Nelson-Hershfield Electronics

National Labor Relations Board - Board Decisions

Jan 26, 1971

188 N.L.R.B. 26 (N.L.R.B. 1971)

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nelson-Hershfield Electronics and International
Brotherhood of Electrical Workers, AFL-CIO, Lo-
cal No. 640. Cases 28-CA-1878, 28-CA-1954, and
28-CA-1981
January 26, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 24, 1970, Trial Examiner Irving Rogosin
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain un-
fair labor practices within the meaning of the Nation-
al Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at
tached Trial Examiner's Decision. Thereafter, the
Respondent and Charging Party filed exceptions and
supporting briefs, the General Counsel filed cross-
exceptions and a supporting brief, and the General
Counsel and Respondent filed answering 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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision , the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner except as modified below.'
THE REMEDY
Respondent here has violated Section 8(a)(5) and
(1) by refusing to adhere to and abide by the terms of
a multiemployer collective-bargaining agreement
with the Union to which it is a party. This refusal, as
fully detailed by the Trial Examiner, is evidenced by
Respondent's actions in failing to properly pay
overtime, improperly classifying an employee under
the contract, unilaterally making changes to the con-
tract by requiring employees to sign releases before
receiving their termination paychecks, refusing to use
the hiring procedures set forth in the contract, and
refusing to honor the grievance procedure in the con-
tract. The Respondent has not excepted to any of the
i The Respondent 's exception as to the failure of the Board to provide it
with a Xeroxed copy of the record at cost is without merit . Moreover, we note
that, in accordance with the Board 's well-established policy, a copy of the
transcript was available for use in the Board 's Phoenix Resident Office, free
of charge.
Trial Examiner's findings of violations but does ex-
cept to the Trial Examiner's recommendations as to
the remedy for the 8(a)(5) and (1) violation contend-
ing that the recommended remedy is excessive. The
General Counsel and the Charging Party also except
to the recommendation as to remedy contending that
the recommended remedy is inadequate.
The Trial Examiner, in addition to recommending
that Respondent be required to give retroactive effect
to the contract dated August 14, 1967,2 recommended
that Respondent's certification as a member of the
multiemployer bargaining unit be extended, at the
Union's option, for 1 year and further that if the Asso-
ciation reaches agreement with the Union that Re-
spondent be compelled to become signatory to an
identical contract for a period of at least 1 year from
the date of execution of such a contract 3
Respondent contends, inter alia, that any order re-
quiring it to be bound by an agreement negotiated by
the Association would deprive it of the consideration
it received for settling a lawsuit against the Union 4
The General Counsel and the Charging Party contend
that the recommended remedy is inadequate in that
Respondent's obligation to honor an agreement
identical with that negotiated by the Association
should not be limited to 1 year. We find merit in
Respondent's contention.
As the Trial Examiner indicates, the situation here-
in is complicated by the January 1969 agreement en-
tered into by the Respondent and the Union as part
of the settlement of a lawsuit Respondent brought
against the Union. As set forth in the Charging Party's
January 17, 1969, letter to Respondent, the agreement
provides that Respondent agrees to abide by the
Association's contract then in effect, and the Charg-
ing Party agrees to bargain individually with Respon-
dent as to any modification of that agreement and,
when the agreement expires, as to a successor agree-
ment. The Trial Examiner finds in agreement with the
contentions of the General Counsel and the Charging
Party that the January 17, 1969, settlement agreement
2 Respondent does not except to that part of the Recommended Order
requiring it to give retroactive effect to the August 14, 1967, contract except
insofar as the order could be construed to call for relief for conduct which
occurred prior to the start of the 10(b) period We shall adopt this portion
of the order, but limit its effects to conduct which occurred after the start of
the 10(b) period, October 24, 1968
3 The Trial Examiner 's Recommended Order also provides for various
contingencies such as the dissolution of the association However, we are
primarily concerned with the extended certification aspect of the proposed
order
Respondent has moved to reopen the record to receive in evidence a letter
sent it by the Charging Party stating that the Charging Party does not repre-
sent nor desire to represent Respondent 's employees, such letter to be used
in our considerations as to remedy . The Charging Party opposes this motion.
We hereby grant Respondent 's motion . We also receive in evidence an affida-
vit by the Charging Party's business manager , Glynn Ross, in which Ross
states that the letter is a form letter used in "substandards picketing" which
was sent to Respondent by mistake . We have considered the letter and the
affidavit and conclude that the letter does not affect our findings as to
remedy
188 NLRB No. 5
NELSON-HERSHFIELD ELECTRONICS
has no effect as it was conditioned on Respondent's
bargaining in good faith as part of the multiemployer
unit for the remainder of the contract and that, as
Respondent has failed to so bargain, one of the essen-
tial conditions has not been met.
Unlike the Trial Examiner, we conclude that it
would not be appropriate to require Respondent to be
bound by multiemployer bargaining beyond the expi-
ration date of the August 14, 1967, agreement. The
January 17, 1969, agreement was made as part of the
settlement of a lawsuit and we do not believe that
under the circumstances herein it would be wise to fail
to give effect to it and thereby interfere in that pro-
ceeding, especially when we have no information as to
the nature of the proceeding and have an adequate
remedy available which does not require us to do so.
Moreover, we note that there is nothing in the settle-
ment agreement conditioning the agreement on
Respondent's compliance with the August 14, 1967,
contract despite the fact that Respondent had for
some time been in open breach of that contract. As
previously indicated, we shall order Respondent to
give retroactive effect to the August 14, 1967, agree-
ment and to bargain in the future with the Union for
a reasonable period of time and if an understanding
is reached, embody such understanding in a signed
agreement.' In doing so, we have adequately reme-
died Respondent's violation of Section 8(a)(5) and (1)
by refusing to adhere to the August 14, 1967, agree-
ment.
The Respondent also excepts to the Trial
Examiner's recommendation that Respondent be re-
quired, in addition to reimbursing employees Trujillo,
Grabowy, and Kuhn an amount equal to the final
wages and tool allowance to which they were entitled,
to pay them an amount, as called for in the August 14,
1967, contract, equal to 8 hours' pay for each day the
wages have remained or continue to remain unpaid.
We find that requiring Respondent to reimburse these
employees for the amounts due at the time of their
termination, with interest at 6 percent per annum in
accordance with Isis Plumbing & Heating Co., 138
NLRB 716, will adequately remedy Respondent's vio-
lation of Section 8(a)(5) and (1) in failing to timely pay
the wage and tool allowance due. In so finding we are
only concerned with the appropriate remedy for the
unfair labor practice and are not in any way limiting
Respondent's liability under the terms of the contract.
Whatever the contract rights, they may be enforced in
private action between the parties .6
5 Of course , if Respondent has made any unilateral changes in conditions
of employment after the expiration date of the August 14, 1967, agreement
without bargaining with the Union Respondent must rescind those changes
and make restitution of any benefits lost as a result of those changes
6 Delete paragraph 4 of the Conclusions of Law and substitute the follow-
ing:
ORDER
27
Respondent, Nelson-Hershfield Electronics, Phoe-
nix, Arizona, its officers, agents, successors , and as-
signs , shall:
1. Cease and desist from:
(a) Failing or refusing to recognize and bargain
collectively with the Union as the exclusive bargain-
ing representative of all the employees in the appro-
priate unit described above with regard to rates of
pay, wages, hours of employment, and other terms
and conditions of employment.
(b) Unilaterally, and without prior notice to and
consultation with the Union, effecting changes in the
terms and conditions of employment of its employees
in the appropriate unit.
(c) Failing or refusing to adhere to and abide by the
collective-bargaining agreement between Sound Con-
tractors Association and the Union, dated August 14,
1967.
(d) Discriminating in regard to hire or tenure of
employment or any term or condition of employment
to discourage membership in any labor organization
by failing or refusing to vacate or rescind probation
of employees after the conditions of said probation
have been fulfilled, discharging or refusing to rein-
state employees to their former or substantially equiv-
alent positions, or in any other manner discriminating
in regard to hire or tenure of employment or any other
condition of employment.
(e) Discharging or otherwise discriminating against
employees because they gave testimony under the
Act.
(f) In any other manner interfering with, re-
straining, or coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in
Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Honor and give retroactive effect from October
24, 1968, to the terms and conditions of the collective-
bargaining agreement between Sound Contractors
Association and the Union, including, but not limited
to, the provisions relating to wages and other employ-
ment benefits, and, in the manner set forth in the
section of the Trial Examiner's Decision entitled "The
4 The following employees of Respondent constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9(b)
of the Act.
All sound, signal , and television system installers , technicians, service-
men, and their helpers, including those engaged in the installation and
servicing of master antenna TV systems and hospital call systems, em-
ployed by Nelson-Hershfield Electronics, but excluding office clerical
employees , guards, and supervisors as defined in the Act.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Remedy," as modified in The Remedy section of the
Board's Decision, make whole its employees for loss-
es, such as they may have suffered by reason of its
failure to honor and apply the terms of the labor
agreement,' together with interest as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716.
(b) Revoke and rescind all unilateral changes made
with respect to the terms of the collective-bargaining
agreement between Sound Contractors Association
and the Union, dated August 14, 1967, and the terms
and conditions of employment of its employees, in-
cluding, but not limited to, the requirement that em-
ployees sign general releases as a condition of
securing their termination pay, provided that nothing
herein shall be construed to require Respondent to
revoke, withdraw, alter, or modify any wage increase
or other economic benefit previously granted these
employees.
(c) Upon request bargain collectively with Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
Local No. 640, as the exclusive representative of all
employees in the appropriate unit with respect to rates
of pay, hours of employment, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
(d) Offer to Raymond Grabowy immediate and full
reinstatement to his former job or, if that job no long-
er exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and
privileges.
(e) Notify immediately the above-named individual
if presently serving in the Armed Forces of the United
States , of the right to full reinstatement, upon applica-
tion after discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act.
(f) Make whole Raymond Grabowy for any loss of
earnings he may have suffered by reason of the dis-
crimination against him, as well as for failure to pay
him his termination pay when due, in the manner set
forth in the section of the Trial Examiner's Decision
entitled "The Remedy," as modified in The Remedy
section of the Board's Decision.
(g) Reimburse George Trujillo, and all other em-
ployees similarly situated, for any loss of earnings
they may have sustained, by reason of being classified
as helpers, instead of journeyman, in the manner set
forth in the section of the Trial Examiner's Decision
entitled "The Remedy," as modified in The Remedy
section of the Board's Decision.
(h) Reimburse all employees in the unit for all
overtime to which they were entitled after October
24, 1968, as established by the terms of the collective-
bargaining agreement between Sound Contractors
Association and the Union, dated August 14, 1967.
(i) Reimburse George Trujillo and Robert G.
Kuhn, Jr., for their termination pay, together with
damages, in the manner set forth in the section of the
Trial Examiner's Decision entitled "The Remedy," as
modified in The Remedy section of the Board's Deci-
sion, and the sum of $35 each, to cover their tool
allowance.
(j) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all oth-
er records necessary to analyze the amount of back-
pay and any other moneys due under the terms of this
Order.
(k) Post at its plant at Phoenix, Arizona, copies of
the attached notice marked "Appendix."8 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 28, after being duly signed by
Respondent's authorized representative, shall be post-
ed by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to its employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(1) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
7 See Ray Hopman d/b/a Ray Hopman Plumbing & Heating, 174 NLRB
No. 64
s 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 be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT fail or refuse to bargain collective-
ly with International Brotherhood of Electrical
Workers, AFL-CIO, Local No. 640, as the exclu-
sive collective-bargaining representative of all
the employees in the appropriate unit set forth
below, in the manner set forth in the section of
the Trial Examiner's Decision entitled "The
Remedy," as modified in The Remedy section of
the Board's Decision.
WE WILL NOT unilaterally, and without prior
NELSON-HERSHFIELD ELECTRONICS
notice to and consultation with the Union, effect
changes in the terms and conditions of employ-
ment of our employees in the appropriate unit.
WE WILL NOT fail or refuse to honor and give
retroactive effect to the collective-bargaining
agreement between Sound Contractors Associa-
tion and the Union, dated August 14, 1967.
WE WILL NOT discriminate in regard to the hire
and tenure of employment or any term or condi-
tion of employment to discourage membership in
any labor organization by failing and refusing to
vacate or rescind probation of employees after
the conditions of said probation have been ful-
filled, discharging or refusing to reinstate em-
ployees to their former or substantially
equivalent positions or in any other manner dis-
criminate in regard to hire and tenure of employ-
ment or any other term or condition of
em loyment.WE WILL NOT discharge or otherwise discrim-
inate against employees because they gave testi-
mon under the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
right to self-organization, to form, join or assist
the above-named Union, or any other labor or-
ganization, to bargain collectively through repre-
sentatives of their own choosing , to engage in
concerted activities for the purpose of mutual aid
or protection, or to refrain from any or all such
activities, except to the extent that such right may
be affected by an agreement requiring member-
ship in a labor organization as a condition of
employment, in conformity with Section 8(a)(3)
of the Act.
WE WILL honor and give retroactive effect to
the terms and conditions of the collective-bar-
gaining agreement between Sound Contractors
Association and the Union, dated August 14,
1967, including, but not limited to, the provisions
relating to wages and other employment benefits
in the manner set forth in the section of the Trial
Examiner's Decision entitled "The Remedy," as
modified in The Remedy section of the Board's
Decision, and make whole our employees for
such losses as they may have suffered after Octo-
ber 24, 1968, by reason of our failure to honor
and apply the terms of the labor agreement, to-
gether with interest.
WE WILL revoke and rescind all unilateral
changes made with respect to the terms of the
collective-bargaining agreement between Sound
Contractors Association and the Union dated
August 14, 1967, and the terms and conditions of
employment of our employees, including, but not
limited to, the requirement that employees sign
general releases as a condition of securing their
termination pay except that we shall not revoke,
withdraw, alter, or modify any wage increase or
other economic benefit which we have granted
our employees.
29
WE WILL, upon request , bargain collectively
with the International Brotherhood of Electrical
Workers, AFL-CIO, Local Union No. 640, as
the exclusive representative of all employees in
the appropriate unit with respect to rates of pay,
hours of employment, and other terms and con-
ditions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement.
WE WILL offer to Raymond J. Grabowy imme-
diate and full reinstatement to his former job, or,
if that job no longer exists, to a substantially
equivalent position, without prejudice to his sen-
iority or other rights and privileges, and make
him whole for any loss of earnings he may have
suffered by reason of the discrimination against
him, as well as by failure to pay him his termina-
tion pay when due, in the manner set forth in the
section of the Trial Examiner's Decision entitled
"The Remedy," as modified in The Remedy sec-
tion of the Board's Decision.
WE WILL reimburse George Tru illo, and all
other employees similarly situated, for any loss of
earnings they may have sustained by reason of
being classified as helpers, instead of journey-
men, in the manner set forth in the section of the
Trial Examiner's Decision entitled "The Reme-
dy," as modified in The Remedy section of the
Board's Decision.
WE WILL reimburse all employees in the unit
for all overtime to which they were entitled to
after October 24, 1968, as established by the
terms of the collective-bargaining agreement be-
tween Sound Contractors Association and the
Union, dated August 14, 1967.
WE WILL reimburse George Trujillo and Robert
G. Kuhn, Jr., for their termination pay, together
with interest, in the manner set forth in the sec-
tion of the Trial Examiner's Decision entitled
"The Remedy," as modified in The Remedy sec-
tion of the Board's Decision, and the sum of $35
each, to cover their tool allowance. The appropri-
ate unit is:
All sound, signal, and television system in-
stallers, technicians , servicemen, and their
helpers, including those engaged in the in
stallation and servicing of master antenna
TV systems and hospital call systems, em-
ployed by Nelson-Hershfield Electronics,
but excluding office clerical employees,
guards, and supervisors as defined in the
Act.
Dated By
NELSON-HERSHFIELD ELECTRON-
ICS
(Employer)
(Representative) (Title)
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We will notify immediately the above-named individ-
ual, Raymond Grabrowy, if presently serving in the
Armed Forces of the United States, of the right to full
reinstatement, upon application after discharge from
the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Resident Office, Room 207, Camelback
Building, 110 West Camelback Road, Phoenix, Arizo-
na 85013, Telephone 602-261-3717.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IRvnvo RocosIN , Trial Examiner : The first amended com-
plaint, ) issued June 25, 1969 , alleges that , since about Janu-
ary 1969, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) and Sec-
tion 2(6) and (7) of-the Act, by specific enumerated acts and
conduct, hereinafter detailed.2
Respondent's answer to the first amended complaint in-
corporates by reference its admissions , denials, and allega-
tions contained in its answer to the original complaint,
which admits the procedural and jurisdictional allegations,
but denies generally the remaining allegations and the com-
mission of any unfair labor practices.
A hearing was held on August 18 , 19, and 20 and Sep-
tember 9 and 10, 1969 , and later , on March 3, 4, and 5,
1970,3 at Phoenix , Arizona, before the duly designated Trial
Examiner . All parties were represented by counsel and were
afforded full opportunity to be heard , to examine and cross-
examine witnesses, to introduce evidence relevant and ma-
terial to the issues, to argue orally, and to file briefs and
proposed findings of fact and conclusions of law . The par-
ties declined to argue orally , reserving the right to file briefs.
Pursuant to an extension of time for filing , duly granted,
briefs were received from the General Counsel and Respon-
dent on November 10, 1969 . No proposed findings of fact
or conclusions of law were filed by any of the parties in that
case.
On October 22 and December 15, after the close of the
original hearing in this proceeding , the General Counsel
issued two additional complaints in Case 28-CA-1954 and
28-CA--1981 , respectively , alleging , in the former, that
i Case 28-CA-1878.
2 The original charge was filed and served on April 23, 1969, and the
original complaint issued on June 11 , 1969. Designations are as follows. The
General Counsel, unless otherwise stated , his representative at the hearing,
Respondent, the Company or the Employer, Nelson-Hershfield Electronics,
the Charging Party or the Union , International Brotherhood of Electrical
Workers , AFL-CIO, Local No 640 ; the Board, the National Labor Rela-
tions Board ; the Act , the National Labor Relations Act, as amended, 61 Stat
136, 73 Stat . 519, 29 U . S.C. Sec . 151, et seq. Unless otherwise stated, all events
occurred in 1969.
3 As will presently appear, the record was reopened for the purpose of
hearing two consolidated cases filed subsequent to the close of the original
hearing and further consolidated with the instant case
Respondent discriminatorily discharged Raymond J. Gra-
bowy on September 15, 1969, and has since refused to reins-
tate him, because he had assisted the Union as steward and
had engaged in union and concerted activities, thereby en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1), and because he had given testimony
under the Act, thereby violating Section 8(a)(4) and (I)
thereof; and, in the latter, that Respondent has refused to
recognize and bargain with the Union, has repudiated, re-
fused to "honor and abide by," and has unilaterally altered
the terms and conditions of the collective-bargaining agree-
ment, thereby engaging in unfair labor practices within the
meaning of Section 8x1) and (5) and 8(d) of the Act .5
On October 29, 1969, and February 27, 1970, Respondent
filed its "Response to Corn plaint" in Cases 28-CA-1954
and 28-CA-1981, respectively, admitting the jurisdictional
and procedural allegations, but denyin generally the com-
mission of the unfair labor practices charged.
On December 19, counsel for the General Counsel moved
to reopen the record in the original case (28-CA-1878), and
to consolidate for hearing with that case the two most recent
cases. All parties having been duly served with notice of said
motion; an order to show cause why the motion should not
be granted having been issued on December 22; and no
objection thereto having been filed by any of the other
parties, said motion was anted on January 6, 1970. On
January 12, the Regional grantedDirector issued his order consol-
idating the cases , and noticing the cases for hearing. Hear-
ing was held on the newly consolidated cases on March 3,
4, and 5, 1970, at Phoenix, Arizona, before the Trial Exam-
iner . As before, all parties were represented by counsel 6 and
were afforded the same rights and privileges as in the orig-
inal hearing . Although the parties declined the oortunity
to present formal argument , at the invitation of the Trail
Examiner, they discussed some of the significant issues on
the record. Pursuant to an extension of time duly granted,
supplemental briefs were filed by the General Counsel and
the Chargi' Party n April 20, and by Respondent on
April 21, 1970. The General Counsel has also filed proposed
findings of fact and conclusions of law as an integral part
of his brief. To the extent they are consistent with the fpnd-
ings and conclusions hereinafter made , they have been
adopted.
Upon the entire record in the case,7 his resolution of
issues of credibility, based, in part, upon the appearance
Based on charges duly filed and served on September 29 and October 29,
respectively.
Although not specified in the complaint, the charge, on which it is based,
alleges that the refusal to bargain "includes a continuing repudiation of the
Employer's collective bargaining agreement with Local 640 generally, and
includes, among other things, the refusal of the Employer to pay employee
Raymond J. Grabowy his termination pay on or about September 15, 1%9,
the refusal to pay Robert Kuhn his termination pay on October 15, 1%9, the
refusal of the Employer to pay the said Robert Kuhn money for the use of
his tools, all contrary to the terms of said collective bargaining agreement;
and includes the continuing of a unilaterally established practice of requiring
terminated employees to execute waiver agreements as a condition of secur-
ing their termination pay from the Employer." These specific allegations
were, however, fully litigated at the reopened hearing under the broad allega-
tions of the complaint, and no issue has been raised as to the sufficiency of
the complaint in this regard.
6 Subsequent to the close of the previous hearing , J. Douglas McVay, Esq.,
of McVay & Bradford, Phoenix, Arizona, was substituted for Richard B.
Wilks, Esq , of Kaplan, Wilks and Abrams of the same city, as counsel for
Respondent.
7 The unopposed motions of the General Counsel and Respondent, filed
November 7 and 10, respectively, in Case 28-CA-1878, and, of the General
Counsel, filed April 6, 1970, in the consolidated cases herein , to correct the
record in specified respects , are hereby allowed . The record also contains
other relatively minor inaccuracies, which do not affect the substantive is-
sues . No useful purpose will be served by making such additional corrections.
NELSON-HERSHFIELD ELECTRONICS
and demeanor of the witnesses, and the briefs, which have
been carefully considered, the Trial Examiner makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that Nelson-Hershfield Electronics. Re-
spondent herein, is a corporation duly organized under the
laws of the State of Arizona, with a principal office and
place of business in Phoenix, Arizona, where it has, at all
times material herein, continuously engaged in the business
of installation and service of sound equipment.
During the 12-month period preceding issuance of the
complaint, a representative period, in the course of its bus-
iness operations , Respondent purchased and received at its
place of business sound equipment, parts, and other related
products valued in excess of $50,000, directly from States of
the United States other than the State of Arizona. During
the same period, Respondent purchased, transferred„ and
received at its place of business, sound equipment, parts,
and other related products, valued in excess of $50,000,
from other enterprises located within the State of Arizona,
which, in turn, received such equipment, materials, supplies,
parts, and other related products, directly from points out-
side the State of Arizona.
It is, therefore, found that Respondent is now, and at all
times material herem has been, an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act, and the Board's
jurisdictional standards.
It. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, AFL-
CIO, Local No. 640, is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Sequence of Events
1. Introduction
Sound Contractors Association, herein called the Associ-
ation, a trade association of employers engaged in the man-
ufacture, installation, and service of sound equipment in the
State of Arizona, was organized in February 1962. At the
time of the hearing, the employer-members of the Associa-
tion were Bruce's World of Sound, Engineering Sound, Inc.,
Executone of Arizona, Inc., Lawrence Engineering Compa-
ny, Nelson-Hershfield Electronics, and National TV and
Appliances, Inc.
On December 23, 1966, the Board issued a Decision and
Direction of Election, upon the petition of the Union, find-
ing that the associationwide unit requested by the Petitioner
(the Union here), including Nelson-Hershfield Electronics,
of employees of the Association's members, constituted an
appropriate unit within the meaning of Section 9(b) of the
Acts Contrary to Respondent's contention in the represent-
The unit was described as follows:
All sound, signal, and television system installers, technicians, service-
men, and their helpers, including those engaged in the installation and
servtcmg.of master antenna TV systems and hospital call systems, but
31
anon proceeding, as well as the hearing in the present pro-
ceeding, that it was not a part of the associationwide unit,
and that, in any event, it had withdrawn from the Associa-
tion, the Board held that Respondent (the Employer there)
was a member of the Association at the time the petition
was filed, and remained such member, "despite its untimely
attempt to withdraw from the existing Association-wide
unit."
On January 27, 1967, the Regional Director issued his
Certification of Representative, attesting the designation
and selection of the Union as exclusive bargaining repre-
sentative of all the employees in the unit found to be appro-
priate.
2. Events following the Board's
certification
Under date of August 14, 1967, the Association, on behalf
of its members, entered into a collective-bargaining agree-
ment with the Union, effective through August 1, 1970,
automatically renewable on each successive anniversary
date, in the absence of specified notice. The agreement,
executed on November 6, 1967, was signed on behalf of the
Association by G. C. Greenfield, as president, and by indi-
vidual members of the Association, including Respondent,
Lawrence Bushkin, vice president, signing on behalf of that
member, and by Glynn Ross, business manager, and L. C.
McCormick, on behalf of the Union.10
On January 17, 1969, Union Business Manager Ross,
addressed a letter to Respondent, confirming the settle-
ment, by dismissal with prejudice, of certain litigation then
pending between Respondent and the Union." The text of
this letter reads as follows:
Pursuant to an agreement reached by our respective
counsel which willeffect the dismissal with prejudice of
the above-named lawsuit, each party to bear its own
costs, and which will free you from multi-employer
bargaining on any modification of the current sound
contractors' agreement between us and from multi-em-
ployer bargaining on the next regular collective bar-
gaining agreement to be negotiated when the current
agreement expires, Local 640, I.B.E.W. is submittin
this letter to you to reflect its agreement that, in consid-
eration of the dismissal,
(1) Local 640 will not require or demand that
you be bound by any modification negotiated by
Local 640 and the Sound Contractors Association
relative to the current collective bargaining agree-
ment between you and Local 640, but will nego-
tiate with you separately concerning any such
modifications; and
(2) Local 640 will not require or demand that
you bargain as a part of, or be bound by, the
Sound Contractors Association relative to the ne-
gotiations and bargaining for a successor agree-
ment to the current agreement, but will negotiate
with you separately. Local 640 understands that
excluding office clerical employees, guards , and supervisors as defined
in the Act.
Sound Contractors Association, 162 NLRB No. 45.
9 Supra
10 The agreement was not signed on behalf of Lawrence Engineering Co.,
whose typewritten name appears as one of the members of the Association.
During the hearing , it was disclosed that Lawrence Engineering Company
had merged with Respondent at a date not disclosed by the record, presuma-
bly before the execution of this agreement.
11 The caption of this letter identifies the litigation as Nelson-Hershfield
Electronics v. IBEW Local 640, et al., Federal District Court Case No. CIV-
591 I-PHX
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you desire separate bargaining and a separate
agreement upon expiration of the current agree-
ment, and with this approach it is agreeing. How-
ever, Local 640 also understands that you will not
actually participate in multi-employer bargaining
with the Association. If you do elect to do so, then
Local 640 will thereafter assume that you have
decided to be bound by multi-employer bargain-
ing again . The point is, Local 640 is not here agree-
ing that you can sit in and participate in the
multi-employer bargaining and then avoid the
consequences thereof on the basis of this agree-
ment to engage in separate bargaining.
By letter, dated February 3, 1969, Respondent notified
the Union that it was terminating the collective-bargaining
agreement, effective August 14, 1970, pursuant to the appli-
cable provisions of the agreement.
B. The Refusal To Bargain
1. Grievances
Article III, entitled "Grievances," provides, in effect, for
a four-step grievance procedure culminating in arbitration.
Under this procedure (sec. 1), the parties agree to meet and
confer upon request at reasonable times on [a]ll questions,
disputes or grievances as to the interpretation, application
of performance of the terms of this Agreement," at the first
step, between the Employer and the union steward, at the
next step, after the issue has been reduced to writing, be-
tween the Employer and the union business representative
and, if the matter is not adjusted at that step, the issue is to
be referred to the Sound and Public Address Joint Confer-
ence Committee (provided for in the agreement), consisting
of three union representatives and three representatives
designated by the signatory employer, each side having a
total of three votes , irrespective of the number of represent-
atives appearing at any meeting . The committee was re-
quired to meet regularly at stated times to be decided by it,
to select a chairman and secretary , and otherwise organize
itself for the purpose of administering its affairs and han-
dling its obligation. All matters coming before the Commit-
tee were to be decided by a majority vote, a quorum to
consist of four representatives, provided at least tow repre-
sentatives of each side were present (sec. 2).
It was further provided:
Section 6. The committee shall have no right to add
to or subtract from or otherwise modify any of the
terms of this Agreement. Subject to this limitation, the
parties shall be bound by the decisions and awards of
the committee. In this connection, the committee shall
have authority to provide such remedies for relief of
any contract violations as are reasonable under the
circumstances of the particular case.
It was finally provided that, in the event the committee
failed to agree or to issue a decision on any matter brought
before it within 15 calendar days, the dispute or grievance
was to be referred to arbitration, each side designating one
arbitrator and the two so selected to appoint a third, and,
in the event of failure to agree, the third arbitrator to be
appointed by the Federal Mediation and Conciliation Serv-
ice. The decision of the majority of the arbitrators was to be
final and binding upon the parties. 12
12 There is nothing in the record to suggest that either party sought re-
course to arbitration to resolve grievances
2. The Joint Conference Committee
Late in 1968, apparently for the first time, the Union
communicated with Morry W. Spitz, executive vice presi-
dent and general manager of Executone of Arizona, Inc., an
employer-member of the association, for the purpose of
establishing the Joint Conference Committee, hereinafter
referred to as the JCC, provided for in the collective-bar-
gaining agreement . To make the necessary arrangements,
Spitz canvassed a number of the Sound Contractors, who
were members of the association , including Respondent.
Spitz communicated with Vice President Bushkin in regard
to the selection of employer representatives on the commit-
tee, and notified him that a meeting was being scheduled.
Bushkin told Spitz that he had discussed the matter with
Walton N. Hershfield, Respondent's president, that the
Company had resigned from the association, and did not
regard itself bound by the contract with the Union; that the
Company did not wish to participate in any association
negotiations or discussions ; and declined his invitation to
serve as an employer-representative on the JCC.
On December 23, the initial JCC organizational meeting
was held , Spitz presiding as acting chairman , and William
H. Henthorn II, attending at the request of Vernon Vogel,
chairman of the Union 's Sound Unit, acting as recording
secretary. Neither the record nor the brief handwritten ac-
count of that meeting, indicates who else was present. The
sketchy notes taken by Henthorn, however, indicate that a
number of subjects were discussed relating to the collective-
bargaining agreement, including the use of personal trans-
portation for the hauling of company equipment.
A further JCC meeting, scheduled for January 7, 1969, at
2 p.m., was postponed to January 15, at the same time.
Attending this meeting, on behalf of the employer-mem-
bers, were in addition to Spitz, representatives of Arizona
Sound Company, and Engineering Sound, Inc.; on behalf
of the Union, Robert Elsner and Henthorn. Spitz was for-
mally elected chairman, and Henthorn, secretary. Accord-
ing to minutes of this meeting , among subjects discussed
were the dispute regarding transportation of company tools
and materials by employees in their own cars, the estab-
lishment of an apprenticeship program, and wage re-
opening. The minutes further disclose that the contractor
representatives agreed that employees should not be re-
quired to carry company tools and materials in their person-
al vehicles, and that management should no longer instruct
employees to do so.
On January 17, as already noted, the Union furnished
Respondent with the letter, which has been previously quot-
ed. Thereafter, Respondent, in purported reliance thereon,
declined to participate in the grievance procedure provided
for in the collective-bargaining agreement . Respondent's
notice of contract termination, dated February 3, 1969, ef-
fective August 14, 1970, followed not long afterward.
3. Notice of specific grievances;
Respondent's reaction
On February 17 , Business Manager Ross , on behalf of the
Union, notified Respondent, in writing, of alleged viola-
tions of the collective-bargaining agreement with specific
reference to (1) failin to comply with the hirin hall prov-
isions, under article II, sections 1 and 3; (2) failing to
comply with overtime provisions, under article V, Wages,
Hours, and Working Conditions, sections 1 and 4, with
specific reference to employees Robert G. Kuhn and
George Trujillo; (3) requiring helpers to work without su-
pervision, contrary to article V, section 8, paragraph 3; and
NELSON-HERSHFIELD ELECTRONICS
(4) requiring workmen to use their personal automobiles or
vehicles for transporting tools to various jobsites, allegedly
in violation of article V, section 19. The letter further in-
formed Respondent that at the JCC meeting, held on Janu-
ary 15, the contract provision applicable to (4) above, had
been unanimously construed to mean that no "employee for
any Company signatory to the Sound Contractors Associa-
tion Agreement, 1967-1970, shall be permitted to use his
personal vehicle for the hauling and transporting of Compa-
ny tools and materials to the job site." The letter was hand-
delivered by Business Manager Ross and Assistant Business
Manager Robert Elsner to Hershfield in the Company's
office. According to Ross' uncontradicted testimony,
Hershfield unhesitatingly told him that the only reason Re
spondent was a signatory to the contract was because the
Board had compelled it, an apparent reference to the
Board's Decision and Direction of Election.13 Hershfield
further stated to the union representatives that he had con-
tacted at least two other unions, and that as a result, and in
consequence of his successful dealing with his present em-
ployees, he "hoped to get rid of IBEW Local 640," unless,
in Hershfield's words, he "could have his own Glynn Ross.
"14 Hershfield also announced to the business agents that all
future communications from the Company to the Local
Union would be in writing, and only after matters had been
reviewed by the Company's attorney.
4. Requiring em loyees to sign affidavits
regarding hauling of company tools
On February 18, Vice President Bushkin prepared and
submitted to unit employees for their signature a statement,
previously approved by Hershfield, absolving Respondent
of any blame in regard to the use by employees of their own
vehicles for transportation of company tools or materials.
Five employees, including George E. Trujillo, signed the
statements , which were "notarized" by Respondent's office
manager .15 The statement, on Respondent's letterhead, read
as follows:
The undersigned, an employee of Nelson-Hershfield
Electronics, herewith acknowledges and affirms that:
(1) He is aware of company policy on use of personal
vehicle in connection with his work.
(2) He is aware that the company has and maintains
(3)
a delivery truck and driver to transport any tools
or matenal so requested by him to and from any
b site.
te is never expected, nor shall he be requested,
to transport an materials, that he in his own
judgement [sicJ feels are detrimental to the
employee's vehicle in order to maintain the ve-
hicles [sic] mechanical condition and/or appear-
ance . That he may refuse to carry materials he
deems detrimental to the vehicle without preju-
dice to his position or employment.
(4) He has never lost a day's work, or an hour's pay,
(5)
because of his willingness, or lack of it, to carry
any company tools or matenal.
He is reimbursed not less than ten cents ($. 10) per
mile for every mile driven for the company, ex-
13 Sound Contractors Association, 162 NLRB No. 45
14 Although Hershfield did not elaborate on this cryptic remark, it suggests
that he preferred to deal with a business agent who was more tractable and
receptive to his views.
15 The five were . John D. Castle (an admitted supervisor and part-time
technician), Robert G. Kuhn, Jr, Charles S. Harper Jr, Joe West, and
George E Trujillo. Raymond J. Grabowy, union shop steward , signed the
statement next day, under circumstances presently described
33
cepting one trip to work in the morning , and one
trip to return from work in the evening.
Further , the undersigned herewith affirms , he has no
objection to the use of his vehicle in accordance with
policy stated above, and that he has never been re-
quested to use his vehicle in an y manner he feels is
detrimental to the vehicle or unfair or discriminatory
to other workmen.
Signature: Date
As for Trujillo , he testified , without contradiction , 16 that
Bushkin sent for him and told him that the Union had
charged that employees were being required to use their
personal vehicles to transport company equipment and ma-
terials . Bushkin pointed out that the phrase "company
equipment" could by definition refer to a small test meter,
and that, if the Company were required to abide by the
union contract to that degree, employees would not be al-
lowed to carry even a small meter to the job in their personal
cars. Maintaining that this would result in an absurd situ-
ation, Bushkin told Trujillo that the purpose of the state-
ment was to convince the Union that employees were not
being compelled to transport company tools and materials
in their own cars , and that, in any case , they had no objec-
tion to doing so C.17 During the conversation , Bushkin also
stated that the Company regarded the union contract as a
mere "guideline," not as a blueprint for the operation of the
Company's business.18 Trujillo left Bushkin 's office and on
his way out signed the statement , which was lying on
Castle's desk.
Later the same day, Bushkin summoned Raymond J.
Grabowy , the union steward , to his office for the same
purpose . When Grabowy arrived , Bushkin chided him, and
asked whether he was trying to impede the work by telling
employee Kuhn that he was not required to carry tools and
equipment in his personal automobile . Grabowy explained
that -he had done so on instructions from the Union, based
on the decision reached at the recent JCC meeting . Bushkin
told Grabowy that the Company had no use for any em-
ployee who could not carry some compan equipment in his
car, and repeated what he had previously told Trujillo, to
the effect that the Company regarded the contract merely
as a "guideline ," and that it was not binding on Respondent.
Later in the day, Castle called Grabowy over to his desk
and, pointing to the statement prepared earlier by Bushkin,
asked him to read and sign it. Upon reading the document,
Grabowy said that he saw no reason to sign it because it was
contrary to the union agreement , and, in any event, did not
apply to him since he did not use his personal automobile
in his work but drove a company vehicle.
5. Respondent replies to the Union's
letter of February 17
On February 18 also , the same day that Bushkin secured
the affidavits from the employees, Hershfield replied to the
Union's letter of the previous day, and referring to a "blan-
ket letter" in the Union's file containing a "permanent re-
16 Bushkin did not testify and there was no showing that he was unavaila-
ble at any time during the hearing
17 Art V, sec. 19, the applicable provision of the contract reads
Section 19. No workman shall use his own automobile or other vehicle
in a manner considered by the Business Manager of the Union to be
unfair to other workmen. Should an employee be required to use his
personal convenance [sic] in any manner to accommodate the Employer,
he shall be compensated therefor at the rate of not less than ten (10)
cents per mile for passenger cars and ten ( 10) cents per mile for pickup
trucks.
18 Bushkin did not actually use the word "blueprint " However, the word
more nearly conveys the connotation Bushkin probably intended.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quest for qualified employees ," renewed the request. Rely-
ing on article II, section 1, of the contract , Hershfield assert-
ed that it was the Union's responsibility to "provide
competent employees ." The letter charged that the Union
had `failed to recruit , train and provide a source of compe-
tent employees" and failed, since the "inception" of the
contract, on August 14, 1967 , to "initiate any of the prac-
tices necessary to meet its commitment to the Electronic
Industry," and that , since the union representatives were
"inside wiremen" rather than "electronic technicians," they
were not "sufficiently knowledgeable to adequately serve
the `electronic technicians ' and the industry . ' For these
reasons , the letter continued, "until such time as the union
is no longer in contract default and its representatives dem-
onstrate their ability to satisfy the need of the industry,"
Respondent would (a) continue to obtain employees
through channels and sources other than the Union ; (b) pay
these employees a salary commensurate with the ability of
each, as determined by the Company's own methods of
testing and evaluation; and (c) continue to work these em-
ployees at such times and hours deemed convenient to the
Company.
With regard to the Union 's charge that employees were
being required to use their own cars to haul company tools
and material, the letter referred to the copy of employee
statements , enclosed with the letter, previously described,
and asserted that the Company would continue "this 15
year practice established within our industry ." The letter
rejected the Union's contention of discrimination , charging
violation of article V , section 19, of the contract (regarding
use of employees ' vehicles to haul company tools , etc.), as
"capricious , unfair, and discriminatory against the employ
-ees and the company ." Hershfield further asserted in the
letter that , while Union Representative Elsner had "made
repeated references to the policies pertaining to the inside
wiremen," the Company was not signatory to a contract
with those employees and, therefore , had no interest in that
area.
As for other charges made in the Union's letter, Hersh-
field contented himself with enclosing additional employee
"affidavits," purportedly refuting those claims as unfound-
ed.19
It is significant that, in his reply to the Union's letter,
Hershfield did not specifically deny the Union's charge that
Respondent had failed to pay overtime rates, as required
under the contract.20
6. Respondent learns of Grabowy's
appointment as union steward;
Hershfield's reaction
Soon after Grabowy's encounter with Castle on February
18, Hershfield sent for Grabowy, told him that he had seen
19 The two additional affidavits consisted of one , by Trujillo, to the effect
that he had never worked at a jobsite at 13th Street and McDowell , and that
he had never worked under the supervision of Kuhn ; the other , by Harper,
to the effect that he was employed as a journeyman technician and had never
worked under the supervision of Kuhn on any jobsite , although Harper
averred in the affidavit that he did visit the site at 13th and McDowell Streets
on one occasion to check the installation in progress and supervise Kuhn.
20 Despite Hershfield 's denial that apprentices had been working without
supervision , contrary to the provisions of the contract , and in spite of the
affidavits enclosed with the Company's letter to the Union , according to the
minutes of the JCC meeting of March 13 , 1969, introduced in evidence,
hereinafter discussed, the JCC decided as to this issue:
We find Nelson -Hershfield guilty as Section 8 and Article V clearly
states that a helper shall be accompanied by and work under direct
supervision of an installer or technician.
the Union's letter notifying the Company of his appoint-
ment as union steward , and asked him if this were true.
When Grabowy confirmed this, Hershfield asked him why
he had accepted the post. Grabowy explained that he was
the only union member employed by the Company at the
time . Hershfield asked Grabowy if he realized that he was
"in the middle," since company policy was at odds with the
union agreement , and sooner or later Grabowy would find
himself at loggerheads with Hershfield. Hershfield advised
him to think about it and "get [himself] out of the middle,"
if he wanted to continue his congenial relationship with the
Company. Hershfield assured Grabowy that, in the next
1-1/years remaining under the union contract, he could
find "any number of good reasons" for discharging him.
Finally, Hershfield asked Grabowy why he had refused to
sign the statement which Castle had submitted to him. Gra-
bowy repeated what he had told Castle.21
7. The overtime compensation issue;
disparagement and derogation
of the Union
During the discussion, Grabowy complained that Re-
spondent was not paying field employees for overtime.
Hershfield told him that the Company estimated its bids on
the basis of straight-time wage rates , he could not "com-
pute" time-and-a-half rates into his "fixed figures," and
was, therefore, obliged to work his men at straight time on
Saturdays. Hershfield added that some of the men had actu-
ally asked to work on Saturday and he agreed to let them
do so , presumably , at straight time. Moreover , Hershfield
declared, he would "work his men any damn well time he
pleased."22
Hershfield objected that the Union was not properly rep-
resenting the sound employees because they numbered a
mere 30, out of a union membership of more than 1,000
wiremen , and that the Union favored wiremen over sound
unit employees . Hershfield added that, at some time before
the expiration of the collective-bargaining agreement with
the Union, he intended to approach either the Communica-
tions Workers of America (CWA) or the Teamsters Union
with a view to having one or the other organize the
Company's field crew because he felt that they, too, were
not receiving the representation to which they were entitled.
Hershfield boasted to Grabowy that the Company had set
aside a $ 10,000 war chest with which to combat the Union,
and concluded by asking Grabowy whether he intended to
repeat their conversation . Grabowy said that he did not
believe so, and Hershfield remarked that if he did , he would
den it 23
I ershfield admitted that he had told Grabowy that the
employees had become "the unwittin captives" of the Un-
ion. Referring to his answer to the Unnion's letter, in which
he had declared that the men were not receiving proper
union representation , Hershfield testified that he told Gra-
21 Next morning, February 19 , Bushkin asked Grabowy what he intended
to do about signing the statement regarding use of personal vehicles to haul
company tools or materials, though stating that Grabowy could suit himself.
Grabowy finally signed the document.
22 Under the existing labor agreement , the regular workweek consisted of
40 hours, Monday through Friday , from 8 a .m. to 4 : 30 p.m. (with one-half
hour for lunch). The agreement permitted a change in daily starting time,
when justified, especially during the summer months, by mutual agreement.
Work performed outside the regularly scheduled hours , and on Sundays, was
required to be paid for at scheduled hours , and on Sundays, was required to
be paid for at time-and-a-half the straight-tune rate (art. V, secs. 1, 2, 3, and
4)'23 In his testimony, Hershfield blatantly admitted that the Company had
set aside such a sum for that purpose.
NELSON-HERSHFIELD ELECTRONICS
bowy that he, Hershfield, was doing everything in the inter-
est of the Company to "extricate us from a very despicable
condition," intedecting that the "subject of the interroga-
tion to [sic) the non-union men as to whether they love their
families or not was going to stop even though it couldn't be
proven."24 He further told Grabowy that:
until such time as there was a business agent for the
union that was on the job acting in the total interest of
us as an employer of electronic workers, that we would
not recognize the union as acting in any particular area
in good faith; that the union had captured the electron-
ic technicians solely to suppress them and control their
work in reference to their skills, ... so that the less
intelligent electricians would be protected under the
facade of the union agreement and this is , in essence-I
told him that I intended to fight the union with every
legal, mental and moral resource at my command and
I told him to stay out of the middle of it. Told him to
out of it. I also told him that if his performance on
the job hadn't been too well, too good, and [sic] that
there was a thousand and one reasons why we could
discharge a man if we wanted to discharge a man.
Hershfield further testified that during the conversation he
referred to the CWA as an "honest labor organization,"
adding,
I told him that if we had a battle to fight out on
the job, that we wouldn't have some electrician without
full intellect going out and representing them, that we
would have a man whose only interest was the electron-
ic workers, and I told him I made no secret of my
position in this matter.
Hershfield also mentioned the Teamsters Union, in this
regard, remarking that "they would be fine compared with
the situation we are in now." In his testimony, Hershfield
unhesitatingly confirmed that he told Grabowy that the
Company had set aside a reserve of $10,000 with which to
combat the Union, stating, "Absolutely ... I told Mr. Gra-
bowy that in our corporate financial statement that it was
my intention to put aside [a] $10,000 reserve to fight the
IBEW Local 640 and to get the millstone from around the
corporate neck."
8. Subsequent developments; proceedings
before the Joint Conference
Committee
Treating the Company' s letter as a response to th e griev-
ances contained in the Union's letter of February 17, the
Union wired Respondent on March 7, as follows:
IN REFERENCE TO THE GRIEVANCE SUBMITTED IN WRITING BY
THIS LOCAL UNION TO YOU ON FEBRUARY 17,1%9 AND YOUR AN-
SWER TO THOSE CHARGES BECAUSE OF OUR NOT BEING ABLE TO
RESOLVE THAT GRIEVANCE IN ACCORDANCE WITH ARTICLE 3 SEC-
TION 2 OF THE CURRENT SOUND CONTRACTORS ASSOCIATION
AGREEMENT AND THIS LOCAL UNION I HEREBY REQUEST THE
JOINT CONFERENCE IN COMPLIANCE WITH ARTICLE 3 SECTION 4
OF THE AFOREMENTIONED AGREEMENT.
A copy of this telegram was furnished to JCC Chairman
Spitz.
On March 11, Spitz notified Respondent of a special
meeting, pursuant to appropriate provisions in the labor
contract for such a call, to be held at the Union's office on
Thursday of that week, to consider the Union's grievances,
and requested Hershfield 's attendance at the meeting. In
24 This allusion was not further explained.
35
addition, Spitz telephoned Bushkin, requesting him to at-
tend the meeting because, Spitz informed him, as JCC chair-
man, he did not wish to have the matter decided without
affording the Company an opportunity to present its side of
the case.
The following day, Hershfield wrote the Union, acknowl-
edging the telegram requesting a meeting of the JCC, and
stating that since the "letter suggested in the [Union's] com-
munication" had not been forthcoming, the Company was
taking no action.25 The letter concluded that the Company
would confer with its attorney, on March 17, to review its
position, and would then advise the Union "of our action."
On March 12, Hershfield, on behalf of Respondent, re-
plied to Spitz' letter of March 11, notifying him that the 37
Company would not "need the services of the Joint Confer-
ence Committee," and concluded,
Pursuant to agreement reached January 17, 1969, with
I.B.E.W. Local 640, we are now following an independ-
ent course in our labor relations.
We have been notified by the Union of their desire to
meet in Joint Conference, and we are in the process of
drafting a reply and preparing for independent action
in this matter.
Next day, the Union notified Respondent by telegram
that, because the Union had made arrangements for the
attendance of witnesses , who would be greatly inconven-
ienced by any continuance of the proceeding, it intended to
proceed with its charges against the Company before the
JCC. Respondent's attorney replied by telegram, as follows:
IN OUR VIEW AFTER REVIEW OF CONTRACT CONCERNING NELSON
HERSHFIELD ELECTRONICS SUBJECT OF MILEAGE IS MODIFICA-
TION OF CONTRACT AND NOT SUBJECT TO JOINT CONFERENCE
COMMITTEE SOUND CONTRACTORS WE ARE WILLING TO MEET
WITH YOU NOT THROUGH JOINT CONFERENCE COMMITTEE CON-
CERNING THIS MATTER
Manifestly, Wilks' reply to the Union' s telegram, notify-
ing Respondent of the .10, meeting, was wholly unrespon-
sive. Ignoring the other issues raised by the Union's letter
of February 17, namely, (1) Respondent's failure to pa
overtime, as required by the contract; (2) its refusal to abide
by the hiring hall provisions; and (3) its practice of permit-
ting helpers to work without supervision, Wilks' reply dealt
only with the "subject of mileage," which he sought to treat
as modification of the contract provisions relating to the use
of employees' vehicles to transport company tools and
equipment. Moreover, Wilks' response rejected the prospect
of a hearing before the JCC, though expressing a willingness
to meet with the Union separately, a flagrant determination
to avoid the grievance procedure of the contract.
A meeting of the JCC was held on March 13, 1969, to
discuss the Union's grievances. Present, on behalf of the
committee members, were Chairman Spitz and Jim Clark
(member Bill Wallace being noted as absent); on behalf of
the Union, Local Secretary Henthorn, Henry McIntyre, 26
and Jim Dunn. No representative appeared on behalf of
Respondent.
The exchange of correspondence, already described, in-
cluding the telegrams , was submitted at the meeting. Wit-
nesses were heard, and a tape recording was made of the
proceedings. Although, as the General Counsel concedes,
25 It will be noted that the Union's telegram made no mention of any letter
to follow, and no further explanation was offered as to what Hershfield
meant by the reference
26 Not to be confused with Paul McEntire , Respondent's former vice presi-
dent of operations , mentioned later
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the JCC's findings and determination are in no sense con-
trolling on the issues in this case, it is noteworthy that the
JCC found the Respondent "guilty" of (1) failing to pay
installation personnel overtime, as required in the contract;
and (2) violating article V, section 8, requiring that a helper
shall be accompanied by and work under the direct supervi-
sion of an installer or technician. The JCC further held that,
on the basis of the evidence presented, Respondent was
.,not guilty" of (1) hiring personnel directly rather than
through the hiring hall, while reaffirming the Union's "ex-
clusive referral rights" under the contract, and (2) because
the Union had failed to submit evidence that the JCC's
earlier ruling regarding the hauling of company tools and
equipment in employees' own vehicles had been communi-
cated to Respondent, and because it may not have been
aware of the JCC's ruling, the grievance would not be sus-
tained. The JCC instructed the Union, however, to notify
Respondent of this ruling so that it would abide by it in the
future. 7
9. Further protests against Respondent's
failure to pay overtime wages;
complaints regarding job
classifications
About March 20, a oup of employees, including Union
Steward Grabowy, Trujillo, West, and Kuhn, met with
Manager Castle concerning some of their grievances. Gra-
bowy again protested the Company's failure to compensate
employees adequately for working overtime. Castle re-
sponded that it was company policy to pay for overtime
work at straight- time rates . According to Trujillo, Castle
stated that the Company estimated its bids on the basis of
straight-time wages and, except in special circumstances, all
employees would be paid at straight time for work in excess
of 40 hours a week.
Grabowy also asked Castle why Trujillo, who had been
working as a serviceman, had been transferred to the instal-
lation department as a helper and paid the helper's rate.
Castle replied that the decision had been made by Hersh-
field and Bushkin, and that there was nothing he could do
about it. Grabowy also questioned Castle about the job
classifications , protesting that he was the only journeyman
in his classification, while the remaining employees were
classified as helpers. Grabowy charged that this was a viola-
tion of the agreement, providing that a helper must work
under the direct supervision of a journeyman and protested
that, although helpers had been permitted to work without
such supervision, they were only paid helper's wages.
10. The so-called bonus payment plan
in relation to the
overtime pay issue
Notwithstanding the wage and hour provisions of the
collective-bargaining agreement,28 Respondent, without no-
27 As the General Counsel properly points out in his initial brief, the
evidence discloses that Business Representative Ross had already notified
Hershfield of the JCC's determination in regard to this issue in his letter of
February 17. Moreover , during the next 2 days , Respondent procured the
signature of employees to statements purporting to exculpate Respondent
from any misconduct in this respect . It is, therefore, evident that Respondent
had previously been put on notice that the JCC had decided this issue
adversely to Respondent . Since Respondent's letter of February 18, enclosing
copies of the "affidavits," was before the JCC at this meeting, it is evident
that the committee apparently overlooked or ignored this, in stating that
Respondent had not been apprised of the JCC's earlier ruling.
21 See fn 22.
tice to or consultation with the Union , maintained a so-
called "bonus payment plan" which , the General Counsel
contends , was, in fact, a thinly disguised method of paying
employees at straight time for overtime work , defined in the
agreement as all work performed outside regularly sched-
uled working hours , exceeding 40 hours a week, and in
excess of 8 hours a day, between 8 a.m. and 4 : 30 p.m.,
Monday through Friday, and on Sundays , for which the
hourly rate was time-and-one-half straight time.
Paul McEntire , Respondent 's former vice president, testi-
fied that, prior to his appointment to that position, both
before and after the execution of the collective-bargaining
agreement, he had had occasion to work for the Company
in excess of 40 hours a week .29 During 1965, McEntire testi-
fied, in connection with an investigation of Respondent's
operations , the Wage-Hour Division of the Department of
Labor sent letters to employees , including McEntire, notify-
ing them that Respondent owed them backpay for overtime
work.30
Soon afterward, Hershfield held a meeting in his office of
all the installation department employees , some four or five
in number . Hershfield acknowledged to them that the Com-
pany had been investigated , and indicated that he was
aware that certain employees had received letters from the
Wage-Hour Division . He told them, however , that if they
expected to collect any moneys claimed to be due them,
they would be obliged to sue the Company, and that if they
elected to do so , they would be out of a job. Hershfield also
announced that it was a matter of company policy to pay
wages at straight-time rates for all hours worked , regardless
of overtime.
Some 3 or 4 months later , while McEntire and Troy Sea-
ley, a sheet metal mechanic, were in his office , Hershfield
told them that he was initiating a "bond program" at the
Company . Under this program , employees were to keep
track of, and turn in the record of, all their overtime, for
which they would be paid at straight time , and instead of
showing their overtime earnings on their paychecks, the
overtime wages so earned would be placed in a bond ac-
count for them.
In a subsequent conversation in Hershfield's office, not
long afterward , while only McEntire was present, Hersh-
field told him that certain employees were willing to work
overtime at the straight hourly rate, and that whenever,
overtime work was necessary , he was to assign it to these
employees . With regard to overtime compensation so
earned , Hershfield told him, these employees would be paid
under the "bonus plan." Although, according to McEntire,
he had no personal knowledge as to whether these employ-
ees were actually paid for overtime work in this manner, he
testified that he , himself, was paid for overtime under the
"bonus plan. "31
29 McEntire had been in Respondent 's employ for about 6-1/2 years, from
1962 until November 1968. Hired originally in the manufacturing area, he
worked successively at budding prototype preamplifiers; as an apprentice
installer, journeyman installer , installation manager, and service technician,
and, finally, in late 1966, and early 1967, as vice president of operations. In
this latter capacity, his duties included dispatching service technicians to, and
checking out, installation jobs, detailing jobs and materials, estimating jobs,
and assisting on "hard service calls " McEntire voluntarily terminated his
employment with Respondent in November 1968 . At the time of the hearing,
he was employed as installation manager with Executone of Arizona, a
member of the Association , whose president , Spitz, was administrative vice
president of Executone
30 There was no contention at the hearing that McEntire was, at the time,
exempt from the overtime provisions of the Fair Labor Standards Act or of
the collective-bargaining agreement.
31 McEntire testified that under this "bonus plan, participating employees
"were to keep track of overtime hours or extra hours, over eight hours,
NELSON-HERSHFIELD ELECTRONICS
McEntire had previously maintained his own daily time
sheet, showing hours worked outside his regular hours,
which he turned into the Company once a month. Later,
employees under McEntire's supervision, while he was in-
stallation manager, who worked under the "bonus plan,"
maintained daily time sheets which they turned into the
Company each week, reflecting the number of hours
worked in excess of 40 hours a week, 8 hours a day, or
Saturday. The bonus time sheet was so designated on a
mimeographed form, and employees working overtime un-
der McEntire's supervision turned in two time sheets, one
for their regular time, the other for bonus time. After Mc-
Entire became vice president, the time sheets were turned
over to him for verification before being delivered to Bush-
kin for approval. This procedure remained in effect during
McEntire 's entire tenure as vice president, until he terminat-
ed his employment in November 1968. It is thus apparent
that the so-called "bonus program" was in effect at least
from the date of the collective-bargaining agreement, Au-
gust 14, 1967, until November 196832
During this period, in his capacity as vice president and
installation manager, McEntire asked Grabowy on four or
five occasions if he would be willing to work Saturdays at
straight time. Grabowy firmly refused, and when McEntire
reported this to Bushkin, he was told to select someone else
for Saturday work. McEntire testified, however, that when
Grabowy did work a few times on Saturday he was paid at
overtime rates after McEntire first cleared it with Bushkin.
Although McEntire could not testify whether Grabowy ever
received any bonus payments, payroll records introduced in
evidence indicate that he did not receive any bonus pay-
ments during the period of his employment.
During 1968, Trujillo, Harper, Castle, and Kuhn worked
under McEntire's supervision. From time to time during
this period, these employees worked in excess of 40 hours
a week and 8 hours a day, and on Saturdays. Pursuant to
McEntire's instructions, these employees maintained their
own overtime records on separate bonus sheets. According
to McEntire, Hershfield notified him that he had discussed
this with each of the employees separately, and Hershfield
later told him which employees had agreed to work under
the "bonus plan."
Under the bond program, as distinguished from the bo-
nus.plan, certain company executives were permitted to
participate in a program under which a fixed sum of money
was deposited each month into the executive's bond ac-
count. When the amount on deposit reached the sum of
$500, the Company issued a dividend-bearing bond in that
denomination to the executive.33
Confirming McEntire's testimony that Hershfield had
Saturdays," which were then to be turned in on a "bonus sheet " It is evident,
not only from McEntire 's testimony, but from Hershfield's testimony, as
well, that there was some confusion between the "bonus plan" and the "bond
program," presently discussed The two programs were apparently separate
and distinct. Under the bond program, the Company set aside funds for key
employees, which were applied to the acquisition of company corporate
bonds paying dividends . Bonus payments , however, were apparently credited
to the employee 's account , with the privilege of drawing against these funds
32 No findings of unfair labor practices are, of course, based on events
antedating the Section 10(b) period (more than 6 months prior to the filing
and service of the charge) The evidence is recited merely as background and
to explain the origin of the "bonus plan" as it related to the overtime issues
33 This company bond was not offered to rank -and-file employees, and is
not to be confused with the so-called bonus plan. McEntire explained,
Well, the bonus payments, as far as I was to understand, were for any
of the employees that had agreed to work such, or to take any hours over
eight hours a day or Saturdays , over 40 hours , and enter them into this
bonus sheet and keep track of them and the sheet was turned in and
there , I don't know. I won't say what happened to them
37
told him and other employees that, as a matter of company
policy, wages for all hours of work would be paid at straight
time, Hershfield admitted that he informed employees that
they would be paid for all hours worked over 40 a week at
straight time 3a
While acknowledging the existence of the bonus payment
plan, Hershfield denied that the bonus payments were in
lieu of compensation for overtime work computed at
straight time. Payroll records for the months of August and
September 1968, however, disclose a separate column head-
ed "Bonus," showing3 bonus payments in varying amounts
to several employees. 5 The General Counsel's studious and
painstaking analysis of these records demonstrates that,
with few exceptions, the bonus earnings appear to be in
multiples of the hourly rates, allowing for possible arithme-
tical errors or a rounding off of the exact figure.
Without undertaking to analyze all the payroll records for
specific employees, and, using Trujillo's payroll records and
paycheck stubs as illustrative, the records reveal that, be-
tween September 8, 1968, and April 13, 1969, Trujillo re-
ceived actual overtime pay in 10 instances , for from 1 to 4
hours, and, in one instance, 12 hours, for which he was paid
at the rate of time-and-a-half. During this same period, he
received 12 bonus payments, ranging in amounts from $3.44
to $27.75. Contending that these bonus payments were actu-
ally wages for overtime work at straight time, the General
Counsel has convincingly demonstrated by analysis of 50
bonus payments made to various named employees, that
these bonus amounts actually represented multiples of the
straight hourly rate. By way of illustration, a bonus of $5.20
paid to Trujillo on September 8 is equivalent to 2 hours at
the straight hourly rate of $2.60; the bonus of $3.45, paid
on September 15, 1-1/2 hours at the increased hourly rate
of $2.75; the bonus of $6.88, paid on September 22, the
equivalent of 2-1/2 hours at the straight hourly rate of $2.
75; the bonus of $27.75 paid on November 24, 9-1/4 hours
at the straight hourly rate of $3 an hour. It is altogether
improbable, as the General Counsel urges, that it is mere
coincidence that the amount of the bonus payments, when
divided by the straight hourly rate of pay, almost invariably
corresponds to regular hours of work, or quarterly fractions
thereof.
Be that as it may, and, wholly apart from this evidence,
the record establishes numerous instances in which employ-
ees worked in excess of 40 hours a week, for which Respon-
dent did not pay them overtime at the rate of
time-and-a-half, as provided in the contract. Not only is this
substantiated by paycheck stubs received in evidence but
this conclusion is also supported by Hershfield's own ad-
mission that it was company policy not to pay overtime for
hours in excess of 40 hours a week or 8 hours a day or on
Saturday. Moreover, Hershfield freely admitted that he
communicated this to the employees. Bushkin, in turn, car-
ved out this policy by instructing McEntire to assign Sat-
urday work only to those employees who were willing to
work on that day at straight time. It is, therefore, clearly
apparent that Respondent utilized the so-called "bonus
34 Although Hershfield' s testimony was somewhat equivocal on the sub-
ject, he conceded that he had discussed this with servicemen and that that
was what he told them. It is not altogether clear whether Hershfield intended
to limit his answers to servicemen or to unit employees generally. The fact
is, however, that generally, with the exception of work on federally financed
or similar projects, requiring payment of overtime rates, employees working
overtime were paid at straight-time rates for work in excess of the regular
workweek.
35 These were Howard Anderson, Charles Harper, Jr., Robert Kuhn,
George Trujillo, and Joe West No bonus payments appear for Grabowy
(who had refused to work overtime at straight hourly rates), Charles Stuart
or Virgil Wilmarth, Jr
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plan" as a subterfuge for circumventing the overtime pro-
visions of the collective -bargaining agreement , to say noth-
ing of the Tad of the law , which , as has been previous-
ly noted, had occasioned an investigation by the Wage-
Hour Division of the Department of Labor . Moreover,
Respondent's explanation of the "bonus plan," and the cur-
cumstances under which these bonuses were earned, were,
if not deliberately misleading, wholly convincing.
For one thing, Hershfield seems to have deliberately at-
tempted to confuse the issue by confounding the "bonus
plan' with the "bond program." In his effort to explain the
bonus plans , he testified, "Well, if we have a call at midnight
we may give someone extra money . I think last year we paid
out to employees that are not even under the union contract
in the form of various bonuses , additional money for per-
formances , in the amount of $5,000 relating to various
things." According to him , such payments were wholly un-
related to the number of hours actually worked . Again, he
testified, "Well, I just moved six truckloads of material over
here in Phoenix when we moved back here and we worked
seven days a week, ten hours a day and in addition to payin gg
the necessary overtime , after we purchased the Packard-Be
operation , I gave the men a hundred dollars apiece. It had
no relationship whatsoever with the time we worked. I was
just grateful for their efforts."
Elsewhere , he sought to account for the bonus payments
as compensation for travel time in making service calls, and
the like, which were paid for at straight-time rates. Other
instances , cited by Hershfield , entitling employees to a bo-
nus, were situations in which an employee had been able to
locate and remedy trouble in a switchboard of a customer,
which has been causing an excessive amount of service calls.
Here, again, according to Hershfield , bonuses were based,
not on the actual time spent , or on whether the work was
performed during regular working hours or overtime, but on
the result accomplished . Asked how he determined the
amount of the bonus to be paid in such instances, Hersh-
field took refuge in saying that the decision was Bushkin's
responsibility . Hershfield conceded , however, that in sub-
mittingg bids for contracts , he calculated his bids on the basis
that all labor would be paid for at straight time . Indeed, if
real bonus payments were, in fact , made, the payroll records
do not reflect that they were made for the reasons asserted
by Hershfield . Thus , in nearly all instances , bonus payments
shown on the payroll records appear in odd amounts rather
than lump sum payments as would have been expected if
Hershfield's explanation is to be credited . It is, therefore,
more credible, as the General Counsel contends , that the
bonus payments appearing on Respondent 's payroll records
actualry represent wages determined by multiplying the to-
tal number of hours , or fractions thereof , worked by the
straight-time hourly rate.
The General Counsel's contention, that the so-called bo-
nus payments were , in fact, based on a straight hourly rate
paidin lieu of overtime compensation , is supported by the
evidence that bonus payments were entered in the column
of the payroll ledger showing regular hours of work rather
than in the column designated as overtime earnings.
Hershfield's purported explanation for this , that it was more
convenient to enter the bonus payments under regular hours
and such action would result in their discharge , lends fur-
ther credence to the conclusion that Respondent failed to
compensate the unit employees at overtime rates, as re-
quired by the contract, if not by law.36
While the record does not establish with particularity
when the Company first initiated its "bonus plan," it may
be assumed that it antedated the execution of the collective-
bargaining agreement . Nevertheless, when Respondent, as
a member of the Association, became a party to the collec-
tive-bargaining agreement , it automatically assumed all the
obligations thereunder , including the overtime provisions,
which superseded any preexisting wage and hour company
policy. It is, therefore, immaterial that the bonus policy may
have been in effect prior to the time the collective-bargain-
ing agreement was executed.
The record amply establishes that, subsequent to the ex-
ecution of the collective-bargaining agreement, Respondent
maintained or continued in effect a policy of paying unit
employees for overtime at straight-time rates, contrary to
the applicable provisions of the contract, to circumvent its
wage and hour provisions, as well as the provisions of the
Fair Labor Standards Act, by designating as "bonus pay-
ments" wages paid at straight time for work in excess of 40
hours a week or 8 hours a day or on Saturdays.
It is undisputed that Respondent continued this policy,
notwithstanding the execution of the collective-bargaining
agreement, without notice to or consultation with the Un-
ion, and in derogation of its status as exclusive bargaining
representative. By such unilateral action, which drastically
altered basic provisions of the contract relating to overtime
compensation, to the detriment of the unit employees; by
failing and refusing to pay overtime compensation, as pro-
vided for under the contract; and by refusing to comply
with the grievance procedure regarding this issue, Respon-
dent has failed and refused , and continues to fail and refuse,
to bargain collectively with the Union as exclusive bargain-
ing representative ofits unit employees, thereby violating
Section 8(a)(5) and (1) of the Act.
11. The wage and classification provisions
Apart from his charge that, since about January 1969,
Respondent unilaterally changed the terms and conditions
of employment of its unit employees with regard to wages,
grievances , and hiring procedures, as alleged in the com-
plaint, the General Counsel contends that Respondent has
violated the provisions of the contract relating to classifica-
tions, by failing to pay sound and signal technicians the
minimum hourly rate of pay provided for in the contract.
The contract provides:
Article V
HOURS-WAGES-WORKING CONDITIONS
Section 8. Classifications. The term "Sound & Signal
Technician" shall apply to a journeyman who is qual-
ified in phases of the work covered under this contract,
and who is engaged more than fifty percent of his time
of work because there was more space in that column than
"in the one headed "overtime, can hardly be taken seriously.
Moreover, the fact that Hershfield notified the employees
that, although the Company had been under investigation
by the Wage-Hour Division of the Department of Labor,
which had apparently advised employees that they were
entitled to overtime compensation, if they sought to collect,
they would be obliged to institute suit against Respondent,
36 The fact that in isolated instances , with Bushkin's approval , Grabowy,
and possibly others, actually received overtime compensation, does not re-
quire a different conclusion . Those instances in which Grabowy was actually
paid overtime generally involved work on public projects for which overtime
compensation was mandatory Moreover , it should be noted that when Gra-
bowy was actually paid overtime , these earnings were entered as overtime,
not as bonus payments The record establishes that at no time during his
2-1/2 years' employment with Respondent was he ever paid a bonus
NELSON-HERSHFIELD ELECTRONICS
in the technical electronic phases of work (m any forty
(40) hour period).
The term Sound and Signal Installer" shall apply to
a journeyman who is qualified and works in all phases
of the work covered under this contract and who is
engaged more than fifty percent of his time in the in-
stallation of equipment and systems (in any forty (40)
hour period).
The term "Sound and Signal Helper" shall apply to an
employee who works in all phases of the work covered
under this contract as a helper and who will absorb
on-the-job training. A helper shall be accompanied by
and work under direct supervision of an installer or techni-
cian, and may advance his status to installer or Technician
or both by this training. The company shall exercise sole
discretion in evaluating the progress of helpers. [Em-
phasis supplied.]
Article V, section 10, entitled "Wages," provides for a
minimum hourly rate of pay for sound and signal techni-
cians, as of August 1, 1968, of $3.50 an hour. The compara-
ble rate for sound and signal installers as of the same date
is fixed at $3.30 an hour; and for sound and signal helpers,
$2.60 an hour. Specified increases in each of these classifica-
tions are provided for commencing on the next anniversary
date, and on January 1, 1970.37
As noted above, the classification of sound and signal
helpers provides that such employees shall be accompanied
by and work under the direct supervision of an installer or
technician, in contrast to the definition of sound and signal
technician who is a journeyman who devotes more than 50
percent of his time in the technical electronics phases of
work during a given 40-hour period.
The General Counsel contends that George Trujillo was
hired by Respondent in August 1968 as a service technician,
at a starting hourly rate of $2.60, although he was entitled
to the minimum hourly rate of $3.50 an hour. According to
Trujillo, he performed the work of a journeyman technician
from about August 8 or 9 until about February 12, 1969.
The Company, however, hired him as a helper, and, accord-
ing to Respondent , Trujillo performed the work of a helper,
and was paid the corresponding hourly rate. The circum-
stances under which Trujillo went to work for Respondent
were as follows:
Early in August, in response to a help wanted newspaper
advertisement for a service technician, Trujillo went to the
Company's office , where he was interviewed by Hershfield.
Hershfield told Trujillo that the job was in the service de-
partment, troubleshooting and repairing various sound sys-
tems . At Hershfield's invitation, Trujillo completed an
employment application, setting forth his educational back-
ground and experience. During his employment interview,
Trujillo told Hershfield that he had been graduated from
the United States Army Signal School in 1962, after a 6-
month course as a radio repairman, that during a tour of
duty in Korea he had installed a number of sound systems,
and that he had advanced to a job of assistant shop fore-
man.38 Trujillo also submitted to a written test which Hersh-
field had devised for all applicants for employment.
37 Wage differentials , based on length of service (first, second , or third
year) are also included . All scales are applicable to "Free Zone," as defined
in the contract . Travel time, transportation , and, under specified circum-
stances, necessary expenses, in not less than a stated amount , and, in certain
instances, board and lodging, are payable outside the "free zone"
39
Hershfield later notified Trujillo to report and, when he did
told him that he had done well on the test and should b
able to fill the position which Hershfield had in mind.
According to Trujillo, he worked alone and without su-
pervision on 99 percent of the jobs to which he was assigned
while working for Respondent. Instances in which he
worked with another man involved jobs which normally
required two men to accomplish the assignment. Bench
work, consisting of repairs of equipment inside the plant,
consumed about 10 percent of his time; the remaining time
was devoted to service calls in the field. These included
installation and service of "intercom" and sound and signal
systems, all of which work he performed without help.
While Trujillo served as a technician, Chuck Harper, the
service manager, was the only other technician, and, ac-
cording to Trujillo's uncontradicted testimony, he per-
formed the same type of work as Harper. McEntire,
Respondent's former vice president, who was in charge of
operations from the time Trujillo was hired until late No-
vember when McEntire left Res ondent's employ , testified
that, during that entire period, Trujillo performed as a jour-
neyman and satisfactorily fulfilled the tasks normally as-
signed to journeymen technicians. According to Trujillo's
payroll record, his highest hourly rate during his employ-
ment with Respondent was $3 an hour. Under the applica-
ble wage scales of the labor contract, the rate for
journeyman technician at this time was $3.50 an hour.
About February 12, 1969, Hershfield sent for Trujillo
and, in Harper's presence, told Trujillo that, while he had
no fault to find with his work in the service department, in
order to achieve maximum efficiency, he wanted his em-
ployees to be qualified in the areas of both service and
installation. Consequently, he told Trujillo that, since he
thought Trujillo needed more experience in installation, he
was transferring him from the service to the installation
department. Thereafter, until his termination, Trujillo per-
formed installation work exclusively, which entailed install-
ing sound signal and intercom equipment.
Trujillo testified that, as an installer , he worked alone
approximately 65 percent of his time and, when working
with other installers , performed the same work they did. His
rate of pay from February 12, when he was transferred to
the job of installer, until April 4, 1969, when he left
Respondent's employ, remained at $3 an hour.
At the time of the hearing, Trujillo was employed by
Executone of Arizona, 39 a member of the Association, as a
journeyman installer, under the supervision of McEntire,
who had also joined Executone after leaving Respondent's
employ in November 1968. The record does not disclose the
precise date Trujillo first went to work for Executone, but
it was presumably not long after April 4, 1969, when, as will
presently appear, he terminated his employment. It is rea-
sonable to assume , therefore, that he was found sufficient-
ly qualified by Executone to perform the work of a
journeyman installer. This furnishes additional support for
Trujillo's claims that, although Respondent classified him
as a service or installer helper, while he was in Respondent's
38 Trujillo also testified that he had been responsible for installing sound
systems for Bob Hope's 1962 Christmas Show in Korea and had received a
letter of commendation from Hope for his services. The work he performed
while in the Armed Forces, Trujillo testified , was comparable with the work
he later did in Respondent's employ.
39 It will be recalled that JCC Chairman Spitz was executive vice president
and general manager of this company.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employ, he was actually a qualified journeyman serviceman
and installer, and that he performed in both capacities on
a regular basis.
It is, therefore, found that, by classifying Trujillo as a
helper instead of a journeyman, in both the technician and
installer classifications, when, in fact, he was performing the
work of a'journeyman in each classification, Respondent
not only violated the wage and classification provisions of
the collective-bargaining agreement but also unilaterally
modified those provisions, without prior ilptice to or con-
sultation with the Union, in order to obtain services of a
journeyman at the lower rated pay of a helper. By such
unilateral conduct, Respondent has also engaged in unfair
labor practices within the meaning of Section 8(aX5). It is
unnecessary to decide whether by such conduct Respondent
also violated Section 8(aX3) of the Act because the remedy
would, in any event, be the same.
Late in March, Vice President Bushkin told Trujillo that
the Company was being investigated by the "Wage and
Hour Board," and that the Company had intimated to the
investigator that it did not use time slips. Bushkin told Tru-
jillo that the Company would appreciate it if he would
confirm this to the investigator. Trujillo did not commit
himself.
On April 4, a Friday, Trujillo voluntarily terminated his
employment and asked Castle for his paycheck. Castle told
him that he could not give him his check that day because
one of the secretaries was ill , but told him to return the
following Tuesday.40
When Trujillo returned for his paycheck on Tuesday,
April 8, he was told by the secretary that before he could
obtain his check he would have to sign a general release,
which she submitted to him. After reading the document,
Trujillo told her that he could not "in good conscience" sign
it. She told him that unless he signed the release he would
not receive his final paycheck. Bushkin, whose office was in
the immediate area , apparently overhearing the discussion,
asked Trujillo why he was refusing to sign a release. Trujillo
replied that he saw no reason to sign a release in order to
obtain a paycheck for work which he had performed. Bush-
kin told him that in that event he could not have his check.
Remarking that he was helpless to fight the Company alone,
Trujillo told Bushkin that he would enlist the aid of the
Union, and left.
Next day, Trujillo returned with Assistant Business Agent
Eisner, and asked for Hershfield. After keeping the men
waiting half an hour, Hershfield asked them to return later
in the afternoon. Elsner told Hershfield that he was only
there to obtain Tru] ill o's paycheck for him. Hershfield said
that Trujillo would not be paid until he signed a general
release . Thereupon, Elsner told Hershfield that he would
regard this meeting as the first step of the grievance proce-
dure. Hershfield replied that it was a matter of complete
indifference to him how Eisner regarded the interview. Tru-
jillo was not given his paycheck for his final pay period, nor
was he paid his tool allowance. Trujillo and Eisner then left.
As of the date he testified at the original hearing, August 19,
Trujillo had not been paid his final wages and tool allow-
ance, and, in the absence of any showing to the contrary,
it must be assumed that he has not been paid the amounts
due him since. Although Trujillo testified that Mrs. Howe,
the office manager showed him two checks, one covering his
40 Art. V, sec. 15, provides that , when an employee is terminated or dis-
charged, he is entitled to be paid all his wages immediately , and, in the event
he does not receive his paycheck by quitting time on the day of the termina-
tion, "he shall be paid not less than an additional eight (8) hours for having
to wait until the following day or [sic] 8 hours pay for each day thereafter."
final wages, and the other, his tool allowance, there was no
showing that he was actually tendered the checks. In any
event, as it is clear that Respondent refused to deliver the
checks to him unless he signed a release, it is obvious that
any such professed tender would be of no legal effect.
12. The hiring procedures under the
collective-bargaining
agreement
The General Counsel further alleges that Respondent dis-
regarded and refused to abide by the hiring provisions of the
contract by refusing to grant preference of employment to
applicants previously employed by members of the Associa-
tion, as required by the contract. The pertinent provisions
are as follows:
ARTICLE II
HIRING
Section 1 . It is the intentions [sic] of the parties to
cooperate in the matter of securing competent employ-
ees whenever a vacancy occurs , or the staff of the em-
ployer is to be increased . To this end, the Union shall
be the first source of referrals of applicants for employ-
ment and to provide continued employment the em-
ployer agrees to give preference of employment to
applicants previous [sicJ employed as sound and signal
installer technicians or helpers by employers of the
Sound Contractors Association.
Section 2. The Union shall select and refer applicants
for employment without discrimination against appli-
cants by reason of or in any way affected by union
membership, by-laws, regulations, constitutional pro-
visions, or any other aspects or obligations of union
membership, policies or requirements. All such selec-
tions and referrals shall be in accordance with the fol-
lowing procedures:
The Union shall maintain a register for applicants
for employment established on the basis of a
group listing. Each applicant for employment shall
be registered in the highest priority for which he
qualifies. If any question arises concerning an
applicant's experience or ability it shall be the re-
sponsibility of the applicant to furnish proof of
this experience to the employer and the Union.
Section 3. The Union shall be given forty-eight (48)
hours from the time of receiving employers sic re-
quest, Saturdays, Sundays and holidays excep , to
provide such applicants to the employer, and in the
event the Union does not have the proper experienced
applicant to fill a request and an applicant is selected
outside the Union's referral system, the employer shall
advise the Union [sic] a workman has been hired within
twenty-four (24) hours. The name, address, social secu-
rity number, date of hiring, classification and rate of
pay of any employee hired, shall be given the Union
within sixty (60) days of employment.
According to records received in evidence, the Union
dispatched the following applicants to Respondent on the
dates set opposite their names:
Jim Dunn January 6, 1969
Joe West January 13, 1969
Jim Williams January 17, 1969
NELSON-HERSHFIELD ELECTRONICS
Henry McIntyre April 14, 1969
Vernon A. Vogel April 28, 1969
Tony Isabella April 30, 1969
All were rejected by Respondent ; West on the ground of
insufficient experience . West, however , was hired some 2
weeks later, early in February 1969, at the rate of $3 an
hour.
Dunn, who testified that he had practically "grown up in
the business" (his father having owned a television shop
which handled sound and intercom systems similar to those
of Respondent), was first employed exclusively on sound
systems by Executone of Arizona , in 1966 , when he began
as an apprentice , and progressed to the job of service man-
ager early in the summer of 1968 . At the time of his inter-
view with Respondent , Dunn completed an application,
submitted to an examination , and furnished references. Ap-
parently reluctant to take the written test , and offering, in
effect, to give a practical demonstration of his qualifica-
tions, Dunn did not complete the examination . In a discus-
sion lasting some 30 minutes , Hershfield told him,
according to Dunn, that "he didn't want anybody working
for him that wasn't as smart as he was," and suggested that
Dunn call him in 3 or 4 days . Dunn thanked hue, and left,
but did not call, concluding that Hershfield had decided
that he was not qualified , and that he had been rejected.
Despite this, Hershfield telephoned Colonel G. C.
rejecte .
president of Executone , to inquire about Dunn. After
some discussion, Hershfield decided to reject Dunn , ostensi-
bly because of his domestic problems . Nevertheless, Vice
President Bushkin later called Spitz at Executone, and
asked him for his appraisal of Dunn . According to Spitz'
uncontradicted testimony , he told Bushkin that "we were
full y satisfied with his work as a technician and an installer
and as service manager and we would be very glad to give
him an excellent recommendation for this type of work, and
I was thanked for the information and that was the end of
it as far as that conversation was concerned."
With regard to Henry McIntyre , undisputed evidence
was offered that, prior to his employment application on
Aril 14, he had been em loyed by Engineered Sound,
United TV, both members of the Sound Contractors' Asso-
ciation , and had also been previously employed by Respon-
dent . Moreover, at the time of the hearing , McIntyre was
employed as a sound and signal technician by Arizona
Sound Company.
Vogel , with previous experience as a sound and signal
installer at the time of his application for employment, was
subsequently hired by United TV and D and M Electronics.
In the case of Tony Isabella, as with the other applicants
for employment , Elsner, himself a journeyman wireman,
and assistant business manager of the Union for 18 months
(as of the time of the hearing) who met and dealt with
Hershfield on a number of the issues involved here , testified
that he had personally observed the named applicants for
employment working in the field as sound and signal techni-
cians , installers , or helpers, and regarded them sufficiently
qualified for the jobs for which they applied.."t
It is significant that, while Respondent rejected the appli-
cants for employment referred by the Union , it hired several
employees after January 16 who were not referred to Re-
spondent by the Union . Thus , in addition to Joe West,42 the
41 According to Elsner's uncontradicted testimony , registrants at the union
hall are required to complete a form, furnishing the registrant 's background
and employment history , which is maintained at the union hall.
'2 This employee , who had been referred by the Union and was initially
rejected by Respondent, was later hired "off the street ." According to Hersh-
41
next employee hired after January 1 was Virgil Wilmarth,
hired as a helper in the latter part of the week ending Janu-
ary 26, at $2 an hour; Donald Kingsbury, during the week
ending March 30, 1969, as a helper at the rate of $2.50 an
hour; Charles B. Stuart for the payroll period ending April
27, as a helper at a starting rate of $2 an hour, receiving $3
an hour as of the date of the hearing; and Charles H. ITa s,
for the payroll period ending August 10, as a helper at $2.75
an hour." It is noteworthy that Joe West was the last em-
ployee hired by Respondent who had been referred by the
Umon, and that not a single person referred by the Union
since then has been hired by Respondent, Hershfield testify-
ing that the Union never sent him an applicant for employ-
ment who satisfied him.
Although Hershfield maintained that he required all ap-
plicants for employment to submit to a written examination,
and that, with the exception noted, he rejected those appli-
cants referred by the Union because of their unsatisfactory
performance in the test, there was no showing that any of
the applicants hired after West had been hired, had, in fact,
submitted to such an examination or, if they had, had per-
formed better than the applicants referred by the Union.""
It will be noted that, although Respondent rejected West
initially as unqualified, Respondent , nevertheless , hired him
some 2 weeks later without requiring him to qualify further.
Whether Respondent imposed impossibly high standards of
qualification upon applicants referred to it by the Union as
a means of evading its contractual obligation to grant pref-
erential treatment to applicants previously employed by
members of the Association, or whether the Union was
unable to furnish Respondent with applicants who were, in
Respondent's opinion, sufficiently qualified, Respondent
contended, as evidenced by its letter of February f8 to the
Union, that the Union was under an obligation to "recruit,
train and provide a source of competent em loyees," and
that as long as the Union remained in "default" in this, and
other respects, as cited in the letter, and until it "demon-
strate[d) their ability to satisfy the need of the industry,"
Respondent would' [c]ontinue to obtain employees through
other channels and sources other [sic] than the union." Had
this been the only matter upon which Respondent main-
tained such a position, there might be something to be said
field, however, after submitting to an examination, West was rejected by
Bushkin for insufficient experience . West was , in fact , later hired, on Feb-
ruary 2 , 1969, according to Hershfield, on the basis of the union referral.
Hershfield explained that, at the time West was referred by the Union, the
Company needed an electronic technician and serviceman, and told West
that it could not use him then . Subsequently , the Company reviewed his
written examination , and when it discovered that West had had experience
as an installer for juke box companies , Castle contacted him and hired him
as a helper . West was actually hired the latter part of January , and first
appeared on the payroll of February 2, at a starting rate of $3 an hour.
3 At the time of the hearing, Respondent employed two sound and signal
technicians : Harper, whom Respondent transferred to its Los Angeles office,
and Castle, its operations manager; two sound and signal installers , Grabowy
and Kuhn, the latter having been promoted to that classification during the
payroll period of May 11; and four helpers, Stuart, Hays, Shaffer, and
Kingsbury. Kingsbury, however, about the time of the hearing , was being
transferred out of the unit into the plant as a journeyman technician. Another
employee , Jim Rogers , had been transferred, shortly before the date of the
hearing, from the manufacturing unit to the unit covered by the contract,
with an increase in hourly rate from $2.50 to $2.75 an hour.
µ Although nothing in the preferential hiring provisions of the contract
required employees referred by the Union to submit to an examination, no
issue has been raised as to the right of the Company to impose this require-
ment. Admittedly, as Hershfield conceded, the examination which he himself
devised was fairly difficult, comprehensive , and designed to eliminate all but
the most highly qualified applicants . As Dunn testified, and Hershfield did
not deny , in regard to his examination and interview, lasting some 30 or 45
minutes, Hershfield told him "in his own words that he didn 't want anybody
working for him that wasn't as smart as he [Hershfield) was."
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for it. Respondent, however, has deliberately misconstrued
the applicable provisions (art. II, Hiring), to require the
Union to "recruit, train and provide a source of competent
employees." Nothing in the entire article, previously quoted
in full, imposes such a requirement upon the Union. How-
ever desirable such a program might have been, nothing in
the contract requires the Union to establish a training or an
apprentice course. All that is required is that:
The Union shall maintain a register of applicants for
employment established on the basis of a group listing.
Each applicant for employment shall be registered in
the highest priority for which he qualifies. Ifany ques-
tion arises concerning an applicant's experience or
ability it shall be the responsibility of the applicant to
furnish proof of this experience to the employer and the
Union.
Section 3 further provides that:
. in the event the Union does not have the proper
experienced applicant to fill a request and an applicant
is selected outside the Union's referral system, the em-
ployer shall advise the Union a workman has been
hired within twenty-four (24) hours.
Respondent's position regarding preferential hiring was,
moreover, coupled with assertions that Respondent was de-
termined to pay employees wages commensurate with their
ability "as determined by our own method of testing and
evaluation," and to "[c]ontinue to work these employees at
such times and hours deemed convenient to the Company,"
all in direct violation of the hiring and wage and hour pro-
visions of the collective-bargaining agreement. Moreover, it
is significant that in its letter to the Union of Feb ry 19,
over the signature of Executive Vice President Bushkin,
notifying it of the reasons for its rejection of applicant Jim
Williams, Respondent commented, "With our serious labor
shortage previous employment with a sound contractor is
not a recommendation; it is cause for honest investigation
of the man's efficiency find capability." Although the rea-
sons advanced for Williams' rejection might have furnished
adequate justification for the Company s position in his
case, the comment in Bushkin 's letter suggests a rejection in
principle of the obligation to grant preference of employ-
ment to previous employees of other sound contractors. 45
A fair evaluation of Respondent's attitude and action in
rejecting applicants for employment referred by the Union,
considered in the context of its position that it was entitled
unilaterally to establish hours of work.and rates of pay,
without regard to the applicable provisions of the collective-
bargainin cement, particularly when judged in the light
of the qualifications and experience of the applicants or
employment referred by the Union, but rejectedby Respon-
dent, impels the conclusion that Respondent rejected and
repudiated the provisions for preferential hiring contained
in the contract as a further manifestation of its refusal to be
bound by the contract negotiated by the Association and
under which, for reasons already stated, it was bound at
least for the duration of the contract. By so doing, Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(aX5) and (1) of the Act.
45 In its letter, Respondent also asserted its position regarding the Union's
responsibility in referring qualified applicants . Thus, it asserted.
If you hope to fulfill your obligation to our industry we strongly advise
that you develop some sophisticated recruiting and screening methods.
And in the interim, until August, 1970, we suggest that you obtain a
representative of the caliber of Paul McEntire or Art Smith who are both
union members and competent to determine who is competent and who
is not.
13. Subsequent proceedings before the JCC
On April 29, Business Manager Ross, on behalf of the
Union, notified Respondent, in writing, by reference to the
applicable provisions of the collective-bargaining agree-
ment, of its claim that Respondent was violating the con-
tract by (1) failing to comply with the referral procedures,
as provided in article II, section 1; (2) failing to furnish the
Union with the names, addresses, social security numbers,
and other pertinent information of new employees, as re-
quired under article II, section 3; (3) failing to pay Tru ill
his wages, as required under article V, section 15, and^thoe
labor laws of the State of Arizona; and (4) failing to report
and make contributions on behalf of Castle, who, according
to the Union, was working under the terms of the contract,
as required in article VII, section 1.
On May 12, Ross wrote Respondent by certified mail,
with a copy to JCC Chairman Sppitz, regarding the griev-
ances charted in its letter of April 29, notifying Respondent
that for failure to resolve these grievances, in accordance
with article III, section 2, the Union was requesting a meet-
in of the JCC, pursuant to article III, section 4.
On May 13, Hershfield, on behalf of Respondent, replied
that, as stated in Attorney Wilks' telegram of March 13, a
"number of the issues" raised constituted, in Respondent's
opinion, contract modifications "subject to independent ne-
gotiation with our firm." The letter concluded:
You have repeatedly been advised of our intention to
pursue an independent labor course in no way involved
with the Sound Contractor's Association. Your letter of
January 17, 1969 recognized this requirement.
When you are ready to set [sic] in independent negotia-
tion with our firm in these matters we will be happy to
negotiate with you.
On May 15, Chairman Spitz notified Respondent of the
receipt of the Union's request for a special meeting of the
JCC to resolve the Unions "charges' set forth in its letter
of May 12. The letter notified Respondent that, as provided
in the labor contract, requiring the calling of a special meet-
ing within 48 hours of request for such meeting, a special
meeting would be held at the Union's headquarters on
Monday, May 19, and requested Respondent' s presence.
In its reply, dated May 16, Respondent notified Spitz that
its "position with reference to a Joint Conference Commit-
tee remains unchanged." The letter continued:
It is our opinion that a number of these so-called griev-
ances are actually negotiable modifications to Nelson-
Hershfield's contract with the I.B.E.W. #640.
If this be the' case and a legal determination must be
made in the courts, the I.B E.W. is obligated by con-
tract modification to deal directly with us in line with
our avowed intention to pursue an independent labor
course.
On May 22, Business Manager Ross replied to
Respondent's letter of May 13, referring to Respondent's
"desire to negotiate an independent contract with this local
union." The letter concluded:
As we stated in our previous correspondence to you
pertaining to this subject, if it is your desire to negotiate
independently, on the upcoming contract, we will sit
down and negotiate with you separately as we spelled
out previously. However, the terms and conditions of
our present contract with the association are the ones
we are speaking of in relating [sic] to some of the past
matters that have been brought to your attention.
On May 19, the JCC special meeting was held, Chairman
NELSON-HERSHFIELD ELECTRONICS
Spitz presiding, with the Contractors and Union repre-
sented. No representative of Respondent appeared at this
meeting . After reading the exchange of correspondence,
Business Representative Elsner stated the Union s position
and details regarding the grievances set forth in the Union's
letter of April 29. Grabowy appeared and testified as a
witness. As appears from the minutes of this meeting, the
JCC unanimously found Respondent "guilty as charged" in
all three instances.
C. Discrimination in Regard to Hire and
Tenure of Employment of
Raymond J. Grabowy
1. The probation
As has already been seen, Raymond J. Grabowy had
been employed by Respondent as a sound and signal mstal-
ler about 2-1/2 years at the time of the original hearing.
Prior to that he had been employed for about 1-1/2 years
by Lawrence Engineering Company,16 a former employer-
member of the Association, whose principal officer was
Lawrence Bushkin, later executive vice president of Re-
spondent. In January 1969, while in Respondent's employ,
Grabowy was appointed job steward forlocal 640, the Un-
ion here.
On a Friday in December 1968, Grabowy, with employ-
ees Howard Anderson and Robert Kuhn, was in the office
of John Castle, Respondent's operations manager. Castle
asked the men whether they would be willing to work next
day, a Saturday. Grabowy asked Castle if he would be paid
at straight time or time-and-a-half for Saturday. When Cas-
tle replied that he would be paid at straight time, Grabowy
refused. Grabowy then asked Kuhn, in Castle's presence, if
he intended to work on Saturday. When Kuhn indicated
that he would, Grabowy "chided' him, reminding him that
he was aware of the union contract, and asked him why he
was willing to work on a Saturday at straight time. Kuhn
made no response, and the discussion ended.
Later that evening, Castle called Grabowy at his home
and told him that Bushkin had agreed that Grabowy would
be paid time-and-a-half if he worked the following day.
Grabowy agreed and worked that Saturday, receiving
overtime pay at time-and-a-half straight rate.
Bushkin's discussion with Grabowy on February 18,
when he took him to task for advising employees not to haul
company tools and equipment in their personal cars;
Bushkin s , as well as Castle's, attempts to induce Grabowy
to sign an affidavit regarding that controversy; Hershfield s
discussion with Grabowy, after learning of his appointment
as union steward, and his attempts to persuade Grabowy to
renounce the position, accompanied by scarcely concealed
threats of reprisal; and the nature and extent of Grabowy's
union and concerted activities, have already been detailed
elsewhere.
Grabowy had planned to leave on his vacation on April
4. In a conversation that day, Castle told Grabowy that
Hershfield had been very angry because Grabowy had re-
ported late for work one morning that week, and had in-
structed Castle to discharge him. Castle told Grabowy that
he had "pleaded " his case with Hershfield, and that Hersh-
field finally agreed to place Grabowy on 2 weeks' probation
when he returned from his vacation.
Grabowy asked Castle whether he had any other fault to
find with him and, Grabowy admitted, Castle told him that
he ought to improve his attitude and work habits. Grabowy
46 It will be recalled that this company later merged with Respondent.
43
asked Castle why he had not mentioned his tardiness earlier,
if he were concerned about it. Castle offered no comment.
Grabowy also asked Castle to be specific about his criticism
of Grabowy's work habits. Castle said that Grabowy was
not doing all he could, but offered no particulars. Castle did
mention, however, that it was his impression that, although
Grabowy generally arrived at the shop before 8 o'clock in
the morning, the regular starting time, he did not actually
report for work until 8 o'clock. Castle said that the Compa-
ny preferred to have its employees report for work at 7-45
a.m. Grabowy retorted that, since the workday started offi-
cially at 8 o clock, and that was when employees wages
started, he saw no reason to report before the regular start-
ing time.47 Grabowy questioned Castle as to whether his
criticism was in any way influenced by the fact that Gra-
bowy had been made union steward, particularly since he
had never previously been criticized during his 2-1/2 years
of employment. Castle rejected the implication but re-
marked that he expected Grabowy to "be a little bit more
loyal to the comppany." According to Grabowy, he had nev-
er been previously criticized or reprimanded in regard to his
work or attitude. McEntire, Respondent's former vice presi-
dent of operations, confirmed that Grabowy "did neat
work, he was conscientious about his work whenever he
performed and as far as I was concerned he was a damned
good installer."
When Grabowy returned from his vacation, the action
with regard to his probation was made effective. Despite the
fact that the probation was to have been for a period of 2
weeks, the action has not since been vacated. Respondent's
action in placing Grabowy on probation, and thereafter
failing to vacate or terminate his probation, has been alleged
in the first amended complaint to constitute a violation of
Section 8(a)(3) and (1) of the Act.
2. The discharge48
As has been seen from the discussion of the events giving
rise to the issuance of the first amended complaint in Case
28-CA-1878, Grabowy was one of the principal witnesses
who testified at the original hearing, attending from August
18 to 20, inclusive, and on September 9 and 10, leaving soon
after the noon recess , with the consent of all concerned, for
the accommodation of Respondent 49
Grabowy arrived at the job about 2 o'clock in the af-
ternoon, and worked until 6:30. He returned to work on the
same job the following day, after reporting to the shop at
7 a.m., working until 9 or 9:30 that night for a total of 13-1/2
hours, including overtime. Two other employees, Kuhn and
Jim Rogers, and another, whose name Grabowy could not
recall, worked on the job with him. Castle, Grabowy's im-
mediate supervisor, appeared at the job sometime in the
afternoon.
About 4:30 that afternoon, Grabowy spoke to Castle on
the dispatcher's platform at the rear of the Sky Chef restau-
rant, which also supplies food services for various aircraft
companies at the airport. Kuhn, an installer working with
Grabowy, was also present on the platform. Grabowy asked
47 Under the collective-bargaining agreement (art. V, sec. 2), the workday
beans at 8 a.m.
Case 28-CA-1954. Respondent was represented in the proceeding in
Cases 28-CA-1954 and 28-CA-1981 by J. Douglas McVay, of McVay &
Bradford , who was substituted for counsel in the original unfair labor prac-
tice proceeding in Case 28-CA-1878.
49 Grabowy was instructed to report to the Sky Chef Kitchen at the Sky
Harbor Airport in Phoenix, a large and involved job , entailing the installation
and testing of fire and door surveillance alarms , and sound and paging
equipment , on which Grabowy had previously worked with three or four
other employees
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Castle if he could have the following day off for reasons he
explained . Grabowy told Castle that he would try to return
to work as soon as he could but that if he were unable to
do so he would like to have his time off applied against his
remaining 2 days of vacation 50 Castle agreed that he might
take the time off but asked Grabowy to work the following
Saturday in order to complete thejob at Sky Chef Kitchen.
Saturday was not a regular working day , and Grabowy
worked that day from 8 a.m. to 4:30 p.m . When Grabowy
returned to the shop with the truck , after work on Saturday
(September 13), he waved to Castle "in a parting manner,
and said that he would see him Monday. Castle, according
to Grabowy , waved back and said , "Okay ."
Grabowy testified that the following Monday morning,
September 15, about 7 o'clock , he called Castle and told him
that he would be about a half hour late . According to Gra-
bowy , Castle said "All right . I will see you then." Grabowy
did not recall whether he gave Castle any reason but testi-
fied that Castle did not question him about it. Grabowy
testified that there had been a heavy rainfall the previous
night, and before leaving for work he went out to inspect his
boat which he kept near his house . According to Grabowy,
the rain had collected on the mooring cover and caused
some damage , so he stopped to drain the water out of the
boat . After completing this chore, Grabowy called the shop
to let them know that he would be late.
Soon after he arrived, between 7 : 30 and 7 : 45 a.m ., Castle
told Grabowy to turn in his timesheet for the preceding
week , and said that Hershfield wanted to see him in his
office . About 8 o'clock , Grabowy reported to Hershfield's
office , as instructed . Hershfield summoned his secretary
over the intercom and told her that he was terminating
Grabowy as of that morning . Hershfield told Grabowy that
he felt he was not measurin up to the standards of a jour-
neyman installer and, in addition , that he had had a record
of tardiness which Hershfield would not condone. He tpld
Grabowy that if he would make out his timesheet , he would
pay him , and the secretary would make out his check. He
also told Grabowy that, as he already knew , company poli-
cy required that he sign a general release before he could
obtain his check . Gra owy asked Hershfield if he might
read the statement of such a policy , and Hershfield told him
that the secretary would furnish him with a copy. After
Grabowy and the secretary left Hershfield 's office, she pre-
sented him with a general release form . Grabowy read it but
declined to si 51 Grabowy submitted his timesheet to the
secretary, indicating the number of hours he had worked,
together with a claim for tool allowance from October 1,
1968 , to the date of the timesheet, amounting to $35.52 Gra-
bowy was thereupon discharged , on September 15, 1969,
and has not since been reinstated . Nor has he been paid his
final wages or the amount of his tool allowance.
30 Art . VI, sec . 7, Vacations, provides as follows:
(a) Each employee of the Employer with at least twelve ( 12) months
seniority shall receive an annual vacation of one ( 1) week with pay (40
hours). Each employee of the Employer with at least twenty -four (24)
months seniority shall receive an annual vacation of two (2) weeks with
pay (80 hours) The vacation season shall be between May 1st and
October 1st of each year except that an employee may take his vacation
at other times if his Employer is agreeable
Grabowy had used 8 days or 64 hours of his vacation , and had 16 hours or
2 days remaining.
51 Apparently , Grabowy did not ask to see the copy of the purported
statement of policy , and the secretary did not volunteer to show it to him.
52 The timesheet offered in evidence was a duplicate of the original, which
Grabowy made , after requesting the secretary to reproduce it on the
Company 's copying machine . She told him that she would have to ask
Hershfield's permission and, after doing so , reported that Hershfield had
refused permission for the use of the copying machine
John D. Castle, Respondent's vice president in charge of
operations (at the time of the reopened hearing), had been
in Respondent's employ for 26 months, initially, as an in-
staller, and later in the supervisory position of construction
manager .S3 During 1969, while serving as construction man-
ager, he was responsible, among other things, for checking
the time of employees under his supervision. In doing so,
Castle took notice of employee attendance, but, according
to him, made a record only of absences and tardiness in a
commercial diary, which he used for this purpose. In this
manner, Castle testified, he kept a record of Grabowy's
absences and tardiness for the year 1969 until his termina-
tion.
According to a compilation allegedly prepared by
Hershfield's secretary from Castle's diary, between January
15 and September 15, 1969, when he was terminated, Gra-
bowy was absent on account of illness ("Off Sick") on 3
days, January 27 and 28 and May 27. On one occasion,
April 1, 1969, according to this compilation, Grabowy did
not report for work or call in. During the same period,
Grabowy was tardy in the aggregate 23 hours and 50 min-
utes.54
Considering the purpose to which Castle claimed he put
his diary, it is remarkable for the relatively few entries made
during the 9-month period in question. The diary, covering
the entire year of 1969, reveals numerous blank pages.
Eqquall y surprising is the fact that there is only one entry
(Ida 20) showing the tardiness of an employee other than
Grabowy. There is less than a handful of entries relating to
other employees, and these relate to newly hired employees
who failed to report for work or call in after being hired. It
seems incredible that Grabowy was virtually the only em-
ployee who was late or tardy during the entire 9-month
period. Yet, Grabowy is the only employee whose absences
or tardinesses were deemed significant enough to require an
entry in Castle's diary. This leads to the all but irresistible
conclusion, urged by the General Counsel, that Castle's
diary, far from being maintained as a record of absenteeism
or tardiness of all employees under his supervision, was
concocted to create a basis for Grabowy's eventual dis-
charge. Indeed, the appearance of the entries themselves
gives rise to the suspicion that they may not even have been
made contemporaneously with the events recorded.
Turning to Castle's version of the incident which alleged-
ly precipitated Grabowy's discharge, Castle testified that
Grabowy asked for the day off with the request that it be
charged to his vacation. Castle told him that he could take
the day off, but that he did not want him to take it as
vacation, and that he wanted him to return to work when
he was through with his errand. When Grabowy said that
53 Castle did not testify at the initial hearing.
54 Based on a starting time of 8 a .m., Grabowy's tardinesses, ranging from
10 minutes to, on one occasion , 2-1/2 hours, amounted to only 18 hours and
30 minutes for the period covered . The difference of roughly 5 hours and 20
minutes, which Castle apparently treated as tardinesses , consisted of two
occasions when he left work early , one, on March 13, when he left at noon,
the other, on May 1 , when he left at 3 p .m. It is interesting to note that
Castle's own diary, which, incidentally, was not produced until the reopened
hearing , indicates that a tardiness of 1-1/2 hours (Grabowy reporting at 9:30
a.m.), shown on the compilation as "Late to work," corresponds to a diary
entry. "Ray [Grabowy] showed 9 : 30 due to union business ." The diary entry
for Monday, August 4 , reads : "Ray showed 8:30 Lost keys to truck had to
return home for truck with spare key ." The entry of March 13, on the
compilation , "Left work ( 12.00 Noon)," fails to indicate , as the diary does,
that Ray and Bob (Kuhn ) left at noon for a union meeting. The diary entry
for Friday, August 15 reads : "Ray in bolwmg [sic] alley rest[aurant]. Black
Canyon & Indian sch . before going jobsite " It may also be noted that a
3-hour tardiness on June 6 , shown on the compilation as "late to work (12.00
Noon)," shows a corresponding entry on the diary. "Ray [Grabowy) showed
noon Wife sick."
NELSON-HERSHFIELD ELECTRONICS
he expected to be through by 2 or 3 o'clock in the afternoon,
Castle asked him to return and "put in [his] eight hours,"
indicating that the Company was under pressure to com-
plete the job, although he admitted that he may not have
told Grabowy that at the time. Grabowy said that he would
"try to make it in."
Castle testified that he also told Grabowy that they were
all going to work [on the Sky Chef job] that Saturday,"
having previously indicated to the men, includin Grabowy,
the urgency of the job, which had been under way for
several weeks . According to Castle, he had notified Gra-
bowy earlier that certain officials of the Sky Chef Corpora-
tion were due to arrive, and that the intercom and back-
ground paging system was to have been completed by a
specified date. Castle testified, as well, that he told Grabowy
that he was being "pushed" by the subcontractor to com-
plete the fire alarm system. It was for those reasons , Castle
testified , that he had requested Kuhn and Rogers to work
overtime during the week of September 10. As has already
been noted, Grabowy did, in fact, work at the jobsite Sat-
urday, September 13.
According to Castle, for the previous 2-1/2 or 3 months
the Company had been working "summer hours," starting
at 7 rather than 8 a.m. On Monday, September 15, Gra-
bowy reported for work at the shop a half-hour late. Castle
did not question him about the reason for his tardiness, and
Grabowy did not volunteer any excuse. Instead, Castle di-
rected Grabowy to complete his timesheet, and told him
that Hershfield wanted to see him. Later, presumably after
his termination, Grabowy went to Castle, wished him luck,
and told him he hoped there were "no hard feelings." Castle
thanked him, and the incident ended 55
Respondent acknowledges that Castle granted Grabowy
permission to take the time off. It denies, however, as Castle
testified, that he agreed that Grabowy could apply the time
off against his remaining vacation. Besides, Castle main-
tains, he permitted Grabowy to take the time off with the
understanding he would return to work as soon as his per-
sonal business permitted. Castle's testimony on this point
was not persuasive. If, as he admitted, he granted Grabowy
permission to take time off, it seems more reasonable to
conclude that Castle would have realized that Grabowy
would prefer to charge the day off to his unused vacation
rather than lose a day's pay, and that Castle acquiesced in
this arrangement . Strictly speaking, the issue is not whether
Grabowy was entitled to take the day off against his vaca-
tion, but rather, whether, in light of what Castle regarded as
the urgenc of the Sky Chef job, Castle had agreed to grant
Grabowy the time off, on Castle's version, presumably with-
out pay. Castle's contention that the lost time hindered
completion of the job has all the earmarks of being con-
ceived as an afterthought.
Respondent contends that the Sky Chef job, on which
Grabowy had been engaged during the week of September
8 (except while he was in attendance at the hearing on
55 Castle testified that , on the Saturday before the reopened hearing, he
met Grabowy at a party at the home of Judy Howe, Hershfield's secretary
While there , Grabowy told him that the "change ," obviously referring to his
termination , had been "the best thing that could have happened to him," and
that "come Tuesday morning [when the reopened hearing was to convene],
he was going to stick it to Bud [Hershfield]." Assuming Grabowy actually
made the remark , and that it was not said in a jocular vein, considering
Grabowy's treatment at Hershfield 's hands, his resentment is not surprising.
It is to be noted that the bulk of Grabowy's damaging testimony against
Respondent had already been given at the earlier hearing , long before the
remark was allegedly made . In any event , the remark , if actually made, is
insufficient to demonstrate such bias or hostility as to impair the reliability
of Grabowy's testimony
45
September 9 and 10), was a substantial complicated job of
the utmost urgency. Grabowy had, in fact, been employed
at the jobsite as an installer during the several months the
job was in progress. Evidently, he had spent more time on
the job than any of the other installers, and, as he modestly
conceded, at the insistence of Respondent's counsel, be-
cause of his experience and ability, his presence on the job
contributed materially to its expeditious completion. 56
The work order covering the Sky Chef Kitchen l]ob re-
veals that Grabowy worked on this job 8 hours on eptem-
ber 8; 4-1/2 hours on September 10 (after he was excused
from the hearing); 13-112 hours on September 11 and 8
hours on September 13. Castle admitted, albeit reluctantly,
that in his view, if Grabowy had not been away from the-* i6
attending the Board hearing, in August, and, again, on Sep-
tember Band 10, the job would have been completed soon-
er. At Castle 's request, however, both Kuhn and Rogers
worked overtime several nights during the week of Septem-
ber 10, and some employees, including GraboRantingworked a
full 8-hour day on Saturday, September 13.57 the
supposed urgncy to complete the job, it is difficult to be-
lieve that Grabowy's 1-day absence on September 12, from
a job which had already been in progress for several months,
would have so hampered completion of the job as to evoke
the disciplinary action which followed.
The real reason for Grabowy's discharge is rather to be
sought in the chain of circumstances already detailed. To
recount but a few: Item-upon learning of Grabowy's ap-
pointment as union steward, Hershfield asked him why he
had accepted the post; warned him that he was "in the
middle"; that since the Company was at odds with the
Union about the agreement, Grabowy would sooner or later
find himself in conflict with Hershfield; and advised him to
reconsider his acceptance of the post if he wanted to contin-
ue a congenial relationship with the Company. Item-aside
from Hershfield's dubious candor in admitting that he
would spare no effort to get rid of the Union,58 Hershfield
minced no words in telling Grabowy that he could find "any
number of good reasons" for discharging him. Furthermore,
it is abundantly clear that Hershfield regarded Grabowy as
a gadfly in his persistent efforts on behalf of the men, as well
as himself, to compel Respondent to abide by the overtime
and other provisions of the contract.
With regard to Respondent's contention that it dis-
charged Grabowy, in part, because of his numerous absenc-
es and tardinesses,S9 the compilations of these derelictions
are shot through with inconsistencies , contradictions, and
discrepancies, as amply demonstrated by the General
Counsel's analysis of these documents, as well as of Castle's
personal diary.60 Considering Hershfield's blatant state-
56 The testimony is as follows.
Q (By Mr. McVay) Without expecting you to be conceited or out of
place, Mr. Grabowy, would you say that when you returned to the job
site after testifying at this hearing , that your presence there at the job
site and your abilities created and substantially expedited the finish or
the completion of that job-I am not expecting you to pat yourself on
the back, but is that a fair statement to make?
A. It helped toward the conclusion of the job, yes.
57 Kuhn testified that he did not work on the Sky Chef job Saturday but
that he did work for Respondent elsewhere that day
58 In view of this, and Hershfield 's admissions that he had stated on nu-
merous occasions his intention to get rid of the Union, Castle's reluctance
to admit that he had heard Hershfield make the statement , and then only
after persistent cross-examination , impairs his credibility on other aspects of
his testimony.
59 It is significant that there was no showing that any criteria were used in
determining that Grabowy's record of absenteeism (and tardiness) was exces-
sive, nor that it compared unfavorably with that of other employees.
60 The General Counsel has attached to his supplemental brief an appen-
dix, to which reference may be had, detailing such discrepancies.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment to Grabowy, that he could find countless reasons to
discharge him, it is not too far-fetched to believe that Re-
spondent compiled a dossier of Grabowy's absences to fur-
nish, when need be, a pretext for a discharge.
3. The Section 8(a)(4) allegation 61
As for the allegation that Respondent, in addition, dis-
charged Grabowy because he had given testimony under
the Act, Castle's concession, that he considered Grabowy's
attendance at the earlier Board hearing a hindrance to com-
pletion of the Sky Chef job, an undoubted source of pique
to both Hershfield and Castle, is, alone, persuasive evidence
that, in discharging Grabowy, Respondent was motivated,
in substantial part if not in whole, by the fact that Grabowy
had given testimony under the Act, as well as by his union
activity, both in his role as shop steward and otherwise.
Considering the nature and extent of his participation at the
previous unfair labor practice hearing, his role as protago-
nist, and the pretextuous nature of his discharge, the conclu-
sion is all but irresistible.
With regard to Respondent's action in placing Grabowy
on 10 days' probation on April 4, 1969, ostensibly because
of excessive absenteeism and tardiness, whatever may be
said for Respondent's possible justification, the fact that
Respondent had not , as late as the time of the preceding
hearing vacated or rescinded his probation, renders its moti-
vation suspect. The record establishes that Grabowy contin-
ued, until the time of his discharge , to serve Respondent in
a satisfactory manner, and had not been absent or tardy
since the close of the earlier hearing, except on his contro-
versial day off , on September 12, and his tardiness of a
half-hour, on September 15, the day of his discharge, of
which, according to Business Agent Ross's undenied testi-
mony, Hershfield told Ross, he had been unaware when he
discharged Grabowy.
That Respondent had regarded Grabowy as a qualified,
competent employee , whose services , if not indispensable,
were highly essential, must be evident from what has al-
ready been related. Note that, in its supplemental brief,
Respondent points out that, as late as September 10, the last
day of the former hearing, Respondent asked to have Gra-
bowy excused from further attendance so that he could
return to the Sky Chef job. Respondent argues that since
Hershfield personally wanted Grabowy to return to the job,
this negates any intention on the part of Respondent to
discharge him either because he gave testimony damaging
to Respondent or because he had engaged in union activi-
ties.
This argument is specious. All it proves is that, with the
shortage of qualified technicians, Respondent was more
concerned at the time with completing the Sky Chef job
than with punishing Grabowy, postponing that action until
the job was substantially completed. Besides, the argument
proves too much in that it concedes Grabowy's value as an
employee and underscores the pretextuous nature of the
discharge. 62
61 Case 28-CA-1954.
62 It is worth noting that , in a "confidential" communication from Respon-
dent to Business Agent Ross , dated August 15, 1969 (prior to the date of the
commencement of the original hearing on August 18), Respondent stated:
"Ray [Grabowy] is an effective worker within the limitation of this [sic]
technical ability. His work is of high quality and he will perform so long as
he is properly supervised .. " but then went onto complain of his absences
and tardmesses, which caused Respondent to rate Grabowy's performance
as "unsatisfactory ." Considering the difficulties Respondent had encoun-
tered in recruiting qualified technicians , and its contention that Grabowy was
all but indispensable to the completion of the Sky Chef job, the grounds
With regard to Respondent 's contention that it "tend-
ered" Grabowy two checks, one , covering his termination
pay, the other, his tool allowance , apart from Grabowy's
denial that he was tendered these checks , both are dated
September 16, the day after the discharge , when Grabowy
was presumably not even at the plant .63 Since the checks
were always in Respondent's possession , there is no assur-
ance that they were actually made out at the time, and not
at some later date , in an attempt to bolster Respondent's
position . In any event, as it is undisputed that Respondent
refused to pay employees their final wages upon termina-
tion unless they signed a general release , any such purported
tender would be of no legal effect.
It is, therefore , found, upon the basis of the foregoing and
upon the entire record , that, by failing to vacate or rescind
its action at the end of Grabowy 's probationary period, and
by thereafter discharging him, on September 15, and failing
to reinstate him, because he had engaged in union or con-
certed activities, Respondent has discriminated in regard to
the hire and tenure of employment of an employee to dis-
courage membership in a labor organization , in violation of
Section 8(a)(3) of the Act. It is further found that, by dis-
charging Graboowy because he had given testimony under
the Act, Respondent has also engaged in unfair labor prac-
tices within the meaning of Section 8(aX4) and (1) of the
Act.
D. Further Refusal To Bargain by
Failing To Pay Robert Kuhn
his Termination Pay
Robert G. Kuhn, Jr., had been employed by Respondent
as a sound system installer from December 1967 to October
15, 1969. On the latter date, he told Castle, his supervisor,
that he was quitting for personal reasons . Castle told Mrs.
Howe, Hershfield's secretary, to draw Kuhn's final check,
and left them. Kuhn made out his time and tool allowance
claim, gave them to Howe, and left, to return for his check
later.
Shortly after noon, Kuhn returned and asked for his
check. Howe handed him a general release , which she asked
him to sign. He refused, explaining that he was concerned
lest by signing such a release he might jeopardize his
overtime claim under the Wage-Hour Law, an d affect the
pending Board proceeding. Howe refused to give him his
check unless he signed the release. When Kuhn persisted in
his refusal to sign the release, Howe declined to give him his
check. Kuhn testified, without contradiction," that Howe at
no time showed him a check, and that he has not seen one
since . According to Kuhn, there was due him 2 days' wages
(8 hours each) at straight time, besides his tool allowance,
amounting to $35. Kuhn has not received payment for ei-
ther item since 65
advanced by Respondent for Grabowy' s discharge are even less persuasive.
63 Two checks, both dated September 16, 1969 , payable to the order of
Raymond Grabowy, one in the amount of $136 . 11, covering his final wages,
and the other , in the amount of $35 , covering his tool allowance, were
produced at the reopened hearing . On both, the signature of the maker was
torn off and the word "VOID" written across the face of the checks. As has
been pointed out, whether or not the checks were , in fact, "tendered" to
Grabowy upon his termination, the fact remains that Respondent had no
intention of turning the checks over to him unless and until he signed a
general release.
64 Howe did not testify.
65 As in the case of Grabowy, Respondent produced two separate checks,
payable to Kuhn , each dated October 15, 1969; the payroll check, in the
amount of $47.55; the other, covering his tool allowance , in the amount of
$35. When introduced in evidence , the signature of the maker on these checks
was likewise torn off
NELSON-HERSHFIELD ELECTRONICS
It is, therefore , found, on the basis of the foregoing, and
upon the entire record, for reasons previously stated, that,
by failing and refusing to pay Grabowy and Kuhn the
amounts of their wages and tool allowance , due and owing
each of them upon termination of their employment, and by
requiring each of them to sign a general release as a condi-
tion of payment of their termination pay, Respondent has
unilaterally altered the terms of the collective -bargaining
agreement without prior notice to or consultation with the
Union, thereby failing and refusing to bargain with the
Union as the exclusive representative of its employees, in
violation of Section 8(a)); and has interfered with, re-
strained, and coerced employees in the exercise of rights
guaranteed in Section 7, in violation of Section 8(a)(1) of the
Act.
Issues and Answers
It should require little more than a recital of the substan-
tially undisputed facts to demonstrate that, since the date of
the Board's certification, Respondent has, at most , accord-
ed the Union grudging recognition , and has persisted in a
calculated and unrelenting course of refusing to recognize
and bargain with the Union on behalf of unit employees.
Althoug Vice President Bushkin, on behalf of Respondent,
signed the collective -bargaining agreement between the
Sound Contractors Association and the Union, dated Au-
gust 14, 1967 (as of November 6, 1927), after Respondent's
untimely and unsuccessful attempt to withdraw from the
Association, Hershfield himself conceded that the only
reason Respondent signed the agreement was that he as-
sumed it was compelled to do so by the Board 's Decision
and Direction of Election. That he viewed Respondent's
position as that of a reluctant bridegroom is manifest from
his entire course of conduct toward the Union , as well as
from his demeanor at the hearings . Whether this attitude
stemmed from Hershfield's stated conviction that the IBEW
was not, in his opinion , qualified to represent highly skilled
electronic technicians , such as Respondent claimed to em-
ploy, or whether it was engendered by personal animosity
or hostility toward the Union , is immaterial . Even a sincere
belief that the Union was not a proper labor organization
to represent employees in those job classifications would
not relieve Respondent of its legal obligation to bargain.
However, as Hershfield repeatedly confirmed , he was de-
termined to oust the Union as bargaining agent and replace
it either with the Communication Workers of America or
the Teamsters Union . Hershfield made no secret of the fact,
and conceded in his testimony that he had made the state-
ment "[h]undreds of times" since signing the contract, to
employer-members of the Association , to Respondent's
own employees, and to the union business agents.
Hershfield's expressed preference for dealing with a un-
ion which he considered better qualified to represent elec-
tronic technicians 66 obviously stemmed from an utter
misconception of the role of a labor organization. As he
repeatedly stated at the hearing, Hershfield believed that his
employees should be represented by a union responsive to
his needs and desires , irrespective of the needs and wishes
of the employees. When it became evident that he could not
have his own way, he sought, as Respondent's managing
official, by almost every conceivable means , to evade the
obligation to bargain in good faith, and to frustrate every
effort of the Union to represent the employees. After enter-
66 Of course, it is somewhat difficult to understand, on this basis,
Hershfield's alternate preference for having his employees represented by the
Teamsters Union.
47
in into the settlement agreement with the Union , Hersh-
field utilized that agreement as a device for evading the
bargaining obligation . Thus, whenever the Union sought to
redress employee grievances by recourse to the contract,
Respondent countered with the contention that the Union
was seeking a modification of the agreement rather than a
resolution of grievances . So too , Respondent repeatedly re-
fused to entertain grievances filed by the Union ; to partic-
ipate in the grievance proceedings before the Joint Confer-
ence Committee; and to abide by its findings and resolution
of the grievances.
It is , moreover , evident that, each of the grievances filed,
without exception , alleged either a failure to adhere to spe-
cific provisions of the contract or a breach of contract.
Respondent 's transparent attempts to transmute griev-
ances into contract modifications are readily understanda-
ble when viewed in the light of the letter agreement between
Respondent and the Union , dated January 17, 1969 , under-
taking to settle the pending litigation in the United States
district court , quoted in full elsewhere . Nothing in that
agreement relieved Respondent of its obligation to bargain
under the existing collective -bargaining agreement for the
remainder of the term of the contract , expiring on August
1, 1970 (automatically renewable annually thereafter in the
absence of specified notice ). All the letter agreement provid-
ed was that the Union would not require Respondent to be
bound by any "modification negotiated by Local 640 and the
Sound Contractors Association to the current collective-bar-
aining agreement between [Respondent] and Local 640,"
emphasis supplied] , but would negotiate with Respondent
separately concerning any such modifications , and would
not require Respondent to bargain "as a part of, or be
bound by" negotiations of the Association with regard to an
agreement to succeed the existing agreement, but would
negotiate separately with Respondent as to such agreement.
As clearly stated in the concluding paragraph,
Local 640 understands that you desire separate bar-
g ining and a separate agreement upon expiration of
the current agreement and with this approach it is
agreeing . However, Local 640 also understands that
you will not actually participate in multi-employer bar-
gaining with the Association. If you do elect to do so,
then Local 640 will thereafter assume that you have
decided to be bound by multi-employer bargaining
again . The point is Local 640 is not hereby agreeing
that you can sit in and participate in the multi-employ-
er bargaining and then avoid the consequences thereof
on the basis of this agreement to engage in separate
bargaining.
Respondent 's reliance on this settlement agreement as a
reason for refusing to negotiate with the Union regarding
grievances is entirely misplaced , and affords it no ground
for disregarding the provisions of the collective-bargaining
agreement and failing to bargain thereon.
The record amply demonstrates that, in addition to
Respondent's overall failure and refusal to bargain with the
Union in good faith , by failing and refusing to recognize
and acknowledge the Union as ma ority representative of its
employees , Respondent has also failed and refused to bar-
gain with the Union in other specified respects, already
detailed.67
67 As regards Respondent 's conduct in questioning employees about the
Company's alleged requirement that they use their own vehicles to haul
company tools and equipment, whatever may be said for Respondent's right
to investigate the situation , including questioning of employees , and requw-
mg them to sign affidavits absolving Respondent from any misconduct in this
regard , and, even assuming that this conduct may have been insufficient to
Continued
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further , by requiring and insisting , in response to the
Union's repeated requests that it meet with the Union to
discuss and bargain concerning matters covered by the col-
lective-bargaining agreement , including grievances, and
other mandatory subjects of collective bargaining, that it
would communicate with the Union only in writing, thereby
sin a cumbersome and ineffective method of collec-mterpo$
tive bargaining, Respondent has further refused to bargain
in good faith with the Union as the exclusive bargaining
representative of its employees.
Respondent has manifested a determination throughout
its relations with the Union to disregard the Board's certifi-
cation of the Union as exclusive bargaining agent, rejectin
the entire principle of collective bargaining as a means of
promoting economic stability and industrial peace.
It is further found that , by all the foregoing conduct, and
by requiring employees to sign affidavits, on February 18
and 19 , 1969, in regard to the hauling of company tools and
equipment in their personal vehicles ; threatening Grabowy,
the union-shop steward, with discharge, about February 18,
because he insisted that Respondent comply with the terms
of the collective-bargaining agreement concerning the use
by employees of personal vehicles to haul company tools
and equipment, and other matters covered by the contract;
by disparaging and denigrating the Union and its role as
collective-bargaining agent, and asserting and threatening
that it would enlist other labor organizations to represent its
employees , and eliminate the Umon as bargaining agent of
the employees ; by announcing to union representatives and
the union steward that Respondent would not recognize or
bargain with the Union, and that the contract was merely
a guideline rather than a binding contractual obligation on
Respondent; by deliberately disregarding the hiring pro-
visions of the collective -bargaining agreement according
preference in employment to persons previously employed
by members of the Association, and disqualifying them al-
legedly for lack of sufficient experience and ability, while
hiring employees , without regard to the preferential hiring
provisions, whose qualifications were not demonstrably su-
perior to those of union members ; stating to union repre-
sentatives that Respondent did not regard previous
employment by members of the Association a recommen-
dation for employment with Respondent, but, on the con-
trary, "cause for honest investigation of the [applicant's]
efficiency and capability," all in derogation of the pro-
visions of the collective-bargaining agreement , and by the
totality of the conduct, previously detailed, Respondent has
interfered with , restrained , and coerced its employees in the
exercise of rights guaranteed by Section 7, thereby violating
Section 8(a)(1), as well as 8(a(5), of the Act.
While it may well be that, as regards many of the specific
instances of refusal to bargain , such as Respondent's failure
to pay its employees overtime rates provided for in the
contract, the conduct also constituted a breach of contract,
this does not relieve the Board of the responsibility for
redressing these unfair labor practices . In a case involving
an employer 's refusal to continue making payments to a
welfare plan , as required by the collective-bargaining agree-
ment, the Board, overruling the finding of its Trial Examin-
er, that the refusal was not an unfair labor practice but a
breach of contract to be remedied in another forum, held,
warrant a finding of interference , restraint, and coercion , the fact remains
that Respondent bypassed the Union in dealing directly with the employees
regarding this issue , which had been made the subject of a grievance. It,
therefore, follows that by such conduct, Respondent has failed and refused
to bargain with the Union, in violation of Sec . 8(a)(5).
"where an employer refuses to continue to make payments
to such a plan in derogation of an existing contract he in
effect unilaterally changes the wages of his employees who
are beneficiaries of that plan, and thus violates Section
8(aX5) of the Act. See, e .g., To enetti Restaurant Company,
Inc., 136 NLRB 1156, aff d 11 F.2d 219 (C.A. 2); The
Crestline Company, 133 NLRB 256; Cascade Employers As-
sociation, Inc., 126 NLRB 1014 , reversed on other grounds
296 F.2d 42 (C.A. 9). Where the breach of the contract is
also an unfair labor practice, both the Board and the Courts
have jurisdiction to remedy the wrong that has been done.
See, e .g., Section 10(a) of the ... Act, and Smith v. Evening
News Association, 371 U.S. 195 ."68 So , too, an employer who
bargains directly with his employees, and unilaterally
changes their overtime rates of pay , without consulting6their
bargaining agent , violates Section 8(aX5) of the Act._69
The same may be said for Respondent's conduct in re-
fusing to abide by the preferential hiring provisions; the
requirement that employees sign affidavits concernin the
hauling of company tools and equipment in personal ve-
hicles ; the failure to turn over termination pay to employees
when due, as provided under the contract; and
Respondent 's insistence that the terminated employee sign
a general release of all claims and demands , as a condition
of payment, and the other acts and conduct which may be
construed to constitute breaches of the collective -bargain-
ing agreement.
IV THE EFFECr OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with its operations de-
scribed in section 1, above, have a close , intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, within the meaning of Section 8(axl), (3),
(4), and (5) of the Act, by conduct previously detailed, it will
be recommended that Respondent be ordered to cease and
desist therefrom and take certain affirmative action de-
siggnned to effectuate the policies of the Act.
-It has been found that Respondent has discriminated in
regard to the hire and tenure of employment of Raymond
J. Grabowy because he had engaged in union and other
concerted activities to discourage membership in a labor
organization, and, in addition, because he had given testi-
mony under the Act. It will be recommended that Respon-
dent offer said Grabowy immediate and full reinstatement
to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have sus-
tained by reason of said discrimination against him, from
66 George E. Light Board Storage, Inc., 153 NLRB 1209, fn . I, enfd . as mod.
373 F.2d 762 (C.A 5) in which the court said, where "the breach of contract
by repudiation is an intrinsic part of the unfair labor practice of refusing to
recognize and bargain with the duly constituted employee representative the
Board's jurisdiction, under Section 10(c) includes the power to remedy that
phase of the unfair labor practice."
69 Tom Johnson, Inc., 154 NLRB 1352, 1353, affd. 378 F.2d 342 (C.A.9).
The employer's argument there , that its conduct constituted , at most, a
breach of the collective-bargammg agreement , was rejected by the court
which held that, by unilaterally reducing the overtime pay rate, and attempt-
mg to obtain signed agreements from the employees authorizing the reduc-
tion, the employer violated Section 8(aX5) and (1) of the Act.
NELSON-HERSHFIELD ELECTRONICS
the date of the discrimination to the date of offer or rein-
statement . Loss of pay shall be computed as prescribed in
F. W. Woolworth Company, 90 NLRB 289, and interest on
such backpay shall be computed at 6 percent per annum, in
accordance with Isis Heating & Plumbing Co., 138 NLRB
716. Respondent shall make available to the Board, upon
request, payroll and other records necessary to facilitate the
determination of backpay due.
It has also been found that Respondent deliberately and
willfully failed and refused to pay George Trujillo, Ray-
mond J Grabowy, and Robert G. Kuhn, Jr., their final
wages and tool allowance immediately upon termination of
their respective employment, insisting that they each sign a
general release of all demands before they could receive
their final paychecks, contrary to the provisions of the col-
lective-bargaining agreement, and the statutes of the State
of Arizona. The collective-bargaining agreement expressly
provides that an employee who is terminated or discharged
shall be paid all his wages immediately, and, if he is not paid
by quitting time on the day of his termination, he shall be
paid not less than an additional 8 hours' pay for each day
his wages remain unpaid. Although the issue had not been
previously raised, at the reopened hearing, the Trial Exam-
mer posed the question as to whether this provision might
not constitute exaction of a penalty, and requested the par-
ties to deal with the issue in their supplemental briefs. As
might be expected, counsel for Respondent takes the osi-
tion that the provision constitutes a penalty, and is, there-
fore, unenforceable. The General Counsel and counsel for
the Charging Party contend that the provision is valid and
enforceable, although, in his supplemental brief, the Gener-
al Counsel suggests that no specific recommendation or-
dering Respondent to comply with this provision is
required. Innis view, a Recommended Order requiring Re-
spondent to "honor and give retroactive effect" to the col-
lective-bargaining agreement would dispose of the issue,
and if it becomes necessary, the issue should be treated at
the compliance stage of this proceeding. If, however, the
Trial Examiner should decide to rule on the issue, the Gen-
eral Counsel argues , Respondent should be ordered to com-
1yy with all the contractual provisions , since it is not "within
the Trial Examiner's] province to nullify any [of the provi-
sions] unless they are illegalper se, which this clause is not."
The Trial Examiner disagrees with the General Counsel's
position that the matter is one for compliance. This is not
akin to determining the amount which may be due an em-
ployee for lost earnings, as is generally the case in a backpay
proceeding, but whether the employee is entitled to be
reimbursed as provided in the contract in an amount in
excess of his actual loss of earnings. If the provision in
question amounts to a penalty, it would, as a matter of law,
be unenforceable.70 The decision usually turns on whether
the provision for payment of a stipulated amount for the
breach is to be considered as liquidated damages or a penal-
70 Restatement of the Law of Contracts, §339. LIQUIDATED DAM-
AGES AND PENALTIES.
(1) An Agreement , made in advance of breach, fixing the damages
therefor, is not enforceable as a contract and does not affect the damages
recoverable for the breach , unless
(a) the amount so fixed is a reasonable forecast of just compensation
for the harm that is caused by the breach, and
(b) the harm that is caused by the breach is one that is incapable or
very difficult of accurate estimation.
7i "It is impossible to lay down any abstract rule as to what may or may
not be extravagant or unconscionable to insist upon, for each case must, in
great measure , depend on its own particular facts and circumstances Gener-
ally speaking , in determining the reasonableness of the amount , the court
49
With these broad guidelines in mind, and considering the
objective sought to be achieved by the inclusion of the
provision in the collective-bargaining agreement , namely,
the prompt payment of wages to employees terminated, a
purpose recognized and fostered by state legislatures,72 the
serious consequences which may be suffered by a terminat-
ed employee who has been denied his final wages, the diffi-
culty in measuring the damages which he may sustain by
being denied prompt payment of his wages, and
Respondent's insistence on exacting a general release of all
demands against the Company (a transparent effort to ex-
tinguish any liability for unpaid overtime),73 as a condition
of receiving their final wages and Respondent's deliberate
and willful refusal to pay these men their final wages, it is
found that the provision is not an unenforceable penalty but
a stipulation for liquidated damages , which may be en-
forced. The fact that other avenues may be open to the
employees for redressing these wrongs does not warrant the
Board in withholding a remedy here, particularly since the
purpose of the Act will best be effectuated, and the ends of
justice best be served, by avoiding multiplicity of actions to
accomplish these purposes.
It will, therefore, be recommended that Respondent be
ordered to reimburse Trujillo, Grabowy, and Kuhn in an
amount equal to the final wages to which each of them was
entitled at the time of his termination, together with an
additional amount equivalent to 8 hours' pay at their pre-
vailing wage rates for each day their wages have remained
or continue to remain unpaid, as well as for their tool allow-
ance, without interest.
It has also been found that Respondent failed, neglected,
and refused to pay employees overtime conpensation, as
required under the collective-bargaining agreement, and
has, with regard to Trujillo and other employees, failed,
will, looking to the time the contract was entered into, take into consideration
the relation of the parties, their situation, the absence or presence of fraud
or oppression , and the purpose the agreement seeks to subserve. It is not
necessary to inquire whether the contract is wise or considerate , but rather
whether it is in conflict with the principles and practices that govern trans-
actions of a like nature.
It is sufficient if the sum named appears to bear some reasonable propor-
tion to the damages contemplated . It is generally held that if the amount
stipulated in the contract is regarded as liquidated damages, rather than a
penalty, it may be recovered in the event of a breach of the contract, even
though no actual damages are suffered as a consequence of such breach. If,
however, the sum stipulated is grossly disproportionate to the actual dam-
ages, the courts will regard the stipulation as one for the penalty rather than
for liquidated damages " 22 Am. Jur. 2d 307, et seq (emphasis supplied).
Generally speaking , "where the actual damages are uncertain or difficult of
ascertainment and where the stipulated sum is a reasonable estunate of
probably damages or is reasonably proportionate to actual damages," the
provision will be construed as a stipulation for liquidated damages. 22 Am.
Jur 2d 312.
72 The statutes of the State of Arizona, incidentally , incorporated by ref-
erence in the provisions of the labor agreement , provide-
23-353 Payment of wages; violation, penalty
A. When an employee quits the service , or is discharged therefrom,
he shall be paid wages due him at once
B Every employer, including the state and its political subdivisions,
shall pay wages or compensation due an employee in lawful money of
the United States by negotiable check , draft or money order which can
be immediately redeemed in cash at a bank doing business in this state,
payable on demand and dated not later than the day upon which the check,
draft or money order is given, and not otherwise.
C. A person violating this section is guilty of a misdemeanor punisha-
ble by a fine for each offense . The fines and costs shall become a
judgment against the real or personal property of defendant , but pay-
ment may not be enforced by imprisonment . As amended Laws 1959,
Ch 131, #1 [Emphasis supplied.]
73 For the purpose of these proceedings, it is immaterial that such a release
might have been of no effect under the Fair Labor Standards Act of 1938,
as amended (29 U S.C. 201, et seq ).
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neglected, and refused to pay them the applicable wage
scale for journeymen by improperly class ying them as
helpers and paying them the corres ponding wage scale,
when, in fact, they were performing the work of journey-
men. It will, therefore , be recommended that Respondent
make each of said employees, and any other employees
similarly situated , whole for any loss of earnings they may
have sustained by payment to each of them of a sum of
money equal to the difference between what they have re-
ceived as wages as helpers and what they would have re-
ceived if properly classified as journeymen during the
period of their employment with the Company , together
with interest , as provided in Isis Plumbing c^C Heating Co.,
supra.
It has also been found that Res pondent has failed and
refused to abide by the preferential -hiring provisions of the
contract . It will be recommended that Respondent cease
and desist from such conduct and observe and abide by the
applicable provisions of the contract.
Finally , it has been found that Respondent has, at least,
since on or about October 24 , 1968, continuously failed and
refused to bargain in good faith with the Union as majority
representative of the employees in an ap propriate unit by
various acts and conduct previously described. It will, there-
fore, be recommended that Respondent be required to bar-
gain in good faith with the Union as the exclusive
representative of the employees within the appropriate unit.
As has been seen, the Board has held that Respondent's
attempted withdrawal as a member of the Association was
untimely and ineffectual . After the Board's certification,
Respondent became a signatory to the collective -bargaining
agreement between the Association and the Union. This
3-year agreement expires , in accordance with its terms, on
Auggust I, 1970 (unless extended or renewed), and it is alto-
getFier improbable , in light of its past conduct , that Respon-
dent t will enter into meaningful or fruitful bargaining, as a
member of the Association, with the Union during the re-
maining term of the contract . To require Respondent to
bargain, as a member of the Association , for the relatively
short period remaining under the existing contract, would
hardly redress the aggravated unfair labor practices in
which Respondent has engaged. It is abundantly clear that
Respondent has repeatedly and continuously failed and re-
fused to bargain in good fith throughout the entire period
during which the contract has been in force . By total rejec-
tion of the principle of collective bargaining , Respondent
has deprived the Union of all possible opportunity to realize
the benefits of the Board 's certification during the entire
period of its existence , thereby depriving the employees of
the effective services of their selected bargaining agent.
The Board has not hesitated to extend the term of a
certification, where an employer has, in effect, stultified the
principle of collective bargaining during the certification
year, in order to afford the union a reasonable period of
time in which to establish a meaningful bargaining relation-
ship . It would, therefore normally be appropriate to restore
the status quo by "constru[ing] the initial year of certifica-
tion as beginning on the date Respondent commences to
bargain in good faith with the recognized representative in
the appropriate unit."74 Such a remedy here , however,
would be illusory , for the employees will have been deprived
of benefits of the existing collective-bargaining agreement
throughout the duration of its 3-year term . As the court said,
under similar circumstances,
To allow an employer unlawfully to repudiate a collec-
tive bargaining agreement at the small cost of being
required, sometime in the future , to sit down and bar-
74 Bierl Supply Company, 179 NLRB No. 125.
gain with the union would encourage such violations of
the Act. For the period from the breach until a new
agreement , if any, is reached pursuant to the Board's
bargaining order , the employer would be at liberty to
disregard the terms of the contract. [Footnote omitted.]
The temptation to violate the Act in the situation where
the employer would have everything to gain and noth-
ing to lose could be overwhellmmining. 5
The board has held that, where an employer, after enter-
ing into an oral agreement with the Union , refuses to exe-
cute the agreement and repudiates its terms , the employer
may be required to execute the agreement and extend it
beyond the term agreed on so that the employer may not
gain th e benefits of his illegal conduct 76 And the court has
recognized that there is no practical distinction between a
situation where the employer refuses to execute a collective-
bargaining agreement and fails to corn ly with it and one
where he enters into a contract and refuses to abide by its
terms 77
We have been admonished recently to fashion a remedy
in refusal-to-bargain cases which would be meaningful and
go beyond a generalized and frequently sterile order to bar-
gain in good faith .78 The Supreme Court has said that "[tjhe
primary purpose of the provision for other affirmative reef
has been held to be to enable the Board to take measures
designed to recreate the conditions and relationships that
would have been had there been no unfair labor prac-
tices ."79 [Em hasis supplied.] The Board itself has recog-
nized that it has "a particular duty, under Section 10(c) to
tailor its remedies to the unfair labor practice which has
occurred and thereby effectuate the policies of the Act.
Thus, depending on the circumstances of each case, the
Board must take measures designed to recreate the condi-
tions and relationships that would have been had there been
no unfair labor practices . "80 To do otherwise would enable
an employer to reap the benefits of his unlawful conduct.
The General Counsel proposes, as the only meaningful
remedy , which would not permit Respondent to profit by its
flagrantly unlawful conduct, an order requiring it to remain
a member of the Association for purposes of collective bar-
gaining for a reasonable period of time, and to comply with
its statutory duty to bargain with the Union through the
Association . He maintains that the Supreme Court's deci-
sion in H. K Porter 81 does not interdict such a remedy, for,
he argues, a distinction is to be drawn between a bargainin g
order compelling an employer to agree to specific terms of
a contract, and one requiring him to be bound by the results
of association-bargaining for a reasonable period, irrespec-
tive of whether the bargain ing culminates in an agreement.
He further contends that such a remedial order does not
require Respondent to remain a member of the Association
during this interval, but merely to participate as a member
of the bargaining unit . "If no agreement is reached within
a reasonable period of time after good faith bargaining has
commenced,' he continues , "Respondent's relationship to
the Association may be severed .... The sole restriction on
Respondent relates to its choice of bargaining agent, but
this is no different from the result in any multi-employer
unit where one employer is prohibited for one reason or
another from withdrawing from the unit." And, in this con-
73 N L R B v. George E. Light Boat, Inc., 373 F.2d 762 (C.A. 5).
76 Beverage -Air Company, 164 NLRB No. 156.
77 N L R B v M & M Oldsmobile, Inc., 377 F .2d 712 (C.A. 2).
78 International Union of Electrical Radio and Machine Workers, AFL-CIO
v NLRB, 426 F .2d 1243 (C.A D.C.).
79 Local 60, Carpenters, et al. v. N.LR.B (Mechanical Handling Systems,
Inc, 361 U.S 651, 657.
Schell Steel Products, Inc., 161 NLRB 937, 941.
81 H K Porter Company, Inc, etc v. N LR.B, 397 U.S. 99.
NELSON-HERSHFIELD ELECTRONICS
nection , the General Counsel reminds us that "[tjo hold that
the Board is without power to do more than order [Respon-
dent] not to violate the Act in the future , would be to deny
any remedy whatever for violations."82
Whatever may be said for the reasonableness of the Gen-
eral Counsel 's position , the Trial Examiner has some mis-
givings as to whether the Board has the authority, even
under its broad discretion to fashion an appropriate reme-
dy, to compel an employer , after de facto withdrawal from
a multiemployer group , to continue his membership in that
association . However, this would appear to present no legal
obstacle to an order requiring that, in the event the Associa-
tion should consummate a collective -bargaining agreement
with the Union during the reasonable period of time Re-
spondent is required to bargain . Respondent should be
bound by the outcome of such negotiations.
The situation is complicated , however, by the Union's
January 17 letter agreement , which provides that Respon-
dent is not to be bound by any modifications of the existing
agreement, and agrees that the Union will bargain separate-
ly with Respondent after the expiration of that agreement.
The General Counsel's answer to this problem is twofold:
First, he reminds us that the Act was promulgated to vindi-
cate public rather than private rights , and supersedes any
private agreement which conflicts with the policies of the
Act. Second, that, by the terms of the letter agreement,
Respondent implicitly recognized its statutory duty to bar-
gain with the Union under the terms of the existing collec-
tive-bargaining agreement until its initial expiration date.
Since, the General Counsel argues , the Union s undertaking
to bargain separately with Respondent , upon the expiration
of the contract with the Association , was patently condi-
tioned upon Respondent's agreement to be represented for
the duration of the collective -bargainin g agreement by the
Association , and, since Respondent has so flagrantly
breached that condition , the Union no longer has an obliga-
tion to bargain with Respondent separately upon the expira-
tion of the outstanding collective-bargaining agreement.
Finally, the General Counsel argues, the Board has authori-
ty to vary the terms and conditions of an existing agreement
between the parties , as where , for example , it has extended
the expiration date of a collective -bargaining agreement,
upon which the parties have agreed orally, and which the
employer has refused to embody in a written contract.83
These arguments are found persuasive . For all the foregoing
reasons, it is concluded that the January 17, letter agree-
ment is no bar to an order requiring that Respondent be
bound by the outcome of any negotiations between the
Association and the Union , and, if such negotiations culmi-
nate in a signed contract, that Respondent be required to
become a signatory to an identical contract for a period of
at least 1 year from the date of execution of such a contract.
Upon the basis of the foregoing findings of fact , and upon
the entire record in the case , the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. Respondent, Nelson-Hershfield Electronics, Phoenix,
Arizona, is , and at all times material herein has been. an
sz Local 60, Carpenters, et a! v. N.LR B., supra.
s3 BeverageAir Company, 164 NLRB No. 156. Or see, e.g , Mar-Jac Poultry
Company, Inc., 136 NLRB 785, where the Board extended the certification
year because the employer had denied the union a full year' s bargaining
opportunity as a result of the employer 's unlawful refusal to bargain during
the certification year. See also Bier! Supply Company, 179 NLRB No. 125.
And as to giving retroactive effect to a collective-bargaining agreement, see
Johnson Sheet Metal, Inc, 179 NLRB No 104
51
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Electrical Workers,
AFL-CIO, Local No. 640, the Union herein, is, and has
been at all times material herein has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. On or about August 14, 1967, and until its resignation
therefrom, Respondent was a member of Sound Contrac-
tors Association, an association of employers existing, in
whole or in part, for the purpose of engaging in collective
bargaining with labor organizations with respect to wages,
rates of pay, hours of employment, and other terms and
conditions of employment.
4. The following employees of the Association's members
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All sound, signal, and television system installers,
technicians, servicemen, and their helpers, including
those engaged in the installation and servicing of mas-
ter antenna systems, and hospital call systems, but ex-
cluding office clerical employees, guards, and
supervisors as defined in the Act.
5. At all times material herein, since January 27, 1967, the
Union has been, and is now, the exclusive bargaining repre-
sentative of all the employees in said appropriate unit for
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
6. failing and refusing, at all times since October 24,
1968, to bargain collectively with the Union as exclusive
representative of the employees in an appropriate unit, and
failing to adhere to and abide by the terms oT the collective-
bargainin g agreement between the Association and the Un-
ion, dated August 14, 1967, including, without limitation:
(a) refusing to participate in grievance procedures before
the Joint Conference Committee pursuant to the terms of
the collective-bargaining agreement between the Associa-
tion and the Union; (b) bypassing the Union and dealing
directly with unit employees concerning changes in their
working conditions, without prior notice to or consultation
with the Union, their exclusive bargaining representative;
(c) unilaterally altering the terms and conditions of the col-
lective-bargaining agreement, including, without limitation,
hourly rates of pay and overtime pay, requiring use of em-
ployee vehicles for company business, insisting that employ-
ees execute a general release as a condition of receiving their
termination pay, changing the definitions of job classifica-
tions, substituting so-called bonus payments for required
overtime rates, and disregarding the preferential hiring pro-
cedure; (d) insisting, in response to union requests for a
meeting to discuss contract, grievance, and related issues,
that it would not communicate with the Union, except in
writing, and refusing to meet with the Union; and (e) repu-
diating the Board's certification of the Union, all for the
purpose of causing employees to cease their membership, in
and support to the Uifion, and to dissipate the Union's
ma ority. Respondent has engaged in unfair labor practices
wit n the meaning of Section 8(aX5) of the Act.
7. By placing Raymond J. Grabowy on 2 weeks' proba-
tion on or about April 4, 1969, and, at the exceptions there-
of, and thereafter, Tailing and refusing to vacate or rescind
such probation, and by discharge' g said Grabowy on Sep-
tember 15, 1969, all because said employee had assisted the
Union and engaged in other union and protected concerted
activities, and because said employee had given testimony
" The period beginning 6 months prior to the date of filing and service of
the charge in Case 28-CA-1878 (Sec 10(b))
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the Act, Respondent has violated Section 8(a)(3), (4),
and (1) of the Act.
8. By threatenin Grabowy, the union shop steward, with
discharge, on or about February 18, 1969, -because of his
insistence that Respondent comply with the terms of the
collective-bargaining agreement relating to use of personal
vehicles for the transportation of company tools and equip-
ment, and other terms of the agreement; and by (a) coercing
employees into signing statements , on or about February 18
and 19, 1969, regarding Respondent's policy requiring em-
ployees to transport company equipment in their personal
vehicles; and (b) disparaging the Union to its employees,
asserting that Respondent would procure other labor organ-
izations to represent them; announcing that Respondent
would get rid of the Union, would neither recognize nor
bargain with the Union, and that the union contract was
merely a guideline, and not a binding commitment, Respon-
dent has interfered with, restrained, and coerced employees
in the. exercise of rights guaranteed in Section 7, thereby
engagng in unfair labor practices within the meaning of
Section $(a)(1) of the Act.
[Recommended Order omitted from publication.]