Pomona Building Materials Co., Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1969

174 N.L.R.B. 558 (N.L.R.B. 1969)

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pomona Building Materials Co., Inc . and General
Teamsters, Sales Drivers, Food Processors,
Warehousemen & Helpers, Local 871,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Case 21-CA-8020
March 20, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On November 20, 1968, Trial Examiner George
Christensen issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision, and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Pomona Building
Materials Co., Inc., Pomona, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
'e find no merit in the Respondent 's exception to the Trial Examiner's
Recommended Remedy See N L R B v Strong Roofing & Insulating Co ,
393 US 357
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Trial Examiner. On September
4, 1968, I conducted a hearing at Los Angeles, California,
on issues raised by a complaint issued on June 28, 1968,
based upon charges filed on April 1, 1968, by Teamsters
Local 871, hereafter the Union The complaint alleged
that Pomona Building Materials Co , Inc., hereafter the
Company or the Respondent, violated Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended,
hereafter the Act, by refusing on and after October 24,
1967, to comply with the terms of a contract executed on
that date by the California Building Material Dealer
Association, Inc., hereafter the Association, and the
Union for a term extending from September 1, 1967, to
August 31, 1971.
The Company by its answer denied the jurisdictional,
unit , majority representative status of the Union, contract
coverage, failure or refusal to comply therewith, failure or
refusal to bargain and unfair labor practice allegations of
the complaint.
All parties appeared at the hearing and were afforded
full opportunity to introduce evidence, examine and
cross-examine witnesses, argue orally, and file briefs. The
General Counsel and the Respondent have submitted
briefs
Based upon his review of the entire record, observation
of the witnesses and perusal of the briefs, the Examiner
makes the following.
FINDINGS OF FACT
1. JURISDICTION
The jurisdictional issue turns on the question of whether
at times pertinent to this case the Respondent was part of
the Association for purposes of collective bargaining.
During Respondent's previous fiscal year its gross sales
were $320,000 and it made purchases outside the State of
California of approximately $39,000. Standing alone,
therefore, it would fail to meet the minimum standards for
assertion of Board Jurisdiction.
The addition of the annual sales and annual purchases
of goods shipped from outside the State of just one other
member of the Association, L. A Building Materials
Company, however, warrants assertion of jurisdiction.
That Company had annual sales in excess of $500,000 and
purchases of goods shipped from points outside the State
of California valued in excess of $50,000.
The jurisdictional question is intertwined with the
contract coverage question and shall be finally resolved
along with the latter
11. LABOR ORGANIZATION
The complaint alleges, the answer admits, and the
Examiner finds that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICE
A. Background
Respondent recognized the Union as the exclusive
collective-bargaining agent of a unit of its employees in
1950 and executed an unbroken series of individual
contracts with it covering their wages, hours and other
conditions of employment through August of 1964
On August 18, 1964, Respondent executed a document
entitled "Authorization for Collective Bargaining"
wherein Respondent and other members of the
Association designated the Association as their exclusive
representative and attorney-in-fact for the purpose of
negotiating and executing standard collective-bargaining
agreements with Teamster Locals -420, 692, 871, and 235
174 NLRB No. 193
POMONA BUILDING MATERIALS CO., INC.
covering wages, hours, and other employment conditions
of their employees represented by the Locals. The
Association was further empowered to handle all
grievances and arbitrations arising under the contracts
beyond the initial step. The Authorization provided that it
would continue in full force and effect until and unless
revoked by the service of a written notice upon the
Association by a signatory after the execution of a
collective-bargaining agreement covering a signatory's
employees and not less than 60 days prior to the
termination thereof
Pursuant to the Authorizations on October 22, 1964,
representatives of the Association and the four Locals
executed a collective-bargaining agreement recognizing the
Locals as the exclusive bargaining agents for and
convering rates of pay, wages, hours and other
employment conditions of employees of all Association
members signatory to the Authorizations. The contract
remained in effect to August 31, 1967, subject to the usual
termination or modification not sooner than 60 days prior
thereto.
Business was poor in 1966 and 1967 both within the
industry and for the Respondent. As the time for
termination or renewal of the 1964-67 agreement neared,
Respondent's business had deteriorated to the extent that
it employed only a few persons in classifications covered
by the contract and had trouble retaining those few for
more than short periods.
B. The Alleged Cancellation of the Authorization
On June 14, 1967, Paul Kesner, manager of the
Company, addressed the following letter to the
Association:
June 14, 1967
CBMI)A
99 E. Magnolia
Suite :300
Burbank, Calif
Gentlemen:
We have been in a quandry since the first of the year
what with our business shot in the valley.
As you probably suspect our employees are down to
two and they are new men we just had to pick up off
the street and we do not know if they will work out to
be good drivers or not. Mac and I are doing everything
else to try to keep alive.
We have discussed the possibility of having to drop out
of the association because of economics but I have been
asking Mac to hold on a little longer.
A new union contract will be up for discussion for a
Sept. change and we want to discuss our shop here with
our local union as our conditions in this area are vastly
different than your area. We have been unable to attend
the L. A. meetings because of time and distance
involved.
All the other so called dealers in our area are on their
backs. You have not been out here for years, why don't
you come by some time.
Yours truly,
/ s/ Paul M. Kesner, Mgr.
Porn. Bldg. Materials
Respondent did not receive any response to the letter.
C. Negotiation of the 1967-71 Agreement
559
In the latter part of June 1967, the four Teamster
Locals signatory to the 1964-67 agreement served notices
on the Association and its members employing persons
covered thereby, including the Respondent, of their desire
to terminate the agreement effective August 31, 1967, and
to negotiate a new agreement. Respondent received his
notice from the Union on about June 23, 1967. The
Respondent did not reply to the Union's notice.
On July 18, 1967, the Association after due notice held
a special meeting of its members to discuss the union
notices and to plan the response thereto. The members
present (Respondent did not attend), constituting a
majority of the affected members, voted not to cancel the
Association's authority to represent and bargain for them,
chose a bargaining committee, and decided "to go along
with the bargaining pattern of the past in which we follow
the general format of the rock producers, ready mix
concrete agreement where it is applicable to building
material operations, and where the provisions of their
agreement are not applicable to our needs, negotiate
provisions which are."
On July 25, 1967, the Association acknowledged receipt
of the June union notices terminating the 1964-67 contract
and signified the willingness of the Association to meet
with the Unions to negotiate a successor contract. On the
same date the Association sent Respondent and all other
members who had executed Authorizations a letter setting
out the July 18 Association meeting actions, requesting
suggestions for changes in the existing contract, requesting
information concerning any pending grievances, and
enclosing copies of the Association reply to the Unions'
contract termination notice.
Respondent did not voice, either orally or in writing,
any objection to the Association's actions, its proposed
plan for negotiations, or the composition of the bargaining
committee; neither did it make any suggestions for
changes from the existing contract, submit any
information regarding pending grievances, or repudiate the
Association's authority to respond to the contract
termination notice on its behalf and arrange to negotiate
with the Unions as its agent. Neither did Respondent
notify the Union it wished to bargain directly.
The negotiations resulted in the execution on October
24, 1967, of a new contract for a term extending from
September 1, 1967, to August 31, 1971. The new contract,
inter alia , increased wage rates, hospital, medical, dental
care, disability pay, and pension benefits.
On October 27, 1967, the Association sent a copy of
the new contract to each affected member with
explanation of the new terms therein and the reasons the
bargaining commmittee had' accepted them. The
Association noted there was division among its members
over the terms of the new contract and advised them that
because of this the Association would not represent its
members in future contract negotiations.
Shortly after receipt of the October 27 Association
letter and the new contract (which was furnished to
McFarland in late October by Local 871 Business Agent
Young when McFarland informed Young it had not been
enclosed with the Association's letter), McFarland sent a
written resignation from membership to the Association.
He also informed Young he could not live with the new
contract.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Union 's Attempted Enforcement of the New
Contract
Young furnished McFarland a copy of the new contract
in late October . McFarland met with Young a few days
later (on November 1, 1967). At that meeting, McFarland
stated that he could not live with the new contract; that he
would be willing to pay the new wage scales but would not
honor the pension and dental plan provisions of the
contract and would only pay one-half the cost for the
required health and welfare benefits (hospital , medical,
disability income ). No concessions were made by Young.
McFarland has since paid the new wage scales. He has
not maintained any of the hospital , medical, dental care,
disability income, or pension benefit plans set out in the
contract . Subsequent attempts to compromise the matter
(including conferences at the hearing ) have been
unsuccessful . Respondent notes that it has and will
continue to meet with the Union at reasonable times and
places to discuss an agreement on these matters.
E. Concluding Findings
1. The unit and the Union ' s majority status therein
- While the Company denied the correctness of the unit
designated in the complaint and that the Union
represented a majority of the employees therein, it
advanced neither evidentiary nor argumentative support
therefor.
The unit designated is the unit set out in the 1967-71
agreement; the classifications covered represent what are
in essence the production and maintenance employees of
the building material dealers covered thereby. In the
judgment of the Examiner, this is an appropriate
multiemployer unit for purposes of collective-bargaining
within the meaning of Section 9 of the Act and he so
finds.
Respondent recognized the Union as the exclusive
collective-bargaining agent of its employees within the unit
from 1950 to 1964; the Association recognized the Union
and its three sister Locals as the majority representative of
the multi-plant unit indicated above in 1964 and at all
times subsequent; Respondent failed to adduce any
evidence to support any inference that the Union at any
time subsequent to 1964 lost its majority status therein.
On these facts the Union's continued majority status is
presumed, Carter Machine & Tool Co., 133 NLRB 247,
and the Examiner so finds.
2. Contract coverage and jurisdiction
The Authorization executed by the Respondent
empowering the Association to bargain with the Union on
his behalf clearly contemplated more than one contract
might result, for the Authorization refers to contracts. It
also contemplated possible withdrawal by any of its
affiliates and provided a specific procedure therefor -
written notice served more than 60 days prior to the
expiration of a contract then in effect.
The Examiner cannot find that Kesner's June 14, 1967,
letter constituted such a withdrawal; the first paragraph
cites the poor condition of the business, the second notes
the Company is finding it difficult to survive, the third
notes the possibility that at some future date for economic
reasons the Company may have to drop out of the
Association, the fourth notes an awareness negotiations
for a new labor contract would soon begin and indicates a
desire to discuss with the union conditions in the- area
where Respondent was operating which allegedly differed
from conditions of other Association members in other
areas, and closed with an invitation to visit Respondent's
premises. At the very most it can be construed as the
expression of a desire to discuss with the Union some
local- conditions allegedly at variance with those existing
elsewhere - a desire which was not conveyed to the
Union, either then or at any time prior to the execution
by the Association of a successor agreement and
Respondent's receipt thereof. No communication was
addressed by the Respondent to the Association
concerning the Association's continued authority to
bargain with the Union and its sister Locals and sign a
contract on Respondent's behalf prior to the negotiation
and execution of a successor contract, Respondent failed
to avail itself of the opportunity to attend the Association
meeting prior to the negotiations wherein policy to govern
same was established, Respondent failed to make any
suggestions or indicate its opposition to the policies
adopted when notified thereof and when such suggestions
were solicited, Respondent failed to repudiate the
Association's communications to the Union addressed in
its behalf, and Respondent failed to advise the Union at
any time prior to its November 1 resignation that the
Association was not acting as its agent.
Based on the foregoing, the Examiner finds that the
Association had full authority to represent, negotiate for
and execute a contract covering the wages, rates of pay,
hours and other conditions of employment of
Respondent's employees in the unit set out in the contract
when it negotiated with the Union and its three sister
Locals and executed a contract on October 24, 1967,
covering same. The Examiner therefore finds that the
Respondent is subject to and bound by that contract
executed by his duly authorized agent, the Association, for
the term thereof.
In view of the finding that the Authorization was in full
force and effect at the time the 1967-71 contract was
executed on behalf of the Respondent, the proper
jurisdictional standard to apply for the purposes of this
case is the amount of business done by all the employers
within the multi-plant unit consisting of all members of
the Association which had empowered it to act on their
behalf in collective bargaining with the four Locals. The
evidence discloses that just the business of the Respondent
and one other member is sufficient to meet the Board's
minimum monetary standards for assertion of jurisdiction
(see I , above). The Examiner therefore finds that the
Respondent at all times pertinent to this case was an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
3. The failure or refusal to bargain in good faith
The Respondent correctly notes that its relationships
with the Union throughout the period since its initial
recognition of the Union in 1950 have been friendly and
amicable and that it has throughout its
collective-bargaining history met with the Union at all
reasonable times and places to discuss the wages, hours
and other conditions of employment of its employees
represented by the Union The General Counsel does not
contend that any union animus is involved in this case.
However, this is not the question. The question is
whether, after authorizing an agent to execute a contract
POMONA BUILDING MATERIALS CO., INC. 561
on his behalf with the Union convering his employees
represented by that Union and after his agent, acting
pursuant to that authorization, has executed a contract
with the Union, does that agent's principal refuse to
bargain in good faith in violation of Section 8(a)(5) and
(1) of the Act when he subsequently repudiates such
contract and seeks modification thereof?
The Examiner finds that such action is bad-faith
bargaining violative of the Act. Once having authorized
the Association to represent him and to bargain and
execute a contract on his behalf with the Union covering
his employees in the unit, it was bad faith on the part of
Respondent, on receiving the new contract, to refuse to
accept its terms (particularly the health and welfare and
pension provisions) and attempt to secure modification of
such provisions from the Union. To sit back and permit
his agent and the Union to negotiate a contract covering
his employees and then on reviewing the results, to
repudiate the contract agreed upon and seek to negotiate a
lower scale of benefits hardly constitutes good-faith
bargaining with the Union and good-faith treatment of his
agent and his employees. As the Board has noted:
The statutory intent to stabilize during a contract term
agreed-upoh conditions of employment is apparent from
the provisions of Section 8(d) of the Act, which defines
the obligation to bargain. That Section not only
imposes an obligation on each party to a contract to
refrain from modifying the contract without complying
with the notice and waiting period requirements therein
set forth, but also expressly provides that "the duties so
imposed shall not be construed as requiring either party
to discuss or agree to any modification of the terms and
conditions contained in a contract for a fixed term, if
such modification is to become effective before such
terms and conditions can be reopened under the
provisions of the contract." In line with that provision,
the Board has consistently held that a party does not
violate its bargaining obligation when it refused to
discuss changes proposed by the other party in the
terms of an existing contract. (citing cases) The Board
has also held that an employer acts in derogation of his
bargaining obligation under Section 8(d), and hence
violates Section 8(aX5), when he unilaterally modifies
contractual terms or conditions of employment during
the effective period of a contract - and this even
though he has previously offered to bargain with the
Union about the change and the union has refused.
(citing cases) C & S. Industries, 158 NLRB 454, 457.
[Emphasis Supplied.]
The Examiner therefore finds that the Respondent, by
repudiating the contract executed on October 24, 1967 by
his agent and the Union covering his employees within the
unit specified, and by demanding modification thereof and
more favorable terms and concessions from the Union,
thereby refused to bargain in good faith in violation of
Section 8(aX5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce and in an industry affecting commerce and the
Union is a labor organization within the meaning of
Section 2(2), (5), (6), and (7) of the Act.
2. By repudiating the contract executed on October 24,
1967, by the Association as Respondent's agent and the
Union covering Respondent's employees in the unit
therein described represented by the Union and by
demanding modification thereof and more favorable terms
and concessions from the Union than those contained in
the contract, Respondent refused to bargain collectively in
good faith with the representative of his employees and
thereby violated Section 8(a)(5) and (1) of the Act.
3. The aforesaid unfair labor practices occurring in
connection with Respondent's operations in interstate
commerce will tend to lead to labor disputes burdening
and obstructing commerce or the free flow thereof unless
remedied in accordance with the provisions of the Act.
REMEDY
Having found that the Respondent engaged in unfair
labor practices, it will be recommended that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the purposes and policies of the
Act.
It has been found that the Respondent unlawfully
repudiated a contract executed by its agent with the Union
covering Respondent's employees represented by the
Union in the unit described in the contract, that he failed
and refused to provide his employees within that unit
certain benefits agreed to by the Union and his agent,
particularly the health and welfare and pension benefits
specified therein, and that he demanded that the Union
agree to the deletion of any provision or liability upon
Respondent to provide for dental care or retirement
pensions of such employees and that Respondent only pay
for one-half the cost of hospital, medical, and disability
income benefits.
To restore to the Union and the affected employees the
contract benefits of which they were deprived by the
Respondent's unfair labor practice requires an order that
the Respondent not only cease and desist from its refusal
to comply with the terms and conditions of the 1967-71
contract, particularly the health and welfare and pension
provisions thereof, but also that it make the employees
and the Union whole for any loss of benefits they may
have suffered during the period of Respondent's
noncompliance therewith.
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
the Examiner recommends pursuant to Section 10(c) of
the Act that the Respondent Pomona Building Materials
Co., Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing or refusing to comply with all the terms and
conditions of the contract executed by the Association on
Respondent's behalf and the Union on October 24, 1967,
for a term extending from September 1, 1967, to August
31, 1971, covering the wages, hours, and other conditions
of employment of Respondent's employees within the unit
specified in said contract.
(b) Failing or refusing to provide the health and welfare
and pension benefits provided in the health and welfare
and pensions provisions of that contract.
(c) Making any changes in the terms and conditions of
its employees from those specified in that contract during
its term without prior notice to, bargaining with, and
agreement by the Union.
(d) Insisting upon the Union's acceptance of
modification of the health and welfare and pension
provisions or other provisions of that contract before the
Respondent will comply with same.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act:
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Make whole any of Respondent's employees in the
unit covered by the contract noted above who may have
suffered any losses by virtue of Respondent's failure and
refusal to comply with the health and welfare and pension
provisions of that contract, and any other losses they may
have occasioned by virtue of such failure or refusal to
comply therewith.
(b) Make whole the Union for any losses it may have
suffered by reason of Respondent's failure to comply with
the terms and conditions of said contract.
(c) Post at its plant at Pomona, California, copies of
the attached notice marked "Appendix A."' Copies of
said notice furnished by the Regional Director for Region
21 shall be signed by an authorized representative of the
Respondent and posted by it immediately upon receipt
thereof, in conspicuous places, where notices to employees
are customarily posted and maintained there for 60
consecutive days thereafter. Reasonable steps shall be
taken to ensure that said notices are not altered, defaced,
or covered by other material.
(d) Notify the said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps the
Respondent has taken to comply herewith.'
'In the event this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event the Board 's Order is enforced by a decree of a United States Court
of Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
'In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board found
that we, Pomona Building Materials Co., Inc., violated
the National Labor Relations Act and ordered us to
post this notice.
The Board found that we violated the Act when we
refused to give our employees the health and welfare
and pension benefits that their Union, Teamster Local
871, secured for them in a contract signed on October
24, 1967, for a term extending from September 1, 1967,
to August 31, 1971, and tried to get the Union to
reduce or eliminate those benefits and ordered us to
provide those benefits and any others set out in that
contract for its term and to make any employees who
suffered any losses whole for such loss as they suffered.
The Board also ordered us not to make any changes in
the benefits set out in the contract without first getting
the agreement of the Union to any changes we want.
We therefore promise that we will secure the full
health and welfare and retirement benefits for our
employees that the contract calls for and that we will
make up any losses our employees have suffered
because those benefits have not been provided.
We also promise that we will not make any changes
in any rights or benefits provided by the contract unless
the Union first agrees to such change.
We further agree that we will not refuse to bargain
with Teamster Local 871 concerning the wages, hours
and other conditions of our employees covered by the
contract set out above.
Dated By
POMONA BUILDING
MATERIALS CO., INC.
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California 90014, Telephone
688-5229.