the committee through 1969, although the
Company is not one of the three largest firms.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the contract expiration date of May 8. Indeed, Stanton
eventually admitted that the meeting took place within a
few days of receiving the Union's letter. I also do not credit
Breisch's contradictory and inconsistent testimony con-
cerning what he said and did at the meeting, nor do I credit
Stanton's acquiescence in a leading question by company
counsel as to what Breisch said. Rather, I credit Stanton's
testimony, in his own words, that Breisch "indicated" to
the employers "that he would not serve on the committee
because it was his intent to consider withdrawing and no
longer continuing as a union shop." (Emphasis supplied.)
In view of Breisch's assertions in his investigatory affidavit
concerning what transpired thereafter, I further find that
Breisch remained and participated in the meeting when the
committee was chosen and anticipated union proposals
were discussed. In short, Breisch never unequivocally
withdrew from multiemployer bargaining. Therefore, at the
first negotiating session, when the Union requested to
know whom the employer committee represented, commit-
tee member Ray Bergazer read off a list of names which
included the Company. Breisch deliberately took an
ambiguous position. He was aware that his proposal to
permit his son to use the tools of the trade without
becoming a union member would probably not enjoy much
support among the other employers. The smaller firms
themselves consisted of working union members, and it is
unlikely that the larger firms relished the prospect, in
effect, of competing with nonunion labor of a signatory
employer. Breisch had also learned from his experience in
1969 that he stood a better chance of getting his way if he
waited until a contract was negotiated, and then tried to get
the Union to amend the contract. Breisch was no novice
when it came to multiemployer bargaining, and he knew
perfectly well how to go about withdrawing from such
bargaining. Breisch had served as chairman of the
employer negotiating committee in 1963, and in that
capacity he prepared and sent a letter to the Union setting
forth the committee's authority to make binding decisions
on behalf of employers "who sign a glazier contract" and
who "attend our meeting" to elect the committee. How-
ever, in 1975, Breisch chose to play a waiting game.
By May 8, 1975, the employer committee and the Union
had failed to agree on a new contract. On May 12, the
Union struck and picketed the employers, including the
Company. The parties continued their negotiations and, on
May 16 or 17, reached agreement on the terms of a new 3-
year contract. On Saturday, May 17, the Union's member-
ship ratified the contract, and Business Representative
Hennings instructed the members, including the Compa-
ny's three glazier employees, to return to work. However,
Breisch refused to take them back, asserting that he had no
contract with the Union. Breisch refused to sign the
contract unless he and his son were permitted to use the
tools of the trade without becoming union members. The
Union refused to agree to Breisch's demand and filed the
original charge.
C. The Settlement and Supplemental Agreement
The original case came on for hearing on November 3,
1975. However, the hearing never opened. Instead, at the
end of nearly a full day of settlement discussions, the
Company and the Union, with the approval of the Board's
Regional Director (on November 5), entered into an
informal settlement of the unfair labor practice case. The
settlement agreement provided, in sum, that the Company
would sign and implement the 1975 contract, make whole
Snook, Cornelis, and Verduin for their losses caused by
their separation from employment, and offer them rein-
statement "to their former or substantially equivalent
positions of employment." However, Cornelis and Verduin
declined reinstatement. The Company also agreed to post
the usual notices and, in the usual language, to refrain from
violating Section 8(aXl) or (3) of the Act. The settlement
agreement contained a nonadmission clause. Concurrently,
the Company and the Union, by Breisch and Hennings,
respectively, executed a separate document designated as
the "supplemental agreement." This supplemental agree-
ment stated at the outset that a purpose of the agreement
"was to establish an arrangement for the implementation
of the referral provisions" of the 1975 contract. However,
at the close of the text the agreement was declared to be a
part of the unfair labor practice case, and "therefore ...
not an admission of the existence or non-existence of any
rights except those flowing from the agreement itself. That
is, the intention of the settlement agreement is limited to
the establishment of obligations under it by the parties to it
to enable settlement of the [unfair labor practice case]."
Substantively, the supplemental agreement set a schedule
of referral fees payable by the Company to the Union in
lieu of a union initiation fee and dues for Michael Breisch,
provided that Breisch would be covered by the contract
pension plan if this were legally permissible, and further
provided that both Snook and Michael Breisch would be
paid journeyman scale for all work, including nonunit
work. The agreement further provided that, when there was
unit work for only one of them, such work would be given
to Snook, but that Breisch could be assigned to assist
Snook for the purpose of training Breisch for glazing work,
and that the Union would not object to the assignment of
glazing work to Breisch under these terms, or when there
was enough glazing work for more than one glazier. The
duration of this supplemental agreement was declared to
be coextensive with that of the 1975 contract. The
supplemental agreement was prepared with the assistance
of the Administrative Law Judge who had been assigned to
hear the case. The Administrative Law Judge answered
questions and attempted to explain the agreement and the
Board settlement to the representatives of the parties and
to the alleged discriminatees. However, the testimony
adduced at the present hearing indicates that there was
something less than a uniformity of understanding as to the
terms of the agreement on the part of the two individuals
most immediately concerned; namely, Charles Breisch and
Donald Snook. Snook and Hennings testified that they
understood that Snook would get as many hours of work as
anyone but Charles Breisch. Breisch testified that he
understood that Snook would be put back in substantially
the same position that he was prior to the settlement. The
significance of the settlement and the supplemental
agreement to the Snook case will be discussed in the
concluding findings of this Decision.
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HARTFORD GLASS CO.
D. Postsettlement Developments and Concluding
Findings With Respect to the Snook Case
Donald Snook returned to work for the Company during
the week of November 10, 1975. On January 21, 1976, the
Regional Director closed the original case, conditional
upon continued observance of the settlement agreement.
On February 6, 1976, the Company "laid off" Snook,
assertedly because of a lack of work due to a sharp
decrease in its business. About the same time the Company
also laid off shop employee Don Bauer. The significance of
the term "laid off" as applied to Snook will be discussed
herein. Although the complaint alleges that the Company
failed and refused to reinstate Snook "since on or about
November 5, 1975," General Counsel conceded at the
hearing and in his brief that there was no violation of the
settlement agreement prior to Snook's layoff. However,
General Counsel contends that the layoff violated the
settlement agreement and Section 8(aX)(1) and (3) of the
Act. In evaluating the positions of the parties, I have found
it both useful and illuminating to prepare a chart which
reflects the number of hours worked by each of the
Company's employees in each week from September 1,
1975, thru May 28, 1976. The chart is annexed to this
Decision as "Appendix A" and reflects information which
was obtained from the Company's payroll records and
presented in evidence by General Counsel. Michael
Breisch, Charles' son, was working full time in the business.
Charles' other sons, Timothy and Joseph, were students
who worked part time performing nonunit work. Steve
Dhorre and Don Bauer were nonunion shop employees.
Dhorre began working about a week or two before the
strike and Bauer was hired during the summer of 1975.
However, prior to the strike the Company usually had two
shop employees. Engstrom, Sullivan, and Sawyer were
glaziers who were referred through the Union, on a job-by-
job basis, pursuant to the collective-bargaining contract.
However, shortly before the present hearing, Breisch
assigned Engstrom to come in every day until further
notice without being called beforehand. At the time of the
strike Engstrom had been working for another employer;
however, he participated in the strike and picketing.
Charles Breisch testified that during the months of
November and December 1975 and January and February
1976 the Company's sales volume was well below that for
the comparable period I year earlier, that the volume
reached a low point in February 1976, and that, although
sales volume increased in the following months, the volume
nevertheless was below that for the comparable months of
1975. His uncontradicted testimony was corroborated by
the Company's records, and by Snook, who testified that
work was slow when he returned in November 1975 and
remained slow until his layoff in February 1976. Breisch's
testimony in this regard, and asserted reason for laying off
Snook, is also corroborated by the records reflected in
Appendix A. From his return until late January 1976,
Snook usually worked about 3 days a week; i.e., as much as
he worked before the strike. He worked more in November
and less during the weeks of Christmas and New Year.
Snook testified that he did less shop work than he had in
the past; however, there is nothing to indicate that this
reflected anything other than the decline in all work. In the
meantime, the Company was gradually cutting the hours of
its two shop employees, who normally worked a 40-hour
week, although the Company presumably had no reason to
discriminate against either of them. During most of
December and January they were working 3 days a week.
Significantly, the Company never replaced glaziers Cornel-
is and Verduin. It should also be noted that full-time work
was, in a sense, a compensation to the shop employees for
the fact that their wage rates were well below that of the
glaziers. By February, the Company was forced to lay off
one shop employee, but it still did not have enough work to
keep three employees busy on a full-time basis. Breisch
could have let go or reduced the hours of his son; however,
his reluctance to do so is understandable. A father's desire
to advance his son's well being can hardly be construed as
evidence of union animus toward another employee. By
continuing to work Dohrre on less than a full-time basis,
Breisch risked losing his only remaining shop employee,
although most of the Company's operations consisted of
nonunit shop work. The remaining alternative, and the one
which Breisch chose, was to lay off Snook, and thereby
convert Snook from a regular, albeit part-time, employee,
to one who was available on call, as needed, through the
Union. Breisch testified that he gave Snook a written layoff
notice in order to give him the option of drawing
unemployment compensation as an alternative to working
less than 3 days a week on a regular basis. Snook testified
that he continued to work for the Company on a referral
basis until May 20, when he told Hennings that he could
not afford to work only I day a week, and asked to be
referred to another employer. In fact, Appendix A
indicates that throughout February and March 1976, the
Union referred other glaziers (usually Engstrom), rather
than Snook, to work for the Company. Business Represen-
tative Hennings, although presented as a witness for
General Counsel, never explained why this was so. It is
unlikely that Hennings would have intentionally refused to
refer Snook. Rather, the inference is warranted that Snook
himself declined the work (as he admitted doing on one
occasion). Indeed, Hennings never explained why he failed
to refer Snook rather than Engstrom at any time subse-
quent to May 20. Again, the inference is warranted, as
Snook himself admitted in his testimony, that he asked not
to be referred to the Company.
The settlement agreement, i.e., the settlement approved
by the Regional Director, provided, in pertinent part, that
the Company would offer Snook his former or an
equivalent position, and would not discriminate against
him because of his union membership or activities. This is
the usual and conventional remedy in cases such as this,
involving a termination violative of Section 8(a)(3) of the
Act. As General Counsel concedes, the Company did
reinstate Snook to his former or an equivalent position, and
he remained in that position until his layoff. However, a
reinstatement under a Board order or settlement agreement
is not a guarantee of permanent employment; rather, it is
an order or undertaking to eliminate the effect of past
discrimination, and a guarantee against further discrimina-
tion. Where, as here, the employer adversely changes the
status of the discriminatee (or alleged discriminatee),
shortly after execution of the settlement agreement, the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change should be examined closely, and viewed with a
healthy dose of skepticism. However, animus and a past
history of unlawful conduct do not alone prove that the
change was unlawful where the evidence indicates that the
change was made for legitimate reasons. I have carefully
considered the evidence in this case. I have taken into
consideration that, were it necessary to decide the original
case, I would probably find that the Company unlawfully
refused to sign the 1975 contract and unlawfully refused to
reinstate the striking glaziers. I have also taken into
consideration my findings that Breisch's testimony was less
than credible with respect to the circumstances leading to
his refusal to sign the contract. I have further taken into
consideration a conversation between Breisch and Hen-
nings which took place shortly after the settlement
agreement was executed, in which Breisch said that he was
still mad about the whole matter, and could not agree to
drop it, adding that he would tape all future conversations
with Hennings and funnel all letters thru his attorney. 2
Nevertheless, I find that, in laying off Snook, Breisch acted
on the basis of legitimate economic motives, and, therefore,
that he did not violate the terms of Board settlement
agreement or the Act.
There remains for consideration, the question of whether
the supplemental agreement or statements made by the
Admisistrative Law Judge at the time the settlement was
negotiated warrant a different finding. I find that they do
not.
First, the supplemental agreement was not a part of the
Board settlement agreement which disposed of the pending
unfair labor practice case. In this regard the supplemental
agreement was internally inconsistent. At one point the
agreement purported to be a modification or amendment
of the 1975 contract. At another point the supplemental
agreement purported to be a part of the settlement of the
unfair labor practice case. In fact, the supplemental
agreement was not a part of the settlement agreement
because the supplemental agreement was neither incorpo-
rated by reference into the settlement agreement, nor was it
approved by the Regional Director, who alone had the
authority, on behalf of the Board, to approve any informal
settlement which terminated the unfair labor practice
proceeding. Although the Administrative Law Judge lent
his assistance to the parties in settling the case, the hearing
had not opened. Therefore he had no responsibility for the
terms of the settlement, and his statements could not be
taken as constituting any action on behalf of the Board,
either interpreting or approving the settlement agreement
or the supplemental agreement. Moreover, as will be
discussed, the supplemental agreement purported to give
Snook, in one respect, better working conditions than he
had enjoyed prior to the strike. Therefore, the supplemen-
tal agreement purported to give Snook more than the
reinstatement provided in the settlement agreement. The
latter remedy was the conventional and usual reinstate-
ment which is designed to restore the alleged discriminatee
to the conditions which he would have enjoyed but for the
2 I credit Hennings' testimony concerning the conversation. Breisch's
version was somewhat different from that of Hennings. He testified that he
said nothing about his feelings toward the Union. However, he did not
expressly deny saying that he was still mad and unwilling to drop the matter.
discrimination against him. Consequently, public policy
dictates that a private agreement or possible verbal
understanding which purports to give him greater rights
should not be construed to be a part of a Board settlement
unless expressly incorporated in the settlement as approved
by the Regional Director. Such was not the case here. In
sum, the supplemental agreement was a private agreement
between the Company and the Union, and a violation of
that agreement, even as verbally interpreted by the
Administrative Law Judge, does not constitute a violation
of the Act or a breach of the Board settlement. While the
private parties, or some of them, may have been motivated
to go along with the Board settlement because of the
supplemental agreement, that motivation does not warrant
setting aside the settlement. The Regional Director's action
in approving the settlement constituted a vindication of
both public and private rights and his action cannot be set
aside merely because of a mistaken assumption on the part
of some parties as to what that settlement provided.
Second, the supplemental agreement, insofar as pertinent
to Snook, covered only the assignment of unit work as
between Snook and Michael Breisch. Cornelis and Ver-
duin, who may be viewed as disinterested parties in the
Snook case, testified that the Administrative Law Judge
told the parties that Snook would work as many hours as
anyone but Charles Breisch. However, the Administrative
Law Judge's statement cannot be interpreted as giving
Snook any right not provided for in the written language of
the settlement agreement and the supplemental agreement.
There is, after all, still such a thing as the parol evidence
rule. Cf. N.LR.B. v. GulfAtlantic Warehouse Co., 291 F.2d
475, 477 (C.A. 5, 1961). Prior to the strike, Snook did not
enjoy the privilege of working as many hours as any other
employee. Indeed, it is difficult to see how General Counsel
can contend that the Administrative Law Judge's state-
ment constitutes a part of the Board settlement, while at
the same time conceding that the settlement was not
violated between November 5, 1975, and February 6, 1976,
notwithstanding that Michael Breisch was usually working
more hours than Snook during that period. As for the
supplemental agreement, the evidence does not show that
Michael Breisch was assigned unit work at the expense of
Snook, or that the terms of the supplemental agreement
were violated in any other particular. Therefore, even if the
supplemental agreement constituted a part of the Board
settlement, the evidence fails to show any breach of that
agreement.
Finally, the supplemental agreement is of doubtful
validity. As the Company and the Union, pursuant to the
terms of the Board settlement, were parties to a multiem-
ployer contract, it is questionable whether they could
bilaterally enter into an agreement which modified or
supplemented the union-security and referral provisions of
the 1975 contract. At best, the supplemental agreement,
even if valid, might warrant a reopening of the 1975
contract by reason of the most favored nation clause (art.
XII, sec. 2) of the 1975 contract. I find it unnecessary to
As indicated, I have some reservations about Breisch's veracity in other
matters; however, I have no similar basis for questioning the testimony of
Hennings.
108
HARTFORD GLASS CO.
resolve these questions. However, I do find that, in the
circumstances of this case, it would not effectuate the
policies of the Act to give such a questionable agreement
the full force and effect of a Board settlement.
In sum, I find that the Company did not breach the
settlement agreement or violate the Act as alleged in the
Snook case. Therefore, I am recommending that the
settlement in the original case be reinstated and the
complaint dismissed. Wooster Brass Co., 80 NLRB 1633,
1635 (1948).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3 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
and conclusions and recommended Order herein shall, as provided in Sec.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint at any time on or after
November 5, 1975, or breached the settlement agreement
in the original case.
4. It would effectuate the policies of the Act to reinstate
the settlement agreement in the original case.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER3
1. The settlement agreement approved by the Regional
Director in Case 25-CA-7148 is reinstated.
2. The complaint is dismissed in its entirety.
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.
APPEDILX A
HOURS WORKED
Michael Steve Don
Ueek of Brasach Dhorre Bauer Breinach
1975
9/5 -"
9/11
9/19
9/26
10/3
10110
10117
10/24
10/31
11/7
11/14
11/21
11/28-i
12/4
12/12
12/19
12/24-H
12/31 -H
1976
1/16
1/23
1/30
2/6 layoff
2/13
2/20
2/27
3/5
3/12
3/19
3/26
4/2
4/9
4/16
41/23
4130
51/7
5/14
51/21
5/28-H
32
48-1/4
40
55-1/ 2
48-1/4
48 -3/4
40-1/2
48-1/2
48
48-1/4
40
40
32
33-1/2
40
41 -1/2
32
23-1/2
32
40
40
40
40
40
40
40-1/2
40-1/14
43-1/14
40
42
40-114
39-1/12
40-1/4
40
41-1/2
40
40-1/12
32-1/2
40
32
48-1/4
40
48
48-1/4
48-3/4
48-1/2
32
48-1/4
49
40
40
32-1/4
32
24-1/2
24
24
24
24
24
24
24
24
32
32
40-1/4
40-1/14
43-1/4
40
42
40
40
40
40
41-3/4
40
40-1/2
40-1/2
-32
32
48-1/4
40
48-1/12
48
48-1/4
48-1/2
48-1/2
48-1/4
45
40
40
32-1/4
32
24-1/4
24
24
24
24
24
24
24
16
Donald Ryan Sullivan
Snook Enastromn or Sawyer
J-10
T-8
T-8
T-8
J-8
J-4
J-4 314
J-7 3/4
24
40
31-1/2
33-1/2
24
23-3/4
18-1/2
18-1/4
24
22-1/12
23
15-1/2
15-1/2
8
T-16
T-16
T-8
T-31-1/2
24-1/4
8
8
8
31-1/4
16
40-1/2
8-1/2
8
8
16
24
4
8
8
Su-8
Su-8
Sa-8
19-1/2
e/ k. dates usually indicate Friday., vbtich are regular payday-. "IH"
indcites that there wma a holiday during the uqek. "T" and "J" refer
to Timothy or Joseph Breisch respectively, and "Su" and "Sa" refer
to Roger Sullivan or Roger Sawyer, respectively.
109