Premier Fabrics of California, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1976

224 N.L.R.B. 710 (N.L.R.B. 1976)

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Premier Fabrics of California , Inc and Oil, Chemical
& Atomic Workers International Union , AFL-CIO,
Local 1-128. Case 21-CA-14034
June 11, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On March 5, 1976, Administrative Law Judge
Roger B Holmes issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Premier Fabrics of Cali-
fornia, Inc , Los Angeles, California, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over
rule an Administrative Law Judge s resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
ROGER B HOLMES, Administrative Law Judge The
charge in this case was filed on October 3, 1975, by Oil,
Chemical & Atomic Workers International Union, AFL-
CIO, Local 1-128, herein called the Union The complaint
was issued on November 11, 1975, on behalf of the General
Counsel of the National Labor Relations Board, herein
called the Board, by the Regional Director of Region 21
The complaint alleges that Premier Fabrics of California,
Inc, herein called the Respondent, has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended, here-
in called the Act Respondent filed an answer to the com-
plaint and denied the commission of the alleged unfair la-
bor practices
The case was heard before me on February 5, 1976, at
Los Angeles, California Briefs were filed by the General
Counsel and by the Respondent and have been duly con-
sidered Oral argument was made by the Charging Party at
the hearing
Upon the entire record and based upon my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is, and has been at all times material herein,
a California corporation and has been engaged in the
wholesale distribution of drapery, slipcover, and uphol-
stery fabrics, with a facility located at 2323 South Grand
Avenue in Los Angeles, California Respondent, in the
course and conduct of its business operations, annually
purchases and receives goods valued in excess of $50,000
directly from suppliers located outside the State of Califor-
nia
Upon these admitted facts, I find that Respondent has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
The parties stipulated at the hearing that the Union is
now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
The principal issues raised by the pleadings are
1 Whether the Respondent and the Union reached a
final and binding agreement on the terms of a collective-
bargaining agreement, or whether the parties only reached
a tentative agreement which was understood to be subject
to final approval by the president of the corporation in
New Haven, Connecticut
2 Whether the Respondent violated Section 8(a)(1) and
(5) of the Act by its refusal to execute the collective-bar-
gaining agreement
B Background
A Board-conducted representation election was held on
March 21, 1975, in which a majority of the employees in
the unit described below designated the Union as their col-
lective-bargaining representative The Regional Director of
Region 21 certified the Union on March 31, 1975, as the
exclusive representative of the employees in the following
appropriate unit
All office clerical employees, including all credit de-
partment employees and all order department employ-
224 NLRB No 112
PREMIER FABRICS OF CALIFORNIA, INC
ees employed by Respondent at its 2323 South Grand
Avenue, Los Angeles, California, facility, excluding
all other employees, including all warehouse employ-
ees, shipping and receiving employees, cutters, sample
makers, outside salesmen, professional employees,
guards, and supervisors as defined in the Act
At the time of the election and certification of the
Union, there were approximately eight employees in the
bargaining unit There has been no prior collective-bar-
gaining history in the office clerical unit involved in this
proceeding or in any other unit at the Los Angeles facility
C The Employer's Business Operations
Respondent was previously owned by Herman Abbott,
president of Premier Fabrics, Incorporated, located in New
Haven, Connecticut A vice president of the corporation
ran the Los Angeles facility at that time In the fall of 1973,
all of the shares of stock of the Respondent were purchased
by Lily Lynn, Incorporated
Thomas Lerner has been vice president of the Respon-
dent since August 1, 1973 Prior to that time he had served
as general manager from January 15, 1973 Lerner is the
only corporate officer located in California The president
of the corporation is Joseph Anastasio who is located in
New Haven, Connecticut In addition to its Los Angeles
facility, Respondent has other warehouses in Atlanta,
Georgia, and Cincinnati, Ohio
About 80 percent of the purchases of goods for the Los
Angeles facility are decided upon by the New Haven of-
fice The remaining 20 percent are determined by Lerner,
but in conjunction with the vice president of merchandis-
ing in New Haven who has final authority over what goods
are to be purchased Invoices to customers are sent out
both from Los Angeles and from New Haven, depending
upon what facility ships the goods to the customer A
branch accounting office is located in Los Angeles, howev-
er, the main corporate accounting office and the controller
are located in New Haven Payments from customers re-
ceived by the Los Angeles office are deposited in a transfer
account at a bank and transmitted to the home office The
budget is prepared in New Haven and sent to Lerner who
is expected to operate within the budget guidelines
In fiscal year 1975, total gross sales for the Los Angeles
facility were about $1 4 million and for Lily Lynn gross
sales were approximately $50 million for that period
Sometime in 1974 Lerner gave wage increases to the Los
Angeles employees and also gave them 2 weeks' vacation a
year and sick leave Previously, the employees had received
only a 1-week vacation and no sick leave Lerner did this
on his own authority The increase in benefits displeased
the New Haven office which instructed Lerner to revert to
1 week's vacation Lerner said that he told the New Haven
office about the competitive nature of the industry in Cali-
fornia, and Lerner prevailed and the increased benefits re-
mained However, Lerner subsequently advised the office
manager in Los Angeles, who handles the payroll, that any
pay raises had to be approved by New Haven'
i The facts in this section are based on Lerner's testimony which was not
in dispute with regard to the foregoing matters
711
D Contract Negotiations Between the Respondent and the
Union
The first meeting for negotiating a contract between the
parties was held on May 22, 1975 2 Present at the meeting
which was held at the company premises were Thomas
Lerner, vice president , and Leah Groveman , office manag-
er, on behalf of the Respondent , and Arthur Maxwell, vice
president , and Marilyn Fielder , steward and employee ne-
gotiating representative , on behalf of the Union 3
Maxwell introduced himself at the meeting and ex-
plained his authority to negotiate an agreement on behalf
of the Union , but that the agreement would be subject to
ratification by the employees According to Maxwell, Ler-
ner also explained his authority as a vice president of the
Respondent and said as far as he was concerned, they
could reach an agreement if they did not change corporate
policies Maxwell asked Lerner what he meant by that
Lerner stated that the retirement plan and the medical plan
were controlled by the corporate office in New Haven
A complete contract proposal consisting of 11 typewrit-
ten pages was presented by Maxwell to the Company The
parties then proceeded to go through the entire agreement
and the Union explained the application and intent behind
each article of its proposal Lerner told the Union that he
would respond to the proposed agreement Lerner stated
that where he made no response , the Union could consider
those articles to be agreed upon Lerner said that some of
the items in the Union's proposal would have to have cor-
porate approval-the retirement plan and medical plan
Just before adjournment , Lerner informed Maxwell that he
had given raises to the employees in the past , but that now
business was down 4
Lerner testified that he explained the corporate structure
to Maxwell at the first meeting Lerner said that Respon-
dent was a branch office operating in Los Angeles and was
part of a corporation which was owned by Lily Lynn Ler-
ner said that he had the authority to negotiate as an officer
of the Company, but that final approval would have to
come from New Haven Lerner said that Maxwell told him
the same thing-that Maxwell was the one to negotiate for
the Union, but the agreement would have to be ratified by
the employees Lerner stated that the only thing he told
Maxwell about the medical plan and pension plan was that
those two matters are handled by New Haven 5
2 Prior to the first meeting, the Union had requested by letter dated April
10, 1975 information from the Company concerning the employees' hiring
dates, wage rates job classifications, fringe benefits, and related matters
Respondent replied promptly on April 15, 1975, to the Union by letter in
which the requested information was furnished
3 At the time of the hearing in this proceeding on February 5, 1976, Ms
Fielder was no longer employed by the Respondent She was not called as a
witness
4 The foregoing is based on the testimony of Arthur Maxwell whose testi-
mony has been credited throughout this proceeding Maxwell gave the im
pression of being a candid and truthful witness who was trying to recall
these events as accurately as possible Where there are conflicts with his
testimony I have found his testimony to be the most reliable and credible
5 At the hearing Lerner said that the pension plan is operated out of the
New Haven office, but that it did not cover the Los Angeles employees up
to that time The medical plan operated out of New Haven does give cover-
age to the Los Angeles employees and employees in the other two branches
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Office Manager Groveman was also present at the meet-
ing When asked at the hearing what Lerner had told the
Union about his authority in contract negotiations at the
first meeting, she said, "He explained the structure of the
entire Company, and started off by relating that we are just
one branch of a few with a home office in New Haven and
that we are responsible to them " She added that Lerner
said, "-he could do all the negotiating and bring this con-
stantly to the attention of New Haven "
The second negotiation session was held on June 26,
1975, at the Company's offices The same persons were
present According to Maxwell, Lerner informed the
Union that the Company had lost a considerable amount
of money over the last 6 months and that he wanted to give
the Union a copy of a profit-and-loss statement Maxwell
said that they discussed the losses of the Company and
then Lerner submitted the Company's counterproposals
Lerner said that the counterproposals were just for this
particular location and that he had not lived by corporate
policy over the last 2 years Lerner commented that, prior
to the time that he took over the Company, the Company
was run by corporate policy and the employees used to
have a 1-week vacation regardless of their years of service
and that the employees did not have any sick leave After
Lerner took over the Company, he said that he gave the
employees 2 weeks' vacation and sick leave However,
Maxwell said that Lerner told him that now that the Union
has come in, he would go back to corporate policy Max-
well replied that dust because the Union was now here, he
did not want to negotiate "retrogression" and have the em-
ployees lose anything which they already had He said that
Lerner "backed off that position" and then they began to
discuss the Company's counterproposals
After going through the Company's counterproposals at
the second meeting, Maxwell said that Lerner told him that
Lerner did not live by corporate policy and that Lerner
wished that Maxwell would not live by union policy 6 He
said that, as long as the Union was not insisting on jury
duty and retirement pay Lerner had given the employees
raises in the past and if business was up he would give
them raises even if the Union was not there
Maxwell related that Lerner also told him at the second
meeting that the Company at this particular location rested
wholly on his shoulder, that he basically owned this partic-
ular location,7 that Lerner made the decisions on things
which were not corporate policy, and that was why he gave
the Union the profit-and-loss sheet for this particular loca-
tion and not for New Haven Lerner stated that the Union
had insisted on things that he could not give He gave, as
an example, Easter Sunday as a holiday Lerner said that
the Company could not give that At that point the Union
6 In his testimony Lerner denied emphatically saying this to Maxwell
7 Lerner denied telling Maxwell that he owned the Los Angeles plant and
affirmatively testified to the ownership of the corporation by Lily Lynn I
attribute the conflict here to a misunderstanding of the intent of what was
said by Lerner In the context of this conversation, Lerner was speaking of
the Los Angeles facility resting "wholly on' his shoulder and it appears that
he was intending to convey that he had responsibility for this plant and its
operation, rather than wholly owning the Los Angeles business The simi-
larity in sounds and expressions apparently resulted in a misunderstanding
withdrew its proposal to have Easter Sunday as a holiday
Maxwell then asked whether the medical plan provided for
dependent coverage, and Lerner responded that if the em-
ployees wanted dependent coverage that he would work
something out if one of the employees would come in and
ask him at this meeting 8
Lerner testified that he had discussed the Company's
counterproposals prior to the meeting with his New Haven
office and that the Company's counterproposals were ac-
ceptable to New Haven before he presented them to the
Union at the second bargaining session Lerner said that
the profit-and-loss statement which he gave to Maxwell
showed a loss of $101,000 by the Los Angeles facility for
the first 6 months By the time of the hearing, Lerner said
that the Company had a considerable loss for the whole
year in the operation of the Los Angeles facility He did
not have the final figures for the year, but he said that New
Haven termed it as "quite a disaster "
On July 2, 1975, the third bargaining meeting was held at
the Company with the same persons present Discussion of
the proposals and counterproposals continued by the par-
ties Lerner again brought up the losses of the Company, so
the Union asked the Company about agreeing to a wage
reopening provision Lerner asked Maxwell to work out the
language and Maxwell agreed to do so in view of the
Company's losses Among other things, the parties dis-
cussed the proposals on union security, holidays, vacations,
funeral leave, probationary period, promotions and demo-
tions, and agreed to leave open severance pay and jury
duty
Prior to the July 2 meeting, the Union had distributed a
pamphlet at the Company concerning the calling of a strike
vote At the meeting Lerner wanted to know why the
Union had passed out the pamphlet because he felt that
they could reach agreement Maxwell said that the purpose
of the pamphlet was so that he could get assistance from
his International because of some of the matters on which
Lerner was insisting Maxwell commented, "I was getting
into an area of negotiating retrogression for the employ-
ees " However, Maxwell told Lerner that this did not mean
that the Union was going to pull the employees out on
strike Lerner asked Maxwell to call off the strike vote and
said that they could set up a subsequent meeting to reach
agreement on all open items Whereupon, Maxwell spoke
to the employees individually at the plant and told them
that Lerner had said that they could reach agreement on all
open items, therefore there was no need for assistance
from the International, so they could call off the strike vote
if they wanted to do so As a result of this, the strike vote
was canceled 9
The fourth meeting between the parties took place on
July 15, 1975, at the Company Alternate Steward Suzette
Mitchell substituted for Ms Fielder, otherwise the persons
present were the same ones as before
The Company submitted its second counterproposals to
the Union at this meeting Discussion of this set of counter-
proposals then ensued After a lengthy consideration of the
$ The proceding is based on Maxwell's account of the meeting
The account of this third meeting was given by Maxwell
PREMIER FABRICS OF CALIFORNIA, INC 713
union-security clause issue which had separated the parties,
the Company withdrew its proposal for an open shop and
agreed to the Union's proposal for a union shop In addi-
tion, Lerner agreed to the Union's request for a holiday for
each employee on his birthday However, Lerner requested
that the birthday holiday agreement be put in a separate
letter between the parties because he did not want the New
Haven office to know about it Maxwell said that Lerner
explained that the letter could be attached to the contract
between the parties, but Lerner would "detach it when he
sent the copies back to the New Haven office "
At this session Lerner agreed to a 3-week vacation for
the employees, funeral leave , and double-time pay for
working 4 hours on December 24 and 31 The Union with-
drew its demand for triple-time pay for holidays, overtime
pay for lunch periods, and severance pay "because he was
saying this wasn't corporate policy also," according to
Maxwell The parties compromised on the leave of absence
proposals After that the parties again discussed how Ler-
ner could pay the employees for their birthdays without
letting the New Haven office know about it Ms Mitchell
suggested that the Company did not have to send the time-
cards to New Haven, and Lerner responded that they
would work it like that Then the parties proceeded to go
through the entire contract again to see if there was any-
thing which had been left open for discussion Nothing
appeared to be left open, so Maxwell told Lerner that as
far as he was concerned they had reached an agreement
Lerner shook his hand and asked Maxwell if he thought
that the employees would ratify it with only 10 cents an
hour and all the wage openers Maxwell replied that he
would take it to the membership and recommend it 100
percent Maxwell said he would explain the Company's
loss, the fact that the Company had turned over their
books, and they had reached agreement Lerner asked how
soon it would be ratified and Maxwell said it would be on
Friday of that week at an employee's house Maxwell said
that Lerner assured him that as far as he was concerned,
they did not change any corporate policy because the
Union did not insist on the retirement plan or changing the
medical plan which the employees then had, and the Union
had agreed on wage reopeners Lerner assured Maxwell
that if Lerner made money, the employees would get mon-
ey because he had given them raises in the past, and he did
not live by corporate policy
Maxwell said that Lerner told him, if the employees rat-
ified the contract, to prepare all of the material and drop it
by just as they had agreed upon, and "he'll send New Ha-
ven a copy of the agreement " Maxwell testified that he
specifically asked Lerner at that time whether New Haven
had to approve the contract and Lerner replied no because
they did not get into the areas which were corporate policy
concerning retirement plan, jury duty, and Easter Sunday
Lerner said that he just wanted to send New Haven some
copies Lerner said that as far as he was concerned they
had reached an agreement 10
Suzette Mitchell, the alternate union steward who was
present at the July 15 meeting, corroborated Maxwell's tes-
timony that Lerner told Maxwell that New Haven did not
10 This is the credited version of the fourth meeting given by Maxwell
have to approve the contract She recalled that the parties
discussed the draft of the contract and the proposals from
the Company, including sick leave, vacation, raise in wag-
es, funeral leave, and union security She also recalled that
Lerner said that there were two matters on which he did
not have the authority to bind the Company and those
were medical benefits and retirement With regard to the
discussion of the union-security clause, she testified that
"at first Mr Lerner wasn't so hot on the idea But at the
end, at the end of that meeting, everything was agreed
upon "
Ms Mitchell said that Lerner asked Maxwell to give him
a copy of the agreement to send to New Haven so that they
could look at it She stated that Maxwell asked Lerner if
New Haven would have to approve it and Lerner replied
no, that they would not ti
Lerner disputed the version given by Maxwell and Ms
Mitchell Lerner said that he asked Maxwell for a copy of
the agreement and told Maxwell "That I had to send it
back to New Haven for their approval "
Lerner acknowledged that he had wanted the birthday
holiday provision contained in a separate letter addendum
to the contract so that it would not be seen by the New
Haven office Lerner explained that he wanted to give that
benefit to the employees, but he felt that it would not meet
with New Haven's approval in view of New Haven' s earlier
reaction to Lerner's granting an increase in the amount of
vacation and giving sick leave Lerner commented that "it
would be like pouring salt on the wound " However, Ler-
ner said that he subsequently persuaded Anastasio to agree
to giving the birthday holiday
Although the agreement on July 15 contained a union-
security clause which Lerner had previously opposed, Ler-
ner said that he told the Union at that meeting that the
contract was acceptable to him Lerner explained the
change in his position in this manner
I changed my mind because I was faced with a strike
vote, and I wanted, above all, to keep the Company
running, and I was afraid that they would strike and
United Parcel wouldn't be able to bring in shipments
and I'd have to close up, and I figured it-I figured it
would be better for me to sign an agreement, to okay
an agreement here on that basis rather than close the
Company
Lerner testified that there were some items in the con-
tract which he had agreed to, but which he felt New Haven
would not agree to Those items included the Company's
paying for accrued vacation pay and funeral leave Lerner
said that Anastasio had previously instructed him that it
was not corporate policy to include anything in a contract
whereby the Company would pay employees for hours
which were not worked Nevertheless, Lerner said that
Anastasio subsequently agreed to those things in conversa-
tions between Anastasio and him
11 At a later point in her testimony Ms Mitchell said that she assumed
that Anastasio or someone else in New Haven would sign the contract in
addition to Lerner However this assumption was based on the fact that
there was more than one blank signature line on the contract after the
Respondents name She said that there was no discussion as to who would
sign for the Company or for the Union
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Friday, July 18, 1975, the employees voted to ratify
the contract Ms Mitchell informed Lerner of this action
on the following Monday During that week of July 21,
Maxwell delivered a copy of the agreement to the Com-
pany
On August 8, 1975, Lerner mailed the contract and the
following letter to Joe Anastasio, president of the Respon-
dent, at the New Haven office
Enclosed is the contract as negotiated between me
and the union that I have agreed to
The additions or deletions are in ink and have been
done in accord with the union Please refer to Appen-
dix A, wage rate and classification The credit manag-
er is in management and does not apply to this partic-
ular contract but since she voted in the election we
had to include her in this contract
Upon your scrutiny please confirm and I will call in
the union to sign the contract I believe that this is a
fair contract It took many long hours of patient and
hard negotiations to arrive at this contract which I
believe is fair and economically feasible for Premier
Fabrics of California
Sometime later in August, Lerner had a telephone con-
versation with Anastasio in which the contract was briefly
discussed Lerner said that Anastasio told him of some
points that he wanted Lerner to convey to the Union, but
since Lerner had previously scheduled a trip back East in
the near future, Anastasio said he would go over the con-
tract with Lerner when he came in
During the last week of August, Maxwell received a tele-
phone call from Lerner Maxwell said that Lerner told him
that the New Haven office had taken a look at the agree-
ment and they would like to know if there was any way
possible to add to the union-security clause so that it would
be effective from the date of contract signing Maxwell
responded that it would not be any problem because he
had certification cards for all of the employees at the Com-
pany Maxwell said that Lerner then called his attention to
some errors which Maxwell had made in the contract con-
cerning matters which had been agreed to For example,
Maxwell had not put "December 24th split shift, Decem-
ber 31st split shift" as the parties had agreed Maxwell re-
plied that it was no problem because he knew that those
things had been agreed upon Also, Maxwell had not delet-
ed the triple-time provision for holiday pay and had made
an error in the year for the wage reopener which should
have read January 15, 1976, rather than 1975 Then they
discussed the credit manager's rate of pay in the contract
Maxwell said that the rate of pay would stay in the con-
tract, but that if the Company wanted to give the present
credit manager the authority to hire and fire employees,
then that would take her out of the bargaining unit How-
ever, he said since the credit manager had not previously
had that authority and had voted in the election, the Union
felt obligated to negotiate that wage rate Maxwell said
that Lerner replied that it would not pose any problem
because Lerner would just not fill that job Maxwell said
that would be fine with him Maxwell said that Lerner con-
tinued by saying that the agreement looked good as long as
they could put in that one item which New Haven had
asked Lerner to talk with the Union about-"the date of
contract signing on Union security, the rest of the lan-
guage stays the same " Maxwell advised Lerner that he
would have the proposed agreement ready for signature
and that he was leaving on 2 weeks' vacation from the 1st
to the 15th of September, but he would call him upon his
return He said that Lerner replied, "as far as we're con-
cerned, just get the agreement together and come in "12
Lerner made his trip back to New Haven around Sep-
tember 15, 1975 At that time he discussed the agreement
with Anastasio who, according to Lerner, stated-,
That he said that he couldn't agree to the contract and
for me to go back and work out without-work out
the contract He wanted a tenure of time, a one-year
tenure of time in the contract without wage openers,
and no Union security clause, maintenance clause
With regard to the rest of the agreement, Lerner said
that Anastasio advised him that he would accept the bal-
ance of the provisions Lerner testified that one of the rea-
sons why Anastasio rejected the contract with the wage
reopeners in it was because of the bad profit situation at
the Los Angeles facility He said that Anastasio wanted a
1-year period of time for wage reopeners
The parties met once again on September 25, 1975, at the
Company with the same persons present who attended the
July 15 meeting According to Maxwell, Lerner asked him
why he had passed out the strike pamphlets before the
meeting when they had reached agreement Maxwell told
Lerner that the members of the Union had met prior to
that meeting and Maxwell had told them that he had been
trying to contact Lerner since Maxwell's return from vaca-
tion The employees informed Maxwell that when he had
called for Lerner that Lerner was in the facility, but that
Lerner did not want to talk with Maxwell Therefore, Max-
well said that was one of the reasons for his having the
strike pamphlets distributed Also, Maxwell said that he
felt it was time for him to contact the Federal Mediation
and Conciliation Service because they had reached an
agreement, talked about changes on the telephone which
Lerner and the New Haven office wanted and some mis-
takes in the contract, and now Maxwell had the corrected
agreements ready for signature
Maxwell said that Lerner then told him, "We changed
our mind, that we're not going to sign the agreement"
Maxwell asked why Lerner responded that he did not like
the union-security clause, funeral leave, wage reopeners,
strike and no-lockout clause, paying employees for having
their birthday off, and also he did not have any money to
negotiate a contract with that many wage reopeners in it
Maxwell said that the Union's proposals had been based
on the loss of profits by the Company and that he had
gotten clearance from the membership to agree to the wage
reopeners which the Company had wanted Lerner replied,
"Well, I don't like it I've changed my mind "
12
Lerner did not go into detail regarding this conversation in his testimo-
ny Instead, he said that he did discuss with Maxwell those things which
Anastasio had mentioned to him during the period of time after his conver-
sation with Anastasio and before he went back East
PREMIER FABRICS OF CALIFORNIA, INC
In addition, Maxwell said that before the meeting con-
cluded on September 25 that Lerner told him that he
should go out and talk with the employees Lerner said that
he had talked with them and that they did not want a
union in the plant Maxwell replied that they must be tell-
ing Lerner one thing and telling Maxwell something differ-
ent because Lerner kept "riding their back about the
Union " Maxwell said that the Union was obligated to ne-
gotiate because of its certification and he was not going out
there and ask the employees whether they wanted a union
Maxwell said that there had been a bargaining unit meet-
ing just a few days prior to that day's meeting and the
employees were still upset about the wage rate Therefore,
Maxwell said that he was certain that the employees still
wanted a union in the plant Maxwell said that Lerner told
him, "Well, as far as we're concerned, we're not going to
sign the agreement "13
Suzette Mitchell, who was also present at the September
25 meeting, testified that Maxwell asked Lerner at the
meeting if he was ready to sign a contract She said that
Lerner replied that there were a couple of points that he
wanted to go back over and those points were the strike
and lockout clause and the clause stating that an employee
would have to join the Union after 30 days Lerner said
that he did not want those clauses in the contract Maxwell
said that the two clauses had to be in the contract because
they were part of the agreement Lerner said that he did
not want to agree to a contract with those two clauses
Maxwell then asked whether he could presume that they
were at an impasse and Lerner said yes, if those two claus-
es stay in there
Lerner testified that at the September 25 meeting he ad-
vised Maxwell that New Haven did not agree on having
wage openers and that they wanted some tenure of time
Lerner said that he could not have a union maintenance
clause He said that he told Maxwell that except for those
provisions, the contract was acceptable
The final conversation between the parties concerning
the contract took place on October 1, 1975 14 At that time
Maxwell telephoned Lerner and asked him if he had
changed his mind about signing the agreement Maxwell
told him that they had an agreement before the ratifica-
tion, that Lerner had assured him and shaken hands with
him that they had reached an agreement Maxwell asked
him what was the problem Lerner replied that he was not
going to sign the agreement with those articles in there
involving no-strike and lockout, funeral leave, and union
security Lerner reiterated that he had changed his mind
and that he was not going to sign it
E Analysis and Conclusion
Based on the credited testimony of Maxwell, I conclude
that the Respondent and the Union reached a final and
binding agreement on a collective-bargaining contract dur-
ing the telephone conversation between Lerner and Max-
well during the last week of August 1975 The parties had
13 The preceding account is based on the credited testimony of Maxwell
j4 Lerner did not testify with respect to an October 1 telephone conversa-
tion with Maxwell
715
reached earlier agreement on a contract during the bar-
gaining session held on July 15, 1975 That fact is really not
in dispute as is demonstrated by Lerner's letter dated Au-
gust 8, 1975, to Anastasio However, after mailing a copy
of the agreement to Anastasio and talking with him by
telephone, Lerner asked the Union to make one minor
change in their previous agreement That change con-
cerned only the effective date of the union-security clause
The Union readily agreed to that change In addition, Ler-
ner called Maxwell's attention to certain errors in the docu-
ment which Maxwell had previously prepared Maxwell
immediately acknowledged the errors and agreed to correct
them Thus, during that telephone conversation during the
last week of August 1975, all matters were fully and finally
resolved between the Respondent and the Union All that
remained was the preparation of a corrected document by
the Union and for both parties to sign the corrected docu-
ment
The corrected document was subsequently drafted by
Maxwell When the parties met on September 25, 1975,
Lerner said that he had "changed my mind" and refused to
execute the contract Lerner reaffirmed his refusal to sign
the agreement in the subsequent telephone conversation
between Maxwell and him on October 1, 1975
A refusal by an employer to execute an agreed-upon col-
lective-bargaining agreement is violative of Section 8(a)(1)
and (5) of the Act 15 Here the Employer clothed Lerner
with the authority to negotiate a contract with the Union,
but when Lerner had successfully done so, the home office
in New Haven did not agree with what its officer and agent
had done In effect, New Haven decided to "second guess"
their negotiator who had agreed to a complete contract
Apparently, Lerner was more amenable to concluding an
agreement with the Union and more generous in agreeing
to certain benefits than New Haven would have liked This
is shown by Lerner's testimony about his desire to avoid a
strike which he felt would cause the operation of the plant
to be closed down Also, it is shown by the fact that Lerner
agreed to giving the employees a holiday on their birthday,
but he wanted to keep that fact from New Haven since he
believed that New Haven would not be pleased with his
giving that benefit
At the start of the negotiations in May, Lerner only stat-
ed two specific items which required approval by New Ha-
ven because they were covered by corporate policy Those
were retirement and medical plans Based on the credited
testimony of Maxwell, I have concluded that Lerner did
not inform the Union at that time, or at any other time,
that any agreement reached with the Union would be sub-
ject to final approval by New Haven At the July 15 meet-
ing after the parties had reached agreement, Maxwell spe-
cifically asked Lerner whether New Haven had to approve
the agreement That question was occasioned by Lerner's
request for copies of the agreement According to the cred-
ited testimony of Maxwell and Ms Mitchell, Lerner affir-
matively told the Union that New Haven did not have to
approve the contract In view of this, I conclude that Ler-
15 H J Heinz Co v N L R B, 311 U S 514 (1941), Lozano Enterprises v
N L R B 327 F 2d 814 (C A 9, 1964), N L R B v Industrial Wire Products
Corporation, 455 F 2d 673 (C A 9 1972)
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ner had the authority to negotiate a final agreement on
behalf of the Respondent and so indicated to the Union It
was only later after a complete agreement had been
reached that New Haven reneged on what Lerner had pre-
viously agreed to with the Union
In these circumstances, I find and conclude that the Re-
spondent violated Section 8(a)(1) and (5) of the Act by
refusing on or about September 25, 1975, to execute the
collective-bargaining agreement which it had agreed to
during the last week of August 1975 H J Heinz Co v
NLRB , supra, Squire Shops, Inc, 218 NLRB 158 (1975),
Lytron, Incorporated, 207 NLRB 554 (1973), Trade Mart,
Inc, 204 NLRB 1 (1973)
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following
CONCLUSIONS OF LAW
1 Premier Fabrics of California, Inc, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 Oil, Chemical & Atomic Workers International
Union, AFL-CIO, Local 1-128, is a labor organization
within the meaning of Section 2(5) of the Act
3 The following employees constitute a unit appropriate
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act
All office clerical employees, including all credit de-
partment employees and all order department employ-
ees employed by Respondent at its 2323 South Grand
Avenue, Los Angeles, California, facility, excluding
all other employees, including all warehouse employ-
ees, shipping and receiving employees, cutters, sample
makers, outside salesmen, professional employees,
guards, and supervisors as defined in the Act
4 At all times material herein, the Union has been and
is the exclusive representative of all employees in the
above-described appropriate unit for the purposes of col-
lective bargaining
5 By refusing since on or about September 25, 1975, to
execute the agreed-upon collective-bargaining agreement
and to give effect to the terms and provisions of that agree-
ment between the Respondent and the Union, Respondent
has refused to bargain collectively with the Union and has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action
to effectuate the policies of the Act
Having found that Respondent has refused since on or
about September 25, 1975 to execute the contract which
was agreed upon by the Respondent and the Union during
the last week of August 1975, I shall recommend that Re-
spondent be required to execute that agreement forthwith
and to give effect to the terms and provisions of that agree-
ment retroactively to September 25, 1975 I shall further
recommend that Respondent make whole its employees for
their loss of wages and other benefits, which are provided
for in the agreement, for the period on and after September
25, 1975, due to the Respondent's failure to give effect to
the terms of the contract agreed upon with the Union 16 I
shall also recommend that 6-percent interest per annum be
added to any moneys
The reason I have designated September 25, 1975, as the
date on which to commence retroactive application of the
contract is that is the date on which Respondent refused to
execute the final corrected agreement The agreement it-
self, which was introduced in evidence at the hearing as
General Counsel's Exhibit 6, does not contain an effective
date for the contract to commence The effective date was
left blank and the record does not disclose whether the
parties had agreed upon any effective date other than the
date of execution of the agreement The termination date
of the agreement is specified as January 15, 1977 In these
circumstances, I have designated September 25, 1975, as
the date that the agreement would have become effective
but for the Respondent's unfair labor practices
Finally, I shall recommend that the Respondent bargain,
upon request, with the Union as the exclusive representa-
tive of the employees in the above-described unit
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the following recommended
ORDER17
The Respondent, Premier Fabrics of California, Inc, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively regarding rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Oil, Chemical & Atomic Workers Interna-
tional Union, AFL-CIO, Local 1-128, as the exclusive bar-
gaining representative of the employees in the following
16 N L R B v Huttig Sash & Door Company, 362 F 2d 217 (C A 9, 1966)
17 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
10248 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
PREMIER FABRICS OF CALIFORNIA, INC
unit found to be appropriate for the purposes of collective
bargaining
All office clerical employees, including all credit de-
partment employees and all order department employ-
ees employed by Respondent at its 2323 South Grand
Avenue, Los Angeles, California, facility, excluding
all other employees, including all warehouse employ-
ees, shipping and receiving employees, cutters, sample
makers, outside salesmen, professional employees,
guards, and supervisors as defined in the Act
(b) Refusing to execute the collective-bargaining agree-
ment with the Union which was agreed upon during the
last week of August 1975, and which Respondent refused
to sign on or about September 25, 1975
(c) Failing and refusing to give effect to the terms and
provisions of the agreed-upon collective-bargaining agree-
ment with the Union
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act
(a) Execute forthwith the collective-bargaining agree-
ment with the Union which was agreed upon during the
last week of August 1975, and which Respondent refused
to sign on or about September 25, 1975
(b) Give effect to the terms and provisions of that col-
lective-bargaining agreement retroactively to September
25, 1975
(c) Make whole its employees for their loss of wages and
other benefits, which are provided for in the agreement, for
the period on and after September 25, 1975, plus 6-percent
interest per annum thereon
(d) Bargain, upon request, with the above-named Union
as the exclusive representative of all employees in the ap-
propriate unit described above with respect to rates of pay,
wages, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such
understanding in a signed agreement
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amounts of moneys due under the terms of this
Order
(f) Post at its Los Angeles, California, facility, copies of
the attached notice marked "Appendix" 18 Copies of the
notice on forms provided by the Regional Director for Re-
gion 21, after being duly signed by an authorized represen-
tative of the Respondent, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
18 In the event that the Board's 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 "
717
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced or covered by any other material
(g) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith
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 parties had the opportunity
to present evidence, the National Labor Relations Board
found that we violated the National Labor Relations Act
and has ordered us to post this notice
WE WILL sign forthwith the collective-bargaining
agreement with Oil, Chemical & Atomic Workers In-
ternational Union, AFL-CIO, Local 1-128, which was
agreed upon during the last week of August 1975 and
which we refused to sign on or about September 25,
1975, and which covers our employees in the following
appropriate bargaining unit
All office clerical employees, including all credit de-
partment employees and all order department em-
ployees employed by the Employer at our 2323
South Grand Avenue, Los Angeles, California, fa-
cility, excluding all other employees, including all
warehouse employees, shipping and receiving em-
ployees, cutters, sample makers, outside salesmen,
professional employees, guards, and supervisors as
defined in the Act
WE WILL give effect to the terms and provisions of
the collective-bargaining agreement referred to above
retroactively to September 25, 1975
WE WILL make whole our employees in the bargain-
ing unit described above for their loss of wages and
other benefits, which were provided for in the agree-
ment, for the period on and after September 25, 1975,
plus 6-percent interest per year thereon
WE WILL bargain, upon request, with Oil, Chemical
& Atomic Workers International Union, AFL-CIO,
Local 1-128, as the exclusive representative of all em-
ployees in the appropriate unit described above with
respect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act
PREMIER FABRICS OF CALIFORNIA, INC