Washington Employers, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1972

200 N.L.R.B. 825 (N.L.R.B. 1972)

WASHINGTON EMPLOYERS, INC
Washington Employers, Inc , Diamond Ice & Storage
Co , Olympic Cold Storage & Warehouse Co, Inc ,
Rainier Ice & Cold Storage , Inc , Rainier Port Cold
Storage, Inc , New England Fish Company, Wash-
ington Fish & Oyster Co , Inc and International
Union of Operating Engineers , Local No 286,
AFL-CIO Case 19-CA-5594
December 11, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge' duly filed by International Union
of Operating Engineers, Local No 286, AFL-CIO
(herein called the Union), against Washington
Employers, Inc (herein called Respondent Associa-
tion) and its member-employers, Diamond Ice &
Storage Co, Olympic Cold Storage & Warehouse
Co, Inc, Rainier Ice & Cold Storage, Inc, and
Rainier Port Cold Storage, Inc (herein called
Respondent ice employers), New England Fish
Company, and Washington Fish & Oyster Co, Inc
(herein called Respondent fish employers), the
General Counsel of the National Labor Relations
Board, by its Regional Director for Region 19, on
April 13, 1972, issued and served on the parties a
complaint alleging violations of the National Labor
Relations Act, as amended In substance, the
complaint alleges that Respondents violated Section
8(a)(5) and (1) of the Act by refusing to be bound by
the terms of collective-bargaining agreements negoti-
ated by the parties on November 12, 1971
Respondents' answer admits certain factual allega-
tions of the complaint but denies the commission of
unfair labor practices
Thereafter, on May 26, 1972, the parties entered
into a stipulation in lieu of hearing wherein they
agreed that certain documents shall constitute the
entire record herein,2 expressly waived all intermedi-
ate proceedings before an Administrative Law Judge,
and submitted this case directly to the Board for its
decision and order On June 7, 1972, the Board
approved the stipulation, transferred the proceeding
to itself, and set dates for the filing of briefs
Thereafter, briefs were filed by the General Counsel
and by Respondents
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the entire record herein
and the briefs, and makes the following
1 The charge was filed on January 6 1972
2 The stipulated record consists of the charge complaint Respondents
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENTS
825
Respondent Association is a multiemployer associ-
ation organized for certain purposes, one of which is
to represent employer-members in collective bargain-
ing Respondents Diamond Ice & Storage Co ,
Olympic Cold Storage & Warehouse Co, Inc,
Rainier Ice & Cold Storage, Inc, and Rainier Port
Cold Storage, Inc, are Washington corporations
engaged in the manufacture, sale, and distribution of
ice and the operation of cold storage facilities
Respondent New England Fish Company is a
Massachusetts corporation and Respondent Wash-
ington Fish & Oyster Co , Inc, is a Washington
corporation Both are engaged in the processing, sale,
and distribution of fish and fish-related products In
the course and conduct of their operations, Respon-
dent fish and Respondent ice employers each have
annual combined sales or perform services to
customers located outside the State of Washington
valued in excess of $50,000 The complaint alleges,
Respondents' answer admits, and we find that
Respondents are, and at all times material have been,
employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondents' answer ad-
mits, and we find that the Union is, and at all
material times has been, a labor organization within
the meaning of Section 2(5) of the Act
III THE APPROPRIATE UNITS AND THE UNION'S
MAJORITY
The complaint alleges, Respondents' answer ad-
mits, and we find that all employees employed by
Respondent ice employers at their Washington State
facilities to perform plant maintenance work , includ-
ing, but not limited to, the operation of refrigeration
machinery, excluding production employees , office
clerical employees , professional employees , 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
Likewise, all production , operating, and mainte-
nance engineers employed by Respondent fish
employers at their Seattle, Washington, facilities,
excluding office clerical employees , professional
employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
answer and the stipulation with attached exhibits
200 NLRB No 117
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining within the meaning of Section
9(b) of the Act
The complaint alleges, Respondents' answer ad-
mits, and we find that at all times material herein, the
Union has been the representative for the purposes
of collective bargaining of a majority of the employ-
ees in the units described above and, by virtue of
Section 9(a) of the Act, has been, and is now, the
exclusive representative of all the employees in each
said unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment
IV THE ALLEGED UNFAIR LABOR PRACTICES
A The Stipulated Facts
Respondent Association has historically negotiated
separate agreements on behalf of Respondent ice and
Respondent fish employers Collective-bargaining
agreements between the parties involved herein had
expired on May 1, 1971
On November 12, 1971, 3 days before the Econom-
ic Stabilization Act of 1971, herein called the
presidential wage-price freeze, was scheduled to give
way to Pay Board controls ("Phase I"), Respondent
Association, negotiating on behalf of both Respon-
dent ice and Respondent fish employers, reached
agreement with the Union on the terms of new
contracts in the above units This oral agreement was
reduced to writing in the form of a "Settlement
Agreement" which was executed by the parties on
this same date This agreement contained provisions
for 12 5-percent wage increases (which were to
become effective on November 15, 1971) for the
employees in the units
On November 15, the "wage-puce freeze" expired
and "Phase II" began
Subsequently, the above-mentioned agreement was
formally incorporated into two new contracts, one
covering each unit, and the new contracts were
signed by the parties on November 29, 1971 These
contracts set forth all the terms of the settlement
agreement, including the November 15, 1971, effec-
tive date for the first wage increase
In a phone conversation on December 29, 1971,
confirmed by letter of January 3, 1972, however,
Respondent Association, acting on behalf of its
employer-members, for the first time, so far as the
stipulation shows, informed the Union that a
decision had been made not to place into effect the
terms of the new contracts until Pay Board action on
the increase Subsequently, Pay Board action was
requested through that Board's "Challenge" proce-
dure, the request being filed by Respondents on
January 14
By letter of April 17, 1972, the Union was informed
that, because the Pay Board had not yet acted on the
request, a 5 5-percent wage increase would be put
into effect immediately, retroactive to November 14
The Union was also informed that an additional 5 5-
percent increase would be forthcoming on May 1
(the contracts provided that an additional increase of
approximately 7 percent was due on this date)
Moreover, the Union was told that if the Pay Board's
ultimate ruling on the request was that an increase in
excess of 5 5 percent was allowable, further "adjust-
ments" would be made
B Contentions of the Parties
The General Counsel argues that the regulations of
the Pay Board do not affect Respondent's obligation
to pay the agreed-upon wage increase and, thus, that
Respondents violated Section 8(a)(5) and (1) of the
Act by refusing to abide by the terms of the
negotiated collective-bargaining agreements
Respondents contend that, in the circumstances
involved in this case, it is inappropriate for the Board
to apply its usual principles in determining whether
Section 8(a)(5) has been violated inasmuch as
interpretations of the Pay Board's regulations are
involved Thus, Respondents argue that they believe
the negotiated 12 5-percent increase is "unreasonably
inconsistent" with the Pay Board guidelines and that
it would be "anomalous" for this Board to require
Respondents to pay the increase before the Pay
Board has ruled on the matter
Moreover, in light of the fact that they have placed
into effect a 5 5-percent increase which is consistent
with the Pay Board's general guidelines and because
they have stated their willingness to pay whatever
additional part of the 12 5 percent the Pay Board
ultimately decides is acceptable, Respondents argue
that by conditionally refusing to pay the full
negotiated amount, they did not violate Section
8(a)(5)
C Discussion and Conclusions
On August 17, 1972, we requested an opinion from
the Pay Board on the question of whether, under the
circumstances outlined above, Respondents were
required to submit the contracts to the Pay Board
before paying the negotiated increase On August 24,
1972, the chief of interpretations and rulings of the
Pay Board responded that
[C]oncerning the contract[s] involved in this case,
applicable Pay Board rules allowed full imple-
mentation of the disputed increase under the
contract[s] without prior Pay Board approval or
pre-notification
Consequently, it appears that nothing in the Pay
WASHINGTON EMPLOYERS, INC 827
Board's rules and regulations prevented Respondents
from paying the wage increases We find that by their
failure to do so, Respondents violated Section 8(a)(5)
and (1) of the Act We find that when Respondents
agreed unconditionally to the 12 5-percent increase,
they were on notice that some kind of controls would
remain on the economy after the expiration of the
wage-price freeze Moreover, Respondents in fact
knew specifically, when they signed the contracts on
November 29, 1971, that controls remained It
follows that Respondents were willing to assume the
risk of being obliged to pay what might later be
excused as an increase in excess of the Pay Board's
regulations Respondents thus cannot now complain
of this Board's requiring them to pay what they
agreed upon, first during the negotiations, and again
after Phase II went into effect This should not be
construed, however, as a determination regarding the
obligations of Respondents, or indeed of other
employers in future cases, should the Pay Board rule
that it is not in the interests of the economic
stabilization program to allow the continued pay-
ment of the full amount of the negotiated increase
V THE REMEDY
Having found that Respondents have engaged in
and are engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that they cease and desist therefrom and
take certain affirmative action designed to effectuate
the purposes of the Act Since Respondents unlaw-
fully refused to pay their employees the increases and
fringe benefits due them under the contracts, we shall
require Respondents to reimburse said employees for
the amounts not paid (less the partial amounts
Respondents may have paid retroactively on April
17, 1972), together with interest computed in accord-
ance with the formula prescribed in Isis Plumbing &
Heating Co, 138 NLRB 716
The Board, upon the basis of the foregoing findings
of fact and the entire record, makes the following
CONCLUSIONS OF LAW
1 Respondent Association and its member-em-
ployers individually and collectively are employers
engaged in commerce within the meaning of Section
2(6) and (7) of the Act
2 The units described in the section of this
Decision entitled "The Appropriate Units" constitute
units appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading Posted by Order
of the National Labor Relations Board shall read Posted pursuant to a
3 The Union, International Union of Operating
Engineers, Local No 286, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act and has been at all times material herein the
exclusive representative of all employees in the
aforesaid appropriate units for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act
4 Respondents have engaged in conduct viola-
tive of Section 8(a)(5) and (1) of the Act
5 The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Association and Respondent Employers , individually
and collectively , their officers, agents, successors,
and assigns, shall
1 Cease and desist from refusing to bargain
collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate units by
failing and refusing to pay the wage increases which
were to become effective on November 15, 1971
2 Take the following affirmative action which
the Board finds will effectuate the policies of the Act
(a) Bargain collectively with the Union as the
exclusive bargaining representative of Respondents'
employees in the appropriate units with respect to
rates of pay , wages , hours, and other terms and
conditions of employment
(b) Apply the terms of the collective -bargaining
agreements retroactively to the effective date of said
agreements and tender backpay to the employees
employed in the appropriate units in the manner set
forth in the section above entitled "The Remedy
(c) Preserve and, upon request, make available to
the Board or its agents , for examination and copying,
all payroll records , social security payment records,
timecards , personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order
(d) Post at their various places of business in and
around Seattle, Washington , copies of the appropri-
ate attached notices marked "Appendix A" or
"Appendix B "3 Copies of said notices, on forms
provided by the Regional Director for Region 19,
after being duly signed by Respondents ' authorized
representatives , shall be posted by them immediately
upon receipt thereof and be maintained by them for
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
60 consecutive days thereafter , in conspicuous
places, including all places where notices to employ-
ees are customarily posted Reasonable steps shall be
taken by Respondents to insure that said notices are
not altered , defaced , or covered by any other
material
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith
APPENDIX A
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 compli-
ance with its provisions may be directed to the
Board's Office , 10th Floor , Republic Building, 1511
Third Ave, Seattle, Washington 98101, Telephone
206-442-4532
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with International Union of Operating Engineers,
Local 286 , AFL-CIO , as the exclusive representa-
tive of all our employees in the following unit
All employees employed by us at our
Washington State facilities to perform plant
maintenance work , including , but not limit-
ed to, the operation of refrigeration machin-
ery, excluding production employees , office
clerical employees , professional employees,
guards and supervisors as defined in the Act
WE WILL NOT fail and refuse to pay our
employees employed in the above unit the full
amount of the wage increases negotiated between
the Union and ourselves on November 12, 1971
WE WILL bargain collectively with the above
Union as the exclusive bargaining representative
of our employees in the above unit with respect to
rates of pay, wages, hours, and other terms and
conditions of employment
WE WILL apply the terms of our collective-
bargaining agreement with the above Union to
the employees in the appropriate unit retroactive-
ly to the effective date thereof and WE WILL
tender backpay to said employees for the amount
of wages withheld
WASHINGTON
EMPLOYERS, INC ,
DIAMOND ICE &
STORAGE CO, OLYMPIC
COLD STORAGE &
WAREHOUSE CO, INC,
RAINIER ICE & COLD
STORAGE, INC, RAINIER
PORT COLD STORAGE,
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with International Union of Operating Engineers,
Local No 286, AFL-CIO, as the exclusive
representative of all our employees in the follow-
ing unit
All production , operating and maintenance engi-
neers employed by us at our Seattle , Washington,
facilities, excluding office clerical employees,
professional employees , guards and supervisors as
defined in the Act
WE WILL NOT fail and refuse to pay our
employees in the above unit the full amount of
the wage increases negotiated between the Union
and ourselves on November 12, 1971
WE WILL bargain collectively with the above
Union as the exclusive bargaining representative
of our employees in the above unit with respect to
rates of pay , wages, hours, and other terms and
conditions of employment
WE WILL apply the terms of our collective-
bargaining agreement with the above Union to
the employees in the appropriate unit retroactive-
ly to the effective date thereof and WE WILL
tender backpay to said employees for the amount
of wages withheld
WASHINGTON
EMPLOYERS, INC, NEW
ENGLAND FISH
COMPANY, WASHINGTON
FISH & OYSTER CO,
INC
(Employers)
INC Dated By
(Employers) (Representative) (Title)
WASHINGTON EMPLOYERS, INC 829
This is an official notice and must not be defaced Any questions concerning this notice or comph-
by anyone ance with its provisions may be directed to the
This notice must remain posted for 60 consecutive Board 's Office , 10th Floor, Republic Building, 1511
days from the date of posting and must not be Third Ave , Seattle, Washington 98101, Telephone
altered, defaced , or covered by any other material 206-442-4532