Kcw Furniture Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 957 (N.L.R.B. 1985)

KCW FURNITURE CO.
KCW Furniture Company, Inc. and General Team-
sters Local Union 174, affiliated with Interns'-"'
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
19-CA-9990 '
30 September 1985
SUPPLEMENTAL DECISION AND.
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 23 January 1980 the National Labor Rela-
tions Board. issued its Decision and Order' in the
above-entitled proceeding in which it found- that
the Respondent violated Section 8(a)(5) and (1) of
the National, Labor Relations Act by unilaterally
instituting terms and conditions of employment in-
consistent with -an existing collective-bargaining
'agreement. To remedy that unfair labor practice,
the Board directed, inter alia, that the Respondent
rescind, on the request of the Union, its unilateral
implementation of its last contract offer, and rein-
state the terms of the collective-bargaining - agree-
ment which was then in existence for so long as it -
remains in effect. On 18 December 1980 the United
States Court of Appeals for the Ninth Circuit
issued its opinion2 enforcing the Board's Order. A
controversy having arisen over the amount of
backpay due under the terms of the Board's Order,
the Acting Regional Director for Region 19, on 26
June 1981, issued a backpay specification and
notice of hearing. The Respondent filed an answer
on 27 July 1981.
On 10 May 1982 the General Counsel, - the
Charging Party, and the Respondent filed a stipula-
tion with the Board- in which they agreed to waive
a hearing before an administrative law judge, the
making of findings of fact and conclusions of law
by a judge, and the issuance of a judge' s decision.
The parties further agreed that the formal papers,
stipulation of facts, and exhibits attached thereto
constitute the entire record in the case, and that no
oral-testimony was necessary or desired by any of
the parties. The stipulation also amended the back-
pay specification and answer . By order dated 16
July 1982 the Board accepted the stipulation and
transferred the proceeding to the Board. Thereaf-
ter, the General Counsel and the Respondent filed
briefs with the Board, and the Respondent also
1 247 NLRB 541 (1980)
2 634 F.2d 436 (9th Cir 1980) The court thereafter entered its judg-
ment on 9 February 1981
957
filed a motion for reconsideration of the Board's
original Decision and Order .3 -
The National Labor Relations- Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this proceeding, the
Board makes the following
FINDINGS AND CONCLUSIONS
The backpay specification defined the backpay
period for all except two employees, as beginning
on 30 September 1977, the date on which the Re-
spondent unilaterally implemented changes in terms
and conditions of employment during the term of
its contract with the Union, and ending on 31
March 1980, the date when the Respondent effec-
tively -terminated the collective-bargaining agree-
ment then • in effect. The Respondent in its answer
admits that the backpay period for these employees
began on 30 September 1977,4 but claims that the
backpay period ended on 31 March 1978, "when
respondent terminated the collective bargaining
agreement." The Respondent does not, however,
either in its answer to the backpay specification or
in its brief to the Board, explain how it allegedly
terminated the contract on that date, or support its
answer other than by attempting to-reargue conten-
tions -which both the Board and the court have al-
ready rejected. - -
The parties have stipulated that on 10 January
1980 the Respondent sent Teamsters Local 174 a
letter concerning the termination of a collective-
bargaining agreement; a copy of the Respondent's
letter is attached to the stipulation as an exhibit.
The Respondent stated in that communication that
the letter constituted notice of termination of any
purported agreement between the parties as of the
final day of the contract's term, either 31 March or
1 April 1980. The record contains no other evi-
dence of timely notice of termination tendered by
either party. As discussed in the original decision
in this proceeding, the parties' collective-bargaining
agreement automatically renewed itself on a year-
by-year, basis unless timely notice of termination
was given or the parties mutually agreed in writing
to terminate it. Since the only evidence of an effec-
tive notice of termination consists, of the Respond-
8 We note that the Respondent 's motion for reconsideration of the
original Decision and Order concerns matters which have been previous-
ly ruled on by the court of appeals , which enforced the Board's Order
- ,Th1s is, therefore, not a motion which the Board may properly consider,
and it is denied.
* While the parties ' stipulation states that the Respondent implemented
the terms -of its last and final contract offer on 20 September 1977, we
note that the attached exhibit and other 'record evidence indicates this oc-
curred on 30 September 1977; and therefore conclude that the date con-
tained in the stipulation is in error
276 NLRB No. 100
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's 10 January 1980 letter, we find that the con-
tract was-not effectively terminated until 31 March
1980. Accordingly, except for- employees Jeffrey
Mensing and Michael Johnson, discussed below,
those employees named in the amended backpay
specification are entitled to backpay as set forth in
that specification 5 from 30 September 1977 to 31
March 1980.
As noted, on 30 September 1977 the Respondent
implemented the terms of its last contract offer
made to the Union during their bargaining regard-
ing modifications. to the. then-existing collective-
bargaining agreement, and all employees then
worked under the terms and conditions • of the
newly implemented agreement. On 17 October
1977 the Respondent suspended drivers -Jeffrey
Mensing and Michael Johnson for failing to :pro-
vide supplemental insurance coverage after the Re-
spondent's insurer excluded the two from its liabil-
ity coverage because of their driving records. The
Respondent took this action -pursuant to a provision
of -the unilaterally implemented agreement which
specifically authorized such suspensions and further
provided that : drivers so suspended have no ,right
to bump ;less senior, regularly assigned. warehouse
or other nondriver employees. , .
The General. Counsel asserts that but for the, uni-
lateral, implementation of its last offer on 30 Sep-
tember 1977, the Respondent would not have been
privileged- to'-take the" action it did concerning
Mensing and Johnson, and that the suspensions. are,'
therefore, part of the unilateral changes made in
violation of Section 8(a)(5)-and (1) of the Act. As
such, the General' Counsel -argues, 'the Respondent
is liable - for 'the' foreseeable consequences of its
action which encompass Mensing and Johnson's
loss of 'wages because',,of the Respondent's action.
The General Counsel "further contends that the-Re-
spondent must reinstate or. make an unconditional
offer of reinstatement to the two--drivers- in order
to remedy the unilateral changes, and that the
backpay period for -these two has not been tolled
and will not be tolled until the valid offer of rein-
statement has been proffered. The Respondent, on
the other hand, alleges that the record does not
support a conclusion that these two would have
had a contractual right to continue working despite
their. loss of insurability , even under the contract
found to have been in effect by the Board, and that
this dispute should be resolved according to the
grievance procedure set forth in the parties' con-
tract. The Respondent further asserts that, contrary
to the General Counsel's statement that it refused
to meet with the Union to discuss a grievance con-
cerning the suspensions, a meeting pursuant to sec-
tion 25 (Settlement of Disputes) of the parties'
1974-1977 collective-bargaining agreement was,
held on 4 November 1977, and the Union has not
since sought to carry these . provisions' further
through the agreed-upon procedures. The Re-
spondent asserts 'that, on request for further con-
tractual processing of the Mensing and Johnson
grievances, it will do so, and that it should not be
deprived of its agreed-upon procedures for resolv-
ing this dispute.
While the parties did apparently have a meeting
regarding the Mensing and Johnson suspensions,
.the Respondent refused to meet pursuant to the
grievance procedure established by the collective-
bargaining agreement which was then in effect, or
"to afford these employees their rights under that
contract.6 The Respondent did so, however, in the
erroneous belief that the 1974-1977 contract was
.no longer in effect, and it was for that reason alone
that the Respondent refused' to utilize the applica-
ble contract's provisions. The Board and the Ninth
Circuit have "now determined that the Respondent
was wrong in that thinking, and that the provisions
of the automatically renewed 1974-1977 contract
were in effect. That issue of contract application
having been so determined, the Respondent now
indicates that it is amenable to resolving the Mens-
ing and Johnson grievances in accordance with the
provision covering the settlement of disputes con-
tained in the applicable contract. Implicit in that
position is, of course, an offer to waive any timeli-
ness provisions contained in that contract.
The Board's remedial policy, in cases involving a
violation of Section 8(a)(5) based on a respondent's
unilateral alteration of existing benefits, is to restore
the status quo ante to the extent feasible where
there is no evidence that to do so would impose an
undue or unfair burden on the respondent.- Turnbull
Enterprises, 259 NLRB 934 (1982); Southland Paper
Mills, 161 NLRB 1077, 1078 (1966). In this case,
where employees Mensing and Johnson were de-
prived of the "opportunity to have their grievances
resolved under the contractual procedure to which
they were entitled, the status quo ante is best re-
stored by deferring to the parties' contractual
method for resolving such disputes. The parties'
contract provides a multistep grievance procedure
culminating in a decision by a board of adjustment
or an arbitrator, and the Respondent has indicated
its willingness to cooperate in the processing of
.these grievances now that. the applicability of that
6 It was within the context of this refusal that the Union has not
"sought to carry these provisions further through the agreed upon proce-
S The Respondent does not dispute the method used in calculating this dures"-an obviously futile action , given the Respondent 's adamant refus-
backpay. al to utilize that procedure at that time.
KCW FURNITURE CO. 959
contractual provision has been determined. This
approach also accords with our remedial goals, for
an arbitrator could order a remedy effective back
to the date of the suspensions, should it be found
that the Respondent suspended Mensing and John-
son in violation of the applicable contract.7 As in
other cases involving the Board's deferral to the
parties' disputed resolution procedure, we shall
retain jurisdiction over this portion of the proceed-
ing. See generally United Technologies Corp., 268
NLRB 557 (1984).8
Accordingly, on the basis of the allegations of
the amended specification which are admitted by
the Respondent as true, and the above findings
with respect to those issues in dispute, the Board
concludes that the net backpay due each of the em-
ployees -listed is as stated in the computations of
the specification and orders that payment thereof
be made by the Respondent as set forth below. Ad-
ditionally,'we defer the issue of whether the Re-
spondent properly- suspended employees Mensing
and Johnson, and the amounts of any backpay
7 Cf. US.-Utilities Corp, 254 NLRB 480, 488-489 ( 1981) See also -
Bickerstaff Clay Products, 266 NLRB 983, 986 (1983)
6 The Board found in the earlier proceeding in this matter that the
1974-1977 collective-bargaining agreement was still in effect, and that the
Respondent had unlawfully implemented new contract provisions at the
time that Mensing and Johnson were suspended Therefore, the sole ques-
tion remaining in this backpay proceeding regarding the suspensions of
Mensing and Johnson is whether or not the suspensions violated the
terms of the 1974-1977 agreement Under traditional Board deferral prin-
ciples, that question properly is one for the arbitrator The suspensions
were not alleged as separate unfair labor practices in the underlying pro-
ceeding , so the Respondent was clearly not remiss in not raising a defer-
ral argument at an earlier time
Moreover, contrary to the General Counsel , we do not believe that it
follows that since the-Respondent unlawfully implemented new contract
proposals in 1977, the suspensions of Mensing and Johnson were "part
and parcel" of the 8(a)(5) violation That conclusion presumes that these
suspensions could not have been undertaken properly under the 1974-
1977 contract, the contract which we already - have found to be in full
force and effect at the time of the suspensions That is the critical issue
here We conclude that whether Mensing and Johnson could have been
suspended under the 1974- 1977 contract which we have found to be in
effect is an issue now better left to an arbitrator in truly restoring the
status quo ante
which it may owe them, to the settlement of dis-
putes provision of the parties' then-applicable col-
lective-bargaining agreement under the principles
of United Technologies Corp., supra.
ORDER
The National Labor Relations Board orders that -
the Respondent, KCW Furniture Company,.Inc.,
Seattle, Washington, its officers, agents, successors,
and assigns , shall make whole each of the employ-
ees named below by payment to them of the
amounts set forth adjacent to their names, plus in-
terest computed in the manner described in -Florida
Steel Corp., 231 NLRB 651 (1977) (see generally
Isis Plumbing Co., 1-38 NLRB 716 (1962)), and ac-
crued to the date of payment, minus tax withhold-
ings required by Federal and state laws:
George Scott $16,547.53
Greg Hunter ,4,185.67
Al' Mock 533.54
Dave Nichols 4,141.35
Mark Sisk 1,404.92
Reece Merkley 2,604.88
Chris' Kruize 6,552.99
Richard Thompson 3,943.95
Paul Townsend 970.36
Jurisdiction of this proceeding is retained for the
limited purpose of entertaining an appropriate and
timely motion for further consideration upon a
proper showing that either (a) the dispute as to the
suspensions of employees Jeffrey Mensing and Mi-
chael Johnson has not, with reasonable promptness
after, the issuance of this Supplemental - Decision.
and Order, either been resolved by amicable settle-
ment in the grievance procedure or submitted
promptly to arbitration, or (b) the grievance or ar- .
bitration procedures, have not,, been fair and regular
or have- reached a result which is repugnant to the
Act.