P & T Metals, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1995

316 N.L.R.B. 1189 (N.L.R.B. 1995)

1189
316 NLRB No. 180
P & T METALS, INC.
1 In his answering brief, the General Counsel argued that the Re-
spondent’s exceptions were filed in an untimely fashion and there-
fore should be rejected. The General Counsel contended that the cer-
tificate of service attached to the exceptions indicated that they were
mailed on the date that they were due to be received by the Board
and were thus untimely under Sec. 102.111(b) of the Board’s Rules
and Regulations. We reject the General Counsel’s argument because
the exceptions were time stamped as received by the Board on the
due date.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
The Respondent seeks to have the record reopened to present new
evidence ‘‘to attest to the credibility of [its witnesses] Frazier and
Cabrera,’’ and ‘‘to present additional evidence to discredit the unbe-
lievable testimony of [General Counsel’s witness] Arrendondo.’’ We
reject these requests to reopen the record because the Respondent
has failed to show how this evidence was newly discovered or pre-
viously unavailable. See Sec. 102.48(d)(1) of the Board’s Rules and
Regulations. Moreover, the request is denied also on the ground that
it attempts to attack the judge’s credibility resolutions. See Hagar
Management Corp., 313 NLRB 438 fn. 1 (1993).
3 We agree with the judge that the Respondent violated Sec.
8(a)(5) of the Act by instituting a unilateral change in the vacation
policy. We find it unnecessary to pass on the judge’s additional
8(a)(3) finding that the Respondent instituted the change in the vaca-
tion policy in retaliation for the employees choosing the Union as
their bargaining representative, since doing so does not affect the
remedy and Order.
1 The Respondent maintains that it has not been properly served
with the charge, as the Union, rather than the Regional Director, is
required to serve it upon the Respondent. The Respondent’s under-
standing is erroneous. Sec. 102.14 of the Board’s Rules and Regula-
tions provides that while the charging party shall be responsible for
the timely and proper service of a copy of the charge, the Regional
Director will, as a matter of course, serve the charge upon the
charged party. In the instant case the charge was timely served upon
the Respondent by the Regional Director. As service has thus been
perfected, the Union need not serve the Respondent a second time.
P & T Metals, Inc. and Sheet Metal Workers’
International Association, Local Union No. 170,
AFL–CIO. Case 21–CA–29783
April 12, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
On August 31, 1994 Administrative Law Judge Ger-
ald A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, P & T Metals, Inc., South
El Monte, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Neil A. Warheit, Esq., for the General Counsel.
Ted Rexius, President, of South El Monte, California, for the
Respondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Los Angeles, California, on June 30 and July 1, 1994. The
charge was filed on November 30, 1993, by Sheet Metal
Workers’ International Association, Local Union 170, AFL–
CIO (the Union).1 The charge was amended on January 24,
1994. On March 8, 1994, the Regional Director for Region
21 of the National Labor Relations Board (the Board) issued
a complaint and notice of hearing alleging violations by
P & T Metals, Inc. (the Respondent), of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act (the Act).
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing briefs
have been received from counsel for the General Counsel
and from the Respondent. Upon the entire record, and based
upon my observation of the witnesses and consideration of
the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation with an office
and place of business located in South El Monte, California,
where it is engaged in the recycling and sale of scrap metal.
In the course and conduct of its business operations, the Re-
spondent annually sells and ships goods and materials valued
in excess of $50,000 to enterprises located within the State
of California, each of which enterprises annually sell and
ship goods and materials valued in excess of $50,000 directly
to customers located outside the State of California. It is ad-
mitted, and I find, that at all times material, the Respondent
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is, and at all
times material has been, a labor organization within the
meaning of Section 2(5) of the Act.
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 All dates or time periods hereinafter are within 1993 unless oth-
erwise specified.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are whether the Re-
spondent has violated Section 8(a)(1), (3), and (5) of the Act
by failing and refusing to negotiate with the Union upon re-
quest, and by making unilateral changes in various terms and
conditions of its employees’ employment without bargaining
about such changes with the Union.
B. The Facts
The Union filed a representation petition on June 7, 1993.2
Following a Board-conducted representation election in Case
21–RC–19229 on July 27, the Union was certified as the col-
lective-bargaining representative of the Respondent’s em-
ployees on August 4.
Jose Bresino has worked for the Respondent for 5 years.
Bresino testified that about 3 weeks prior to the election the
Respondent held a meeting with the employees. The meeting
was conducted by Payroll Manager Kathy Munro, daughter
of the Respondent’s president, Ted Rexius. The plant man-
ager, Melicio Pulido, and his brother, the assistant plant man-
ager, Arnulfo Pulido, were also present. Arnulfo Pulido acted
as interpreter and translator for Munro, as she does not speak
Spanish and apparently all of the Respondent’s plant employ-
ees are Spanish-speaking.
Bresino testified that Munro stated during the meeting that
the Respondent was in a bad financial condition and that the
Company was going to have problems if the employees se-
lected the Union. She said that her father had health prob-
lems, and that if anything happened to him she would be tak-
ing over the running of the Company and the employees
would have to deal with her; and, further, that they would
have problems with her. She advised them that they could
take this as a warning, as advice, or as a threat.
Prior to the election, according to Briseno, the employees
were able to earn extra money by performing wire-stripping
work at home. They would purchase insulated copper wire
from the Respondent, strip the insulation from the wire at
home, and resell the stripped copper wire to the Respondent.
According to Briseno, the employees could earn approxi-
mately $30 to $40 per week performing such work when
wire was available. A week or two after the election, how-
ever, Manager Melicio Pulido told all of the employees that
they could no longer purchase wire from the Respondent.
The employees asked why this change was being made, and
Pulido, without specifically mentioning the Union, replied
that the employees knew why.
After this change in policy, however, the managers,
Arnulfo and Melicio Pulido, did continue to strip wire at
home, as did one unit employee, Manuel Pena, who voted
in the election.
Briseno testified that prior to the election employees were
permitted to receive ‘‘important’’ phone calls at work. After
the election, however, the employees were told that they
could not receive or make phone calls except in emergencies.
However, Briseno acknowledged that he was receiving too
many unwanted phone calls at work. After the election
Munro spoke with him about abusing the phone privileges,
and an accommodation was reached whereby Briseno could
receive certain daily phone calls from his wife in order to
schedule transportation home from work.
Prior to the election the regular hours of work for most
of the employees were from 8 a.m. until 5 p.m. In addition
to a half-hour lunch period, they received two 15-minute
breaks per day, one in the morning and one in the afternoon.
They did not have to punch out for the breaks, and were paid
for 8-1/2 hours of work per day, including one-half hour of
overtime. Briseno testified that beginning in October, the em-
ployees were required to punch the timeclock prior to taking
their breaks, and thereafter were paid for only 8 hours of
work per day. This was announced to the employees by
Manager Melicio Pulido who had earlier told the men that,
according to Rexius, they were making Rexius’ life impos-
sible and that Rexius could also do the same thing to the
men. Further, Pulido said that according to Munro, the men
had wanted a union and now they were going to have to suf-
fer. At the time of the hearing, the men were continuing to
have to punch out for breaks.
Briseno also testified that in October, and frequently there-
after whenever the employees brought up matters of concern,
Manager Melicio Pulido told them that Munro had said that
since the employees wanted a union they would now have
to suffer.
Prior to the election the employees could receive a double
paycheck if they worked rather than took their vacation.
Briseno testified that about 4 months after the election, Man-
ager Melicio Pulido informed the employees that they could
no longer work during their vacation week but would have
to take their vacation and thus receive only one check. How-
ever, it appears that an exception was made for Briseno who
was allowed to work and to also receive his vacation check,
as he was needed at the time.
Briseno testified that prior to the election the employees
were permitted to begin putting things away, washing up,
and changing clothes at about 4:45 p.m., and would not have
to punch out until 5 p.m. About 2 months after the election,
the employees were advised that they could not begin wash-
ing up until 5 p.m., after they had punched out. This policy
remains in effect.
Juan Arrendondo has worked for the Respondent more
than 4 years. During the aforementioned preelection meeting,
which took place in Manager Malecio Pulido’s office, all of
the employees were present. Munro told the employees that
the Company had no money, and that the employees were
not going to get any additional benefits as a result of the
Union. She said that she did not believe that they wanted a
union, and asked each of them to prepare a paper for her and
indicate on it whether they wanted a union or not. She said
that her father had a heart condition, and that if anything
happened to him ‘‘because of this’’ the employees were
going to have to face her, and that they could take this as
a threat or any way that they wanted.
About 2 or 3 weeks after the election, Assistant Manager
Arnulfo Pulido said that Munro instructed him to tell the em-
ployees that if they wanted a union they would have to suf-
fer. Arrendondo testified that he understood her to mean that
they would suffer many changes because of the Union.
Arrendondo testified that prior to the election, employees
were allowed to use the telephone to make and receive phone
calls at work at any time during the day. About 2 to 3 weeks
1191P & T METALS, INC.
after the election, this policy was changed. Assistant Man-
ager Arnulfo Pulido told the group of employees that Munro
told him to tell them that they were not going to be able to
use the telephone any more, and were only to receive calls
in case of emergency. He said there were going to be a lot
of changes to the rules. Arrendondo acknowledged that the
employees were told that they were abusing the telephone
privileges.
Prior to the election, according to Arrendondo, employees
were able to earn extra money by buying wire from the
Company, stripping it at home, and selling it back to the
Company. About a month after the election, Assistant Man-
ager Arnulfo Pulido told Arrendondo that Rexius said he did
not want him to do this wire stripping work any more.
Thereafter, only the managers were permitted to do wire
stripping. Thus, since about August, Arrendondo, who testi-
fied that prior to the advent of the Union he had purchased
100 to 150 pounds of wire every week and would earn be-
tween $40 to $50 per week stripping the wire, has not been
able to earn extra money in this way.
According to Arrendondo, at about the end of October,
Assistant Manager Arnulfo Pulido told all the employees that
Rexius was no longer going to pay them for their 15-minute
morning and afternoon breaks, and that the employees would
have to punch out during the breaks and punch in when they
returned. Pulido told the employees that Rexius said that the
change was being made because the employees wanted the
Union. After this, the employees began punching out for
their breaks, and were paid for 8 hours per day, rather than
for 8 straight time hours and one-half hour of overtime. They
are still punching out for breaks at the present time.
Arrendondo also testified similarly to Briseno regarding
the changing of the vacation pay policy about 2 months after
the election. Thus, the employees were no longer permitted
to work during their vacations and receive a double pay-
check.
Arrendondo testified that prior to the election, the employ-
ees were permitted to begin washing up before 5 p.m. Thus,
at 4:45 p.m., they took about 5 minutes to put everything
away, and an additional 10 minutes to change their clothes
and wash their hands. This practice was discontinued about
2 months after the election when the employees were told by
Assistant Manager Arnulfo Pulido that Rexius did not want
them to wash their hands and change their clothes before 5
p.m. Currently, they are required to wash up and change
clothes off the clock after 5 p.m.
John Torres was formerly business manager and financial
secretary of the Union. On September 29, after the certifi-
cation, he sent the Respondent a letter requesting the com-
mencement of negotiations and included an initial contract
proposal. However, the Respondent allegedly did not receive
the letter or proposed contract until October 8. Thus, by let-
ter dated October 9, Rexius maintains that he did not receive
Torres’ letter until October 8, and further states:
I would appreciate it if you could give me some dates
that you would be available to start negotiations around
the first of November. I will respond to you, as soon
as possible, after I receive your reply.
Ted Rexius is the owner of another company, Industrial
Aluminum. At about the same time as the certification here-
in, the Union was also certified to represent the employees
of that entity. During negotiations with Industrial Aluminum
on October 15, Torres presented Rexius with a letter regard-
ing negotiations with the Respondent. Rexius signed the let-
ter in Torres’ presence. The letter from Torres, dated October
15, states:
In response to your letter of October 9, and inasmuch
as we are meeting today, I am hand delivering this let-
ter, with available dates on which to meet of November
8, 10, and 11, 1993.
There is a space at the bottom of the letter with the word
‘‘Received’’ in typewriting. Rexius’ signature appears there-
after.
At the end of the bargaining session on that date, Torres
sought to get Rexius to agree to a future bargaining date for
Industrial Aluminum, and an initial bargaining date for the
Respondent. Torres told Rexius that he would be willing to
negotiate both contracts on the same date. Rexius refused,
saying that he wanted to negotiate each of the contracts sepa-
rately. Further, Rexius said he could not agree to any of the
proposed bargaining dates contained in the letter because he
did not have his calendar with him, but that he would phone
Torres the following Monday or Tuesday and give him pro-
posed dates when he would be available to meet. However,
according to Torres, Rexius never contacted him with any
proposed meeting dates, and there has been no bargaining.
Torres testified that the Respondent never notified the
Union of any changes it instituted after the election as testi-
fied to above by employees Briseno and Arrendondo, nor did
it give the Union an opportunity to bargain about such
changes.
Robert Sanchez, an organizer for the Union, corroborated
Torres’ testimony. Sanchez testified that he was present at
the negotiating session on October 15. He saw Torres hand
Rexius the aforementioned letter, and he saw Rexius sign the
letter.
Payroll Manager Kathleen Munro, Ted Rexius’ daughter,
is in charge of payroll, insurance, and personnel. Munro tes-
tified that she conducted an employee meeting about 3 weeks
prior to the election. During the meeting she asked what the
employees wanted and what they had been promised by the
Union. She explained that the benefits they wanted were ex-
pensive and that because of the Respondent’s financial cir-
cumstances, the employees, with or without a union
‘‘couldn’t get anything additional, period,’’ and that a union
would not do them any good. She told the employees that
her father had recently had a stroke, and that she thought
some of the employees’ actions and demands could adversely
affect his health. She added that if anything happened to her
father she would be running the place, and that if this oc-
curred she would not be as lenient as her father and would
have to delete some of the employees’ benefits because of
the Respondent’s financial circumstances, regardless of the
Union.
Munro testified that prior to the election, employees could
not just indiscriminately receive and make phone calls at any
time during the workday. Personal phone calls were only
permitted during breaks, except for emergencies. However,
either before or after the election, some of the employees, in-
cluding clerical employees, started abusing the privilege by
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Union Representative Torres testified in this regard that requiring
mandatory vacations was his personal philosophy and such provi-
sions were included in standard collective-bargaining agreements;
thus, he assumed, incorrectly, that the Respondent’s employees
would be in favor of this provision.
4 In his brief, however, Rexius maintains that the signature on the
letter is not his signature.
making and receiving phone calls at any time. This caused
a problem, and after the election it was announced that the
formal phone policy was to be enforced. Thus, according to
Munro, the policy was not changed, it was enforced; cur-
rently the employees are permitted to receive and make
phone calls during breaks or emergencies.
Munro explained that her comments, related by the man-
agers to the employees, about the employees having to ‘‘suf-
fer’’ because of the Union, came directly from a phone call
with some unidentified individual in the Board’s Regional
Office. Thus, according to Munro, a few employees told her
after the election that they had made a mistake and asked her
how to get out of the Union. She phoned the Board’s Re-
gional Office on their behalf and the person she spoke with
said that there was nothing the employees could do, that
‘‘basically they had to suffer with [the Union] for a year,’’
and at the end of a year they could vote again. She related
this to the employees through her manager and gave them
the phone number of the Regional Office.
Manager Melicio Pulido did not testify in this proceeding.
Assistant Manager Arnulfo Pulido testified that employees
were permitted to use the phone if it was very important or
an emergency. He denied telling the employees that any
changes that were being made in retaliation for voting for the
Union. He has never had a meeting with employees to talk
to them about changes in the washup policy, or vacations, or
punching in and out for breaks, but there was a meeting
about the wire stripping policy. He told the employees that
his boss decided not to sell wire to the employees. He did
not explain why, because he did not know why; he simply
related to them what Rexius told him to tell them.
The Respondent’s owner, Ted Rexius, testified that none
of the postelection changes in the prior policies were insti-
tuted in retaliation for the employees’ having selected the
Union as their bargaining representative. Employees were no
longer permitted to perform wire stripping at home because
they had been abusing the privilege by using worktime to
sort and store the wire, and by not taking the wire home on
the weekends. Rather they would leave large quantities of it
in the warehouse, and Rexius, apparently, was unable to sell
it or strip it because the employees had set it aside for them-
selves. Thus, he decided to discontinue the practice of per-
mitting employees to make extra money at home by stripping
wire. However, after the practice was discontinued, his two
managers have been permitted to continue to make extra
money by stripping wire at home, as has one unit employee;
each of these individuals apparently approached Rexius and
asked to be permitted to continue the practice. Rexius testi-
fied that he has no problem with employees stripping wire
at home if they abide by the rules and it does not cause him
any monetary harm.
Rexius testified that the change in the vacation policy was
instituted because the Union had requested that employees be
required to take a vacation. Thus, this proposal was included
in the proposed contract which the Union had submitted to
him along with the request to commence bargaining negotia-
tions.3 After instituting the policy, Rexius received numerous
complaints, and upon being advised by the employees that
they wanted to be able to receive a double paycheck for
working during their vacations, he reverted to the former pol-
icy.
Regarding the requirement that employees clock out dur-
ing their 15-minute morning and afternoon break periods,
Rexius testified that this was instituted in order to equalize
the employees’ hours and save the Company money. Thus,
some employees were working an hour less that other em-
ployees, and Rexius considered this to be unfair. In order to
equalize the hours of work for all employees, Rexius decided
to permit all the employees to work the same number of
hours per day, but in order to be able to afford this he re-
quired them to clock out for their breaks, thus saving the Re-
spondent one-half hour of overtime pay per employee per
day. The change was not instituted in order to retaliate
against the employees for selecting the Union.
Rexius testified that the washup period has never changed.
Apparently, according to Rexius, employees had been re-
quired to work until 5 p.m. and could wash up and change
clothes after working hours. Further, the telephone policy has
never changed, it has simply been enforced after being
abused by two or three employees. Again, this decision to
enforce the preexisting telephone policy was not motivated
by antiunion considerations.
Rexius testified that bargaining negotiations have never
taken place with the Union because he has been waiting for
the Union to contact him regarding such negotiations. He de-
nied that Union Representative Torres ever gave him the
aforementioned October 15 letter requesting bargaining, or
that he ever signed such a letter, although he agreed that his
signature appeared to be at the bottom of the letter opposite
the acknowledgment that he received the letter.4
Two employees of Industrial Aluminum, Betty Frazier and
Ernie Cabrerra, testified that they were present during the
October 15 bargaining session and did not recall Torres
handing Rexius any document or Rexius signing any docu-
ment. Nor have they ever seen the letter that Rexius purport-
edly signed at that meeting.
Analysis and Conclusions
The Union was certified as the collective-bargaining rep-
resentative of the Respondent’s employees on August 4. On
October 9, after receiving a letter from the Union requesting
bargaining, the Respondent’s president, Ted Rexius, wrote to
the Union and stated that he would be available to com-
mence collective-bargaining negotiations around the first of
November. Further, he requested that the Union provide him
with proposed meeting dates, and said that he would reply
to the Union as soon as possible after receiving such pro-
posed dates for meeting. I credit the testimony of Union
Representative Torres, corroborated by Robert Sanchez, an
organizer for the Union, and find that 6 days later, on Octo-
ber 15, at a negotiating session involving a different entity
owned by Rexius, Torres handed Rexius a reply letter in
which he proposed that bargaining take place on November
8, 10, and 11. Rexius indicated receipt of the letter by sign-
1193P & T METALS, INC.
5 In this regard, the managers did not relate the alleged conversa-
tion, supra, between Munro and the Board agent. Rather, they simply
told the employees what Munro told them, namely, that the employ-
ees would have to suffer because they brought the Union in.
6 While the Respondent may have engaged in other violations of
Sec. 8(a)(1) of the Act, specific allegations of such conduct are not
alleged in the complaint.
ing it, and told Torres that he would get back to him after
Rexius reviewed his appointment calendar. Thereafter,
Rexius never contacted Torres as he said he would, and no
bargaining has taken place.
I do not credit the testimony of Rexius who denied that
he received or signed the letter or stated to Torres that he
would get back to him about commencing negotiations. The
fact that his corroborating witnesses, Betty Frazier and Ernie
Cabrerra, who were present during the October 15 meeting,
may not have seen Torres present the letter to him and may
not have heard his discussions with Torres regarding the
commencement of bargaining negotiations, is not sufficient
to overcome the credible testimony of Torres and Sanchez.
Indeed, Frazier and Cabrerra were concerned with negotia-
tions pertaining to another entity, and were not involved with
the Respondent’s operations. Further, Rexius stated at the
hearing that the letter in question did indeed appear to con-
tain his signature.
It is admitted that the Respondent made certain unilateral
changes in significant terms and conditions of its employees’
employment without prior notification to or bargaining with
the Union. Thus, as set forth above, it changed the wire-
stripping policy, the vacation policy, and the break policy, all
to the economic detriment of its employees. Collectively, this
change in the aforementioned policies translated into a sig-
nificant loss of remuneration for the affected employees.
Regarding the Respondent’s contention that it changed the
vacation policy in deference to the Union’s contract proposal
that employees be required to take a vacation, I do not, under
the circumstances, find this to be a candid statement of the
Respondent’s motivation. Clearly, it sought to circumvent the
Union in all other respects, and at no time did the Union
convey to the Respondent that it had no objection to the in-
stituting of any changes prior to bargaining. Rather, it ap-
pears that the Respondent was well aware of the employees’
opposition to such a change in the vacation policy, and by
selecting and instituting the vacation policy as set forth in the
Union’s initial contract proposal, was merely attempting to
portray the Union in an unfavorable light rather than to en-
gage in the bargaining process. If the Respondent was hon-
estly attempting to give the employees what it believed they
wanted, it would not have simultaneously taken away the
benefits they had previously enjoyed.
I credit the testimony of employees Bresino and
Arrendondo and find, contrary to the Respondent’s conten-
tions, that it did change the past practice of permitting em-
ployees to make or receive telephone calls at any time pro-
vided that the employees did not abuse this privilege. The
fact that several employees may have abused the privilege
does not, under the circumstances, permit the Respondent to
unilaterally make changes that affect the remainder of the
employees. Further, I find that, as credibly testified to by the
employees, the Respondent changed its past practice of per-
mitting the employees to change clothes and wash up prior
to clocking out at the end of the day. Such unilateral changes
in the past terms and conditions of employees’ employment
have adversely affected the employees.
While the Respondent maintains that whatever changes it
instituted since the advent of the Union were not motivated
by unlawful considerations or designed to retaliate against
the employees for selecting the Union as their bargaining
representative, the credible testimony of employees Briseno
and Arrendondo indicates the contrary. Thus, these employ-
ees credibly testified that their managers repeatedly told them
that, according to Payroll Manager Munro, they were going
to have to suffer for bringing the Union in,5 and that they
were directly and indirectly told that the reason for certain
of the various changes was because they were making
Rexius’ life miserable and because they had selected the
Union. Although it appears that not each of the changes was
accompanied by a direct statement to the effect that the
change was being instituted in retaliation for the employees’
selection of the Union, it is clear that no other rationale was
given for the changes. Thus, under the circumstances, the
employees were reasonably led to believe that each of the
changes was unlawfully motivated in retaliation for their
union activity, rather than, as the Respondent maintained at
the hearing, because of economic considerations, or because
the employees were allegedly abusing various privileges, or
for other nondiscriminatory reasons.
On the basis of the foregoing, I find that the Respondent
has violated Section 8(a)(5) of the Act by failing and refus-
ing to engage in timely bargaining. Thus, it failed to contact
the Union, as promised, in order to arrange the commence-
ment of collective-bargaining negotiations, while at the same
time commencing to institute unilateral charges in derogation
of its bargaining obligation. Further, I find that the Respond-
ent has violated Section 8(a)(5) of the Act by instituting uni-
lateral changes in various terms and conditions of employ-
ment without prior notification to and bargaining with the
Union. Treanor Moving & Storage Co., 311 NLRB 371, 385
(1993); Santa Rosa Blueprint Service, 288 NLRB 762, 764
(1988); Storall Mfg. Co., 275 NLRB 220, 238 (1985); Webel
Feed Mills & Transit Co., 217 NLRB 815, 820 (1975); Ad-
vertiser’s Mfg. Co., 280 NLRB 1185, 1190–1191 (1986).
I further find that, as alleged, for the reasons stated above,
that the Respondent has instituted the unilateral changes in
the employees’ terms and conditions of employment, as set
forth above and found herein, in retaliation for their having
selected the Union as their collective-bargaining representa-
tive. Such conduct is violative of Section 8(a)(3) and (1) of
the Act. Treanor Moving & Storage, supra; Studio S. J. T.
Ltd., 277 NLRB 1189, 1199 (1985). Also, I find that the Re-
spondent has violated Section 8(a)(1) of the Act, as alleged,
by telling its employees that they would have to suffer be-
cause they brought the Union in.6 See Portsmouth Lumber
Treating, Inc., 248 NLRB 1170, 1175 (1980); Treanor Mov-
ing & Storage, supra at 373.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1), (3), and
(5) of the Act as alleged in the complaint.
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
8 If 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
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
4. The unfair labor practices found herein constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be required
to cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act. Having
found that the Respondent unilaterally and discriminatorily
instituted changes in its break policy, vacation policy, and
wire-stripping policy, which changes resulted in a reduction
in the wages or earnings of its employees, the Respondent
shall be required to make its employees whole for any loss
of earnings they may have suffered by virtue of the afore-
mentioned changes. The backpay shall be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent has failed and refused
to bargain with the Union in a timely manner, it is rec-
ommended that the certification year be extended, and that
it commence from the date the Respondent engages in collec-
tive bargaining with the Union.
It is further recommended that the Respondent post an ap-
propriate notice, in Spanish and English, attached as ‘‘Ap-
pendix.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, P & T Metals, Inc., South El Monte,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to negotiate with the Union as the
collective-bargaining representative of its employees in viola-
tion of Section 8(a)(5) of the Act.
(b) Unilaterally changing the terms and conditions of em-
ployment of its employees in violation of Section 8(a)(5) of
the Act.
(c) Discriminatorily changing the terms and conditions of
employment of its employees in retaliation for their union
activity in violation of Section 8(a)(3) of the Act.
(d) Telling its employees that they must suffer adverse
consequences for bringing in the Union in violation of Sec-
tion 8(a)(1) of the Act.
(e) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reestablish the following policies or terms and condi-
tions of employment as they existed prior to August 1993:
the washup policy, the break policy, the vacation policy, the
telephone policy, and the wire-stripping policy.
(b) Make whole its employees for the monetary loss of
wages and earnings they suffered as a result of the changes
in the Respondent’s break policy, vacation policy, and wire
stripping policy, in the manner set forth in the remedy sec-
tion of this decision.
(c) Preserve and, on 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 other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its South El Monte, California facility copies
of the attached notice marked ‘‘Appendix.’’8 Copies of no-
tice, in both Spanish and English, on forms provided by the
Regional Director for Region 21, after being signed by the
Respondent’s authorized representative, shall be posted by it
immediately upon receipt and maintained by Respondent for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that
notices are not altered, defaced, or covered by any other ma-
terial.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the certification year shall be
extended and shall commence with the date the Respondent
engages in collective-bargaining negotiations with the Union.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail and refuse to bargain with Sheet Metal
Workers International Association, Local Union No. 170,
AFL–CIO as the collective-bargaining representative of em-
ployees in the following unit:
All warehousemen and truck drivers employed by P
& T Metals, Inc., at its facility located at 2213 North
Tyler Avenue, South El Monte, California, excluding
1195P & T METALS, INC.
all office clerical employees, janitors, professional em-
ployees, guards and supervisors as defined in the Act.
WE WILL NOT unilaterally change the terms and conditions
of employment of our employees without prior notification to
and bargaining with the Union as the exclusive collective-
bargaining representative of our employees in the unit de-
scribed above.
WE WILL NOT change the terms and conditions of employ-
ment of our employees because they selected the Union as
their collective-bargaining representative.
WE WILL NOT tell employees that they must suffer adverse
changes in benefits because they selected the Union as their
collective-bargaining representative.
WE WILL reestablish the following benefits and work poli-
cies as they existed prior to August 1993: the telephone pol-
icy, the washup policy, the break policy, the vacation policy,
and the wire-stripping policy.
WE WILL make whole our employees for any loss of
wages or earnings they suffered as a result of the discontinu-
ation of the break policy, the vacation policy, and the wire-
stripping policy.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
P & T METALS, INC.