Safelite Glass

National Labor Relations Board - Board Decisions

May 11, 1987

283 N.L.R.B. 929 (N.L.R.B. 1987)

SAFELITE GLASS
Lear Siegler, Inc., d/b/a Safelite Glass and Gla-
ziers, Architectural Metal & Glassworkers
Union, Local Nos. 169 , 718, and 1621, Interna-
tional Brotherhood of Painters & Allied Trades,
AFL-CIO. Cases 32-CA-6566 and 32-CA-
6864
11 May 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 12 July 1985 Administrative Law Judge Jer-
rold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited cross-excep-
tions and a supporting brief.
The National Labor Relations Board had dele-
gated 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
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended Order
as modified.
The judge found that the Respondent unilaterally
decreased employees' hourly wages and abrogated
the health and welfare, pension, and holiday and
vacation provisions of the existing collective-bar-
gaining agreements and thereafter refused to fur-
nish the Union (sometimes referred to herein as the
Locals) with employees' names , addresses, dates of
hire, and wage rates, in violation of Section 8(a)(5)
and (1). We agree. 3 We also agree with the judge's
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Or. 1951).
We have carefully examined the record and find no basis for reversing
the findings
2 In the absence of exceptions, we adopt the judge's findings that the
Respondent did not unlawfully transfer employee James Poda, solicit em-
ployees to resign from the Union, or threaten to close its facilities
a In affirming the judge's conclusion that the Respondent violated
Secs. 8(a)(5) and (1) and 8(d) by insisting on terms that were beyond the
scope of the reopener clauses of the existing collective-bargaining agree-
ments and thereafter instituting midterm modifications of the agreements
based on its proposals, we disavow any implication that holiday and va-
cation deductions were nonbargainable subjects As the evidence relating
to the parties' past practice in midterm bargaining negotiations is incon-
clusive on this point and inasmuch as vacations and holiday deductions
are included in the wage schedules appended to the contracts, contribu-
tions to those funds (i e., deductions from employees' net wages therefor)
arguably are negotiable under the wage reopener provisions. Neverthe-
less we agree with the judge that even if the Respondent genuinely be-
lieved that it could modify the agreement after reaching a bona fide im-
passe, no such impasse was possible because the Respondent additionally
insisted on changing noneconomic terms of the holiday and vacation pro-
visions Although it did not expressly condition acceptance of its 13 June
offer on a change in actual holidays,, the imposition of eligibility require-
ments for holidays and alteration of eligibility for vacations and their
length, as well as the proposal itself and the restatement of the proposal
929
findings that the Respondent coercively interrogat-
ed James Poda about a grievance that the Union
had filed on his behalf and threatened him with dis-
charge in violation of Section 8(a)(1), but that it
did not unlawfully interrogate employees when it
attempted to, obtain affidavits from them in prepa-
ration of its defense against charges in Case 32-
CA-6566.4 Further, we agree with the judge's
finding that the Respondent's advising employees
that they would be permanently replaced if they
participated in a strike constituted a threat violative
Of Section 8(a)(1). For the reasons that follow,
however, we reverse his finding that this threat
also violated Section 8(a)(5). Similarly, we reverse
the judge's finding that the Respondent's communi-
cating its bargaining position to employees and ex-.
plaining in detail its proposals constitutes unlawful
direct dealing with them.
The facts of this case are fully set forth in the
judge's decision. The Respondent is a glass installa-
tion company that employs 17 auto glass installers
in 9 shops in northern California. These employees
are represented by Locals 169, 718, and 1621.
Locals 169 and 1621 are joint parties to a collec-
tive-bargaining agreement with the Respondent ef-
fective from 1 July 1982 through 30 June 1985.
The collective-bargaining agreement between the
Respondent and Local 718 was effective for the
same term.
Pursuant to wage reopener provisions in the con-
tracts, the Locals and the Respondent met jointly
in June and July 19845 to negotiate wages for the
final year of the contracts. During these negotia-
tions, we have found, the Respondent insisted on
modifying certain terms of the contracts, not all of
which were covered by the reopener provisions,
and ultimately unlawfully implemented these modi-
fications as well as others on 18 July. Immediately
in the Respondent's 18 July telegram to the Union announcing the unilat-
eral changes, make it clear that the noneconomic items were so integral
to the remaining economic proposals as to make one contingent on the
acceptance of the other.
4 Contrary to his colleagues, Member Babson does not adopt the
judge's dismissal of the allegation that the Respondent, through its attor-
ney, violated Sec. 8(a)(1) based on the interrogation of employees for the
purpose of preparing its defense to Local 1621's unfair labor practice
charge. Local 1621's charge alleged that the Respondent engaged in
direct dealing in certain meetings with employees in violation of Sec.
8(a)(5) and (1) The judge concluded that Johnnie's Poultry Co, 146
NLRB 770 (1964), applies only to situations where an employer interro-
gates employees about matters involving their Sec. 7 rights and that the
questions here, concerning what statements were made by the Respond-
ent's representatives and its attorney at the previous meetings, did not
pertain to the employees' involvement in conduct protected by Sec. 7. In
Member Babson's view, such a reading of Johnnie's Poultry may be
unduly restrictive, particularly in light of the circumstances of this case
Before passing on this issue , however, Member ]Babson would remand
this portion of the case to the judge to resolve the conflicts in testimony
whether the' Respondent's attorney, in fact, provided adequate safeguards
to the employees.
5 Unless otherwise stated all dates are in 1984.
283 NLRB No. 136
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
following the 13 and 23 June negotiation sessions,
the, Respondent's chief negotiator and attorney,
William Haynes, Vice President of Industrial Rela-
tions Robert Courtney, and Division Manager Ken-
neth Anderson conducted group meetings at the
shops. At these meetings Courtney told employees
about the status of negotiations, outlined the fea-
tures of -the Respondent's 13 June proposal in
detail, and told employees it had three options: (1)
continuing operations "and losing money; (2) clos-
ing; or (3) operating profitably under its proposals.
In setting 'forth these options, Courtney told em-
ployees that while the Union had not stated its
`intent to strike, it could do so under the terms of
the collective-bargaining agreements . He explained
that in the event of a strike, the Respondent would
permanently replace strikers and that the Union
could fine employees who refused to strike. In re-
sponse-to questions, Courtney promised to provide
employees with sample language- they could use in
letters resigning from the Union and subsequently
did soa
The judge found that by outlining proposals to
the employees that were beyond the scope of the
reopener provisions, with a view toward unilateral-
ly implementing them, the Respondent engaged in
direct, dealing With the employees in contravention
of Section 8(a)(5). In this connection, the judge
reasoned that because of the Respondent's unlawful
conduct ' both at the bargaining table and away
from' it, any strike called as a result of the parties'
failure to reach an agreement would be an unfair
labor practice strike rather than an economic one,
and he found that the Respondent independently
violated Section' 8(a)(1) of the Act by threatening
employees that they' would be permanently re-
placed. He found that this threat also violated Sec-
tion 8(a)(5) inasmuch as it was "part and parcel" of
the Respondent's direct dealing with the employ-
ees. We find 'merit in the Respondent's exception
that it was privileged to communicate its bargain-
ing position to the employees, and we reverse the
judge's finding that it thereby violated Section
8(a)(5). 'Additionally, although we affirm the
judge's finding that- the Respondent's striker re-
placement statement runs afoul of Section 8(a)(1) as
it constitutes,a threat permanently to replace unfair
labor practice strikers, ' we reverse, his finding that
the statement violates Section 8(a)(5).
6 The judge found that option 2 was a viable prediction in view of the
Respondent's financial condition and not an unlawful threat The judge
also found that because the sample resignation letters it distributed to em-
ployees made it clear that resigning from membership was their choice,
the Respondent did not unlawfully solicit employees to resign. As noted
at In. 2, above, we have adopted these findings in the absence of excep-
tions.
In analyzing 'the Respondent 's conduct, the judge
distinguished United Technologies Corp., 274 NLRB
609 (1985), and 274 NLRB 1069 (1985). In the
latter decision the Board stated (274 NLRB at
1074):
In our view, an employer has a fundamental
right, protected by Section 8(c) of the Act, to
communicate- with its employees concerning
its position in collective-bargaining negotia-
tions and the course of those negotiations, .. .
[W]e believe that free and open discussion by
all parties to the collective-bargaining process
affords the best chance for successful conclu-
sion of negotiations and creates the most fa-
vorable climate for successful bargaining.
Indeed, employees ought to be fully informed
as to all issues relevant to 'collective-bargaining
negotiations and the parties' positions as to
those issues . We believe employees are fully
capable of evaluating the relative merits of
those positions for themselves. As in United
Technologies (274 NLRB 609)- there is nothing
in the Respondent's communications here
which indicates an effort by the Respondent to
bargain directly with the .employees or ' an invi-
tation to them to abandon their representative
to achieve better terms directly from' the Re-
spondent. Indeed, all the Respondent's substan-
tive proposals were submitted to the Union
prior to their disclosure to the employees.
The same is true in' the instant case. The Re-
spondent had a right to communicate its position to
the employees. That the proposals were beyond the
scope of the reopener provisions does not, without
more, compel a different finding. Though not
within the purview of the reopeners, the Respond-
ent did submit its proposals to the Locals before
disclosing them to the employees. The Respond-
ent's disclosure of its bargaining position to the em-
ployees occurred before it unlawfully insisted on
and implemented its proposals. The evidence. does
not establish that, communication with the employ-
ees was tactically part of an unlawful bargaining
strategy.'' Further, it has been found that, the Re-
7 In this regard, the Respondent's conduct is distinguishable from that
found unlawful in General Electric Co, 150 NLRB 192 (1964), enfd. 418
F.2d 736 (2d Cir. 1969), in which the employer's absolute intransigence at
the bargaining table, i.e., its fixed "take it or leave it" position throughout
negotiations, permeated its communications to employees, and Fitzgerald
Mills Corp., 133 NLRB $77 (1961), enfd. 313'F.2d 260 (2d Or. 1963), in
which the employers entering negotiations with no intent to reach an
agreement was found to have infused its communications to employees
with unlawfulness See also Generac Corp., 149 NLRB 980, 988 (1964), in
which the employer engaged in numerous instances of 8(a)(5) conduct in-
cluding direct dealing, all of which were found to constitute an unlawful
refusal to bargain.
SAFELITE GLASS 931
spondent did not attempt to undermine the Locals
by soliciting employees to resign from the Union.
Hence, there is no evidence that the Respondent
bypassed the Union and, dealt directly with the em-
ployees . Inasmuch as the Respondent's telling em-
ployees they would be replaced in the event of a
strike was not a function of any unlawful direct
dealing with them, we find that the admonition did
not independently violate Section 8(a)(5).
Having found that the Respondent did not
bypass the Union and deal directly with the em-
ployees or threaten them with replacement in vio-
lation of Section 8(a)(5), we shall modify the
judge's recommended Order accordingly.,
ORDER
The National, Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Lear Siegler, Inc., d/b/a Safelite Glass,
San Mateo, San ' Francisco, Richmond, Oakland,
San Jose, Pleasant Hill, San Leandro, Hayward,
and Fremont, California, its officers, agents, succes-
sors , and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(e).
"(e) Threatening to permanently replace employ-
ees if they support a strike caused by the Respond-
ent's insistence that the ' Unions accept nonbargaina-
ble items as a part of the Respondent's contract
proposal."
2. Substitute the attached notice for that of the
administrative law judge.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Glaziers,
Architectural Metal & Glassworkers Union, Local
Nos. 169, 718, and 1621, International Brotherhood
of Painters & Allied Trades, AFL-CIO, by refus-
ing to furnish the Unions with names , ' addresses,
dates of hire, and wage rates of our employees in
the appropriate bargaining units as, follows:
(i) All our employees, excluding supervisors
as defined in the Act, employed in the job
classifications covered by our contract with
Local Unions 169 and 1621 effective from 1
July 1982 to 30 June 1985, and who are em-
ployed at our facilities located in California in
the cities of Richmond , Oakland,, San Jose,
Pleasant Hill, San Leandro, Hayward and Fre-
mont.
(ii) All our employees, excluding supervisors
as defined in the Act, employed in the job
classifications covered by our contract with
Local Union 718 effective from 1 July 1982 to
30 June 1985, and who are employed at our
San Mateo, California and San Francisco, Cali-
fornia facilities.
WE WILL NOT refuse to bargain with the above-
named Unions by unilaterally ceasing to make con-
tributions on behalf of our unit employees to the
health and welfare, pension, and holiday and vaca-
tion "funds as provided for in our collective-bar-
gaining contracts with the Unions, which were ef-
fective 1 July 1982 to 30 June 1985, during the
term-of those contracts.
WE WILL NOT refuse to bargain with the above-
named ,Unions by unilaterally instituting (luring the
term of our contracts with the Unions our own
health and welfare and pension plans for the plans
provided for in our contracts with the Unions with
respect to our unit employees.
WE WILL NOT refuse to bargain collectively with
the above-named Unions by unilaterally during the
term of our contracts - with the Unions decreasing
the vacation and holiday benefits and wage rates
established by our contracts with the Unions with
respect to unit employees.
WE WILL NOT threaten to permanently replace
employees if they support a strike caused by our
insistence that the Unions accept nonbargainable
items as part of our contract proposal.
WF_ WILL NOT interrogate our employees about
grievances they file against us with the above-
named 'Unions and WE WILL NOT threaten our em-
ployees with discharge for filing such grievances.
WE WILL NOT in any like or related manner
interfere with, restrain,' or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on written request of the above-
named Unions, furnish the Unions with the names,
addresses , dates of hire, and wage rates of our unit
employees.
WE WILL, on written request of the above-
named Unions, restore making payments on behalf
of the unit employees to the health and welfare,
pension, and vacation and holiday funds established
by our contracts with the Unions effective 1 July
1982 to 30 June 1985.
WE WILL, on written request of the above-
named Unions, restore the holiday and vacation
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
benefits and wage rates of the , unit- employees so as
to conform to the provisions contained in our con-
tracts with the Unions. effective 1 July 1982 to 30
June 1985. -
WE, WILL, on - written request of the above-
named Unions, rescind the health and welfare and
pension plans that we - instituted in July 1984 and
reestablish the health and welfare and pension
plans that were in existence under our contracts
with the Unions effective 1 July 1982 to 30 June
1985.
WE WILL make whole the employees in the
above-described units by making the contributions
to the health and welfare, pension , and, vacation
and holdiay funds, as provided in the above-de-
scribed .applicable collective -bargaining agreements,
which were not paid and which would have been
paid absent our unilateral discontinuance of such
contributions during the term of the agreements,
and by reimbursing the unit employees for any ex-
penses ensuing from our failure to make such con-
tributions , with interest.
WE ' WILL make whole the employees in the
above-described units for any losses or expenses
they may have suffered as a result of our unilateral
conduct during the term of our contracts with the
above-named Unions in decreasing the employees'
holiday and vacation benefits, decreasing their
wages, -and substituting our own health and welfare
and pension plans for the plans established by the
Unions' contracts, with interest.
LEAR SIEGLER, INC., D/B/A SAFE-
LITE GLASS
William O 'Connor and Rony Clements, Esgs , for the Gen-
eral Counsel.
William Haynes, Esq. (Edison, Lewis, Porter & Haynes),
for the Respondent.
Robert Jesinger and Kathryn Sure, Esgs (Wylie, Blunt,
McBridge &' Jesinger), for the Charging Parties.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge.
This consolidated proceeding in whi'ch' a hearing was
held 12 through 14 March 1985 is based on unfair-labor
practice charges filed against Lear Siegler , Inc., d/b/a
Safelite Glass (the Respondent), by the Unions named in
the case caption (collectively called the Unions and sepa-
rately called Locals 169, 718, and 1621),' and a consoli-
i The charge in Case 32-CA-6566 was filed 21 June , 1984 by Local
1621 and amended charges in that case were filed by Locals 1621 and 718
on 12 July 1984 and by the Unions on 18 July 1984 On 25 October 1984
the Unions filed the charge in Case 32 -CA-6864.
dated amended complaint issued 26 February, 1985
against Respondent , by the Regional ,Director for Region
32 of the National Labor Relations Board , on behalf of
the -Board's General Counsel , alleging that Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1), (3), and (5) of the National Labor Re-
lations Act.
More specifically the amended consolidated complaint
alleges in substance that Respondent violated the Act, as
follows : Section 8(a)(1) by interrogating employee Poda
about a grievance filed against Respondent on- his behalf
by Local 718 and threatening him with discharge and
other unspecified reprisals because of the filing of the
grievance , and by, coercively interrogating employees in
connection with preparing - its defense to the unfair labor
practice charges in this proceeding ; Section 8(a)(1) and
(3) by transferring employee Poda from one facility to
another because of his union or other protected concert-
ed activities;' Section 8(a)(5) and (1) by unilaterally
changing the terms and conditions of employment of em-
ployees represented by the Unions during the term of ex-
isting collective-bargaining agreements, by , dealing di-
rectly with employees represented by the Unions, by en-
gaging in conduct calculated to undermine the employ-
ees' support of the Unions , and by, refusing to furnish to
the Unions certain requested information needed by the
Unions to perform their duties as the employees' collec-
tive-bargaining representative . - Respondent filed an
answer denying the commission of the alleged unfair
labor practices.2 - -
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs filed by the General Counsel and Re-
spondent, I make the following -
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Changes in Employees' Terms and Conditions of
Employment
1. The evidence
Respondent is a corporation whose headquarters are in
Wichita, Kansas . Its sells and installs automobile glass
throughout the United States. The facilities involved in
this case are its nine northern California shops: Rich-
mond , Oakland, San Jose, San Mateo , San Francisco,
Pleasant Hill, San Leandro, Hayward, and Fremont.
During the time material these shops employed approxi-
mately 17 auto glass installers . Before 1 July 1982 these
auto glass -installers were covered by a collective-bar-
gaining agreement between the Unions and an employer
association , the Glass Management Association, effective
from 1 July 1979 to 30 June 1982. This agreement en-
compassed a multiemployer bargaining unit comprised of
2 In its answer Respondent admits that it meets one of the Board's ap-
plicable discretionary jurisdictional standards and is an employer engaged
in commerce within the meaning of Sec. 2(6) and (7) -of the Act. Also in
its answer Respondent admits that the Unions are labor organizations
within the meaning of Sec. 2(5) of the Act.
SAFELITE GLASS
Respondent and the other employers who were members
of the Glass Management Association. Respondent with-
drew timely from this unit prior to the expiration of the
1979-1982 Association agreement. Subsequently, it nego-
tiated successor contracts - on, a single employer basis
with Local 718,_ and with Locals 169 and 1621. The con-
tract with Local 718 covered Respondent's San Mateo
and San Francisco shops, and the contract with Locals
169 and 1621 covered its remaining seven shops in north-
ern California.3 Each of these contracts were for 3 years'
duration, effective from 1 July 1982 to 30 June 1985.
Each contained a grievance procedure ending in binding
impartial arbitration.
The pertinent provisions of the the 1982-1985 contract
between Respondent and Locals 169 and 1621 covering
Respondent's auto glass installers are as follows. The
contract contains health and welfare, pension, vacation,
and holiday benefits, for the covered employees, includ-
ing specified health and welfare and pension plans. Pur-
suant to the contract's terms, Respondent agreed to pay
$1.60 an hour for each employee to the contractual trust
funds to finance the employees' health and welfare bene-
fits,and $2.53 an hour to finance the employees' pension
benefits. Also Respondent agreed to pay 4 cents an hour
to finance an industry promotional fund. Regarding va-
cation and holiday benefits, Respondent agreed to deduct
$1.97 an hour from employees' net hourly pay and trans-
mit these moneys to a vacation and holiday fund. The
contract provides that employees 'are entitled to seven
holidays a year and if they work 40 weeks a year they
are entitled to 3 weeks' vacation. Respondent did not
pay the employees for the -aforesaid holiday and vacation
benefits. Rather, the money Respondent was required to
deduct from their wages for the vacation and 'holiday
fund was paid to the employees by the fund twice
yearly. Regarding the employees' union dues, the con-
tract provides for Respondent to deduct 30 cents an hour
from an employee's net pay and transmit this money
either to the Unions or to an agent designated 'by the
Unions.
Regarding employees' wages, the section of Respond-
ent's 1982-1985 contract with Locals 169 and 1621 enti-
tled, "Wages for Auto Glass Mechanics"4 reads as fol-
lows:
(i) Hourly Wage Rates
The minimum straight time hourly rate of wages
for Auto Glass Mechanics shall be as follows:
Effective 1 July 1982-$-15.17
Total Package l July 1982-$19.345
(ii) Effective 1 October 1982 there will be a fifty
cent (.50 cent) an hour increase to the total package
to be distributed as the Union determines.
3 The record reveals that Respondent 's San Mateo and San Francisco
shops are within the territorial jurisdiction of Local 718 and the remain-
ing seven shops are within the territorial jurisdictions of either Locals
169 or 1621.
A The contract refers to the auto glass installers as auto glass mechan-
ics.
5 The reference to "Total Package" refers to the $15.17 net wage, the
$1.60-an-hour contribution'for the health and welfare benefits, the $2.53
contribution for the pension benefits, and the 4-cent contribution to the
industry trust fund
933
(iii) Effective 1 May 1983 it is agreed that the
Union and [Respondent] shall meet to determine the
wage increase for the remaining two (2) years of
this Agreement.
(iv) It will not be a violation of Article 35, Work
Stoppage, if the union strikes or the Employer locks
out because there has been no agreement of the
amount of wage increase for the following two
years.
Continuing, the section of the contract dealing with
wages contains a subsection entitled, "Transfer of Money
from Wages to Benefit Funds" that reads as follows:
During the term of this Agreement the Union
may request in writing an increase. in the contribu-
tions required by the Employers to the Group
Health and Welfare Plan, Pension Plan . . . and a
corresponding reduction in the minimum hourly
wage rates set forth in Section A. Such request
shall be made in writing 30 days prior to the pro-
posed effective date requested by the Union. As of
such date the hourly minimum wage rates set forth
in section A of this Article shall be ireduced in an
amount equal to the increase required of individual
Employers- to the particular benefit fund or funds.
Any increase in the required contribution by the
Employers to the particular benefit fund or funds
and the corresponding reduction in the minimum
hourly wage rate shall be set forth in a Memoran-
dum of Understanding by the Employer and Union.
The Locals 169 and 1621 contract also contains a
"Supplementary Understanding" agreed to by the parties
that provides: -
1. The Employer and -the Union have today exe-
cuted a Collective Bargaining Agreement effective
1 July 1982 and extending through 30 June 1985.
The parties agreed that because of the extended
period covered by this Agreement conditions may
change within the industry, and that it maybe desir-
able to both parties to institute changes in the
Agreement that will reflect a recognition of the dif-
fering conditions. Rather than delay action until the
expiration of the contract, the parties have agreed
that , discussion and negotiation may be carried out
through the medium of the Joint Conference Com-
mittee set up under the Collective Bargaining
Agreement between Glass Management Association
and the Union.
2. Any additions or amendments to the Collective
Bargaining Agreement agreed to by the Joint Con-
ference Committee pursuant to said discussions and
negotiations shall become a part of the Collective
Bargaining Agreement, provided, however, that any
such additions or amendments must be ratified by
both the members of the Employers and the Union,
,in accordance with the rules of the Employer and
the Union.
3. In the event the members of the Joint Confer-
ence Committee cannot reach agreement on pro-
posed additions or amendments pursuant to the dis-
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cussions and negotiations provided herein or in the
event of lack of ratification by either side, such dis-
agreement shall not be subject to arbitration under
Article 37.
The pertinent provisions of Respondent's contract
with Local 118 covering Respondent's auto glass install-
ers are the same as the above-described provisions in the
Locals 169 and 1621 contract, except as follows. In that
portion of the Local 718 contract dealing with "Wages
For Auto Glass Mechanics" the parties agreed that effec-
tive 16 October 1982 the employees'- net wages would be
increased from $15.17 to $15.45 per hour and Respond-
ent's pension contributions would be increased from
$2.53 to $2.75 an hour and that Respondent would
deduct for the vacation and holiday fund $2 an hour
from an employee's net pay rather than $1.97, and
deduct for union dues 31 cents an hour rather than 30
cents. In other words, the Local 178 agreement, like the
Locals 169 and 1621 agreement, called for an increase of
50 cents an hour in the total package effective October
1982, but the parties agreed to distribute the 50-cent in-
crease (28 cents to wages and 22 cents to pension bene-
fits) at the time the contract was negotiated. Under the
Locals 169 and 1621 contract, the Unions distributed the
50-cent-an-hour increase by raising net wages from
$15.17 to $15.61 an hour and raising pension contribu-
tions from $2.53 to $2.59 an hour. The other pertinent
difference between the Locals 169 and 1621 contract and
the Local 178 contract is that whereas the Locals 169
and 1621 contract provided that effective 1 May 1983
the parties would meet to determine "the wage increase
for'the'remaining 2 years of this Agreement," the Local
178 contract provided that: "1 July 1983 . . . Wages to
be Negotiated" and "1 July 1984 ... Wages to be Ne-
gotiated."
The 1979-1982 Glass Management Association con-
tract, to which Respondent and the Unions were, previ-
ously bound, did' not include a wage reopener provision.
This contract provided for wage increases at 6-month in-
tervals during the term of the contract, based on an in-
crease in the cost of living. The formula for these pay
raises was contained in the contract. The Unions, pursu-
ant to this formula, determined the amount of the in-
crease that was due to the covered employees. It is un-
disputed that the Unions, without bargaining with the
employers, covered by the Association contract, allotted
part of these cost-of-living increases to the employers'
contractual health and welfare and pension benefit con-
tributions.
The Local 718 contract effective 1 July 1982 to 30
June 1985 was negotiated by the parties separate and
apart from the negotiations between Respondent and
Locals 169 and 1621, which resulted in the Locals 169
and 1621 contract of the same duration. However, the
negotiation _meetings on 3 and 29 June 1983, described in
detail infra, held pursuant to the wage reopener provi-
sions of those contracts, was conducted jointly. The rep-
resentatives of all three Local Unions met together joint-
ly ' with Respondent's representatives. The business man-
ager of Local 1621, William Brown, acted as the Unions'
spokesperson.
On 3 June 1983 representatives from all three Unions
met with Robert Courtney, the Respondent's vice presi-
dent of industrial relations , and Ken Anderson, Respond-
ent's division manager . After informing Courtney and
Anderson that the Unions were negotiating together and
that Brown was the chairman and Carl Dahl of Local
718 was the secretary of the Unions' negotiating commit-
tee, Brown stated that they were there to negotiate for a
total package only and that the Unions would- decide
how this package was divided . Brown also stated that, as
set forth in the Local 718 agreement, they were there to
negotiate for 1 year only and would meet again in 1984
to negotiate for that year. Respondent's negotiators
agreed to this. Brown proposed that effective 1 July
1983 the total package for Respondent's auto glass in-
stallers be increased -by 99 cents an hour to $20.83 and
that 24 cents of this amount be used for health and wel-
fare. Courtney replied that this was not acceptable be-
cause, among other things, since January 19$3 Respond-
ent had lost over $200,000 doing business in the area
mainly because of high labor costs. The parties agreed to
meet 29 June 1983, at which time Courtney stated Re-
spondent would have its proposal for the Unions. Before
leaving there was a brief discussion initiated by Courtney
or Anderson concerning a staggered workweek. During
this discussion, Brown pointed out to the Company's ne-
gotiators that "at this time we [are] only talking wages
for the three local unions."s
On 29 June 1983, when the negotiations resumed, Re-
spondent offered to increase the contractual total pack-
age by 24 cents an hour-, an amount sufficient to cover
the increase that Brown had previously stated the Unions
needed for Respondent's contractual health and welfare
contributions. The Unions', negotiators rejected this offer
and countered with an offer of 70 cents a hour, 29 cents
lower than their previous offer. Respondent's negotiators
then- raised their offer from, 24 to 44 cents an hour, and
before the meeting ended the parties agreed on a 50-cent-
an-hour increase in the total package. -
On- approximately 1 July 1983 Local 718, in writing,
notified Respondent that effective 1 July 1983`the con-
tractual wage schedule for the employees covered by the
Local 718 contract would be as follows: net wages-
$15.71; H & W-$1.84; pension-$2.65; IBPAT pen-
sion-10 cents; industry fund-4 cents; total-$20.34.
When this wage schedule is compared with the one in
effect since October 1982, it reveals that Local 718 used
the 50-cent-an-hour increase in the total package that it
received from Respondent at the 29 June ' 1983 negotia-
tion meeting to raise' the net wage of an employee by 26
cents an hour, and to raise the Respondent's health and
welfare contributions by 24 cents an hour.
6 The description of what occurred during the 3 June negotiation
meeting is based on the Unions' minutes of this meeting, introduced into
evidence by Respondent without objection, and Brown's and Courtney's
testimony. The only conflict between Brown's and Courtney's testimony
is Courtney's testimony that when Brown proposed increasing the total
package by 99 cents, Brown stated 24 cents of this increase would be for
health and welfare, whereas Brown testified that without stating any spe-
cific amount` he told Respondent's negotiators that a portion of the 99
cents would be allotted by the Unions to health and welfare. I have cred-
ited Courtney's testimony in this respect
SAFELITE GLASS
Likewise, on approximately 1 July ' 1983 Locals 169
and 1621, in writing, notified Respondent that effective 1
July 1983 the contractual wage schedule for the auto
glass installers covered by Locals 169 and 1621 contract
would be as follows: net wage-$ 15.84; H & W-$1.84;
pension-$2.37; IBPAT pension-$25 cents ; industry
,fund-4 cents; total-$20.34. When this wage schedule is
compared to the one in effect since October 1982 it re-
veals that Locals 169 and 1621 used the 50-cent-an-hour
,increase in the total package that they received from Re-
spondent at the 29 June 1983 negotiating meeting, to
raise employees' net wages by 23 cents an hour, the Re-
spondent's health and welfare contributions by 24 cents
an hour, and the Respondent's pension contributions by 3
cents an hour.
On 16 April 1984 William Brown, Local 1621's busi-
ness manager, wrote Robert Courtney, Respondent's vice
president of industrial relations, as follows:
This is to advise you that pursuant to Article 16
Section A (iv) of the current Bargaining Agreement
in effect between you and the undersigned Union,
this letter shall serve as a written notice to you,
from the undersigned Union of its request to negoti-
ate an amendment to said Collective Bargaining
Agreement in order to determine the wage increase
for the remaining year of the Agreement.
This letter will further serve as notice that in the
event agreement is not reached to modify the
Agreement by midnight 30 June 1984, the Union
may exercise its rights under Article 16 Section A
(v) of the Agreement unless both parties mutually
agree to extend the negotiations because of progress
in good faith negotiations.
It is the desire of the Local to enter into negotia-
tions per Article 16, before the date of 3 June 1984
and hopefully reach an amicable settlement.
In response to Brown's 16 April 1984 letter, Courtney
on 14 May 1984 wrote identical letters to Brown and to
A. F. Santo, the business manager of Local 169, which
read as follows:
This is to acknowledge receipt of your letter
dated 16 April 1984, advising that prusuant to Arti-
cle 16, Section A (IV) of the current bargaining
agreement in effect between your local union and
Safelite, you are giving notice to negotiate an
amendment to said collective bargaining agreement.
It is understood that the notice to reopen the
agreement includes wages as well as fringe benefits
which are also a part of the wage package.
We will be available to meet with you at a mutu-
ally agreeable place, date and time. Please contact
me at your earliest convenience so that arrange-
ments may be made for our first meeting.
In late May 1984 or early June 1984 Courtney tele-
phoned Brown and asked that they schedule a negotia-
tion meeting. Courtney also suggested that the three
Local Unions negotiate with Respondent jointly in the
same manner as during the June 1983 reopener negotia-
tions and asked if Brown intended to act as the spokes-
935
person for the three Local Unions during the 1984 re-
opener negotiations . Brown stated -that he would be
acting as the spokesperson for each of the three Local
Unions and agreed with Courtney to commence these
negotiations on 13 June 1984. As a matter of fact the ne-
gotiation' meetings held during June and July 1984, de-
scribed in'detail infra, were conducted jointly. The rep-
resentatives of all three Local Unions met jointly with
Respondent's representatives. Brown acted as the spokes-
person for the Unions during the negotiations.
On 13 June 1984 the first negotiation session took
place. It lasted approximately 1-1/2 hours. There were
two representatives present for each of the three Local
Unions. Brown acted as spokesperson for the negotiation
committee and Russell Young of Local 718 acted as sec-
retary for the negotiation committee 'and took notes of
the meeting. Present for Respondent were Division Man-
ager Anderson, Vice President of Industrial Relations
Courtney, and Respondent's lawyer, 'William Haynes.
Haynes was the spokesperson for Respondent's negotiat-
ing committee.
The meeting began with Brown, in response to
Haynes' request that the Local Unions present a propos-
al, stating that "economic issues are open" and proposing
a 5.5-percent increase in wages that was equivalent to a
$1.12-an-hour increase for the auto glass installers.
Brown stated that included in this increase was approxi-
mately 20 to 30 cents an hour in increased employer con-
tributions to the contractual health and welfare fund that
was needed to maintain the current benefits provided by
the current medical plan. Haynes rejected this proposal.
He stated that due to the Company's financial condition
they were there to ask the Unions to "hold the line" on
wages. He also objected to the construction industry-
type of fringe benefits that the employees were receiv-
ing, and stated that Respondent wanted to pay vacation
and holiday pay directly to the employees, rather than to
a vacation and holiday fund as required by the contract.
Brown responded by stating, "We're open for wages
only" and told Haynes the payment of vacation and holi-
day pay was separate from wages and the Unions were
there to negotiate a "dollar amount", and not any con-
tractual' language. Haynes stated Respondent wanted to
discuss vacations and holidays. He explained Respondent
was not in the construction industry, and, unlike an em-
ployer' in the construction industry, its,employees were
employed on a permanent basis, rather than on a tran-
sient basis, thus the contracts' vacation ,and holiday pro-
visions were not appropriate for Respondent's operation.
After the Unions' negotiating committee caucused,
Brown informed Haynes, "We're open for economic
issues only," but pointed out that under the section of
the contracts entitled, "Supplementary Understanding,"
the Unions were willing to discuss anything and', would
be happy to schedule such meetings with Haynes.
Haynes stated that Respondent was losing money and
needed some kind of relief and, in particular, needed a
new agreement that related to the service industry rather
than the construction industry. In this regard, Haynes
stated that Respondent wanted to pay the vacation and
holiday pay directly to the employees rather than into a
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fund . Brown stated that the Unions ' negotiating commit-
tee was not prepared to discuss this subject and pointed
out that as far back as 1978 Local 1621 had offered Re-
spondent a service agreement that Respondent rejected.
Brown stated that the Unions' negotiating committee was
"not here to throw out Appendix C of the Agreement,"
i.e., referring to the appendix contained in the Unions'
current contracts with Respondent that covers the auto
glass installers. After a brief discussion of why the
Unions' contracts contained the present holiday and va-
cation pay provisions and why Respondent was opposed
to those provisions, Brown asked Haynes for Respond-
ent's contract proposal . Haynes presented Respondent's
contract proposal , which was as follows: seven paid holi-
days, one of which was the employees ' employment an-
niversary instead of Washington 's Birthday as in the cur-
rent contracts , with eligibility determined by working
the workday before - and after the holiday; 2 weeks of
paid vacation after 1 year of employment and 3 weeks
after 10 years , with eligibility determined by working at
least 1800 hours during the 12 months prior to the em-
ployee's anniversary date; the elimination of the present
holiday and vacation fund with Respondent paying the
employees ' holiday and vacation benefits directly to the
employees; the elimination of the Unions' pension and
medical plans that would be replaced by the Respond-
ent's pension and medical plans; the elimination of the
Respondent's contributions to the industry fund; and auto
glass installers to be paid an hourly rate of $15.7
On receipt of Respondent 's proposal, the Unions' ne-
gotiating committee caucused and, after the caucus,
Brown told Haynes that the Company's proposal had
taken ' the Unions by surprise and stated , "We feel that
we are willing to discuss anything you want excepting
the change of the fringe package. If you feel that this
was the problem , why did you wait until [this date] to
discuss your difficulties?" Haynes stated that Respondent
was having financial difficulties and that there was no
way that it could afford the 5.5-percent increase the
Unions were- proposing and that it needed a reduction in
the total package . The meeting then ended with the par-
ties agreeing to meet again on 21 and 26 June 1984.8
7 I note that the current net wage in the Local 718 contract was $15 71
an hour and in' the Locals 169 and 1621 contract was $1584 an hour I
also note that $2 04 an hour was being deducted for vacation and holiday
benefits under the Local 718 contract and $2 05 an hour under the Locals
169 and 1621 contract , whereas under the Respondent 's proposal these
moneys would no longer be deducted from the employees' pay and Re-
spondent would pay the holiday and vacation benefits directly to the em-
ployees-,8
The above description of the 13 June negotiation meeting is based on
the minutes of the meeting taken by the secretary of the Unions' negotiat-
ing committee These minutes , which were introduced into evidence by
Respondent without objection by the other parties, were submitted to
Respondent's negotiation committee by the Unions ' negotiation commit-
tee at the outset of the next negotiation meeting held 26 June 1984 and
accepted by Respondent 's negotiators without change . The minutes,
taken contemporaneously with the negotiation meeting, are more reliable
evidence of what took place at this meeting than either Brown's or
Courtney 's testimony presented 9 months after the meeting Accordingly,
in describing what took place at this meeting, I have supplemented the
account set forth in the Unions ' minutes with Courtney 's and Brown's
testimony ; only in those instances when I felt that their testimony was
consistent with what was contained in the minutes
The next negotiation session , which was held 26 June
1984, lasted approximately 1-1/2 hours.9 Haynes began
the meeting by asking whether Brown had received a
copy of the Company's pension and medical plans that
Respondent had mailed to him. Brown acknowledged re-
ceipt of these plans, but stated that he had not read them
because the Unions were present "to open the agreement
for wages only." He also stated that if Respondent
wanted to discuss other things, they would meet with
Respondent at another time to discuss those other items.
Haynes replied that the Unions' proposal included an in-
crease not just in wages, but in other economic items.
Brown stated that the Unions' contracts with Respond-
ent by their terms stated that they were only open for
wages. Haynes repeated that the Unions were proposing
something other than simply a raise in pay . Brown re-
sponded by stating, "no we're not . . . when we negoti-
ate, it's for the entire wage package." After more argu-
ment about the purpose of the negotiations, Haynes
pointed out to Brown that the Unions had not as yet re-
sponded to Respondent 's 13 June proposal. Brown re-
plied , "We're here to talk money only," whereupon, Re-
spondent 's negotiating committee caucused.
After the caucus, Haynes presented what he called an
"Alternative Proposal," which provided for the elimina-
tion of the industry trust fund , the continuation of the
current health and welfare, and pension and holiday and
vacation benefits and for seven paid holidays and 2
weeks' vacation after 1 year employment and 3 weeks
after 10 years and further provided for a total package of
$16.95 an hour to be apportioned as follows: $15 an hour
for wages ; 58 cents an hour for Respondent's contribu-
tion to the holiday and vacation fund for vacations; and
40 cents an hour to the holiday and vacation fund for
holidays; 53 cents an hour for the Respondent 's contribu-
tion to the health and welfare fund; and 44 cents an hour
for the Respondent 's contribution to the pension fund.
On receipt of the "Alternative Proposal" the Unions'
negotiating committee caucused . When the negotiations
resumed, Brown stated to Haynes, "First of all, we want
to make it very clear that we are not discussing lan-
guage" and made a counteroffer of a 5-percent increase
in the total wage package, which was equivalent to $1.02
an hour for the auto glass installers . Brown also told
Haynes that the manner in which the Unions distributed
this $1.02-an-hour increase was not bargainable as it was
a matter for the Unions to unilaterally determine . Haynes
stated that Respondent wanted to determine how the
$1.02 was apportioned. Brown stated that the Unions'
position was consistent with what had been done in the
past . Haynes at this point stated , "We seem to agree to
disagree" and that there did not seem to be anything left
to discuss. Brown suggested that the parties leave their
telephone lines open so they could communicate in case
there was any change in the parties' bargaining position.
The negotiating committees then caucused and, when
the negotiations resumed, Haynes stated to Brown that in
an effort to show Respondent's good faith that even
9 The negotiation session scheduled for 21 June 1984 was canceled by
the Unions
SAFELITE GLASS 937
though Respondent had an economic problem , if"the
Unions accepted Respondent 's total package of $16.95 an
hour, Respondent would agree to discuss with the
Unions the distribution of that package . Brown rejected
this proposal . He explained that the total package con-
tained in both the current Local 718 contract and the
current Locals 169 and 1621 contract was $20.34 an
hour, substantially more than Respondent 's proposed
total package , and stated that the Unions would not
accept this decrease , but would take the Respondent's
$15-an-hour wage proposal to the membership and deter-
mine what the membership 's position was on that pro-
posal . Brown stated that the contracts expired 1 July
1985 and proposed that whatever agreement was reached
be made retroactive to 1 July 1984 and suggested that
they extend the contract on a day-by-day basis until they
reached agreement . Haynes stated that this was unac-
ceptable because the contracts gave the Unions the right
to strike if no agreement was reached by 1 July 1984,
and that Respondent wanted a more substantial extension
of the contract inasmuch as it wanted more notice if the
Unions engaged in a strike . Brown stated that because it
was only 26 June there was plenty of time to reach
agreement before the 1 July 1984 deadline and that in
order to do this the Unions were willing to meet anytime
and place within reason . The meeting ended with
Haynes stating that Respondent would use whatever
means it could to reach agreement with the Unions prior
to 1 July 1984 and would consider any new proposal
from the Unions, but unless there was an agreement the
contract would expire 1 July 1984.'0
On 28 June 1984 Haynes sent a telegram to Brown in
which , after indicating that the parties were deadlocked
in their negotiations , he stated, "The company does not
intend to continue the current health and welfare; pen-
sion; vacation; holiday; and industry fund contributions
beyond June 30, 1984" and that "[i]f the Union does not
accept the Company 's final offer and if no agreement is
reached by June 30 the Company will implement its
offer, as the cost of the current wage and benefit pro-
gram exceeds that which the Company can justify eco-
nomically. Brown responded to this telegram by send-
ing a telegram to Respondent's vice president of industri-
al relations , Courtney , dated 28 June 1984, which ac-
knowledged receipt of Haynes' telegram and stated that
the Unions "disagree with your position of impasse. We
have another proposal and will meet with you . . . July
2, 1984 , We will present it to you then . We will hold
you fully responsible for unilaterally putting your last
proposal into effect prior to Local 169, 718 and 1621 and
[Respondent] reaching an impasse."
On 29 June 1984 Haynes telegrammed Brown that "[]f
your last proposal was not your final proposal please fur-
nish final proposal immediately by telegram. Will ar-
range meeting after receipt of your proposal ." On 2 July
Brown , telegrammed 'Haynes requesting that Haynes
advise the Unions when he would be available to meet
so that the Unions could present him with their proposal.
On 3 July Haynes telegrammed Brown that Respond-
ent's district manager Anderson would be at Brown's
office 5 July "to accept any written counter proposal
which you intended to make available."
On 5 July 1984 Anderson met with the Unions ' negoti-
ating committee . The meeting began with the commit-
tee's spokesperson Brown asking whether Anderson was
authorized to negotiate on Respondent's behalf. Ander-
son stated that he was- present to pick up the Unions'
proposal . When Brown continued to ask Anderson
whether he was authorized to negotiate on Respondent's
behalf, Anderson stated he had authority to make deci-
sions and, if he needed assistance , there ' were other
people standing by on the telephone to assist him. How-
ever , Anderson pointed out that during the past year Re-
spondent had lost approximately $350,000 doing business
in the area covered by the Unions ' contracts and because
of this could not agree to any increase, but that if Brown
had a new proposal that Anderson would talk with him.
Brown stated that the Unions did not have a new pro-
posal to offer Respondent, but from what Anderson had
stated it appeared Respondent was claiming financial
hardship and because of this the Unions wanted to -exam-
ine Respondent 's profit-and-loss statements to verify this
claim. Brown explained to Anderson that the Unions
would take a hard look at Respondent 's profit -and-loss
statements and, if they supported Respondent's claim of
an inability to pay, the Unions , after explaining this to
their membership, might accept a freeze or a reduction
or whatever was necessary to assist Respondent. The
meeting ended with Brown reminding Anderson that the
Unions were there to negotiate wages only and requested
that Respondent furnish , them with its profit-and-loss
statements . Anderson stated that he did not see any prob-
lem with furnishing the Unions with this information, but
Respondent's attorney would have to authorize the re-
lease of the information."
On 5 July 1984, immediately after the 5 July meeting
between Anderson and the Unions ' negotiating commit-
tee, Haynes telegrammed Brown stating, among other
things, that the most recent profit -and-loss statements for
Respondent's shops covered by the Unions ' contracts
would be furnished immediately and that additional sup-
porting records, if desired , would also be made available.
As a matter of fact , some time between 5 and 8 July
,1984, Respondent, hand-delivered these financial state-
ments to Brown 's office . These statements showed a
pretax loss of $385 , 837. Thereafter the parties agreed to
hold a negotiation meeting 16 July 1984.
The next and final negotiation meeting took place 16
July 1984 and lasted approximately 2-1/4 hours . Haynes
1° As was the case with the previous negotiation meeting , the above
description of^the 26 June 1984 meeting was based on the Unions' con-
temporaneous i minutes, which were introduced into evidence by Re-
spondent without objection by any of the other parties . I have supple-
mented the description contained in these minutes with the testimony of
Courtney and Brown only in those instances when I felt that their testi-
mony was consistent with the minutes
11 As was the case with the previous negotiation meetings, the descrip-
tion herein of the 5 July meeting is based on the Unions' contemporane-
ous minutes of the meeting that were offered into evidence by Respond-
ent without objection by any of the other parties . I have supplemented
the description contained in these minutes with the testimony of Brown
and Anderson only in those instances when I felt that their testimony was
consistent with the minutes.
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
began the meeting by-stating -that Respondent had not re-
ceived a written notice from Local 718 reopening its
contract with Respondent for negotiations . Brown or
one of the Local 718 representatives stated they thought
Local 718 had sent Respondent a reopener notice.
Haynes stated that Respondent would not negotiate with
Local 718 without the receipt of a written notice' from
that Union reopening its contract and that he would in-
vestigate to determine whether, as claimed, Local 718
sent Respondent such a notice . Brown stated that if
Local 718 had not sent a written notice to Respondent
reopening its contract that it would mean that the status
quo„existed for another year insofar as that contract was
concerned and that the current negotiations would only
cover Respondent 's contract with Locals 169 and 1621.
Brown then brought up the subject of Respondent's
profit-and-loss statement . He stated that the Unions ex-
amined this statement and had turned it over to the
Unions' auditor who needed to see the supporting
records for some of the items listed . While understanding
that Respondent had suffered operating losses as stated in
the profit-and-loss statement, Brown stated that the
Unions had the right to know what these losses were.
Brown then proposed a 75-cent-an -hour increase in the
total wage package , which contrasted with the Unions'
last proposal of $1.02 an hour. Haynes rejected this pro-
posal and stated that as long as the Unions - continued to
propose an increase in the current contractual wage
package, the parties were at an impasse. Brown replied
thatr the reopener provision in Respondent 's contract
with Locals 169 and 1621 called for negotiations for a
wage increase and that the Unions were there to negoti-
ate an increase. Haynes told Brown that due to Respond-
ent's f nancial losses it needed a decrease in the current
contractual wage package , not an increase . Brown stated
that the Unions' auditor was in the hospital and the
Unions wanted his opinion about the "what and why" of
the losses evidenced in Respondent 's profit-and-loss state-
ment. Haynes'stated that due to its financial situation Re-
spondent was not able to negotiate an increase in the
wage package and, if it was Brown's position that the
Unions could not negotiate a decrease , then there was no
where to go in the negotiations . Brown replied that the
Unions would not negotiate a decrease in the wage'pack-
age and asked for another proposal from Haynes to
counter the Unions' proposed 75-cent-an-hour increase in
their wage package . Haynes responded by offering a
wage package of $16 . 50 an hour . This was rejected by
Brown , who pointed out that it was less than Respond-
ent's previous $ 16.95 offer . Haynes stated that Respond-
ent believed that it could provide the employees with the
same fringes and give them more money to take home
each week in their paychecks with Respondent's pro-
posed package that included- Respondent's benefit plans.
Brown replied that the Unions would not change trust
funds, and explained that the Unions were trying to ne-
gotiate a total -package and felt they had the right to dis-
tribute the moneys in this package to the health and wel-
fare" and pension funds as they saw fit . Haynes repeated
that Respondent 's economic condition , as shown by the
$350,000 loss in the profit-and-loss statement , made it im-
possible for Respondent to meet the Unions ' demands
and that Respondent needed a decrease in the current
wage package . Brown replied that pursuant to the re-
opener provisions in the governing contract between Re-
spondent and Locals 169 and 1621 , the Unions were
there to negotiate a wage increase. Anderson then went
through the profit-and-loss statement line by line and ex-
plained in detail the losses reflected by that statement.
Brown stated that the Unions ' representatives did not un-
derstand the profit-and-loss statement and had given it to
the Unions' auditor for his opinion . Haynes at this point
stated Respondent was unable to wait any longer , that it
intended to decrease its labor costs, and that effective the
next payroll period Respondent would institute the $15-
an-hour wage rate and the Respondent''s, insurance pack-
age previously offered to the Unions . Brown responded
by stating that the Unions would turn the matter over to
their attorney. 12
On 18 July 1984 Haynes addressed a telegram to all
three Local Unions in care of William J. Brown, Local
1621's business - manager. 13 The telegram reads as fol-
lows:
DURING OUR MEETING HELD ON JULY 16 1984
THE UNIONS CONTINUED TO REFUSE TO NEGOTIATE
A DECREASE IN THE CURRENT TOTAL ECONOMIC
PACKAGE WITH SAFELITE AND PROPOSED A TOTAL
INCREASE OF.75 CENTS INCLUDING AN. 18 CENTS IN-
CREASE TO THE UNION HEALTH AND WELFARE
PLAN AFTER REVIEWING SAFELITES PROFIT AND
LOSS STATEMENT DELIVERED TO THE UNION ON
JULY 6 1984 . THROUGHOUT THE MEETING SAFELITE
CONTINUED TO INSIST THAT THE TOTAL ECONOMIC
PASSAGE BE DECREASED FROM THE PRESENT $20.34
WHILE THE UNIONS CONTINUED TO INSIST THAT IT
BE INCREASED . THE MEETING ADJOURNED WITHOUT
FURTHER MEETINGS SCHEDULED OR AGREED UPON.
IN VIEW OF THE UNIONS CONTINUED INSISTENCE
FOR AN INCREASE IN THE TOTAL ECONOMIC PAS-
SAGE AND REFUSAL TO AGREE TO EITHER OF SAFE-
LITES FINAL ALTERNATE PROPOSALS , SAFELITE IN-
TENDS TO IMPLEMENT THE FOLLOWING:
HOURLY WAGE RATE $15.00; SAFELITES PROPOSED
MEDICAL AND PENSION PLAN ; SAFELITES PROPOSED
VACATION AND HOLIDAY PAYMENT PLAN ; NO, PAY-
MENT TO THE UNIONS HEALTH AND WELFARE, PEN-
SION, VACATION OR HOLIDAY FUNDS ; NO FURTHER
PAYMENTS TO THE INDUSTRY FUND. UNION DUES OF
.32 CENTS PER HOUR WILL CONTINUE TO BE DE-
DUCTED FROM BARGAINING UNIT EMPLOYEES PAY
AND PAID TO THE UNIONS.
12 The above description of the 16 July 1984 negotiation meeting is
based on the contemporaneous notes of this meeting taken by Respond-
ent's office manager, which were placed into evidence without objection.
I have supplemented the description contained in those notes with
Brown's and Courtney 's testimony only in those instances when I felt
that their testimony was consistent with the notes
12 I recognize that the telegram is addressed to William J. Graham,
rather than William J. Brown; however , it is clear from the record that
this was a clerical error, there is no, such person as William J . Graham,
and the telegram was intended for Brown and, in fact, was received by
Brown
SAFELITE GLASS 939
Also on 18 July Attorney Haynes telegrammed Carl
Dahl, a Local 718 representative, who was a member of
the Unions' negotiating committee , as follows:
WE HAVE THIS DATE DISCOVERED THAT YOUR
UNION DID GIVE THE APPROPRIATE WRITTEN NO-
TICES REQUIRED BY THE COLLECTIVE BARGAINING
AGREEMENT AND SECTION 8 (D) OF THE LMRA
BEFORE THESE NEGOTIATIONS BEGAN, SINCE YOU
DID REOPEN THE AGREEMENT BEFORE NEGOTIA-
TIONS COMMENCED, THE TELEGRAM SENT BY ME
THIS DATE TO BILL BROWN , YOUR SPOKESMAN IN
THE NEGOTIATIONS, APPLIES TO YOUR UNION AS
WELL AS LOCAL UNIONS 1621 AND 169.
As a matter of fact on 18 July 1984 Respondent, in all
nine of its northern California shops, implemented the
terms and conditions of employment as set forth in
Haynes' 18 July 1984 telegram to Brown, and on that
date posted in each one of its shops a memo addressed
"To All Auto Glass Installers" from District Manager
Anderson, which stated in pertinent part:
Safelite is making available to you its Medical
Benefit Plan and Pension Plan. The Company is dis-
continuing its contributions to Union Plans.
If you wish to participate in Company Plans you
may obtain a Card which you must complete, and
return to the Store Manager.
You will not be covered by the Company Plans
until these cards are completed and returned.
The Journeyman hourly rate, effective Thursday
7/19/84, will be $15.00 per hour.
'Vacations and Holidays will be paid directly to
you rather than to your Union funds. You will be
paid vacation and holiday, pay at your regular rate.
Paid holidays are:
New Years
Memorial Day
]Independence Day
Labor Day
Thanksgiving Day
Christmas Day
Employment Anniversary Day
To be eligible for holiday pay, you must work
the scheduled day before and following the holiday.
'Vacation pay will equal 80 hours pay after one
year of continuous employment and 120 hours after
ten years continuous employment. You will be eligi-
ble for paid vacation following your next Anniver-
sary date.
2. Analysis and conclusions
As the Board in Milwaukee Spring Division, 268 NLRB
601, 602 (1984) stated:
Section 8(a)(5) and 8(d) establish an employer's
obligation to bargain in good faith with respect to
"wages, hours, and other terms and conditions of
employment." Generally an employer may not uni-
laterally institute changes regarding these mandato-
ry subjects before reaching a good faith impasse in
bargaining (case cited). Section 8(d) imposes an ad-
ditional requirement' when a collective bargaining
agreement is in effect and an employer seeks to
"modify... the terms and conditions contained in"
the contract: The employer must obtain the union's
consent before implementing the change.
Section 8(d) of the Act, which defines the obligation to
bargain, is intended to stabilize the agreed-on conditions
of employment during the term of a collective-bargaining
contract. Steelworkers v. Gulf Navigation, 363 U.S. 574 fn.
3, 578 (1960); NLRB v. General Electric Co., 418 F.2d
736, 747 (2d Cir. 1969). Accordingly, that section not
only imposes an obligation on each party to a contract to
refrain from modifying the contract in the absence of
compliance with the statutory notice and waiting period
requirements, 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
period, 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,
as stated by the Board in Milwaukee Spring, it has been
consistently held that an employer acts in derogation of
its bargaining obligation under Section 8(d), and thereby
violates Section 8(a)(5) and (1) of the Act when, during
the effective period of the contract and without the con-
sent of the union, it modifies contractually determined
benefits or other employment conditions that are manda-
tory bargaining subjects. Chemical Workers Local 10 v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 183-188 (1971),
citing with approval NLRB v. Scam Instrument Corp.,
394 F.2d 884, 886-887 (7th Cir. 1968); Los Angeles
Marine Hardware Co. v. NLRB, 602 F.2d 1302, 1307 (9th
Cir. 1979). Unless a union, consents to the midterm modi-
fication, employer defenses, such as that the modification
was made in good faith or out of economic necessity,
will not bar an 8(a)(5) finding. Los Angeles Marine Hard-
ware Co. v. NLRB, supra at 1306-1307 (9th Cir. 1979);
Oak Cliff-Golman Baking Co., 202 NLRB 614 (1973),
enfd. 505 F.2d 1302 '(5th ,Cir. 1974); NLRB v. Katz, 369
U.S. 736, 743 (1962).
An unlawful midterm modification may take several
forms, including an announced change in a contract pro-
vision (NLRB v. C & C Plywood Corp., 385 U.S. 421,
423-425 (1967)) or a refusal to honor an obligation im-
posed by a collective-bargaining agreement. Northeast
Oklahoma City Mfg. Co.' v. NLRB, 631 F.2d 669, 675
(10th Cir. 1980). Because the question of whether an un-
lawful modification has occurred may depend on the in-
terpretation given to contract language, the Board may
be called on to decide the threshold issue regarding the
meaning of a particular provision of the agreement.
Thus, the Board in cases ' of this nature is empowered to
interpret the provisions of a collective-bargaining agree-
ment, if necessary, to the adjudication of the alleged
unfair labor practice: 'NLRB v. Strong, 393 U.S. 357, 361
(1969); C & C Plywood Corp., supra at 428; Northeast
Oklahoma Mfg. Cav NLRB, supra; Buck Brown Con-
tracting Co., 272 NLRB 951 (1984). However, When the
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board fords that a party to a contract charged with uni-
laterally changing its terms during midterm, "has a sound
arguable basis for ascribing a, particular meaning to his
contract and his action is in accordance with the terms
of the contract as he construes it, the Board will not
enter the dispute to serve the function of arbitrator in de-
termining which party's interpretation is correct." NCR
Corp., 271 NLRB 1212 (1984), quoting Vickers, Inc., 153
NLRB 561, 570 (1965); see also Plasterers Local 627
(Hart Concrete), 274 NLRB 1286 (1985).
In the instant case, as described in detail supra, on 18
July 1984 Respondent modified or abolished several of
the economic provisions contained in its contracts with
Local 718 and Locals 169-and 1621, as follows: It substi-
tuted`for Washington's Birthday the employees' employ-
ment' anniversary dates as one of the contracts' seven
paid holidays and, whereas the contracts contained no
eligibility requirements, Respondent instituted a require-
ment that the employees work the day before and after a
holiday to be eligible for holiday pay. The contracts' va-
cation provisions provide 3 weeks of paid vacation for
employees employed at least 1600 hours during the
period 1 July through 30 June of the preceding year,
whereas Respondent substituted 2 weeks of paid vacation
after 1 year of employment and 3 weeks after 10 years,
with eligibility determined by working at least 1800
hours during the 12 months prior to the employees' em-
ployment anniversary dates. Instead of deducting ap-
proximately $2.05 an hour from each employee's net
hourly wage and transmitting the money to the con-
tracts' vacation and holiday fund, as required by the con-
tracts, for eventual distribution twice yearly to the em-
ployees for their vacation and holiday pay, Respondent
stopped making these deductions and instead directly
paid the employees their hourly rate of pay for their hol-
iday and, vacation pay. Instead of contributing to the
contracts' health and welfare and pension funds to fi-
nance the medical and pension plans designated by the
contracts, Respondent stopped making these contribu-
tions and substituted Respondent's medical and pension
plans for the plans designated by the contracts.14 Re-
spondent stopped making contributions to the industry
promotional fund as required by the contracts; Respond-
ent paid a minimum net hourly wage of $15 to its auto
glass installers instead of the $15.71 net hourly wage
called for by the Local 718 contract and the $15.$4 net
hourly wage called for by the Locals 169 and 1621 con-
tract.
In summation, the record establishes that during the
term of its contracts with the Unions, Respondent abro-
gated the _ health and welfare, holiday and vacation, and,
pension fund provisions contained in the contracts, and
significantly modified the contracts' provisions dealing
14 The difference between the pension and medical benefits under Re-
spondent's plans and the contracts' plans was not litigated However, in
connection with the complaint's allegation that Respondent violated Sec.
8(a)(5) and (1) by dealing directly with employees, Respondent's vice
president of industrial relations Courtney testified that he told employees
that the coverage of the Company's medical plan differed in at least two
respects, from the coverage of the contracts' medical plan; the contracts'
plan provides optical coverage and the employees have the option to use
a health maintenance organization such as Kaiser, whereas Respondent's
plan did not provide such coverage
with holiday and vacation benefits and decreased- the em-
ployees' net hourly minimum wage rates established by
the contracts. Each of these changes, by their very
nature,, presumably significantly affected the employees'
terms and conditions of employment, thus they are man-
datory subjects of bargaining. Respondent does not con-
tend that any one of these changes was not a mandatory
bargaining subject. Rather Respondent takes the position
that it was privileged on 18 July 1984 to make these mid-
term changes in its contracts with the Unions without
the Unions' consent because it had sound reasons to be-
lieve that the reopener clauses in the contracts allowed it
to place on the bargaining table the contract proposals
that it implemented on 18 July 1984 and to implement
them after an impasse in the negotiations. 15 I have re-
jected Respondent's contention for the reasons set forth
hereinafter.
The record -establishes, that Respondent, did not have
"a sound arguable basis" (NCR Corp., supra) for inter-
preting the reopener, provisions in its contracts with the
Unions to allow it during the term of the contracts to
place into effect without the Unions' consent its proposal
to abrogate the holiday and vacation fund established by
the contracts and to significantly modify the contracts'
other provisions dealing with the employees' vacation
and holiday benefits. The plain and unambiguous lan-
guage of the contracts' reopener provisions limit reopen-
er negotiations to the employees' minimum hourly wage
rate.' 6 However, the past practice of the parties in ap-
plying 'the reopener provisions during 'the 1983 reopener
negotiations reveals that they interpreted the provisions
as applying to not just the employees' minimum hourly
rate of pay, but also to Respondent's level of contribu-
tions to the contracts' health and welfare and pension
and industry funds, and that the parties considered the
level of these contributions plus'-the employees' hourly
rate of pay as a total wage package.17 This application
15 Respondent's contract with Local 718 contains a wage reopener
providing for wage negotiations to be conducted in both 1983 and 1984
on 1 July, whereas Respondent's contract with Locals 169 and 1621 con-
tains a wage reopener providing for "wage increase" negotiations to be
conducted 1 May 1983 for the remaining ,2 years of the contract. The
1983 negotiations conducted pursuant to the aforesaid reopener provi-
sions were joint negotiations. The negotiators for Locals 718, 169, and
1621 met together with Respondent's negotiators During the initial nego-
tiating meeting held 3 June 1983,' Respondent and Locals 169 and 1621
agreed that whatever agreement was reached during the negotiations
would be effective for 1 year and that Respondent's contract with Locals
169 and 1621, like Respondent's contract with Local 718, would be re-
opened for renegotiations again in 1984 pursuant to the reopener provi-
sion in the Locals 169 and 1621 contract.
16 The section of the, Local 718 contract entitled, "Minimum Wage
Rate," which establishes the "minimum straight time hourly rate of pay
for wages" and the amount of the contributions that Respondent is obli-
gated to make to the several contractual funds, further provides that at
the end of the first and second years of the contract, "wages to be negoti-
ated." The section of the Locals 169 and 1621 , contract entitled, "Wages
For Auto Glass Mechanics," which established the"'minimum straight
time hourly rate of wages" and the amount of contributions that Re-
spondent is obligated to make to the several contractual funds, further
provided that effective 1 May.1983 the parties to the contract would
meet "to determine the wage increase for the remaining two years of this
agreement "
17 During the 1983 negotiations, held pursuant to the contracts' wage
reopener provisions, Respondent and the Unions negotiated not only for
Continued
SAFELITE GLASS 941
of the contracts' reopener provisions in 1983 was consist-
ent with the manner in which Respondent and the
Unions conducted themselves under, the COLA provi-
sions of the predecessor Glass,Management Association
contract. The 1979-1982 Glass Management Association
contract did not include a wage reopener provision, but
instead provided for cost-of-living -wage increases at 6-
month intervals based on a formula set forth in the con-
tract. The parties to the contract, including Respondent
and the Unions, interpreted this provision as meaning
that COLA increases would be divided as the Unions de-
termined between the employees' hourly rates of pay and
the Respondent's contributions to the health and welfare
and pension funds.
As described above, the express language of the con-
tracts' reopener provisions and the way the parties inter-
preted these provisions in the past and the way the par-
ties applied the COLA provisions in the predecessor
Glass Management Association contract, undermine Re-
spondent's contention that it had sound reasons for be-
lieving the contracts' wage reopeners were intended to
open up the contracts for renegotiations concerning the
contracts' holiday and vacation provisions and Respond-
ent's contributions to the contracts' holiday .and vacation
fund. As a matter of fact, -there is no evidence that Re-
spondent had any reason for believing that the contracts'
wage reopeners encompassed these .matters . 111 Quite, the
opposite, the composition, of the total wage package en-
compassed ' by the contracts' reopener provisions must
have placed Respondent on notice that the wage reopen-
er provisions did not contemplate the renegotiation of
the employees' minimum hourly rates of pay, but for an amount of
money that the Umons could divide as they saw fit between wage in-
creases and increases in Respondent's contributions to the health and wel-
fare and pension and industry funds
is My search of the record, Respondent's posthearing brief, and the
transcript and exhibits, reveal that the sole argument advanced by Re-
spondent in support of its claim that it had a reasonable basis for believ-
ing that the contracts' reopener provisions contemplated the renegoti-
ation of the contracts' holiday and vacation provisions is its argument
that at the end of the 1983 negotiations held pursuant to the reopener
provisions that "the parties verbally said we'll be back next year to nego-
tiate the economic package" (Tr. 868-869). This argument is based on
Vice President of Industrial Relations Courtney's testimony that he tele-
phoned Union Negotiator Brown at some point in time after the last 1983
reopener negotiation meeting, and that during the telephone conversation
they decided how much of an increase Respondent 's glaziers would re-
ceive and, as Courtney further testified, "it was my understanding that
there would be an economic reopener the following year" (Tr 586) It is
significant that Courtney failed to describe what, if anything, Brown said
to him that led to Courtney's understanding. Moreover, Courtney's un-
derstanding that there would be "an economic reopener " in 1984 is con-
sistent with the way in which the parties applied the reopener provisions
in 1983, namely , to encompass not just wages, but a total wage package
that included the Respondent 's health and welfare and pension contribu-
tions, besides wages. That Courtney did not in fact believe Brown had
said anything to him, that could have been reasonably construed as an
agreement to reopen the contracts for all economic matters in 1984 is
demonstrated by Courtney's failure to bring such an agreement to
Brown's attention, during the 1984 reopener negotiations when Brown
took the position that the'contracts' reopener provisions did not allow
'Respondent to reopen the contracts to renegotiate the economic provi-
sions to the extent that it was attempting. I find it difficult to believe that
if Brown had said something to Courtney that could have been reason-
ably construed as sanctioning Respondent 's proposal to renegotiate the
vacation and holiday provisions and abrogate the vacation and holiday
trust fund provision, Courtney, during the 1984 negotiations, would not
have reminded Brown of this
the contracts' holiday and vacation provisions. Thus, it is
undisputed that the contracts' total wage package con-
sisted of only, the employees' net wages and the Re-
spondent's contributions to the contracts' health and wel-
fare and ,pension and industry funds. Respondent's contri-
butions to the contracts' vacation and holiday fund,
which like Respondent's Unions' dues contributions was
deducted by Respondent from the employees' net hourly
wages, was not a part of the contracts' total wage pack-
age.
It is for all the aforesaid reasons that I find that the
contracts' wage reopener provisions did not contemplate
bargaining about Respondent's contributions to the con-
tracts' vacation and holiday fund or bargaining to change
the terms of the contracts' other holiday and vacation
provisions, and that Respondent did not have an argu-
able basis for interpreting the reopener clauses in either
the Local 718 contract or the Locals 169 and 1621 con-
tract as permitting it to renegotiate these matters during
the term of the contracts. Accordingly, when Respond-
ent on 18 July 1984, during the term of the contracts and
without the consent of the Unions, stopped making the
contributions to the holiday and vacation fund required
by the contracts, and in other respects significantly modi-
fied the holiday and vacation provisions of the contracts,
I find that Respondent acted in derogation of its bargain-
ing obligation under Section 8(d) of the Act, in violation
of Section 8(a)(5) and (1) of the Act.10 See Campo
Stacks, Inc., 266 NLRB 492, 497 (1983).
I further find that when Respondent on 18 July 1984,
stopped `making contributions to the contracts' health
and welfare and pension funds, and substituted its own
medical and pension plans for the plans designated by
the contracts, and decreased the auto glass installers'
hourly rate of pay established by the contracts, Respond-
ent violated Section 8(a)(5) and (1) of the Act inasmuch
as this -conduct, which substantially modified the terms
of its contracts with the Unions, was engaged in during
the term of the contracts and without the' Unions' con-
sent. 20 In making this finding I have assumed that Re-
spondent had sound reasons for believing that the con-
tracts' reopener provisions permitted it to make; these
changes after bargaining to an impasse with the Unions,
inasmuch as the contracts' total wage package included
the employees' health and welfare and pension benefits,
as well as wages. However, it is settled that "[olnly a
i
19 This is not a situation where, despite the language of the contracts'
reopener provisions, the Unions agreed during the 1984 negotiations to
reopen the contracts in midterm to renegotiate the, contracts ' holiday and
vacation provisions . Quite the opposite, when Respondent's negotiator
during the ,fast negotiating meeting told the Unions ' negotiator that Re-
spondent was proposing to renegotiate these matters , the unions' negotia-
tor objected vigorously and, in effect, told the Respondent's negotiator
that the Unions did not intend to negotiate about these matters because
the Unions believed that they were not encompassed by the contracts'
reopener provisions. The Unions maintained this position throughout the
negotiations.
20 Respondent's contributions on behalf of the unit employees to the
Glass and 'Glazing Industry Trust Fund, an industry promotional fund,
does not constitute a mandatory subject of bargaining Therefore, Re-
spondent was not obligated under Sec 8(a)(5) of the Act to comply with
Sec. 8(d) of the Act before it abrogated that contractual provision Finger
Lakes Plumbing Co., 254 NLRB 1399 (1981); F.M.L Supply, 258 NLRB
604 In. 3 (1981)
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
genuine impasse , one not caused by the failure of one of
the parties to bargain in good faith , permits an employer
to take unilateral action on a mandatory subject without
violating the Act "' Newspaper Printing Corp. v. NLRB,
625 F.2d 956,966 (10th Cir. 1980). No such genuine im-
passe was possible here , for a substantial cause of the
parties' bargaining impasse that would normally have
privileged Respondent on 18 July 1984 to implement its
13 June 1984 package of contract proposals was Re-
spondent's insistence that the Unions , as a condition of
accepting the 13 June 1984 package of proposals, accept
as a part of that package a significant modification in the
contracts' holiday and vacation provisions and the abro-
gation of the contracts' holiday and vacation trust fund
provisions. In this regard it is plain that Respondent's
aforesaid vacation and holiday proposals, in particular its
proposal to stop- contributing to the contracts' holiday
and vacation fund, were an integral part of Respondent's
13 June 1984 package of proposals that Respondent im-
plemented on 18 July 1984, and that the other proposals
in this package were dependent on Respondent's propos-
al to change the contracts' holiday and vacation provi-
sions and to abrogate the contracts' holiday and vacation
fund.21 By, in effect, conditioning the Unions' accept-
ance of its 13 June 1984 package of proposals on the
Unions' acceptance of that part of the package that
changed the contracts' vacation and holiday provisions,
despite the Unions' vigorous objections, Respondent en-
gaged in conduct violative of Section 8(a)(5) and (1) of
the Act, which precluded the existence of a genuine im-
passe on the remainder of the proposals contained in Re-
spondent's 13 June 1984 package of proposals. Hence,
when it unilaterally implemented the remainder of these
proposals on 18 July 1984, Respondent violated Section
8(a)(5) and (1) of the Act, even though it may have had
a sound basis for believing that these proposals were en-
compassed by the contracts' wage reopener provisions.
Cf. Newspaper Printing Corp. v. NLRB, supra at 966-967
(10th Cir. 1980).
In concluding that Respondent violated Section 8(a)(5)
and (1) of the Act when Respondent on 18 July 1984
stopped making contributions to the contracts' health
and welfare and pension funds and substituted its own
medical and pension plans for the plans designated in the
contracts, and decreased the rate of pay established in
the contracts, I have assumed that Respondent had
sound reasons for believing that the contracts' wage re-
opener provisions permitted it to make these changes in
the employees' terms and conditions of employment after
bargaining to an impasse with the Unions. This assump-
tion, however, ' is without any basis in the case of the
21 Included in Respondent's 13 June 1984 package of proposals was a
$15-an-hour minimum wage proposal that constituted a substantial de-
crease in the minimum hourly rate of pay established in both the Local
718 contract and Locals 169 and 1621 contract. Respondent's additional
proposal to cease deducting the approximately $2 05 an hour from the
employees' wages for their holiday and vacation benefits, as required by
the contracts, and instead to pay the employees directly for their holidays
and vacations, in effect increased the employees' net pay, before taxes
and union dues deductions, from what it was under the terms of the con-
tracts. Respondent's vice president of industrial relations, Courtney, very
carefully explained this in detail to the Respondent's employees when on
14 and 15 June 1984 he explained Respondent's 13 June proposal to them
wage reopener contained in Respondent 's contract with
Locals 169 and 1621, which provided, in pertinent part,
for the parties to reopen the contract, "to'determine the
wage increase" (emphasis added) for the remainder of the
contract's term . In agreement with the General Counsel,
I am persuaded that when viewed in a light most favor-
able to Respondent, this reopener provision can be inter-
preted as only encompassing an increase , not a decrease,
in the contract 's total wage package .2 2 But , as described
in detail supra, Respondent , despite the vigorous objec-
tions expressed by Locals 169 and 1621 , insisted to im-
passe and eventually implemented its 13 June 1984 pack-
age of proposals that called for a substantial decrease in
the contract's total wage package. Neither during the
1984 reopener negotiations , nor during the hearing in this
case, nor in its posthearing brief, has Respondent ad-
vanced a basis for its contention that it had sound rea-
sons for believing that the reopener provision in the
Locals 169 and 1621 , contract, which was phrased in
terms of negotiating - a "wage increase," did not mean
what it said. Under the circumstances, I find, in the alter-
native, that insofar as the employees represented by
Locals 169 and 1621 are concerned, that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally in-
stituting its 13 June 1984 package of proposals on 18 July
1984 inasmuch as this conduct took place without the
Unions' consent during the term of their contract with
Respondent, and Respondent did not have a sound argu-
able basis for believing that the wage reopener provision
in the applicable contract permitted it to engage in this
conduct, which decreased the contract's total wage
package.
In view of the basis for my decision herein, I have not
considered the General Counsel's further contention that
because the totality of Respondent's conduct at and
away from the bargaining table established that it was
bargaining with the Union in bad faith , no genuine im-
passe existed when Respondent on 18 July 1984 imple-
mented its 13 June 1984 bargaining proposal. Nor have I
considered the General Counsel's contention that even if
a genuine impasse existed in the case of Respondent's ne-
gotiations with Locals 169 and 1621, no such impasse ex-
isted with respect to its negotiations with Local 718 be-
cause at the outset of the 16 July 1984 negotiation meet-
ing Respondent broke off negotiations with Local 718
pending its investigation of whether that-Union had, sent
a reopener letter to the Federal Mediation and Concilia-
tion Services.
B. Respondent Deals Directly with Employees
1. The evidence
As described in detail supra, on 13 June 1984 Respond-
ent's and the Unions' negotiators held their first negotia-
tion meeting pursuant to the wage reopener provisions
contained in the parties 1982-1985 contracts at which
time they exchanged bargaining proposals. On 14-15
June 1984 Respondent's vice president of industrial rela-
22 As noted previously , the total wage package included Respondent's
contributions to the health and welfare and pension funds as well as
wages
SAFELITE GLASS 943
tions, Courtney, accompanied by Respondent's district
manager Anderson and Respondent's attorney Haynes,
visited each of Respondent's nine shops covered by the
Unions' contracts, except for the San Leandro shop. The
Unions were not notified about these meetings, and no
representative from the Unions was in attendance.
During his 14-15 June meetings with the employees,
Courtney did most of the talking. Attorney Haynes,
however, answered some of the employees' questions.
Although the employees'. questions differed from shop to
shop, Courtney's presentation to the employees was basi-
cally the same at each shop.
Courtney introduced himself, Anderson, and Haynes,
and explained that they were there to speak to the em-
ployees because Respondent 's contracts with the Unions
had been reopened for negotiations about economic items
and that because Respondent was losing money, the ne-
gotiations were very important, and Courtney felt it was
essential that the employees be kept informed about the
state of the negotiations and that Courtney planned to
meet with the employees after each of the negotiation
meetings to keep them informed. Courtney stated that
Respondent's shops in the district had lost over $350,000
during the past year,' that Respondent could no longer
afford to subsidize the shops, and the financial losses
were occurring not because employees were loafing on
the job, but because of Respondent's labor costs. In view'
of this, Courtney told the employees that Respondent
had three options: "One, continue to operate and contin-
ue to lose money; two, close the division; or three, pro-
pose changes [in the Unions' contracts] that would allow
us to operate without losing money." Courtney stated
that Respondent had decided "to continue' to operate
without losing money."
Regarding the 13 June 1984 negotiation meeting,
Courtney told the employees that the Unions proposed a
5.5-percent increase that Respondent rejected because it
could not even afford the current rate established by the
contracts, let alone an increase, and that it was ridiculous
for the Unions to think that Respondent could afford a
5.5-percent increase . Courtney explained to,the employ-
ees that the Unions, like Respondent, had certain options
that Courtney told the employees were to either accept
or reject Respondent's proposal or do nothing or show
their displeasure with Respondent's proposal by striking
Respondent. Courtney, with respect to' this last option,
stated that the Unions had not mentioned the word
``strike," but Courtney mentioned this possibility to point
out to the employees one of the Unions' options.
Regarding the proposal that Respondent submitted to
the Unions during the 13 June 1984 negotiation meeting,
Courtney explained the proposal thoroughly, and in
detail compared the economic benefits that the employ-
ees received under the terms of the current contracts
with those they would receive under Respondent's pro-
posal, and answered employees' questions on this subject.
During at-least one of the meetings when an employee
asked, "What if the union goes on strike and I don't
want to go on strike," Courtney responded by stating
that "employees would have a choice of striking or not
striking." Attorney Haynes during the 14-15 June em-
ployee meetings also informed the employees that they
had the choice of striking or not striking, and further
stated to them that as Respondent understood the
Unions' constitution and bylaws and the law of the-State
of California, if an employee decided not to strike after
the unions called the strike, the unions could possibly
fine the employee for not striking.
Following the 26 June 1984 negotiation meeting,
which has been described in detail supra, Respondent
held meetings with its employees on 27--28 June 1984
similar to the above-described 14-15 June employee
meetings . The record establishes that at the meeting held
at the San Mateo shop on either 27 or 28 June that
Courtney, in response to an employee's question about
whether Respondent intended to continue to operate if
there was a strike, stated that Respondent intended to
continue to operate and to do so it would perhaps be re-
quired to hire replacements. Also during this meeting
when questions were asked by employees about the em-
ployees' rights to strike or work if the Unions, called a
strike, Attorney Haynes stated that the employees were
free to strike or not to strike and that this was the em-
ployees' decision, not the Respondent's or the Unions'.
When employees asked how to go about resigning their
union membership and how they should word their let-
ters of resignation, Attorney Haynes told them that Re-
spondent would post on the shops' bulletin boards a
sample of how a resignation letter might be worded, but
that if the employees wanted to resign it would be up to
the employees.
On 27 June 1984 Respondent either distributed to its
employees or posted at its shops the following "Notice
To All Employees" signed by District Manager Ander-
son:
We have been asked to furnish employees with
information as to how they can resign from the
Union to avoid being fined by the Union in the
event of a strike.
The Company has no way of knowing whether a
strike will be called. No agreement has been
reached. The Union is free to strike at Midnight
June 30, 1984.
Under California law, Union employees Who con-
tinue to work across the picket line may be fined.
Under Federal law, employees are free to strike
or are free to work during a strike. The Constitu-
tion and By-Laws of the Union, as we understand
them, allow employees to submit a resignation any-
time before a strike begins.
Any employee that wants to resign to avoid the
possibility of a Union fine (if a strike is called) may
notify the Union in writing as follows:
"I hereby resign my membership as a member of
Local # , International Brotherhood of
Painters and Allied Trades AFL-CIO, effective im-
mediately. I fully understand that I will be required
to continue paying my Union dues as long as I
remain employed by Safelite."
DATE:
SIGNATURE:
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The decision to resign Union membership to
avoid being fined for crossing a picket line, is the
decision of each employee.
Employees rights to participate in a strike or not
to participate in a strike is protected by the National
Labor Relations Act. An Employer has the right to
permanently replace Economic strikers to continue
its business operation in the event of a strike.
Safelite intends to continue operating if a strike is
called.
The above description of what occurred at the meet-
ings held by Respondent with its employees on 14-15
June 1984 and at the San Mateo shop on 27 -28 June
1984 is based on the testimony of Courtney whose de-
meanor -was good when he testified about these meetings.
Arthur Garcia, an installer employed at the San Jose
shop, testified that when Courtney spoke to the employ-
ees at this . shop on 15 June 1984 , he told them, among
other things, that if no collective-bargaining agreement
was reached between the,Unions and Respondent, after
30 June 1984 the Unions could strike , that Courtney did
not know if there would be a strike , but if there was one
that the employees could cross the picket line or would
be permanently replaced and if the employees crossed
the picket line the Unions could possibly fine them, but
that was a decision the employees themselves would
have to make . Garcia also testified that Courtney stated
that the contract between Respondent and the Unions
was going "to be up" and that if the Unions did strike,
Respondent intended to remain open with or without the
employees . Courtney did not specifically controvert Gar-
cia's above-described testimony , and I credit it.
James Poda, an installer employed at the San Francis-
co shop, testified that when Courtney spoke to the em-
ployees at this shop on 14 June 1984, he told them that
the Respondent's proposal called for a total package of
$16.95 an hour with $ 15 going for wages ,and the remain-
der divided up among the employees ' fringe benefits and
advised the employees that this proposal was the best
Respondent could do and it was the "bottom line." Poda
further testified that at this point 'employee Spencer, an-
other installer employed at the San Francisco shop, told
Courtney he thought , the Union would not accept this
proposal but would strike, and asked what would happen
if there was a strike. According `to Poda, Courtney re-
plied by telling Spencer that Respondent "plans to con-
tinue with business as usual, and the men who strike will
be replaced," and that Courtney at this point ended his
answer and asked if there were any other questions. The
General Counsel contends that Courtney responded to
Spencer's question by stating that should a strike be suc-
cessful, Respondent would ' close down . In'support of this
contention, the General Counsel apparently relies on
Poda's testimony given during direct examination that, in
response to Spencer 's question that Courtney stated:
"[T]he company is going to carry on business as usual.
Those who- strike will be replaced. That frame of
thought went into if the strike did work and the compa-
ny lost then at that result everybody would be out of
work." It is unclear whether the last part of this testimo-
ny was meant by Poda to be the words Courtney used or
what Poda inferred from Courtney's words. Any doubt
about this , however; was removed by Poda's description
of this conversation given during cross-examination
when he testified in effect that all Courtney stated to
Spencer, in response to Spencer 's question, was that Re-
spondent "plans to continue with business as usual, and
the men who strike will be replaced ." I also note that
Poda 's testimony that Courtney 's above-described com-
ments were made during the 14 June meeting of employ-
ees at the San Francisco shop is inherently implausible
because the Respondent 's contract proposal , which Poda
testified Courtney explained to the employees , was Re-
spondent's alternative proposal offered to the Unions for
the first time during the 26 'June negotiation meeting.
Courtney, in effect, testified that during the 14-15 June
employee meetings he explained to the employees the
Respondent 's 13 June proposal . None of the several em-
ployees who testified about the 14-15 June employee
meetings corroborated Poda's testimony that the alterna-
tive proposal was explained to them.
Britt Elmore, an installer at the San Mateo shop, testi-
fied about Courtney's 14-15 June meeting with the em-
ployees at that shop . Elmore had absolutely no memory
of what Courtney stated at this meeting . His contempo-
raneous notes of the meeting by themselves have no in-
telligible meaning , and Elmore was unable to place the
notes in any kind of intelligible context. In short El-
more's testimony was worthless.
2. Analysis and conclusions
The complaint , paragraphs 11(a) and (c), alleges that
in violation of Section 8(a)(1) and (5) of the Act the Re-
spondent on 14-15 June 1984, during the employee meet-
ings, bypassed the Unions , dealt directly with employees
represented by the Unions , and sought to undermine the
employees ' support of the Unions by "discussing with
employees proposals made to the Unions concerning
non-mandatory subjects of bargaining" and by "threaten-
ing employees that they would be permanently replaced
in the event the Unions called a strike and they chose to'
support such a strike." The evidence pertinent to these
allegations, which has been set out in detail supra, can be
briefly summarized as follows.
During the 1984 reopener negotiations with the
Unions, the Respondent on 18 July instituted its 13 June
1984 bargaining offer, which significantly changed the
employees' economic terms and conditions of employ-
ment established by the Unions ' contracts. As I have
found supra, by engaging in this conduct Respondent
violated Section 8(a)(5) and (1) of the Act because'the 13
June offer was instituted during the term ' of the Re-
spondent's contracts with the Unions , without the con-
sent of the Unions , and despite the fact that the terms of
the offer were beyond the, scope of the contracts' re-
opener provisions and' for this reason were not mandato-
ry subjects of bargaining. On 14-15 June, immediately
after the Unions' negotiators had informed Respondent's
negotiators that they would not 'negotiate with Respond-
ent about the 13 June offer because it was not encom-
passed by the contracts' reopener provisions, Respondent
met with the employees represented by the Unions and
SAFELITE GLASS 945
described Respondent's 13 June offer and answered the
employees' questions about the offer. During these series
of employee meetings , Vice President of Industrial Rela-
tions Courtney explained the 13 June offer to the em-
ployees and compared the benefits that the employees
were receiving under the terms of the current contracts
with those they would receive under Respondent's pro-
posal, and answered questions from the employees' on
this subject. Courtney also told the employees that Re-
spondent could not afford to pay the 5.5-percent increase
proposed by the Unions and could not even afford to
pay the labor costs established by the terms of the cur-
rent collective-bargaining contract. He told the employ-
ees that because of Respondent's severe financial losses
incurred due to high labor costs, Respondent, in order to
remain in business , would have to cut its labor costs and
that in order to do this Respondent had made its 13 June
offer to the Unions and that the Unions had the option of
accepting Respondent's 13 June offer or rejecting it and
showing their displeasure by striking. Also during the 15
June employee meeting held at the San Jose shop, Court-
ney further advised employees if in fact there was a
strike and if the employees did not cross the picket line
and come to work, they would be permanently replaced.
As the Board has recently stated, "an employer has a
fundamental right, protected by Section 8(c) of the Act,
to communicate with its employees concerning its posi-
tion in collective-bargaining negotiations and the course
of those negotiations." United Technologies Corp., 274
NLRB 1069, 1074 (1985), citing United Technologies
Corp., 274 NLRB 609 (1985). The Board explained that
this right is based on the following consideration:
The goal of the Federal labor policy has always
been to create a favorable climate in which a
healthy and stable bargaining process can be estab-
lished and maintained. We believe that permitting
the fullest freedom of expression by each party to
that process offers the best hope of nuturing that
environment. (United Technologies, supra at 610.)
In the United Technologies cases the Board held that
the employer's communications to the union-represented
employees concerning the employer's midterm contract
proposals, which were beyond the scope of the con-
tract's reopener clause, did not constitute unlawful direct
dealing with the employees and bypassing of the union,
even though the employer discussed its proposals with
the employees after the union objected to the'employer's
offer and made it clear to the employer that it would
only bargain concerning matters encompassed by the re-
opener clause. The instant case, however, is significantly
different from the United Technologies cases where the
employer did not institute its offer over the union's ob-
jection but instead acknowledged to the union that it was
offering proposals that were outside the scope of the
contract's reopener clause and that it was not mandatory
for the union to bargain about the proposals. Here Re-
spondent took the position that its 13 June offer was
within the scope of the contracts' reopener clauses and
that the offer was a mandatory subject of bargaining; Re-
spondent told the employees during the 14-15 June series
of meetings that the employees had the option of accept-
ing Respondent's 13 June offer or striking ; and, thereaf-
ter, in derogation of Section 8(d) of the Act, Respondent
unilaterally instituted the terms of the 13 June offer over
the Unions ' vigorous objections.
Respondent 's 14-15 June communication to the em-
ployees that they would have to accept Respondent's 13
June offer or strike can hardly be said to have furthered
the "goal of the Federal labor policy .. . to create a fa-
vorable climate in which a healthy and stable bargaining
process can be . . . maintained ," where , as here, Re-
spondent attempted to persuade the employees to accept
the 13 June offer even though it knew that the employ-
ees' bargaining representatives regarded that offer as a
nonbargainable matter outside the scope of the contracts'
reopener provisions ; the 13 June offer was in fact a non-
mandatory subject of bargaining inasmuch as it was out-
side the scope of the contracts ' reopener provision; and
Respondent 's conduct on 14-15 June in communicating
the 13 June offer to the employees was inextricably
bound together with its further conduct of unilaterally
instituting the terms of that offer without the consent of
the Unions in derogation of Section 8(d) of thethe Act and
in violation of Section 8(a)(5) and (1) of the Act. Re-
spondent 's direct communications with the employees, in
view of the aforesaid circumstances , was reasonably cal-
culated to undermine the right of the Unions under Sec-
tion 8(d) of the Act and the contracts ' reopener clauses
to renegotiate only those items included in its contracts
with Respondent that were within the scope of the con-
tracts' reopener clauses-. It is for this reason I find that
Respondent violated Section 8(a)(5) and (1) of the Act
when on 14-15 June 1984 it bypassed ' the Unions and
communicated directly with the employees represented
by the Unions about those portions of its 13 June 1984
contract offer, which constituted nonmandatory subjects
of bargaining.
I further find that as alleged in paragraph 11(c) of the
complaint Respondent violated Section 8(a)(5) and (1) of
the Act by telling the employees during the 15 June 1984
employee meeting at the San Jose shop , as described in
detail supra, that they had the option of accepting Re-
spondent's 13 June offer or striking , and the employees
who supported such a strike would be permanently re-
placed. A strike by the employees caused in part by Re-
spondent's insistence over the Unions ' objections that the
Unions accept Respondent 's 13 June offer would have
been an unfair labor practice strike inasmuch as Re-
spondent's offer was a nonmandatory subject of bargain-
ing. By threatening to permanently replace the employ-
ees if they supported such a strike, Respondent was
threatening to permanently replace unfair labor practice
strikers, which constitutes a violation - of Section 8(a)(1)
of the Act. Redway Carriers, 274 NLRB 1359 (1985).
Also by making this threat, Respondent violated Section
8(a)(5) of the Act because the threat was a part and
parcel of Respondent's other conduct engaged in during
the 15 June employee meeting of bypassing the Unions
and communicating directly with the employees about
those portions of the 13 June ' 1984 offer that were non-
mandatory subjects of bargaining, which conduct, I have
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
found, supra, by its very nature tends to destabilize and
subvert the collective-bargaining process. -
The complaint, paragraph 11(e), alleges that in viola-
tion of Section 8(a)(1) and (5) of the Act, the Respond-
ent on 14-15 June 1984, during the employee meetings,
bypassed the Unions, dealt directly with the employees
represented by the Unions, and sought to undermine the,
employees' support of the Unions by "threatening em-
ployees with closure of Respondent's facilities if the
Unions did not accept Respondent' s bargaining proposals
presented to the Unions." The evidence that is pertinent,
to this allegation and has been set out in detail supra can
be briefly summarized.
During his 14-15 June employee meetings Courtney
stated to the employees that Respondent's facilities cov-
ered by the Unions' contracts had lost over $350,000
during the past year due to the high cost of labor neces-
sitated'by the terms of the Unions' contracts and that Re-'
spondent could no longer afford to subsidize those facili-
ties. In view of this, ' Courtney told the employees that
Respondent had decided that instead of closing these fa-
cilities that it would propose changes in its contracts
with the Unions, which would permit Respondent to op-
erate the facilities without losing money. It was in this
context that Courtney informed the employees about Re-
spondent's 13 June 1984 contract proposal that had been
offered to the Unions and gave the employees a detailed
explanation of this proposal.
Based on the foregoing, I find Courtney's statements
to the employees carried the implicit warning that unless
the'Unions and the employees represented by the Unions
accepted Respondent's 13 June contract proposal that
Respondent would be forced to close the facilities cov-
ered by the contracts on account of the high labor costs
of -Respondent's contracts with the Unions that had
caused Respondent to lose approximately $350,000 in the
past year. It is undisputed, however, that as a matter, of
fact, as Courtney explained to the employees, Respond-
ent had lost approximately $350,000 during the past year
operating these facilities. I therefore find that Courtney's
statement' constitutes a reasonable prediction based on
objective facts and, as such, was protected by Section
8(c) of the Act. See NLRB v. Gissel Packing Co., 395
U.S. 575, 618-619 (1969). Accordingly, 'I shall recom-
mend the dismissal of this allegation.
The complaint, paragraphs 11(b) and (d), alleges that
in -violation of Section 8(a)(1) and (5) of the Act that Re-
spondent during the employee meetings held on 14-15
June bypassed the Unions, dealt directly with employees
represented by the Unions, and sought to undermine the
employees' support of the Unions by, "informing em-
ployees of the possibility that the Unions would call a
strike and fine employees who failed to support such a
strike, at a time when the Unions were not considering
any such course of action" and by "soliciting employees
to resign their membership in the Unions." The evidence
pertinent to these allegations, which has been set out in
detail supra, can be briefly summarized.
During the- 14-15 June employee meetings, Courtney
told the employees that the Unions had the option of ac-
cepting Respondent's 13 June contract offer or rejecting
it and striking. He clarified this remark by explaining, to
the employees that the Unions had not mentioned the
possibility of a strike, but that Courtney- had brought the
subject up because it was one of the options available to
the Unions. Respondent's attorney Haynes, who was also
present at these meetings, told the employees that in the
case of a strike they had the choice of striking or not
striking and explained to them that, as Respondent un-
derstood the Unions' constitutions, bylaws, and the law ,
of the State of California, if an employee decided not to
support the Unions' strike the Unions could possibly fine
them for not striking. Also during the 15 June employee
meeting held at Respondent's San Jose shop, Courtney
stated that if the Unions did strike Respondent in support
of their contract demands that the Respondent would
permanently replace employees who did not cross -the
picket line to work and the Unions could possibly fine
those employees who crossed the picket line to work.
There is no evidence that during the 14-15 June employ-
ee meetings any of Respondent 's representatives men-
tioned anything about- employees resigning from the
Unions. However, during an employee meeting held on
either 27 or 28 June at the San Mateo shop to inform the
employees about the 26 June negotiation session, it is un-
disputed that in response to employees ' questions about
their right to strike or work during a strike called by the
Unions, that Attorney Haynes told the employees that
they were free to-strike or not to strike. When employ-
ees asked Haynes how to go about resigning their union
membership and how they should phrase their letters of
resignations , Haynes told them that Respondent would
post on the bulletin boards of its shops a sample resigna
tion letter, but stated that the decision to resign was for
the employees to make for themselves.
As summarized above, it is plain that all Respondent
did in this case was to bring to the employees' attention
the fact that the Unions, pursuant to the Unions' consti-
tution and bylaws, might fine them if they failed to sup-
port a strike'called by the Unions against Respondent,
and in response to employees' request for information on
how to go about resigning `from the Unions in the case of
a strike, Respondent informed the employees that it
would provide them with a sample resignation letter, but
that the decision to resign ,was for the employees to
make for themselves. Considered by itself and in the con-
text of what else was stated to the employees by Re-
spondent during the employee meetings, this conduct
was not reasonably calculated to interfere with employ-
ees' Section 7 rights. Consequently, I shall recommend
dismissal of these allegations.
C. Respondent's Refusal to Provide the Unions with
Information
1. The evidence
On 29 August 1984 Special Representative Edward
Jones wrote Respondent's division manager, Ken Ander-
son, on behalf of the Unions, requesting an up-to-date list
of the names, addresses, dates of hire, and current wage
rates of all Respondent's employees represented by
Locals 1621, 718, and 169. Jones, who was employed as
an organizer by Local 1621, further advised Anderson
SAFELITE GLASS 947
that he had been given permission by Locals, 169 and 718
to receive this information. Jones testified that the rea-
sons the Unions wanted Respondent to furnish them with
this information was so the Unions could administer the
union-security provision in their contracts with Respond-
ent and to update the Unions' files with current informa-
tion so they could administer their contracts with Re-
spondent in other respects.
Respondent did not answer Jones' 29 August letter, so
Jones on 21 September 1984 wrote Anderson repeating
his request for the names, addresses, and dates of hire of
all employees in the units represented by Locals 169,
718, and 1621, and warned Anderson that if this informa-
tion was not received by 27 September the Unions
would file unfair labor practice charges. In reply, on 25
September Anderson telegrammed Jones that "these
records are kept in our Kansas Corporation office; they
are enroute to you." Respondent, however,- never fur-
nished this information to Jones, as Anderson promised,
instead on 8 October 1984 Attorney Haynes wrote Jones:
This is to acknowledge receipt of your letter to
Ken Anderson requesting an up-to-date list of all
employees employed within the bargaining unit rep-
resented by Glaziers Local Nos. 1621, 718 and' 169.
Requests for names, addresses, date of hire, and cur-
rent wage rates of employees represented by Local
Nos. 718 and 169 should be made by each Union.
As you know, Safelite presently has pending
unfair labor practice charges with the National
Labor Relations Board concerning Local No. 1621's
intimidation, threat and coercion of Safelite employ-
ees in violation of Subsection 8(b)(1)(A) and Sub-
section 8(b)(2). We have been informed that the re-
gional-office of the National Labor Relations Board
has determined that those charges have merit and
until the violations of the act have been remedied,
Safe-lite is reluctant to provide Local No. 1621 with
the names, addresses, date of hire and current wage
rates of its employees as you request.
As soon as the unfair labor practice charges have
been remedied, please renew your request.
By letter dated 22 October 1984 Jones wrote Haynes ac-
knowledging his 8 October letter and told Haynes that,
as indicated previously in Jones' 29, August letter to An-
derson, Jones was requesting the information on behalf
of all three local unions with their knowledge and con-
sent and repeated his request, that Respondent provide
him with the requested information.
On 28 February 1985 Carl Dahl, Local 718's business-
manager, telegrammed Respondent's division manager,
Anderson, that he was reaffirming the previous requests
made by Jones for the names, addresses, and wage rates
of Respondent's employees represented by Local 718. In
response, on 8,'March 1985,'' Anderson telegrammed
Locals 169, 718, and 1621 that the names of all Respond-
ent's employees were being continuously furnished to
Locals 169, 718 and 1621 on =the monthly dues forms
pursuant to Respondent's contracts with the Unions, and
asked the unions to review those forms and advise Re-
spondent "if the requested information is necessary."
Respondent, as of the date of the hearing in this case,
had not furnished the Unions, as requested, with the
names, addresses, dates of hire, and wage rates of its em-
ployees represented by the Unions. Courtney testified
that he was the company official who made the decision,
on receipt of the Unions' 29 August 1984 request for this
information, not to furnish the information. He further
testified that his reason for making this decision was that
he learned from talking with Respondent's attorney
Haynes that the evidence submitted by Attorney Haynes
to the National Labor Relations Board in support of the
Respondent's charges against the Unions filed 9 July
1984 revealed that
the Unions had harassed and intimidated the em-
ployees, and that they were continuing to do so.
They sent letters to employees, indicating that if
they did not pay their strike assessment , the Union
was going to get them fired or get their job termi-
nated with the company. The employees had been
required to . . . join the Union before the contract
called for it ... one individual, I think, indicated
that he had to pay three months in advance.
The record shows that in Case 32-CB-1821 on 9 July
1984 Attorney Haynes, on behalf of Respondent, riled an
unfair labor practice charge with the National Labor Re-
lations Board alleging, among other things, that Locals
169, 718, and 1621 violated Section 8(b)(1)(A) and (2) of
the Act by "causing or attempting to cause employers to
discriminate against an employee in violation of Section
8(a)(3) or to discriminate against an employee with re-
spect to whom membership in such organization has
been denied or terminated on some grounds other than
his failure to tender periodic dues and initiation fees uni-
formally required as a condition of acquiring or retaining
membership," and "by requiring employees by an. agree-
ment authorized under subsection (a)(3), the payment, as
a condition precedent to becoming a member of such or-
ganization, a fee 'in an amount which is excessive under
all the circumstances." These allegations were found to
be meritorious by the Board's Regional Office only inso-
far as they involved Local 169.23 On 30 October the
Board's Regional Office entered into an agreement with
Local 169 settling this case, in which Local 169, without
admitting that it violated the Act, agreed not to cause or
attempt to cause Respondent to discriminate against em-
ployees in violation of Section 8(a)(3) of the Act and not
to attempt to force Respondent to require employees to
become members of Local 169 'or pay an'initiation fee
prior to the, time they completed 30 days of, employment.
It was further agreed that for 60 consecutive days it
would post a notice addressed to its members embodying
the aforesaid settlement agreement. Respondent was not
a party to this settlement agreement, which it viewed as
being inadequate. However, the General' Counsel by
letter dated 7 February 1985 rejected Respondent's
appeal and affirmed the settlement. Because compliance
with the settlement was presumably held' in abeyance
23 Attorney Haynes' 8 October letter incorrectly states that the charge
was found to be mentorious with respect to Local 1621.
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pending Respondent's appeal, Local 169, as of the date
of` the hearing in this case, 12-14 March 1985, had not
posted the notice to its members for the 60 days required
by the settlement, thus its alleged unfair labor practices
had not been remedied.
2. Analysis and conclusions
On 29 August 1984 the' Unions requested Respondent
to provide them with an up-to-date list of the names, ad-
dresses, dates of hire, and current wage rates of employ-
ees in the bargaining units represented by the Unions.
Because this information was presumptively relevant to
the Unions' role as the bargaining agents of Respondent's
unit employees, no showing of particularized need was
necessary. Bozzuto's, Inc., 275 NLRB 353 (1985); George-
town Holiday Inn, 235 NLRB 485, 486 (1978). As de-
scribed in detail supra, Respondent refused to comply
with the Unions' request.
Respondent did not advance any reason for its refusal
to provide the Unions with the dates of hire and current
wage rates of the employees employed in the units repre-
sented by the'Unions. In view of the relevance of this
type of information to the Unions as the employees' bar-
gaining agent , I find Respondent's refusal to provide this
information violated Section 8(a)(5) and (1) of the Act.
Respondent' justifies its refusal to furnish the Unions
with the names of the employees represented by the
Unions by taking the position that Respondent was al-
ready furnishing the Unions this information on a month-
ly basis in the form of monthly union dues payment-re-
mittance statements received by the Unions with the
moneys that Respondent deducts from the employees'
wages for union dues.24 There is a serious doubt, how-
ever, whether these monthly statements in fact contain
the names of all's the employees employed in the units
represented by the Unions (compare Tr. 536 with Tr.
572-573). In any event, assuming these monthly state-
ments include the names of all the employees, Respond-
ent still was required to provide the names of the em-
ployees to the Unions in ,connection with Respondent's
further statutory obligation. to provide the Unions with
the employees' current wage rates and dates of hire; for
otherwise that information' would make no sense to the
Unions.
Regarding the Unions' request for the employees' ad-
dresses, Respondent, in its posthearing brief, argues that
it "did not provide the addresses of employees because
of a belief that one reason for the Unions' request was a
desire to continue to harass employees with regard to
24 Respondent 's good faith in raising this defense is doubtful. It was
not until the complaint in this case was issued and shortly before the start
of the scheduledhearing that Respondent for the first time informed the
Unions that they were not entitled to the names of the employees because
Respondent was' regularly furnishing the names in the form of the month-
ly union dues statements. Also previously, on 25 September, District
Manager Anderson had assured the Unions that all the requested infor-
mation, including the employees' names, was "enroute to you." Ander-
son's promise and the Respondent 's subsequent repudiation of that prom-
ise insofar as it pertains to- the employees ' names was never explained.
Under the circumstances Respondent's belated contention that it was not
obligated to provide the Unions with the employees' names because they
were already being furnished to the Unions does not appear to have been
raised in good faith.
dues payments and/or initiation fees which exceeded that
which was required by the, contract, i.e., payments of
dues and/or 'fees prior to 30 days of employment and
payments which exceeded the dues which, were deduct-
ed from the employees' pay."25 However, Respondent
did not present any evidence that the-Unions harassed
employees. Not one employee testified to this effect, nor
did a single supervisor or managerial employee testify
that employees had stated they were being harassed. The
only evidence introduced by Respondent to support its
contention that the Unions were harassing employees is
the fact that Local 169 in Case 32-CB-1821, as described
in detail supra, entered into _ a settlement agreement in
which it agreed; that it would , not cause or attempt to
cause Respondent to discriminate against employees in
violation of Section 8(a)(3) of the Act and would not at-
tempt to force Respondent to require employees to
become- members of Local 169 or pay an initiation fee
prior to the time they had completed 30 days of employ-
ment.' This settlement agreement has absolutely nothing
to do with the bargaining unit represented by Local 718.
Therefore, it did not justify Respondent's refusal to pro-
vide Local 718 with the addresses of the employees-em-
ployed in Local 718 unit. And with respect to the em-
ployees employed in the unit jointly represented by
Locals 169 and 1621, the settlement agreement does not
warrant the inference that Local 169 engaged in the mis-
conduct encompassed by the agreement because unions
and employers enter into such-settlement agreements for
a multitude of reasons having nothing to do with wheth-
er they have -engaged -in the illegal conduct they have
been charged with. Indeed, this settlement agreement
states that by entering into it that Local 169 was not ad-
mitting it violated the Act. In any event, the terms of the
settlement agreement do not warrant the inference that
during the time material there was a "clear and present
danger of harassment and violence" to justify Respond-
ent's refusal to furnish Locals 169 and 1621 with the
names of the employees in the unit jointly represented by
those local unions.26 The settlement agreement does not
establish that Local 169 harassed employees as contended
by Respondent,, or even if, as Respondent contends, the
settlement agreement warrants the inference that Local
169 in fact harassed employees in connection with its il-
legal enforcement of the contractual union-security
25 Respondent's defense that it decided not to provide the Unions with
the employees' addresses because it thought that the Unions intended to
use -this information to illegally harass the employees is based on the testi-
mony of Courtney that Attorney Haynes told him that the evidence
Haynes submitted to the Board's Regional Office in support of Respond-
ent's charge in Case 32-CB-1821 showed that the Unions had harassed
and intimidated employees in enforcing the unioti -security provisions in
their contracts with Respondent in an illegal manner I note that this tes-
timony was received for the sole-purpose of shedding light on the state of
Courtney's mind when, as he testified, he decided not to provide the
Unions with the requested information. It was not received for the truth
of the matters contained therein.
26 It is ' well established that there must be more than a speculative con-
cern on the part of an employer . there must be a "clear and present
danger of harassment and violence" to justify a refusal to furnish a union
with relevant information . See Shell ©tl Co, Y. NLRB, 457 F.2d 615, 618-
620 (9th Cir. 1972). Accord_ NLRB v. Pearl Bookbinding Co, 517 F.2d
1108, 1113-11'14 (1st Cir: 1975), United Aircraft Corp. v .'NLRB, 434 F.2d
1198, 1207 (2d Cir. 1970).
SAFELITE GLASS
clause, it does not establish that the extent of this mis-
conduct was sufficient to justify Respondent 's refusal to
furnish the Unions with the addresses of the bargaining
unit employees . It is for all the foregoing reasons that I
find Respondent violated Section 8(a)(5) and (1) of the
Act by its refusal to provide the Unions with the ad-
dresses of the employees employed in the units represent-
ed by the Unions.
D. Respondent 's Attorney Interviews Employees
1. The evidence
As described in detail supra, on 14-15 and 27-28 June
1984, Courtney, accompanied by Anderson and Haynes,
conducted a series of meetings with Respondent's em-
ployees at which time Courtney informed them about the
state of Respondent's reopener negotiations with the
Unions and explained Respondent's bargaining proposals
to them . I have found , supra, that during the employee
meetings held 14-15 June 1984 Respondent engaged in
certain conduct that. , violated Section 8(a)(1) and (5) of
the Act. On 21 June 1984 Local 1621 in Case 32-CA-
6566 filed an unfair labor practice charge with the
Board, alleging in substance that since 13 June 1984 Re-'
spondent had violated Section 8(a)(1) and (5) of the Act
by conducting itself in such a coercive manner as to
have interfered with its employees' Section 7 rights and
by failing to bargain in good faith with Locals 1621 and
169. It is undisputed that following Respondent 's receipt
of this charge that Attorney Haynes in order to defend
Respondent against the charge's allegations interviewed
Respondent's employees on 27-28 June 1984 and ques-
tioned them about what _was stated to them by Respond-
ent's representatives at the 14-15 and 27-28 June em-
ployee meetings. The complaint , paragraph 6(a), alleges
that Respondent through Haynes on approximately 27
June 1984 "coercively interrogated [Respondent's] em-
ployees in connection with preparing its defense to an
unfair labor practice charge filed against Respondent,"
thereby violating Section 8(a)(1) of the Act. Five wit-
nesses-Haynes and employees Poda, Lenz, Elmore, and
Garcia- testified about Haynes' interviews with employ-
ees. The significant portions of their testimony are set
forth hereinafter.
William Haynes, Respondent's attorney,' testified as fol-
lows. On 27-28 June 1984 he visited Respond ent's sever-
al shops in northern California and interviewed several
of 'the Company !s employees who attended the 14-15
and 27-28 June employee meetings conducted by Court-
ney. Haynes testified that as, did not speak from a pre-
pared script or from notes ' or take notes of the inter-
views, ' he was unable' to recall his exact words, but that
each ofthe interviews was conducted in the following
manner. He, spoke to the employees outside the presence
of management. He showed the employees a copy of the
charge filed by Local 1621 in Case 32-CA-6566, gave
them an opportunity to read it , and explained to them
that he wanted to interview them about what was stated
to them by management during the employee meetings
held 14- 15 and 27-28 June . Haynes stated that the pur-
pose of his interview was to take a statement from them
in preparing R'espondent's, defense to the allegations
949
made in Local 1621's charge . Haynes also told the em-
ployees that they did not have to cooperate with him
and were free to leave and not answer his questions, but
that he would appreciate it if they cooperated . He also
advised them that they had the right to engage or refrain
from engaging in union activities , and the Respondent re-
spected those rights , and that they were protected by
Federal law . The employees who chose to remain were
then questioned by Attorney Haynes about what was
stated by Respondent 's representatives during the em-
ployee meetings that they attended on 14- 15 and 27-28
June . Haynes wrote down what the employees told him
on a sheet of legal paper, wrote that the employees
giving the statements had been assured that Respondent
would take no reprisals against them , and'asked the em-
ployees to sign the statement at the conclusion of the
interview.
Britt Elmore, an employee at Respondent 's San Mateo
shop, testified that sometime in June 1984 Attorney
Haynes visited him at the shop and asked him if he
would give Haynes a written statement about what
Courtney had stated to the employees at the employee
meeting held by the Company earlier in June. Haynes
told him that since the Union was claiming that Re-
spondent had threatened the employees at this meeting
Respondent wanted the employees to submit written
statements saying that they were not threatened and to
sign the' statements . Attorney Haynes showed Elmore
written statements signed by , some of the Company's
other employees and asked him to react them. When
Elmore advised Haynes that he would not furnish him
with such a statement , Haynes asked the reason for his
refusal , and Elmore replied by stating that he just did not
want to write anything down and sign it. This ended the
conversation . Elmore testified that Haynes did not state
to him that his participation in the interview was volun-
tary or that Respondent would not retalitate against him
if he did not provide it with a statement as requested by
Haynes and that Haynes did not advise him of his rights
under the Act.
Arthur Garcia , an employee at the San Jose shop , testi-
fied that Attorney Haynes visited him and employee
Bailin on 27 June at the San Jose shop, told them there
had been an unfair labor practice charge filed by the
union against Respondent . He then gave them a copy of
the charge to read and also told them that his purpose in
speaking to them was to prepare a defense for Respond-
ent against the allegations in the charge. Haynes told the
employees that he wanted to take a written statement
from them about what had actually occurred during the
company employee meeting they attended 15 June and
have them sign it . Bailin stated-he would not sign such a
statement: Garcia indicated that he would sign a state-
ment only if he was given a copy of what he was sign-
ing. Haynes, using leading questions , then, took a state-
ment from Garcia about what had taken place during the
15 June meeting and asked Garcia to sign it. Garcia re-
sponded by stating he would only sign it if he was given
a copy of the statement for his personal records. ]Haynes
responded by leaving, with the unsigned statement.
Garcia testified that Haynes did not state that Garcia's
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
participation in the interview was voluntary or,that there
would be no reprisals taken against him if he refused to
sign the statement or advise Garcia that he was free to
engage in or refrain from engaging in union activities or
that his rights in this respect were protected by the Act.
James Poda, an employee at Respondent's San Francis-
co, shop, testified that Attorney Haynes visited him and
eployee Spencer at that shop on 27 June and told them,
that the union had filed an unfair labor practice charge
against the Company and that the Company needed the
employees to make written statements explaining that
Respondent did not coerce them at the 14 June company
meeting. Spencer told Haynes that the employees were
not coerced and that he would be happy to state this in
writing. Poda stayed silent. Haynes stated that although
a statement signed by Poda and Spencer would be good,
Spencer's signature was just as good. Spencer then told
Haynes what he remembered as having occurred during
the 14 June meeting and, as he spoke, Haynes wrote
down what he said on a piece of paper. Poda left the
room stating that he did not intend to sign the statement
Haynes was writing. Poda testified that Haynes did not
tell him his participation at this meeting was voluntary,
or that there would be no reprisals taken against him,
nor did Haynes explain his rights under the Act.
Randolph Lenz, an employee at Respondent's Pleasant
Hill shop, testified that Attorney Haynes visited Lenz
and employees Lopez and Meahan at the shop and, in
the presence of Courtney, showed them a copy of the
unfair labor practice charge filed against Respondent by
Local 1621. He read them what the- charge alleged and
told them he wanted to talk to them about the allega-
tions in the charge, but that they had the choice of stay-
ing or leaving and if they chose not to participate in the
interview, no reprisals would be taken against them.
When all three employees stated that they wanted to
stay and listen to what Haynes had to say, Haynes told
them he would like them in their own words "to give a
rebuttal" to what was alleged in the unfair labor practice
charge and to sign the statement they gave. The result
was an affidavit dated 28 June 1984 in Haynes' handwrit-
ing, which all three employees jointly signed, setting
forth .what allegedly occurred during the employee meet-
ings conducted by the Respondent. The affidavit ends
with the declaration: "I have been informed of the pur-
pose, of this statement and assured no reprisals will be
taken against me."
2. Analysis and conclusions
The complaint, paragraph 6(a), alleges that Respond-
ent through its Attorney Haynes about 27 June 1984,
"coercively interrogated [Respondent's] employees in
connection with preparing its defense to an unfair labor
practice charge filed against Respondent," thereby vio-
lating Section 8(a)(1) of the Act. In support of this alle-
gation the General Counsel argues, that in questioning
employees Poda, Garcia; and Elmore for the purpose of
preparing Respondent's defense to Local 1621's unfair
labor practice charge, Respondent violated Section
8(a)(1), because it did not observe the principles of John-
nie's Poultry Co.,, 146 NLRB 770 (1964), in that Respond-
ent's attorney, when he questioned the employees, did
not advise them that their participation -in furnishing Re-
spondent with the requested information was on a volun-
tary basis, nor did he assure them they would not suffer
any reprisals, and the questioning occurred in the context
of Respondent's illegal direct dealings with the employ-
ees. Respondent argues that assuming it failed to comply
with the Johnnie's Poultry rules, it did not matter because
the alleged illegal interrogation did not pertain to any
conduct protected by Section 7 of the Act. Respondent's
contention is meritorious.
In Johnnie's Poultry the Board outlined the permissible
manner in which an employer may interrogate an em-
ployee concerning matters likely to arise in an unfair
labor practice proceeding. The Board held that to render
such questioning privileged, an employer (id., at 774-
775):
must communicate to the employee the purpose of
the questioning, assure him that no reprisal will take
place and obtain his participation on a voluntary
basis; the questioning must occur in a context free
from employer hostility to union organization and
must not be itself coercive in nature; and the ques-
tions must not exceed the necessities of the legiti-
mate purpose by prying into other union matters,
eliciting information concerning an employee's sub-
jective state of mind, or otherwise interfering with
the statutory rights of employees.
It is clear, however, that in formulating the Johnnie's
Poultry standards for those situations where an employer
is engaged in questioning employees in order to defend
itself against unfair labor practice charges, that the Board
assumed that the standards would be applicable only to
those situations that involved an employer's interrogation
of employees about matters involving their Section 7
rights. For in all cases arising under the Act, which in-
volve allegations of illegal employee interrogation, the
Board evaluates the legality of the interrogation accord-
ing to "whether under all of the circumstances the inter-
rogation reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act" (emphasis added). Ross-
more House, 269 NLRB 1176 (1984).
In the instant case it makes no sense to apply the John-
nie's Poultry rules because the employees were not ques-
tioned about their union sympathies or activities or about
any other activities guaranteed by Section 7 of the Act.
Nor was their interrogation reasonably calculated to
interfere with the Board's statutory obligation to carry
out the Act's mandate to protect the employees' Section
7 rights inasmuch as Respondent did not ask, the employ-
ees if they had spoken to a Board agent or whether they
had submitted affidavits to the Board. The employees
were only asked to furnish a statement to Respondent's
attorney that would inform-him of what had been stated
to the employees by .representatives of management and
Respondent's, attorney during the meetings previously
held by management, which the employees attended.
This interrogation was,not reasonably calculated to in-
hibit the employees from engaging in any of the types of
protected concerted -activity encompassed by Section 7
of the Act, nor was it reasonably calculated to interfere
SAFELITE GLASS
with the Board's investigatorial and prosecutorial proc-
esses. In other words the alleged illegal interrogation by
Respondent's attorney in preparing a" defense to Local
1621's unfair labor practice charge did not pertain to the
employees' involvement in conduct protected by Section
7 of the Act.27 Accordingly, I shall recommend the dis-
missal of this allegation in the complaint. See Mineola
Ford Sales, 258 NLRB 406 ( 1981).
E. Respondent's Transfer of Employee James Poda
1. The evidence
James Poda worked for Respondent at, its San Francis-
co shop as an auto glass installer trainee . He is a member
of Local 718, the Union that represents the installers em-
ployed, by Respondent at that shop. Poda's terms and
conditions of employment were established by Local
718's contract with Respondent, which provides ' that
auto glass installer trainees during their first 6 months of
employment earn 60 percent of the journeyman hourly
rate of pay; 70 percent during their second 6 months;, 80
percent during their third 6 months; 90 percent during
their fourth -6 months; and at the end of their, second
year of employment would receive the journeyman
hourly rate. Poda having started to work for Respondent
on 16 July 1982 normally would not `have received his
journeyman rate of pay until approximately 16 July 1984.
Poda apparently had some prior experience when hired
by Respondent and received at least one of his scheduled
pay raises at the end of 3 rather than '6 months as called
for by the contract. Poda believed that his pay should
have been raised to the journeyman, rate prior to the
conclusion of his second year of employment. In 1984,
prior to 27 June, he mentioned this to District Manager
Anderson on more than one occasion. Anderson told
him that he would check into it.28 When Anderson
failed to do anything about Poda's complaint, on 27
June, Poda spoke- to ,Anderson againas described below.
On 27 June Anderson and Respondent's vice president
of industrial relations Courtney accompanied Attorney
Haynes to the San Francisco shop, described in detail
supra, Haynes ' interviewed Poda and, employee Spencer
in the shop's office and Poda left the office after having
refused to sign a statement for'Haynes. When Poda reen-
tered the shop, he initiated a conversation with Ander-
son by asking what was happening about his - pay raise.
Anderson told 'him that he would not receive the raise
because he had not been employed for 2 years,-which he
stated was the time period a -trainee must work before
being eligible to be paid journeyman's wages. Poda ex-
plained why he felt that he was eligible at the end of his
first year of employment to receive journeyman's wages.
Anderson then called Courtney over and asked Poda to
27 In view of this conclusion, I have not considered ' the General Coun-
sel's contention that Respondent's attorney in questioning employees
Poda, Garcia, and 'Elmore failed to comply with the criteria set forth in
Johnnie's Poultry,
28 Anderson testified that when Poda asked 'why his pay had not been
raised to that of'a journeyman's Anderson explained the reason . Poda, as
described above, testified that prior to 27 Jpne on those occasions when
he casually mentioned the matter to Anderson, Anderson told him, he
would check into it. I have credited Poda's testimony because his', testi-
momal demeanor was better than Anderson's
951
explain his complaint to Courtney. After listening to
Poda's complaint, Courtney told him that he was not fa-
milar with the matter and would check into it and speak
to Poda about it at a later date. Poda replied by telling
Anderson and Courtney that he was months late in re-
ceiving his journeyman rate of pay, that he had com-
plained to , Respondent a long time ago about this, and
that now he intended to go 'to the Union with his com-
plaint and let the Union handle -it. Anderson told Poda,
"Do what you have to do" and this concluded the con-
versation. 2 s
A few days following his - 27 June conversation with
Anderson and Courtney, Poda went to Local 718's of-
fices and brought his grievance to the Union's attention.
Subsequently, on Friday, 6 July, Local 718 Business
Manager Carl Dahl wrote Anderson stating, Among
other things, that Respondent was in violation of its con-
tract with Local 718 by failing to increase Poda's pay as
required by that contract and "asked for an immediate
meeting with Respondent to "grieve this matter."
On Monday, 9 July, at approximately 9 a.m., Anderson
telephoned Poda at Respondent's San -Francisco shop.
He began the conversation by asking, "What's this union
stuff?" Poda answered, "You know what it is." Anderson
asked, "What are you trying to do, to me?" Poda an-
swered by asking, "What can I ,do to you?" Anderson
stated, "Okay Poda I'll be-," at which point Poda inter-
rupted Anderson and told him, "don't threaten me,"
whereupon, Anderson stated, "This is not a threat, this is
a promise. I'll be watching you and you make one mis-
take and you're gone," Poda then changed' the topic and
asked Anderson about his paycheck, which had been late
in arriving, and this ended the conversation.3
Later during 9 July, at approximately 12 p.m., Ander-
son, accompanied by his assistant, Cecil Green, who is
Respondent's operations manager, visited the San Fran-
cisco shop, and Green, in the presence of Shop Manger
Young and Anderson, notified Poda that effective the
next workday Poda was_ being transferred from the San
Francisco shop to the Richmond shop., Green told Poda,
that the Richmond shop was having a difficulty or a
problem. and that Respondent needed another man there
and that effective 10 July Poda was being transferred
there to work, where Poda would be working for his
"old buddy" Steve Apple. Green made this last remark
in a sarcastic tone of voice. Green asked whether the
transfer would pose any problem for Poda, and Poda an-
E9 Poda and Anderson testified about the above-described 27, June con-
versation , which is based on Poda's testimony . Anderson's version did
not contradict Poda's. I realize that Anderson did not testify that Poda
stated he intended to take his complaint to the Union and let the Union
handle it. Anderson did not, however, specifically deny that Poda trade
this statement and Poda's testimonial demeanor when lie testified about
this conversation was good.
30 Anderson testified that the above-described 9 July telephone con-
versation between himself and Poda did not take place In Fact, Anderson
testified that he has never spoken to Poda over the telephone about any-
thing.-, I have credited Poda's testimony because hit testimonial ' demeanor
was good, and Anderson 's was poor when they testified about this tele-
phone conversation . I also note that Respondent's shop manager; Young,
who Poda testified was the one who notified him about his 9 July tele-
phone call from Anderson, did not corroborate Anderson 's denial that he
had spoken to Poda over the telephone that day
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
swered, "No." Because Poda had never been to the
Richmond shop, Green-gave him directions on how to
get there.31
Poda in fact began;work at the Richmond shop on 10
July and worked there until he left Respondent's em-
ployment on a date not disclosed by the record. The
manager of the Richmond shop was Steve Apple, who
Poda had worked for in San Francisco when Apple man-
aged that shop.
Depending on the traffic and Poda's speed, it took him
between 20 to 25 minutes to drive to the San Francisco
shop from his residence and between 45 minutes to an
hour to drive to the Richmond shop.
2. Analysis and conclusions
The complaint alleges in substance that Respondent
violated Section 8(a)(1) of the Act when District Manag-
er Anderson on 9 July 1984 interrogated Poda about a
grievance filed against Respondent by Local 718 and
threatened him with discharge because he filed a griev-
ance against Respondent. As I have found supra, on 9
July Anderson telephoned Poda and asked, "What's this
union stuff?" and "What are you trying to do to me?"
and in almost the same breath promised Poda that he
would keep his work under surveillance and discharge
him if he made a single mistake. Viewed in context, it is
clear' that in asking these questions and threatening Poda
with discharge Anderson was referring to the grievance
that Local "718 filed against Respondent on Poda's behalf.
It is also clear that Anderson's questions about the griev-
ance were reasonably calculated to elicit a response from
Poda concerning his reasons for filing-the grievance with
Local 718. Likewise, when viewed in context, it is clear
that Anderson's` promise to keep Poda's work under sur-
veillance and discharge him if he made a mistake was
reasonably' calculated to be construed by Poda as a
threat to discharge him because Local 718 had filed a
grievance on his behalf. I therefore find that by threaten-
ing Poda with discharge because his bargaining repre-
sentative, Local -718, had filed a grievance against Re-
spondent on his behalf Respondent engaged in conduct
reasonably calculated to coerce Poda from exercising his'
rights guaranteed by Section 7 of the Act, and that by
engaging in this conduct Respondent violated Section
8(a)(1) of the Act. I also find that because Anderson's
above-described interrogation of Poda about the griev-
ance filed by Local 719 on his behalf occurred in the'
context of Anderson's illegal threat to discharge him on
account of that grievance, the interrogation was coercive
and constituted a separate additional violation of Section
8(a)(1) ,of the Act.
3 i This description of Green's 9 July conversation with Poda is based
on Poda's testimony. Green did not testify Anderson testified that he
was unab)e to remember whether he visited the San Francisco shop on 9
July with Green, but denied that he was present when Poda was notified
of his transfer. Anderson also testified initially that it was either Green or
Young who told Poda about his transfer, then later testified that Young
was the person who told Poda about his transfer. Young testified that be
was present when Poda was notified about his transfer, but was unable to
recall whether it, was himself or Green who told Poda about the transfer,
nor could he remember whether Anderson was present when Poda was
notified. I credited Pbda's testimony because his testimonial demeanor
was good when he testified about this matter
The complaint alleges that Respondent's transfer of
Poda on 10 July 1984 from its San Francisco to its Rich-
mond shop violated Section 8(a)(1) and (3) of the Act
because it was motivated by,Poda's union or protected
concerted activities. Considering Poda's transfer , oc-
curred almost simultaneously with Respondent's knowl-
edge that Local 718 had filed a grievance against Re-
spondent on Poda's behalf concerning his wage com-
plaint;32 considering Respondent violated Section 8(a)(1)
of the Act by threatening to discharge Poda because
Local 718 filed this grievance on his behalf and by coer-
cively questioning Poda about the grievance; considering
Poda was notified about-his transfer on the same day that
Respondent first learned that Local 718 had filed a griev-
ance against it on Poda's behalf and within 4 hours after
Respondent's threat to discharge Poda because of this
grievance, I am persuaded that these considerations in
their totality warrant a finding that the General Counsel
has established that Respondent was hostile toward Poda
because Local 718 had filed a grievance against Re-
spondent on his behalf and that this hostility was a moti-
vating factor in Respondent's decision to transfer Poda
from its San Francisco to its Richmond shop.
The remaining question for decision is whether Re-
spondent has established by a preponderance of the evi-
dence that Poda's transfer would have taken place even
in the absence of Local 718's grievance on Poda's behalf.
NLRB v. Transportation Management Corp., 462 U.S. 393,
403 (1983), affirming the standard announced in Wright
Line, 251 NLRB 1083 (1980). An evaluation of the perti-
nent evidence follows.
During the time material, Respondent's nine northern
California stores, the stores involved in this case, em-
ployed approximately 17 auto glass installers. Respond-
ent's West Coast division manager Ken Anderson was
responsible for the operation of these stores.
Immediately before Poda's 10 July transfer from the
San Francisco to the Richmond shop, the San Francisco
shop employed three workers: Young, Poda, and Spen-
cer. Young, a journeyman auto glass installer, was the
shop manager and spent all of his-time in the shop an-
swering the telephone and making -sales. Poda, a trainee
auto glass installer, spent most his time away from the
shop doing mobile, work; he went to the homes and/or
businesses of customers to install auto glass. Spencer, a
journeyman auto glass installer, was the assistant manag-
er and spent most of his time working in the shop and
doing Young's work in his absence. The shop had insuffi-
cient work to keep both Poda and Spencer busy and
prior to Poda's transfer Anderson expressed his concern
to Young about this.
32 Anderson's testimony that it was not until some date after Poda's
transfer, a date he was unable to remember, that he received Local 718's
6 July letter about Poda's grievance, has been rejected because- (1) his
testimonial demeanor was poor when he gave this testimony; (2) the
letter was mailed from Local 718's office in San Francisco, California,
which is located geographically in close proximity to Anderson's office,
which is located in Oakland, California, thus there is a strong likelihood
that during the, normal course of mailing the letter would have been de-
livered on 9 July to Anderson's office, (3) the content of Anderson's 9
July telephone conversation with Poda, supra, warrants the inference that
Anderson was speaking to Poda about Local 718's 6 July letter
Immediately before Poda's 10 July transfer to the
Richmond shop, that shop employed two workers, Steve
Apple and Kent Wright. Apple, the shop's manager, was
a journeyman auto glass installer and spent most of his
time away from the shop doing all of'the shop's mobile
work. Wright, who was a sales representative and not an
auto glass installer, spent all of his time in the shop an-
swering the telephone and making' sales. The Richmond
shop was a low volume shop. Between 80 and 90 percent
of its work was mobile work.
Poda worked under Apple's supervision initially when
Apple managed the San Francisco shop. Anderson knew'
that at times' there had been ill will between Apple and
Poda and , on one occasion; they had a dispute about
Poda's overtime, which was, resolved by the State of
California. However, Anderson also knew that Poda's re-
lationship with the shop's current manager, Young, was
not good. For in April 1984 Young issued Poda a final
written disciplinary warning that threatened Young with
discharge.33
When it transferred Poda from its San Francisco shop
to its Richmond shop on 10 July, Respondent did not re-
place him with another worker,,thus leaving two work-
ers in that shop . However in September Respondent em-
ployed a third worker there, a trainee installer, for 2
weeks and then sometime in October again employed a
third worker there, another trainee installer, who worked
until late December. Since then Respondent has only em-
ployed two workers at its San Francisco shop.
In the 3-year period immediately prior to Poda's trans-
fer, Respondent transferred approximately 15 installers
between the shops involved in this case. As was the case
with Poda's transfer, Respondent's practice was not to
consult with the transferred employee about the transfer
or give the employee advance notice of the transfer.
Division Manager Anderson made the decision to
transfer Poda. He testified that he concluded that it did
not make sense to have Richmond Store Manager Apple
spend virtually all of his work time away from the shop
doing mobile work, especially since Sales Representative
Wright was not doing a good job working at the desk,
so about. 1 June 1984 Anderson decided that the make up
of the Richmond shop's staff would have to be changed
by having Apple work in the shop, just as Young did in
San Francisco and, because Wright was not an installer,
to terminate him and replace him with an installer from
one of Respondent's other shops.34 Anderson further tes-
tified that when Respondent's telephone bill showed that
Wright had made unauthorized telephone calls, about 9
July 1984 Anderson decided to implement the above de-
cision to terminate Wright and have Manager Apple do
all the Richmond shop's inside work and to transfer an
installer from one of Respondent's other shops 'to do all
the Richmond shop's mobile work.
33 The record does not reveal what Poda did to warrant Young's dis-
ciplinary warning Young testified that although at times Poda was a
good worker, at other times he was not a good worker and took an inor-
dinate amount of time to finish his work assignments
34 1 note that Young testified that sometime prior to Poda's transfer,
Anderson discussed with Young his concern about the lack of work in
the San Francisco shop for the amount of workers employed there and
the fact that he needed another installer at the Richmond shop
SAFELITE GLASS 953
Regarding Poda's selection as the installer who was
transferred to the Richmond shop, Anderson testified
that he considered transferring an installer from one of
the shops located nearest to Richmond, the San Francis-
co and Oakland shops, and concluded that in the Oak-
land shop there was sufficient work to keep all the em-
ployees employed there busy, whereas in San Francisco
there was not enough work to keep installers Spencer
and Poda busy. He further testified that in selecting
Poda, rather than Spencer, for transfer, he relied on the
following considerations: Poda had worked under
Apple's supervision previously; Poda did most of the San
Francisco shop's mobile work, thus was more experi-
enced in performing this type of work that constituted
virtually all the work performed by the installer at the
Richmond shop; the Richmond shop was a low volume
shop, thus Anderson did not want to transfer a good and
experienced worker such as Spencer there because An-
derson felt that Spencer would not have enough work to
keep him busy and would become bored.
Anderson's above-described testimony establishes that
during the normal course of business Poda was trans-
ferred as an integral part of Respondent's decision to
have the manager of its Richmond shop, like the manag-
er of its San Francisco, shop, spend his -working time in
the shop rather than away from the shop doing installa-
tion work, and further establishes that Poda's selection to
be transferred to do the Richmond shop's installation
work, rather than one of Respondent's other installers,
was based on legitimate business considerations and oc-
curred during the normal course of business, I am per-
suaded that Anderson's testimony is credible because,
unlike his testimony concerning other, matters, when he
testified about his reasons for transferring Poda his testi-
monial demeanor was good, and viewed in the light of
the whole record, his testimony is not inherently incredi-
ble nor was it impugned in significant respects either by
internal inconsistencies or, by the testimony of Shop
Manager Young whom the General Counsel called as an
adverse witness. Furthermore Anderson's testimony is
bolstered by the fact that when Respondent transferred
Poda, from its San Francisco shop, it did not replace him
with, another installer . 3S I also find it difficult to believe
that Respondent would go to the trouble of discharging
Sales Representative Wright, reassigning Shop Manager
Apple from doing outside installation work to working
solely in the shop, and decreasing the number ofits San
Francisco shop' installers from two to- one in order to
create a situation that it could use as a ,pretext for trans-
ferring Poda to the 'Richmond shop because of its' antag-
onism toward him for having authorized Local 718,to
file a grievance against Respondent . In this regard , I note
that although during normal traffic conditions Poda's
transfer added 50 minutes a day to his work commute,
35 I recognize that Rspondent employed other trainee installers for
various periods of time in San Francisco to take Poda 's place whenever
the volume of work at that location made this necessary . However, since
Poda's transfer Respondent for the most part has operated the San Fran-
cisco shop with only two workers , and as of the date of the hearing in
this case, 15 March 1985, this has been the situation since late ]December
1984
954 DECISIONS OF THE NATIONAL,LABOR RELATIONS BOARD
when Poda was notified about the transfer and asked by
Operations Manager Green whether it posed any prob-
lems for him, Poda answered, "No"; there is no evidence
the working conditions Poda would expect to encounter
at the Richmond shop would, be more onerous than at
the San Francisco shop; and, while Poda had his differ-
ences with Richmond Shop Manager Apple when Apple
managed the San Francisco shop, the record reveals that
Poda's relationship with the current San Francisco, Shop
Manager Young was not good inasmuch as only 3
months before the transfer Young had issued a written
disciplinary warning to Poda _threatening him with dis-
charge.
Based on the foregoing, I find Respondent has estab-
lished that even absent Poda's grievance against Re-
spondent filed by Local 718, Respondent during the
normal course of business would have transferred him on
10 July 1984 from its San Francisco to its Richmond
shop. I therefore shall recommend 'the dismissal of this
allegation.
CONCLUSIONS-OF LAW
1. Lear Siegler, Inc., d/b/a Safelite ' Glass, the - Re-
spondent, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Glaziers, Architectural 'Metal & Glassworkers
Union, , Local Nos, 169, 718, and 1621, International
Brotherhood of Painters & Allied Trades, AFL-CIO, the
Unions, are labor organizations within the meaning of
Section 2(5) of the Act.
3. (a) Respondent's employees, excluding supervisors
as defined in the Act, employed in the job classifications
covered by the Respondent's contract with Glaziers
Union Local 718 effective- from 1 July 1982 to 30 June
1985, and employed by Respondent at its San Mateo,
California and San Francisco, California facilities, consti-
tute ani appropriate bargaining unit.
(b) Respondent's employees, excluding - supervisors as
defined in the Act, employed in the job classifications
covered by the Respondent's contract with Glaziers -
Union Locals 169 and -1621 effective from 1 July 1982 to
30 June 1985, and employed by Respondent at its Cali-
€or"'nia facilities located in the cities of Richmond, Oak-
land; San Jose, Pleasant Hill, San Leandro, Hayward,
and Fremont, `constitute an appropriate bargaining unit:
4. During all times material, Glaziers Local Union 718
has been the collective-bargaining representative of all
the-employees in the bargaining unit in paragraph 3(a)
above- for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act,,and Glaziers Local
Unions 169 and 1621 have jointly been the collective-
bargaining representative of all the employees in the bar-
gaining unit in paragraph 3(b) above for the purpose of
collective bargaining within the meaning of Section 9(a)
of the Act.
5. By unilaterally ceasing payments to the health and
welfare and pension and vacation and holiday, funds es-
tablished by its 1982-1985 contracts with the Unions, and
by unilaterally substituting new medical and pension
plans for the medical and pension plans required by its
1982-1985 contracts with the Unions, and by, unilaterally
changing employees' vacation and holiday benefits estab-
lished by its 1982-1985 contracts with the Unions, and
by unilaterally decreasing the employees' minimum-
hourly rates of pay- established by its 1982-1985 contracts
with the Unions, and by engaging in the aforesaid con-
duct during the term of its 1982-1985 contracts with the
Unions and without the Unions' consent,-the Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
6., By bypassing the Unions and dealing directly with
employees represented by the Unions concerning non-
mandatory subjects- of bargaining, previously rejected by
the Unions as subjects of bargaining and by threatening
to permanently replace the employees if they supported
a strike caused by - Respondent's insistence that the
Unions' accept such nonmandatory subjects of bargain-
ing, the Respondent has engaged in -unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the,Act.
7. By refusing to furnish the Unions with unit mem-
bers' names, addresses, dates of hire, and wage rates, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
8. By interrogating employee James Poda about a
grievance filed on his behalf by his bargaining represent-
ative Glaziers Local 718, and by threatening Poda with
discharge because Local 718 filed this grievance, on his
behalf, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of-the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7), of the Act.
10. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices- within the meaning of the Act, I
shall recommend that it cease and desist therefrom and'
to take affirmative action designed to effectuate the poli-
cies of the Act.
I have found that since 18 July 1984 Respondent has
violated Section 8(a)(5) and (1) of the Act by, during the
term of its 1982-1985 contracts with the Unions, ceasing
to make contributions on behalf of the unit employees -to
the health and welfare and pension and holiday and va-
cation funds established by those contracts. 'Iii' order to
dissipate the effects of these unfair labor practices, I shall
recommend'that Respondent commence making the re-
quired contributions to the respective funds and- make
the, unit employees whole by paying all the aforesaid
contributions, as provided in the applicable collective-
bargaining contracts, which have not been paid and
which would have been paid absent the Respondent's un-
lawful discontinuance of such contributions. as ' In addi-
36 Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of interest at a fixed rate on unlaw-
fully withheld fund payments. I leave to the compliance stage the ques-
tion of whether the Respondent must pay any additional amounts into the
fringe benefit funds in order to satisfy our "make-whole" remedy, These
additional amounts may be determined, depending on the circumstances
of, each case, by reference to the provisions in the documents governing
the funds at issue and, where there are no governing provisions, to evi-
dence of any loss directly attributable to the unlawful withholding action,
Continued
SAFELITE GLASS 955
tion, I shall also recommend that Respondent make
whole the unit employees for any losses or expenses they
may have suffered from Respondent's failure to make the
aforesaid contributions. 37 Such sums shall be computed
in the manner set forth in Ogle Protection Service, 183
NLRB 682, 683 (1970), with interest, as prescribed in
Florida Steel Corp., 231 NLRB 651 (1977). See generally
his Plumbing Co., 138 NLRB 716 (1962).
I have found that about 18 July 1984 during the term
of its 1982-1985 contracts with the Unions, Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
substituting new health and welfare and pension plans for
the health and welfare and pension plans required by its
contracts with the Unions, and which had previously
covered the unit employees. In order to dissipate the ef-
fects of these unfair labor practices I ,shall recommend
that Respondent be ordered to restore, on the Unions'
written request, the health and welfare and pension plans
established by the contracts.S8 I shall recommend that
Respondent make whole the unit employees for any ex-
penses or loss of benefits they may have incurred as the
result of Respondent's substitution of the new health and
welfare and pension plans for the previous plans.39 Such
sums shall be computed in the manner set forth in Ogle
Protection Service, supra, with interest, as prescribed in
Florida Steel Corp., supra, see generally Isis Plumbing
Co., supra.
Having found that during the terms of its 1982-1985
contracts with the Unions since 18 July 1984 Respondent
has violated Section 8(a)(5) and (1) of the Act by unilat-
erally changing the unit employees' holiday and vacation
benefits established by the contracts and by unilaterally
decreasing the unit employees' minimum hourly rates of
pay established by the contracts, I shall recommend that
Respondent make the unit employees whole for any
losses they have suffered as a result of this conduct. Such
sums shall be computed in the manner set forth in We
Protection Service, supra, with interest, as prescribed in
Florida Steel Corp., supra, see generally Isis Plumbing
to., supra.
which might include the loss of return on investment of the portion of
funds withheld, additional administrative costs, etc, but not collateral
losses. See Merryweather Optical Co , 240 NLRB 1213 (1979)
11 In measuring actual damages , employees should be reimbursed for
their actual costs For example , with respect to health and welfare ex-
penses the employees shall be reimbursed for only those costs that would
have been paid by the health and welfare plan in existence under the
1982-1985 collective-bargaining contract , mmus costs that were actually
paid by Respondent's insurer pursuant to the health and welfare plan Re-
spondent substituted for the contractual plan
S8 In order to allow the Unions ample opportunity to consider wheth-
er to request the reinstatement of the previous health and welfare and
pension plans , while not leaving the matter open indefinitely, I shall rec-
ommend that the Unions be required to make their decision within 60
days of the date of the Board's decision If the Unions do not request the
reinstatement of the health and welfare and pension plans that were in
effect pnor to 18 July 1984, the plans Respondent substituted for them
will remain in effect Respondent will have 40 days after the receipt of
the Unions ' written request to replace its company plans with the previ-
ous plans.
39 As noted supra, the employees 'should be reimbursed only for their
actual costs.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Lear Siegler, Inc., d/b/a Safelite
Glass, Wichita, Kansas, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Glaziers, Ar-
chitectual Metal & Glassworkers Union, Local Nos. 169,
718, and 1621, International Brotherhood of Painters &
Allied Trades, AFL-CIO, by refusing to furnish the
Unions with the names, addresses, dates of hire, and
wage rates of its employees in the appropriate bargaining
units described as follows:
(i) All employees of Respondent, excluding su-
pervisors as defined in the Act , employed in the job
classifications covered by the Respondent 's contract
with Local Unions 169 and 1621 effective from 1
July 1982 to 30 June 1985 , and employed at Re-
spondent 's facilities located in California in the
cities of Richmond , Oakland , San Jose, Pleasant
Hill, San Leandro, Hayward and Fremont.
(ii) All employees of Respondent , excluding su-
pervisors as defined in the Act, employed in the job
classifications covered by the Respondent 's contract
with Local Union 718 effective from 1 July 1982 to
30 June 1985 , and employed at Respondent 's Cali-
fornia facilities located in San Mateo and San Fran-
cisco.
(b) Refusing to bargain collectively with the above-
named Unions by unilaterally ceasing to make contribu-
tions on behalf of its employees in the above-described
units to the health and welfare and pension and holiday
and vacation funds as provided for in the collective-bar-
gaining contracts between Respondent and the Unions
effective 1 July 1982 to 30 June 1985 during the term of
those contracts.
(c) Refusing to bargain collectively with the above-
named Unions by unilaterally instituting during the term
of its contracts with the Unions its own health and wel-
fare and pension plans for the plans provided for in the
Unions' contracts with Respondent with respect. to the
employees in the above-described units.
(d) Refusing to bargain collectively with the above-
named Unions by unilaterally during the term of its con-
tracts with the Unions decreasing the vacation and holi-
day benefits and wage rates established by the Unions'
contracts with Respondent with respect to the above-de-
scribed unit employees.
(e) Refusing to bargain collectively with the above-
named Unions by bypassing the Unions and dealing di-
rectly, with the employees in the above-described units
4° If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
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 pur-
poses
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
concerning nonmandatory subjects of bargaining rejected
by the Unions as subjects, of bargaining and by threaten-
ing to permanently replace employees if they support a
strike caused by Respondent's insistence that the Unions'
accept such nonmandatory subjects of bargainining as a
part of Respondent's contract proposal.
(f) Interrogating employees about grievances they file
with the above-described Unions against Respondent and
threatening employees with discharge for filing such
grievances.
(g) In any like or related manner interfering with, re-
straining, or coercing employees ' in the exercise of the
rights guaranteed them by' Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On written request, furnish the above-described
Unions with the names, addresses, dates of hire, and
wage rates of its employees in the above-described ap-
propriate'bargaining units.
(b) On written request of the above-named Unions, re-
store making payment on behalf of the employees in the
above-described units to the health and welfare and pen-
sion and vacation and holiday funds established by its
contracts with the Unions effective 1 July 1982 to 30
June 1985.
(c) On written request of the above-named Unions, re-
store the holiday and vacation benefits and wage rates of
the employees in the above-described units so as to con-
form to the provisions contained in its contracts with the
Unions effective 1 July 1982 to 30 June 1985.
(d) On written request of the above-named Unions,
and in the same manner as set forth in the remedy' sec-
tion of this decision, rescind the health and welfare'and
pension plans _ that it instituted in July 1984 and reestab-
lish the health .and welfare and pension plans that were
in existence under its contracts with the Unions effective
1 July 1982 to 30 June 1985.
(e) Make whole the employees in the above-described
units by making the contributions to the health and -wel-
fare and pension and holiday and vacation funds, as pro-
vided in the above-described applicable collective-bar-
gaining agreements , which were not paid and would
have been paid absent,the Respondent's unilateral discon-
tinuance of such contributions during the term of the
agreements , and by reimbursing unit employees for any
expenses ensuing from the Respondent's failure to make,
such contributions, as set forth in the remedy section of
this decision.
(f) Make whole the employees, in the above-described
units , as set forth in the remedy section of this decision,
for any losses or expenses they may have suffered as a
result of the unilateral conduct of Respondent during the
term of its contracts with the Unions in decreasing the
employees' holiday and vacation benefits, decreasing
their wages, and substituting its own health and welfare
and pension plans for the plans established by the
Unions' contracts.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amounts due under the terms of
this Order.
(h) Post at each of its places of business in Northern
California copies of the attached notice marked "Appen-
dix."41 Copies of the notice, on forms provided by the
Regional Director for Region 32, after being signed by
the Respondent's authorized representative,' shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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. -
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint alle-
gations not specifically found herein be dismissed.
41 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, Nation-
al 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."