Oxford Structures, Ltd.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1180 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oxford Structures, Ltd., Debtor-in-Possession and
U.B.C. Central Wisconsin District Council, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO. Case 30-CA-4983
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On April 16, 1979, Administrative Law Judge Rob-
ert A. Giannasi issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the Charging Party filed an
answering brief to Respondent's exceptions, counsel
for the General Counsel filed cross-exceptions, and
Respondent filed a brief in answer to the General
Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Oxford
Structures, Ltd., debtor-in-possession, Oxford, Wis-
consin, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Delete paragraph 2(d) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
I We disagree with the Administrative Law Judge's finding that Respon-
dent engaged in unnecessary and frivolous litigation herein, in view of the
fact that contemporaneously with Repondent's conduct found to be in dero-
gation of its bargaining obligation there was in effect an Order by a United
States bankruptcy court disaffirming Respondent's existing collective-bar-
gaining agreement on which Respondent relied as a partial defense. Accord-
ingly, we will delete that portion of his recommended Order which provides
for Respondent's compensation to the Union and to the Board for litigation
expenses.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice.
U.B.C. Central Wisconsin District Council,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, is the exclusive bargain-
ing representative of our employees in an appro-
priate bargaining unit.
WE WILL NOT refuse to bargain in good faith
with the aforementioned Union regarding wages,
hours, and working conditions of employees in
the appropriate unit.
WE WILL NOT take action affecting wages,
hours, and working conditions of such employees
without negotiating with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under the National
Labor Relations Act.
WE WILL compensate all employees who suf-
fered out-of-pocket losses because of our unilat-
eral increases in insurance premiums in October
1978 and February 1979 which were unlawfully
implemented without negotiating with the
Union.
OXFORD STRUCTURES, LTD., DEBTOR-IN-
POSSESSION
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard before me in Milwaukee, Wisconsin, on
February 28, 1979. The complaint, as amended, alleges that
Respondent violated Section 8(a)(5) and (1) of the Act by,
in effect, withdrawing recognition from and refusing to bar-
gain with the Charging Party Union (hereinafter called the
Union), which was the certified bargaining representative of
its employees and the signatory to an existing collective-
bargaining agreement. The complaint also alleges that Re-
spondent violated Section 8(a)(5) and (1) of the Act by
making several unilateral changes in wages and terms and
conditions of employment without consulting with or af-
fording the Union an opportunity to negotiate about such
changes. Respondent denied the allegations in the com-
plaint.
245 NLRB No. 151
1180
Based on the entire record herein and the briefs of the
parties I make the following:
FIND)INGS OF FACT
1. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
the Act.
II. THE BUSINESS OF RESPONDENt
The answer admits that Oxford Structures, Ltd., is a Wis-
consin corporation engaged in the manufacturing of pole
buildings at its Oxford, Wisconsin, location. It was stipu-
lated that during calendar year 1978 Oxford purchased and
received goods valued in excess of $50,000 directly from
suppliers located outside the State of Wisconsin. Accord-
ingly I find, as admitted in the answer, that Oxford Struc-
tures, Ltd., is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
On September 30, 1977, Oxford filed a petition for an
arrangement under chapter XI of the Bankruptcy Act with
the United States District Court for the Western District of
Wisconsin. On October 27, 1977, Judge Frawley, a bank-
ruptcy judge for the district court, issued an Order and no-
tice for first meeting of creditors. On February 14, 1978,
Oxford filed an arrangement, proposed by it as debtor. to
meet its obligations. On May 31. 1978, Judge Frawley is-
sued an Order finding that proposed plan is accepted and
closing first meeting of creditors. Thereafter, on August I,
1978, an Order confirming plan issued. The Order provides
that Oxford as debtor-in-possession should distribute the
consideration deposited by it "subject to the control of the
court," and the plan adopted by the court provides for pay-
ment of claims by the debtor, Oxford, until October 31,
1980, at which time the debtor will be discharged from its
obligations.
The complaint alleges that Oxford as debtor-in-posses-
sion has been the lawful successor to Oxford after Septem-
ber 30, 1977, because it has "operated the business and
managed the property at the same location, utilizing the
same equipment, supplies and materials, selling the same
product to substantially the same customers of Oxford and
has as a majority of its employees individuals who were
previously employees of' Oxford. Respondent's answer de-
nies all allegations with respect to Oxford as debtor-in-pos-
session because it alleges that the entity no longer exists
"since a plan of arrangement was approved on or about
August 1, 1978, by the District Court for the Western Dis-
trict of Wisconsin in a backruptcy proceeding docketed as
Case-No-77-01105." Actually, under the Orders of the
court, it is clear that Oxford remains a debtor-in-possession
until the discharge of all obligations which, under the court-
approved plan, is to take place on October 31, 1980. In
addition, the evidence herein shows that Oxford's operation
was the same both before and after the filing of the petition
under chapter XI. The parties stipulated that Oxford had
the same officers, management, equipment and substan-
tially the same customers both before and after the filing of
the petition. The location of the business remained the
OXFORD STRUCTURES, LTD.
same, and the employee work force was essentially un-
changed except for normal turnover of employees. There
was no break in employment, and employees were not ter-
minated or required to reapply as new employees at any
time after Oxford filed its petition.'
A debtor-in-possession is considered an alter ego of the
bankrupt employer for the purposes of the National Labor
Relations Act. See Jersey Juniors, Inc., 230 NLRB 329,
331 332 (1977), and cases there cited. The evidence set
forth above supports a finding that Oxford as debtor-in-
possession continued to operate the same "employing enter-
prise" after the filing of the petition and thus was a succes-
sor to Oxford under the Act. See Tom-A-Hawk Transit, Inc.
v. N.L.R.B., 419 F.2d 1025, 1027-28 (7th cir. 1969). But this
proves too much. Although the debtor-in-possession is con-
sidered a different "jundicial entity" than the backrupt
company under the Bankruptcy Act, the evidence in this
case, a fortiori, supports the finding, which I make, that
Oxford as debtor-in-possession is the alter ego of Oxford for
the purposes of the Act.'
I find that Oxford as debtor-in-possession is the alter ego
of Oxford, and thus both entities are one for the purposes of
jurisdiction, findings, conclusion, and remedy. Respondent
is thus an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
111. TE UNFAIR LABOR PRACTICES
A. The Facts
On June 18, 1976, after a Board-conducted election, the
Union was certified as the exclusive bargaining representa-
tive of Respondent's employees in the following appropri-
ate unit:
All employees employed at the Employer's Oxford,
Wisconsin location, excluding salesmen, office clerical
employees, professional employees, guards and super-
visors as defined in the Act
After apparently unsuccessful bargaining and a decertifica-
tion petition another election was held. On September 7,
1977, the Union was again certified as the exclusive bar-
gaining representative of Respondent's employees.
On September 15, 1977, Respondent and the Union en-
tered into a collective-bargaining agreement governing the
wages, hours, and terms and working conditions of Respon-
dent's employees. The contract contained a modified union-
security clause: All present employees could chose whether
to join the Union or not, but future employees would be
required to join after a probationary period. There was no
checkoff of union dues, and the Union was solely respon-
sible for the collection of dues. The contract provides that
seniority governs personnel actions, including layoffs: how-
ever, the contract provides that "Any layoff for a period not
' Nor was there any showing that there was a change in Oxford's opera-
tions after the court approved Oxford's plan in August 1978.
2 Respondent's argument that it is no longer a debtor-in-possession is spe-
cious. As I have indicated, it is clear that Oxford remains a debtor-in-posses-
sion until it has discharged its obligations under the plan approved by the
court. In any event, one entity is the alter ego of the other. and therefore such
a distinction is irrelevant.
1181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceeding ten (10) working days shall be considered a tem-
porary layoff, and the provisions of this Article regarding
seniority shall not apply to temporary layoffs." The con-
tract also provides for specific wage rates and payment of
specific insurance premiums which, according to the agree-
ment, "will not change during the term of this contract."
The contract was to continue to effect until December 31,
1978, with the provision for automatic renewal absent a 60-
day notice by either party of notice to terminate prior to the
termination date.
As indicated above, on September 30, 1977, Respondent
petitioned for an arrangement under chapter XI of the
Bankruptcy Act. In its proposed arrangement of debts, filed
on February 14, 1978, Respondent asked that it be relieved
of its obligations under its collective-bargaining agreement
with the Union. No notice was provided to the Union of
Respondent's petition to reject the agreement. The August
1, 1978, Order of the bankruptcy judge approving Respon-
dent's proposed arrangement, inter alia, "disaffirmed" the
collective-bargaining agreement. No notice of this Order
was given to the Union, and no formal notice was given to
the employees about Respondent's bankruptcy petition or
of its intent to disaffirm the collective-bargaining agree-
ment. Apparently, throughout this period Respondent ad-
hered substantially to the terms of the collective-bargaining
agreement, notwithstanding its efforts to have the contract
disaffirmed.
The Union, through its steward William Hollender, col-
lected dues regularly and without difficulty until about Au-
gust 1978. Thereafter he had problems which only two em-
ployees. No management official ever spoke to Hollender
about whether he had any difficulty collecting dues from
employees after August 1, 1978. All but 2 of Respondent's
II employees as of September 30, 1977, joined the Union.3
In early October 1978 union business representative Je-
rome Winkler learned that two employees had ceased pay-
ing dues, and that employees had received a slip with their
last paycheck stating that in the next pay period they would
be responsible for an increase in their insurance premium.
As a result, on October 13 Winkler called Jack Kosloske,
Respondent's general manager. Winkler brought up the
matter of the increased insurance premiums, which he said
was violative of the contract, which in fact it was. Kosloske
responded, "do we still have a contract." He then went on
to inform Winkler for the first time of the backruptcy pro-
ceedings and of the judge's rejection of the contract. Wink-
ler asked for a confirmation of these facts in writing. Kos-
loske promised to send him a written confirmation, but he
did not.
Respondent notified employees of an increase in the
amount of the insurance premiums for employees on about
October 13, 1978. These increased amounts were deducted
from the next paychecks of employees. Respondent did not
notify the Union of this change in advance and did not offer
to discuss the change with the Union.
On October 27, 1978, Winkler sent a letter to Kosloske,
asking that bargaining begin on a new contract in accord-
ance with the notice provisions in the current agreement.
IThe only nonmembers were employees Byers and Cleary. Two other
employees were hired in October 1977.
He also sent a similar notice to Federal and state mediation
authorities as required by law.
On October 30, 1978, Kosloske responded to Winkler.
objecting to the Union's apparent attempt to enforce the
contractual obligation of the two employees to pay dues
which they had ceased paying. He reaffirmed that the "con-
tract had been terminated as of August 1, 1978." He also
suggested that Winkler "cease further action and not cause
yourself further embarrassment by checking with the
court." Kosloske mentioned nothing about Winkler's re-
quest to bargain.
Respondent has never responded to the Union's request
to bargain and never offered to bargain after October 13.
1978.
Thereafter, the Union petitioned the bankruptcy judge
and called to his attention the fact that it had not been
notified of the proposed arrangement of Respondent, which
included the request to disaffirm the collective-bargaining
agreement. On February 21, 1979, Judge Frawley issued an
Order granting motion to vacate part of Order confirming
plan, finding that based on a stipulation between the Union
and Respondent the Union "did not receive notice of' the
proceedings before the court and holding that "that part of
the Order disaffirming the executory contract with the
Union] be and the same is hereby set aside and vacated,"
and that "further steps be taken before the Court relative to
any disaffirmance thereof."
In October 1978, when Respondent verbally withdrew
recognition from the Union, all but one of Respondent's I I
employees at that time-Cleary-belonged to the Union.
Two employees, Terry Stoneman and Denny Sengbusch,
had ceased paying dues, Stoneman from August 1, 1978,
and Sengbusch from September 1, 1978. Sengbusch had
chosen to become a union member in September 1977.
Stoneman was hired after September 30, 1977, and thus was
required to become a union member under the modified
union-security clause of the contract.'
In November 1978 Plant Manager Dale Nimmer called
union steward William Hollender into his office and told
him that Respondent had filed a "Chapter II Bankruptcy
and it was in effect." Hollender asked if he should tell the
other employees, and Nimmer said no, that he would do so
himself. This was the first time that Hollender had heard of
Respondent's bankruptcy proceeding. Thereafter, Nimmer
did meet with nine employees (all except the two truckdriv-
ers), and notified them of Respondent's bankruptcy pro-
ceeding. In December 1978 General Manager Kosloske
also met with the same employees and told them of the
bankruptcy proceeding and stated that "according to the
Bankruptcy judge there was no Union in effect."
In January 1979 Respondent changed the wage rates of
its employees. Plant Manager Dale Nimmer told employee
'Of the seven new employees hired after September 30. 1977, all but
Stoneman paid dues throughout their employment after they became union
members. Of the II employees working for Respondent on September 30,
1977, only Cleary and Sengbusch failed to pay dues as of October 13, 1978.
Byers, the other nonunion member, terminated his employment on Septem-
ber 22. 1978. Winkler testified that Stoneman and Sengbusch ceased being
union members under the Union's constitution 3 months after they ceased
paying their dues, even though they did not formally notify the Union of
their intent to cease their membership. Neither Stoneman nor Sengbusch
ever notified the Union that he did not want the Union to represent him.
1182
OXFORD STRUCTURES. LTD.
and union steward William Hollender that the employees
were going to receive a raise. The wage increase amounting
to about 7 percent or 30 cents per hour was subsequently
put into effect. No prior notice was given to the Union. and
Respondent did not offer to negotiate over the change.
On January 16, 1979, Respondent laid off all of its em-
ployees except Cleary, a truckdriver, and Denny Seng-
busch. Four employees returned to work on January 29,
two on January 30, one on January 31, and another on
February 5, 1979. Still another voluntarily remained on lay-
off status longer.
On February 16, 1979, Respondent again increased the
insurance premiums paid by employees. Again, the Union
was not notified or given the opportunity to bargain over
the change in premiums as it affected the employees' take-
home pay.
B. Discussion and Analvsis
The evidence is quite clear that Respondent withdrew
recognition from the Union on October 13, 1978, and re-
fused to bargain with it over a new contract. The Union
was the certified bargaining representative and was the in-
cumbent union under a current collective-bargaining agree-
ment which was to terminate in December 1978. Respon-
dent also made unilateral changes in wages and terms and
conditions of employment-the October 1978 and Febru-
ary 16, 1979, increases in the employees' deductions for in-
surance premiums and the January 1979 wage increase.
These changes in matters which are mandatory subjects of
bargaining were made without prior notification to the
Union or opportunity given to the Union to negotiate over
the changes. Since an incumbent bargaining representative
is presumed to continue as the bargaining representative of
the employees even after the end of the certification year or
the termination of a contract, a respondent violates the Act
by withdrawing recognition from the incumbent union un-
less it rebuts the presumption by showing that the union no
longer represents a majority of the employees or that it
asserted a good-faith doubt of continued majority status
based on reasonable and objective considerations.5 Simi-
larly, an employer violates his bargaining obligation by
making unilateral changes in wages and terms and condi-
tions of employment without consulting the bargaining
agent.6
Respondent does not dispute the law or the facts, as set
forth above, but contends that its refusal to bargain is justi-
fied because: (I) the bankruptcy judge "disaffirmed" the
collective-bargaining agreement in August 1978, and (2) it
had objective evidence showing that a majority of its em-
ployees no longer wished the Union to represent them and
thus had a good-faith doubt of the Union's continued repre-
sentative status. These defenses are frivolous in the circum-
stances of this case.
Although under some authorities a bankruptcy court
may, after weighing all policy considerations, disaffirm an
5Orion Corporation v. N.LR.B, 515 F.2d 81. 84-85 (7th Cir. 1975): Bar-
rington Plaza and Tragniew, Inc.. 185 NLRB 962 (1970).
' N.LR.B. v. Benne Katz db/a Williarnsburg Steel Products Co.. 369 U.S
736 (1962).
existing collective-bargaining agreement, there is no author-
ity for the proposition that the underlying bargaining obli-
gation of an employer may be vitiated. Indeed, the opposite
is true. A debtor-in-possession remains obligated to bargain
if it continues to operate the same "employing enterprise."
See Brotherhood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and Station Employvees, AFL-
CIO v. Express, Inc., 523 F.2d 164, 169 (2d Cir. 1975); cf.
Tom-A-Hawk Transit, Inc. v. N.L.R.B., supra. There is no
doubt that the debtor here continued operating the same
employing enterprise as the bankrupt Employer. Moreover,
in this case the initial Order of the bankruptcy judge disaf-
firming the collective-bargaining agreement was subse-
quently set aside since no notice was afforded to the Union
before the disaffirmance, thus undercutting the very prem-
ise of Respondent's defense. In any event, there is no evi-
dence that after the initial Order was set aside Respondent
offered to bargain with the Union. In short, Respondent-
the debtor-in-possession of the contracting Employer-was
obligated to bargain with the incumbent union as the exclu-
sive representative of its employees just as if it had not
undertaken bankruptcy proceedings. See Jersey Juniors, su-
pra.7
Respondent's second defense is equally merit. Although
upon the termination of a collective-bargaining agreement
an employer may rebut the presumption of a continuing
majority of an incumbent bargaining representative by
showing a loss of majority in fact or a good-faith doubt of
majority based on objective considerations of loss of major-
ity, Respondent here never asserted such reasons for refus-
ing to bargain with the Union after October 13, 1978. The
only reason given to the Union was the initial Order of the
bankruptcy judge which-even by its terms-did not apply
to the Union's right to bargain for the employees. Never-
theless, the evidence of alleged objective considerations was
scant. At the hearing General Manager Kosloske was asked
by Respondent's counsel, "Prior to August of 1978, were
you aware of any employee dissatisfaction with their having
the Union represent them for bargaining purposes?" Kos-
loske's answer was "yes." He was then asked, "By what
means or what events was that made aware to you." Kos-
loske answered, "Casual conversations with either the em-
ployees or other members of management that had been
approached by employees." He then identified three em-
ployees, Byers, Schwenn, and Udelhofen, with whom he
had had conversations. Byers said that quite a few people
were "disenchanted" with the Union; Udelhofen stated that
he "wished he would have never got in"; and Schwenn said
that "he wasn't happy with it."' Plant Manager Nimmer
was also asked about conversations which he had with em-
ployees about the Union, but he was unable to recount
them with any relevant specificity.
' This obligation exists whether the debtor-in-possession is considered an
aoler ego or a successor, as the evidence supports either finding.
' Kosloske testified that he also knew that there were some problems with
employees paying dues. This factor is insignificant, for the failure to pay dues
does not indicate a desire not to have union representation. See Terrell Ma-
chine Co"mpary v. N.L R.B.. 427 F.2d 1088. 1090 (4th Cir. 1970). cert. denied
398 U.S. 929. Moreover, union steward Hollender testified that he had no
difficulties collecting dues. only two employees ceased paying dues. and
management officials never talked to him about any difficulties in collecting
union dues
1183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above evidence of vague and admittedly "casual"
conversations concerning dissatisfaction with the Union
falls far short of proving that a majority of the employees
did not wish the Union to represent them or that Respon-
dent had a good-faith doubt of majority based on objective
considerations. All but I of the 11 employees were union
members as of October 13, 1978, when Respondent with-
drew recognition. Two others had ceased paying dues but
remained members until 3 months after their failure to pay
dues. Respondent had had the existing collective-bargain-
ing agreement disaffirmed by a bankruptcy judge without
notifying the Union. As a result, the disaffirmance was sub-
sequently set aside. Indeed, neither the Union nor the em-
ployees even knew that Respondent was in bankruptcy un-
til Respondent's refusal to bargain. Nor did Respondent
ever assert to the Union at any time that it was refusing to
bargain with it because it had a good-faith doubt of its
continued majority status. In these circumstances Respon-
dent's refusal to bargain could hardly be characterized as
undertaken in good faith.
I find, therefore, that the Union continued as the bar-
gaining representative of Respondent's employees, and Re-
spondent's withdrawal of recognition from the Union on
October 13, 1978, and thereafter was and is violative of
Section 8(a)(5) and (1) of the Act.
Respondent's unilateral changes of wages in January
1979 and of insurance premiums in October 1978 and Feb-
ruary 1979 were undertaken without consultation or bar-
gaining with the Union and were thus violative of Section
8(a)(5) and (1) of the Act.
There remains the matter of whether the January 1979
layoffs were unlawful. The complaint does not allege that
the layoffs were unlawful because they were undertaken
unilaterally and without consultation with the Union. It
simply alleges that Respondent "changed the seniority
rights of employees" in violation of Section 8(a)(5) and (1)
of the Act. The evidence shows only that all existing em-
ployees were laid off except Cleary, a truckdriver, and
Sengbusch, a forklift operator. Respondent needed both
employees to operate. The General Counsel's position on
this matter is stated as follows in his brief:
The expired contract gave Oxford the right to keep a
truckdriver on out of seniority, and General Counsel
does not urge that by retaining Cleary, Oxford in-
dependently violated the Act. With respect to Hollen-
der, it is another matter. Hollender clearly had more
seniority than Sengbusch-an employee who Kosloske
knew was no longer paying dues. The reason given for
keeping Sengbusch on was that he could drive the
forklift, yet so could Hollender. The fair inference to
be drawn is that Hollender was laid off and Sengbusch
was retained because of the former's status as steward
and Kosloske's desire to reward the latter's decision to
stop paying dues.
There is no separate allegation in the complaint that Re-
spondent retained Sengbusch and laid off Hollender, a
more senior employee who was the union steward, for dis-
criminatory reasons or because of the protected activities of
Hollender. Nor was the matter fully litigated. I therefore do
not make the finding suggested by the General Counsel.
Nor does the evidence fairly show a unilateral change in
seniority rights of employees, which is the specific allega-
tion in the General Counsel's complaint. The only evidence
of such "change" is that Sengbusch was retained while two
more senior employees (excluding Clearly) were not. It ap-
pears that most employees were recalled in order of senior-
ity. There is no other evidence that Respondent changed
the seniority dates of employees. Indeed, employees Hollen-
der and Schuman, the only laid-off employees more senior
than Sengbusch, were recalled before they had been laid off
more than 10 working days.9 Thus, under the collective-
bargaining agreement upon which the General Counsel re-
lies for his contention that existing practice called for lay-
offs based on seniority, clearly permitted such temporary
layoffs without regard to seniority. I thus find that the Gen-
eral Counsel has not proved by a preponderance of the
evidence that Respondent "changed the seniority rights of
employees" as alleged, and I shall dismiss this allegation of
the complaint.
CONCLUSIONS OF LAW
I. Oxford Structures, Ltd., and its alter ego for the pur-
poses of the Act, Oxford Structures, Ltd., debtor-in-posses-
sion, constitute an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union was at all material times and still remains
the bargaining representative of Respondent's employees in
the following appropriate unit:
All employees employed at Respondent's Oxford, Wis-
consin location, excluding salesmen, office clerical em-
ployees, professional employees, guards and supervi-
sors as defined in the Act.
3. By withdrawing recognition from and refusing to bar-
gain with the Union on and after October 13, 1978, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
4. By unilaterally increasing wages of employees in
January 1979 and insurance premiums of employees in Oc-
tober 1978 and on February 16, 1979, without consulting
with the Union or affording it an opportunity to bargain
over such increases Respondent violated Section 8(a)(5) and
(I) of the Act.
5. The aforementioned violations are unfair labor prac-
tices within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not otherwise violated the Act.
REMEDY
I shall recommend that Respondent cease and desist
from engaging in the conduct found unlawful, affirmatively
bargain in good faith upon request, and post an appropriate
notice. I shall also order Respondent to reimburse employ-
ees for the increase in insurance premiums they were re-
quired to pay as a result of Respondent's unilateral conduct
in increasing employees' deductions to pay for such in-
crease. The amounts due shall accrue interest in accordance
9They were recalled on January 29. 1979.
1184
OXFORD STRUCTURES, LTD.
with Florida Steel Corporation, 231 NLRB 651 (1977), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).'0
I also believe that Respondent unnecessarily caused the
litigation of this case. Its defenses were frivolous. The facts
were not in dispute, and settled law and common sense
pointed to the obvious result. Moreover, Respondent's at-
tempt to rid itself of the employees' bargaining representa-
tive was blatant. It gave no prior notice of the bankruptcy
proceeding or of its effort to disaffirm the collective-bar-
gaining agreement to the Union or to employees. It there-
after relied on this fact to vitiate a bargaining obligation,
which was left untouched by the bankruptcy judge, and it
never even asserted to the Union that it had a doubt con-
cerning the Union's majority. At the hearing Respondent's
evidence of the Union's loss of majority amounted to iso-
lated, vague, and casual comments by employees. Thus, Re-
spondent's defenses can fairly be characterized as part of a
continuing effort either to defeat the Union or to delay the
resumption of its bargaining obligation. In these circum-
stances I shall recommend that Respondent be ordered to
reimburse the General Counsel and the Charging Party
Union for all the expenses incurred by them is the investi-
gation, preparation, and presentation of the conduct of this
case, "including the following costs and expenses incurred
in . . . the Board ... proceedings, reasonable counsel fees,
salaries, witness fees, transcript . . . costs, printing costs,
travel expenses and other reasonable costs and expenses."
See J.P. Stevens & Co., Inc., 239 NLRB 738, 773 (1978),
quoting from Tiidee Products, Inc., 194 NLRB 1234 (1972);
see also concurring opinion of Judge Bazelon in district 65,
Distributive Workers of America v. N.L.R.B., 517 F.2d 1399
(3d Cir. 1975).
Upon the foregoing findings of fact, conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act I hereby issue the following recommended:
ORDER'
The Respondent, Oxford Structures, Ltd., Debtor-in-Pos-
session, Oxford Structures, Ltd., Oxford, Wisconsin, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with U.B.C. Central Wisconsin
O0 Although it is not certain that the Union would have succeeded in halt-
ing the entire increase in premiums to employees had it been given the
opportunity to bargain, Respondent was responsible for this uncertainty.
Actually, the first increase was contrary to the contractual provision that
there be no increase during the term of the contract, and the second came
after Respondent defaulted on its obligation to bargain over a new agree-
ment. In these circumstances it is appropriate to order reimbursement of the
increase in premiums paid by the employees. As Judge Learned Hand stated
in resolving a similar issue, "it rested upon the tortfeasor to disentangle the
consequences for which it was chargeable from those from which it was
immune .... respondent did not try to show that further negotiations would
have been fruitless." See N.LR. v. Remington Rand Inc., 94 F.2d 862. 872
(2d Cir. 1938).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
District Council, United Brotherhood of Carpenters and
Joiners of America, AFL CIO, as the exclusive representa-
tive of its employees in the following appropriate bargain-
ing unit:
All employees employed at Respondent's Oxford, Wis-
consin location, excluding salesmen, office clerical em-
ployees, professional employees, guards and supervi-
sors as defined in the Act.
(b) Unilaterally taking action with respect to wages,
hours, and other terms and conditions of employment with-
out affording the Union a reasonable opportunity to bar-
gain thereon.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights set forth in Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Upon request, bargain collectively and in good faith
with the Union as the exclusive representative of the em-
ployees in the above unit with respect to wages, hours, and
other terms and conditions of employment and, upon re-
quest, embody in a signed agreement any final understand-
ing reached.
(b) Consult with the Union and afford it an opportunity
to bargain collectively with respect to any changes in
wages, hours, and other terms and conditions of employ-
ment before implementing such changes.
(c) Make whole all employees adversely affected by Re-
spondent's unilateral changes in insurance premiums paid
by employees as set forth in the "Remedy" section of this
Decision. However. nothing herein shall be construed to
require Respondent to rescind benefits already conferred by
unilateral action.
(d) Pay to the Board and the Union the reasonable costs
and expenses incurred by them in the investigation, prepa-
ration, presentation, and conduct of this proceeding, as set
forth in the "Remedy" section of this Decision.
(e) Post in conspicuous places at Respondent's Oxford,
Wisconsin, facilities, including all places where notices to
employees are customarily posted, for a period of 60 con-
secutive days, copies of the notice appended hereto as "Ap-
pendix".'2 Copies of said notice, on forms provided by the
Regional Director for Region 30, shall be signed by Re-
spondent's authorized representative, and Respondent shall
take reasonable steps to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records necessary to analyze amounts due to employees
herein.
(g) Notify the Regional Director for Region 30, in writ-
ing, within 20 days of the receipt of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that that portion of the
complaint found to be without merit is hereby dismissed.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
1185