Hillcrest Furniture Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

253 N.L.R.B. 72 (N.L.R.B. 1980)

DECISIONS O() NA IIONAI. LABOR RELATIONS BOARD
Hillcrest Furniture Manufacturing Co., Inc. and Up-
holsterers' International Union of North Amer-
ica, AFL-CIO. Cases 21-CA-I 8400 and 21
CA-1 8960
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) Ml NItHIRS
JENKINS ANI) P1 NI I(O
Upon charges duly filed by Upholsterers' Inter-
national Union of North America. AFI.-CIO().
hereinafter referred to as the Union, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 21, issued a con-
solidated amended complaint and notice of hearing,
dated May 22, 1980, against Hillcrest Furniture
Manufacturing Co., Inc., hereinafter referred to as
Respondent. The consolidated amended complaint
alleges that Respondent has engaged in certain
unfair labor practices affecting commerce within
the meaning of Sections 8(a)(5) and (1) and 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charges and consolidated
amended complaint and notice of hearing were
duly served on the parties. Respondent filed an
answer to the consolidated amended complaint,
denying that it committed any unfair labor prac-
tices.
Thereafter, the parties entered into a stipulation
of facts and jointly petitioned the Board to transfer
this proceeding directly to the Board for findings
of fact, conclusions of law, and order. The parties
stipulated that they waived a hearing before an ad-
ministrative law judge, the making of findings of
fact and conclusions of law by an administrative
law judge, and the issuance of an administrative
law judge's decision. The parties also agreed that
no oral testimony was necessary or desired by any
of the parties, and that the charges and amended
charges, the order consolidating cases, consolidated
amended complaint and notice of hearing, the
answer to the consolidated amended complaint,
and the stipulation of facts, including the exhibits
attached thereto, constituted the entire record in
the case.
On July 30, 1980, the Board issued its order ap-
proving the stipulation and transferring the pro-
ceeding to the Board. Thereafter, the General
Counsel filed a brief in support of its position. Re-
spondent and the Union did not file 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.
253 NLRB No. 9
The Board has considered the stipulation, includ-
ing the exhibits, the brief, and the entire record in
this proceeding, and hereby makes the following:
FINDING;S O1: FACT
I. I l BUSINIESS 1O RI.SI'ONI)INI
Respondent has at all times material herein been
a California corporation engaged in the business of
manufacturing furniture. During the past year, a
representative period, in the normal course of its
business operations, Respondent purchased and re-
ceived goods and products valued in excess of
S50,000 directly from suppliers located outside the
State of California.
The parties have stipulated, and we find, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. H LI t.ABOR OR(ANIZA ION INVOVI )
Upholsterers' International Union of North
America, AFL-CIO, is, and has been at all times
material herein, a labor organization within the
meaning of Section 2(5) of the Act.
II. HI. UNFAIR I AHBOR PRACTICES
A. Fcts
On August 24, 1979, a secret-ballot election was
conducted under the supervision of the Regional
Director for Region 21 of the National Labor Re-
lations Board in the following appropriate unit:
All full-time and regular part-time production
and maintenance employees, including seam-
stresses, cutters, upholsterers, floorpersons,
springers and framers, truck drivers, and ship-
ping and receiving employees, excluding all
other employees, all office clerical employees,
salespersons, watchmen, professional employ-
ees, guards, and supervisors as defined in the
Act, as amended.
A majority of Respondent's employees in the
above-described unit designated and selected the
Union as their representative for the purposes of
collective bargaining, and, on January 9, 1980, the
Board certified the Union as the exclusive collec-
tive-bargaining representative of the employees in
the unit. On or about March 13, 1980, Respondent,
through admitted Supervisor Robert D. Leventhal,
met with the Union for the purpose of collective
bargaining. However, on or about April 8, 1980,
Respondent, through Leventhal, canceled a meet-
ing with the Union which had been scheduled for
the following day for the purpose of bargaining.
72
HIllCREST FRNITURE: MANU'FACTURIN(i C)., INC
Since that time, Respondent has refused to bargain
with the Union.
On January 14 and March 14, 1980, the Union
requested Respondent to furnish it with the names,
addresses, job classifications, and pay rates of its
employees, but Respondent has refused to do so.
During the second week of November 1979, Re-
spondent laid off unit employees Jose Luis Oren-
dian, Maria Morales, Raul Espinoza, Jaime San-
chez, Irene Suarez, Alberta Martinez, Salvador
Martinez, Lazaro Lujan, Sixto Solario, Mario
Capito, Leticia Munoz, Eleuterio Reyes, Jorge
Valdez, Herbert Castro, and Walter Castro. During
March and April 1980, Respondent laid off all of
its employees, and, during the third week of April
1980, Respondent discontinued its operations. Re-
spondent laid off the employees and discontinued
its operations without notifying or bargaining with
the Union. The General Counsel concedes that Re-
spondent was motivated solely by economic con-
siderations in discontinuing its operations.
B. Contentions of the Parties
As noted, neither Respondent nor the Union
filed briefs. The General Counsel contends that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to bargain on April 8, by unilaterally
laying off employees in November 1979 and in
March and April 1980, and by refusing to furnish
the Union with information relevant for collective-
bargaining purposes. The General Counsel also
contends that Respondent violated Section 8(a)(5)
and () by failing to afford the Union an opportuni-
ty to bargain about the effects of the discontinu-
ance of operations on the employees.
C. Conclusions
We find initially that, since August 24, 1979, the
Union has been the exclusive representative of all
the employees in the above-described unit for the
purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment. We
also note that it is well established that, absent
compelling economic considerations for doing so,
an employer acts at its peril in making changes in
terms and conditions of employment during the
period that objections to an election are pending
and the final determination has not been made.'
Therefore, by unilaterally laying off unit employees
in November 1979, Respondent violated Section
8(a)(5) and (1) of the Act.
It is also well established that an employer vio-
lates the Act by refusing to furnish a union with in-
' Mike O'Connor Chevrol/-Buick-GMC Co., Inc., 201 NL.RH 701, 7()3
704 (1974)
formation relevant for collective-bargaining pur-
poses.2 Consequently, we also find that Respondent
violated Section 8(a)(5) and (1) by refusing the
Union's requests on January 14 and March 14,
1980, to provide the names, addresses, job classifi-
cations, and pay rates of its employees. Further, we
find that Respondent violated Section 8(a)(5) and
(1) by canceling a meeting with the Union sched-
uled for April 9, and by laying off all the employ-
ees during March and April 1980.
We also note that it is well established that an
employer violates the Act by terminating its oper-
ations without affording a union an opportunity to
bargain over the effects of such closing on the em-
ployees. By so terminating its operations in the in-
stant case, Respondent violated Section 8(a)(5) and
(l).
IV. TIlE EFFECT OF 'I'H. UNFAIR LABOR
PRACTICE S UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead, and have led, to labor disputes bur-
dening and obstructing commerce and the free
flow of commerce.
Upon the basis of the foregoing findings of fact,
conclusions, and the entire record, we make the
following:
CONCI USIONS OF LAW
1. Hillcrest Furniture Manufacturing Co., Inc., is
an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Upholsterers' International Union of North
America, AFL-CIO, is, and at all times material
herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees, including seamstresses,
cutters, upholsterers, floorpersons, springers and
framers, truck drivers, and shipping and receiving
employees, excluding all other employees, all office
clerical employees, salespersons, watchmen, profes-
sional employees, guards, and supervisors as de-
fined in the Act, as amended, constitute a unit ap-
propriate for collective bargaining pursuant to Sec-
tion 9(b) of the Act.
4. At all times since August 24, 1979, the Union
has been the exclusive representative of the em-
See, eg, Wellman Indutrtei. Inc. 248 N RHB 325 (1940). Harve'v
W'agtl Hi7,/ Icn d/h,,a larvev Reor r lotc & Ilarvevr In, 236h
NlRH 1670, 194(1978)
73
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the above-described unit for the pur-
poses of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing to provide the Union with infor-
mation relevant for collective bargaining, by unilat-
erally laying off employees in November 1979 and
in March and April 1980, by canceling a meeting
with the Union, and by discontinuing operations
without affording the Union an opportunity to bar-
gain over the effects of such discontinuance on the
employees, Respondent has violated Section 8(a)(5)
and () of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1), we shall order
that Respondent cease and desist therefrom and
take certain affirmative action designed to effectu-
ate the policies of the Act.
We shall also order that Respondent bargain
with the Union over the effects upon its employees
of the discontinuance of its operations. It is clear,
however, that a bargaining order alone cannot fully
remedy the unfair labor practices committed by
Respondent because, as a result of Respondent's
failure to bargain with the Union about the effects
of discontinuing operations, Respondent's employ-
ees were denied an opportunity to bargain through
their exclusive representative at a time when such
bargaining would have been meaningful. Meaning-
ful bargaining cannot now be assured until some
measure of economic strength is restored to the
Union. Accordingly, in order to effectuate the pur-
poses of the Act, we shall accompany our order to
bargain with a limited backpay requirement de-
signed both to make whole the employees for
losses suffered as a result of the violation and to re-
create in some practicable manner a situation in
which the parties' bargaining position is not entire-
ly devoid of economic consequences for Respond-
ent. We shall do so in this case by requiring Re-
spondent to pay backpay to its employees in a
manner similar to that required in Transmarine
Navigation Corporation and its Subsidiary, Interna-
tional Terminals, Inc., 170 NLRB 389 (1968). As in
Transmarine, we shall require that the backpay for
those employees be not less than the amounts they
would have earned during a 2-week period of em-
ployment. 3
a Despite his dissent in Transmarine, Member Jenkins notes that the
remedy there has been accepted by the courts and the Board and, since
some type of remedy for the misconduct is needed, he is therefire willing
Accordingly, we shall order Respondent to bar-
gain upon request with the Union about the effects
on its employees of the discontinuance of its oper-
ations; and to pay these employees amounts at the
rate of their normal wages when last in Respond-
ent's employ from 5 days after the date of this De-
cision until the occurrence of the earliest of the fol-
lowing conditions: (1) the date Respondent bar-
gains to agreement with the Union on those sub-
jects pertaining to the effects of Respondent's dis-
continuance of its operations; (2) a bona fide im-
passe in bargaining; (3) the failure of the Union to
request bargaining within 5 days of this Decision,
or to commence negotiations within 5 days of Re-
spondent's notice of its desire to bargain with the
Union; or (4) the subsequent failure of the Union to
bargain in good faith; but in no event shall the sum
paid to any of these employees exceed the amount
each would have earned as wages from the time
Respondent discontinued its operations to the time
each secured equivalent employment elsewhere, or
the date on which Respondent shall have offered
to bargain, whichever occurs first; provided, how-
ever, in no event shall this sum be less than such
employees would have earned for a 2-week period
at the rate of their normal wages when last in Re-
spondent's employ. Backpay shall be based upon
earnings which the laid-off employees would nor-
mally have received during the applicable period,
less any net interim earnings, and shall be comput-
ed on a quarterly basis in the manner set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), with
interest thereon computed in the manner provided
in Florida Steel Corporation, 231 NLRB 651
(1977). 4
Having found that Respondent violated Section
8(a)(5) and (1) by refusing to provide the Union
with information relevant for collective bargaining,
we shall require Respondent to furnish the Union
with such information. We shall also require Re-
spondent to mail an appropriate notice to the
Union and to all the employees who were laid off
in March and April. Such notice shall be in both
English and Spanish, in light of the substantial
number of Spanish-surnamed employees.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Hillcrest Furniture Manufacturing Co., Inc., Los
to join in the Decision here. Underwood Hair Adaption Process. Inc.. 242
NLRB 1017 fn. 6 (1979); Uncle John's Pancake House, 232 NLRB 438, fn.
7 (1977).
4 See, generally, lois Plumbing d Heating Co.. 138 NLRB 716 (1962)
' See Fun Striders, Inc., 250 NLRB 520, fn 2 (1980).
74
HILLCREST FURNITURE MANUFACTURING CO.., INC.
Angeles, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with Uphol-
sterers' International Union of North America,
AFL-CIO, with respect to rates of pay, wages,
and other terms and conditions of employment, in-
cluding the effects on its employees of its decision
to terminate its operations.
(b) Laying off employees without prior notice to
or consultation with the Union.
(c) Refusing to furnish the Union with informa-
tion concerning the names, addresses, job classifica-
tions, and pay rates of unit employees.
(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their rights guaranteed under Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Up-
holsterers' International Union of North America,
AFL-CIO, as the exclusive representative of the
employees in the above-described bargaining unit,
with respect to rates of pay, wages, and other
terms and conditions of employment, including the
effects on the employees of the decision to termi-
nate its operations, and reduce to writing any
agreement reached as a result of such bargaining.
(b) Make whole its employees by paying those
employees who were laid off in March and April
1980, when it terminated its operations, in the
manner set forth in the section of this Decision and
Order entitled "The Remedy."
(c) Preserve and furnish the Union with the in-
formation sought by the Union concerning the
names, addresses, job classifications, and pay rates
of unit employees.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Mail an exact copy of the attached notice
marked "Appendix" 6 to the Union and to all the
employees who were laid off in March and April
1980. Copies of said notice, in English and Spanish,
on forms provided by the Regional Director for
" 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
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."
Region 21, after being duly signed by Respondent's
authorized representative, shall be mailed immedi-
ately upon receipt thereof, as hereinabove directed.
(f) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail and refuse to bargain
with Upholsterers' International Union of
North America, AFL-CIO, with respect to
rates of pay, wages, and other terms and con-
ditions of employment, including the effects on
our employees of our decision to terminate op-
erations.
WE WILL NOT lay off employees without
prior notice to or consultation with the above-
described Union.
WE WILL NOT refuse to furnish the above-
described Union with information concerning
the names, addresses, job classifications, and
pay rates of unit employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
under Section 7 of the Act.
WE WILL, upon request, bargain collectively
with the above-described Union as the exclu-
sive representative of our employees in the ap-
propriate unit, with respect to rates of pay,
wages, and other terms and conditions of em-
ployment, including the effects on our employ-
ees of our decision to terminate our operations,
and reduce to writing any agreement reached
as a result of such bargaining.
WE WILL make whole our employees in the
appropriate unit for any loss of pay they may
have suffered as a result of the termination of
our operations for the period decided by the
National Labor Relations Board, with interest.
WE WILL preserve and furnish the above-de-
scribed Union with the information sought by
the Union concerning the names, addresses,
job classifications, and pay rates of unit em-
ployees.
HILLCREST FURNITURE MANUFAC-
TURING CO., INC.
75