Tucker Glass Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 499 (N.L.R.B. 1971)

TUCKER GLASS CO, INC. 499
Tucker Glass Company, Inc. and Brotherhood of
Painters, Decorators & Paperhangers of America,
AFL-CIO, Local Union 1940 . Case 10-CA-8513
as amended. A hearing in this matter was held in Atlanta,
Georgia, on November 19, 1970.
Upon the entire record in this case, I make the following:
March 31, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On December 31, 1970, Trial Examiner Phil
Saunders issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action; as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
recommended Order of the Trial Examiner, and
orders that the Respondent, Tucker Glass Company,
Inc., Tucker, Georgia, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Trial Examiner Upon a charge filed on
August 12, 1970,1 by Brotherhood of Painters, Decorators
& Paperhangers of America, AFL-CIO, Local Union
# 1940, herein called the Union, a complaint was issued on
October 6 alleging the Tucker Glass Company, Inc., herein
the Company or Respondent, has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the National Labor Relations Act,
i All dates are 1970 unless specified otherwise
2 The Trial Examiner's Recommended Order provided that the
Company meet and bargain with the Union as the exclusive bargaining
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is a Georgia corporation with its principal
office and place of business located at Tucker, Georgia,
where it is engaged in the installation and sale of aluminum
and glass. During the past calendar year, which period is
representative of all times material herein, Respondent
performed services valued in excess of $50,000 for customers
located within the State of Georgia who, in turn, purchased
and received goods and materials directly from suppliers, or
sold and shipped goods and materials directly to customers
located outside the State of Georgia, valued in excess of
$50,000. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that on or about June 23 and all
times thereafter, including particularly on or about July 9
and 27, the Respondent refused to bargain collectively with
the Union as the exclusive representative of all employees
in an appropriate unit.
In an earlier 1969 proceeding, Case 10-CA-7598,
involving the same parties, it was found by Trial Examiner
Paul Weil that the Company had violated Section 8(a)(1) of
the Act, and that these unfair labor practices revealed the
rejection of the collective-bargaining principle and,
therefore, he recommended the imposition of a bargaining
order. On July 1, 1969, the Board adopted the findings and
conclusions of the Trial Examiner in Case 10-CA-7598 and
ordered the Respondent to "take the action set forth in the
Trial Examiner's Recommended Order." 2
Thereafter, in August 1969, the parties had one session
and in September 1969, they had two bargaining sessions.
At these initial meetings the Union submitted proposals
and requested certain information, and the Company
apparently also made some tentative contract proposals. In
one phase of its pleadings to this proceeding, the
Respondent makes an argument that pursuant to the
Board's Order in the earlier case the Company did meet
and bargain with the Union.
Following these three preliminary meetings, and there is
nothing to show that these meetings were anything other
than exploratory, nothing further happened until Decem-
ber 26, 1969, when the Union wrote to the Company
requesting that arrangement be made for another bargain-
ing session. The Union received no reply, and by letter
dated January 12 again asked the Company to contact
them so a meeting could be set up. By letter dated January
representative of the production and maintenance unit at its plant in
Tucker, Georgia
189 NLRB No. 75
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13, the company attorney informed the Union he had some
open time available for the following week. On January 16,
the Union's lawyer responded by telephone and left a list of
specific dates and hours he would be available during the
week of January 19. The Union's attorney, Joseph Jacobs,
testified that, on January 21, February 12, and on March
10, he made additional telephone calls in attempts to
arrange negotiating meetings with the Company but was
unable to get any responses or return calls. On June 23, the
Union requested by letter that the Company contact them,
and on July 9 the company attorney replied that he had
been busy with other matters, but would get in touch as
soon as possible. By letter dated July 27, the Union
informed the Company that another month had passed
without hearing from them. On July 31, the Company
stated in a letter that the Union would hear from them
during the next week, but Jacobs testified that no one called
or contacted him. On August 6, the Company then
informed the Union that the certification year had expired,
that with the exception of one all the other employees had
left the unit, and that the Company had a "well founded
doubt" as to whether the Union represented a majority.
The foregoing review of the facts in this record, as
aforestated, reveals that in almost all instances and on
numerous occasions, the Union attempted to arrange
additional bargaining meetings, but for one reason or
another the Company continually failed to finalize all
scheduling suggestions, and even frequently delayed any
responses or communications until again prodded and
reminded by the Union. After the initial preliminary
meetings this technique prevented any further bargaining
sessions for a period lasting several months and no
meetings of any kind were held subsequent to September
1969. On this record, I can only regard the stalling
technique of Respondent as purposefully adopted in order
to delay and avoid any real bargaining, and particularly in
view of the fact that on certain occasions the Company
would indicate some willingness to meeting, but would then
be constantly unavailable for specific confirmations as to
when and where.
While there is a possibility the Union might have been
able to achieve additional meetings had it more quickly or
frequently reminded the Company of its duty to meet and
bargain, nothing, however, suggests that such action would
have changed Respondent's overall grudging approach to
its bargaining obligation. At all times the Union stood
ready to meet and confer and continually made this known
to the Company. This record clearly indicates that the
complete lack of any further bargaining sessions after
September 1969 was directly attributable to Respondent's
own course of conduct and not the lack of reasonable
diligence by the Union in seeking to meet. The endless
delays and resulting nonscheduling of meetings were
obviously part and parcel of a deliberate scheme to avoid
3 See Burgle Vinegar Company, 71 NLRB 829, J H Rutter-Rex
Manufacturing Company, Incorporated, 86 NLRB 470, "M" System, Inc,
129 NLRB 527
4 In the earlier case-10-CA-7598-the Trial Examiner made reference
in his decision, later adopted by the Board, to a stipulation between the
parties that the unit involved in the representation petition, consisting of all
production and maintenance employees, excluding office clerical
employees, professional employees, guards and supervisors, constitutes a
bargaining with the Union, and I find that Respondent
failed to fulfill its obligation to meet at reasonable times
and to confer in good faith with a view to executing a
written contract.3
The main defense attempted by the Respondent at the
hearing before me was its endeavor to show that present
unit employees are not members of the Union and never
had been members-in essence , the contention that the
Union has lost its status as the representative of a majority
of the Respondent's employees.4 However, under the
circumstances and events surrounding the total aspects of
these cases , and the controlling law in relation thereto, this
defense is not available to the Respondent.5
In Canton Sign Co., 186 NLRB No. 39, the Board pointed
out the following:
The plain import of the law is that once a bargaining
relationship is rightfully established, that relationship
must be permitted to exist and function for a reasonable
period in which it can be given a fair chance to succeed.
Franks Brothers Company v. N.L.R.B., 321 U.S. 702. In
a case involving facts similar to those in the present
case, the Supreme Court stated that where an employer
is under a bargaining order issued by the Board, the
employer must bargain for a reasonable time after the
entry of such order, from which obligation he is not
excused by reason of an alleged loss of majority by the
Union. N.L.R.B. v. Warren Company, Inc., 350 U.S. 107.
In the present case, Respondent was obliged to bargain
with the Union by virtue of our order in previous case,
and it has not been relieved of that obligation by the
Union's subsequent alleged loss of majority. Under
existing law, particularly the Supreme Court's decision
in the Warren case, supra, the defense which it now
asserts,- if asserted before a reviewing Court -
would be of no avail.
The full impact and implementation of the Board's Order
on July 1, 1969, in Case 10-CA-7598, directed and required
the Company to bargain with the Union as the majority
representative of the employees in the aforesaid unit, and
that order created a relationship which must be permitted
to exist and function for a reasonable period in which it can
be given a fair chance to succeed. As previously detailed
earlier herein, there is no evidence that Respondent has
complied with that Order, and its refusal to bargain at times
since the Board's Order, and on or about June 23 and at all
times thereafter, makes it plain that Respondent did not
provide an adequate opportunity for the bargaining
relationship to succeed. Indeed, its conduct involved here
should be regarded as but a continuation of Respondent's
violative conduct set forth in the prior case, and again
evidences its continual design to avoid bargaining. See
Elliot-Williams Co., Inc., 149 NLRB 1242, fn. 1; also Ruh
Equipment Company, 173 NLRB No. 136.
For the reasons stated, I find and conclude that at all
unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act, and also stated the parties further
stipulated that four of the seven employees had signed union cards prior to
the incidents in Case 10-CA-7598 The same unit is alleged and involved
in the instant case here under consideration
5 Ordinarily a certification is absolute proof of a majority status for a
period of l year Thereafter there is a presumption of majority rebuttable
by evidence New England Lead, 133 NLRB 863, 867.
TUCKER GLASS CO., INC. 501
times material the Union was the collective -bargaining
agent for the employees in the unit previously set forth
herein, and by the Respondent's delays and refusals to meet
and confer upon request, Respondent failed to satisfy its
statutory obligation to bargain in good faith.
Inasmuch as Respondent failed to fulfill its obligation to
bargain in good faith throughout the certification year, or
from July 1, 1969, to July 1, 1970, Respondent was
obligated to bargain with the Union during a reasonable
period thereafter, which in all the circumstances of this case
included July 9 and 27, 1970.6 Accordingly, for this
additional reason I find Respondent's conduct of refusing
to bargain with the Union on or about July 9 and 27, 1970,
violative of Section 8(a)(5) and (1) of the Act.
There might possibly be some contention or argument
that the Board's bargaining order of July 1, 1969, is all
inclusive, affording full relief, and that nothing is to be
gained by another order which would require no affirma-
tive or negative action by Respondent not required in the
previous Board Order. However, I have found that the
Respondent has engaged in subsequent acts derogating
from its duty to bargain in good faith, and also in the
instant case there are circumstances, events, and issues
which were not present in the prior proceeding and
different in nature from those cover,d by the existing Board
Order. Accordingly, and an authority of Quaker Tool & Die,
Inc., 169 NLRB No. 166, I find and conclude that an order
offsetting the effect of such conduct in the instant case will
effecutate the purposes of the Act and is, therefore, proper.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by the Respondent at its Tucker, Georiga, shop but
excluding office clerical employees, professional employ-
ees, guards and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material the Union has been the
collective-bargaining representative of the employees in the
aforesaid unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
5. By refusing and continuing to refuse since June 23,
1970, and all times thereafter, to meet with the Union and
to bargain with it with regard to rates of pay, wages, hours
of employment and other terms and conditions of
employment of the employees in the aforedescnbed unit,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
THE REMEDY
Having found that Respondent failed and refused to
bargain with the Union as the collective-bargaining
representative of the employees in the aforementioned unit
and failed and refused to meet with the Union, it will be
recommended that Respondent be required to meet and
bargain with the Union upon request and, if an understand-
ing is reached, embody the same into a signed agreement.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 7
ORDER
Respondent, Tucker Glass Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to meet and bargain collectively with
Brotherhood of Painters, Decorators, and Paperhangers of
America, AFL-CIO, Glaziers Local Union # 1940, as the
exclusive representative of its employees in the appropriate
unit as set forth herein.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed to them by Section 7 of the aforesaid Act,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment as authorized by the proviso to
Section 8(a)(3) of said Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-mentioned Union as the exclusive bargaining
representative of the employees in the above-mentioned
unit and, if an understanding is reached, embody the same
into a written signed agreement.
(b) Post at its place of business in Tucker, Georgia, copies
of the attached notice marked "Appendix."8 Copies of said
notice, on forms furnished by the Regional Director for
Region 16 after being duly signed by an authorized
representative, shall be posted by it immediately upon
receipt thereof, and be so maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the aforesaid Regional Director, in writing,
within 20 days from the receipt of this Decision, what steps
it has taken to comply herewith .9
6 Sharon Hats, Incorporated, 127 NLRB 947, enfd 289 F 2d 628 (C A
5), Commerce Co, 140 NLRB 226
r In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall , as provided in
Sec 102 48 of the Rules and Regulations be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto
shall be deemed waived for all purposes
8 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
(Continued)
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Notify the Regional Director for Region 16, in 20 days from the date of
this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, meet and bargain collective-
ly with Glaziers Local Union # 1940, as the exclusive
representative of the employees in the unit named and
described herein, with respect to the rates of pay, hours
of employment, or other conditions of employment and,
if an agreement is reached, embody the same into a
written signed agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union, or any
other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment , as authorized in Section
8(a)(3) of the Act.
All our employees are free to become or remain a
member of the above-named or any other union, or not to
become or remain a member of any union.
TUCKER GLASS COMPANY,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Peachtree Building, Room 701, 730 Peachtree Street, NE.,
Atlanta, Georgia, Telephone 404-526-5706.