Weathercraft Co. Of Topeka, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 452 (N.L.R.B. 1985)

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weathercraft Company of. Topeka, Inc. and United
Union of Roofers , Waterproofers & Allied
Workers Local 20(b). Case 17-CA-12328
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 14 June 1985 Administrative Law -Judge
James L. Rose issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed 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, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board'adopts the
recommended Order of the administrative- law
judge and orders that the Respondent, Weather-
craft Company of Topeka, Inc., Topeka , Kansas,
its officers, agents, successors , and assigns, shall
take the action set forth in the Order.
Donald B. Zavelo, Esq., of Kansas City, Kansas , for the
General Counsel.
Richard D. Anderson, Esq., and Eldon L. Ford, Esq., of
Topeka, Kansas, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was tried before me at Topeka, Kansas, on 11
April 1985 upon the General Counsel' s complaint" alleg-
ing that Weathercraft Company of Topeka, Inc. (the Re-
spondent) made certain unilateral modifications of a col-
lective-bargaining agreement between it and the Charg-
ing Party without having first given appropriate notice
to the Federal Mediation and Conciliation Service and
the state agency as required by Section 8(d)(3) of the Na-
tional Labor Relations Act.
It is alleged that by making such changes the Re-
spondent breached its bargaining obligations set forth in
Section 8(d) and thus violated Section 8(a)(5) of the Act.
The Respondent admitted or stipulated to the material
facts alleged by the General Counsel, but denied that it
engaged in any unfair labor practice. Specifically the Re-
spondent contends that the Union, and not the Respond-
ent, was the "initiating party" with regard to modifica-
tion of the collective-bargaining agreement ; therefore,
r The charge was filed on 14 September 1984 and the complaint issued
on 25 January 1985
the Union; and. not the Respondent, was required to give
the notices under Section 8(d), and the Respondent was
free to make changes since the agreement had expired.
On the record as a whole,. including-my observation of
the witnesses, briefs, and arguments of counsel, I- issue
the following -
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is a Kansas corporation engaged in _
the construction industry as a roofing contractor with its
principal office• in Topeka , Kansas . In the course of its
business, the Respondent annually purchases directly
from points outside the State of Kansas goods ,- products,
and materials valued in excess of $50 ,000. It is admitted,
and I find, that the Respondent is an employer engaged
in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Union of Roofers, Waterproofers & Allied
Workers Local 20(b) (the Union) is admitted to be, and I
find is, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The material facts are not in dispute and may be sum-
marized.
Beginning in 1981 the Respondent executed and com-
plied with a series of collective-bargaining agreements
negotiated between the Union and the Associated Roof-
ing Contractors of Topeka , Kansas (the Association), the
most recent of which material to this matter was in
effect from 1 June 1982 through 31 May 1983.
Sometime in 1982 the Union filed an unfair labor prac-
tice charge against the Respondent which was settled in
part with the execution of a settlement agreement dated
10 February 1984. As part of this agreement, the Re-
spondent agreed to enter into an interim agreement, as
modified by the settlement agreement, for a period
ending 31 May 1984.
The interim agreement was a collective-bargaining
agreement between the Association and the Union cover-
ing wages, hours , and other terms and conditions of em-
ployment ' in the appropriate multiemployer bargaining
unit for journeymen and apprentices engaged in the craft
jurisdiction of the Union.
The settlement agreement provided, in part: "The
agreement shall commence on the date this agreement is
executed and shall expire May 31, 1984." It also provid-
ed that upon termination the Respondent would not be
obligated to bargain as a member of the Association but,
rather, would be entitled to negotiate separately with the
Union.
Thus on 22 March 1984, the president of the Respond-
ent sent the Union , as well as members of the Associa-
tion, the following letter:
276 NLRB No. 52
'WEATHERCRAFT CO OF TOPEKA 453
So there are no misunderstandings, Weathercraft
Co., of Topeka hereby advises each of you listed
above' that' it is withdrawing from the Associated
Roofing Contractors of Topeka, Kansas, and it will
not participate in the Employers Bargaining Unit in
upcoming labor contract negotiations . Weathercraft
Company of Topeka, will negotiate and contract
separately with Roofers Local 20B.
On 29 May 1984 the Union sent the following letter to
the, Respondent:
I am pleased to inform you that members of the
Local #20B voted not to open the contract for ne-
gotiation as provided for in Article XX in the
-Agreement, thus agreeing to work under the con-
tract without change for another year.
Thereafter, the parties exchanged correspondence and
met on at least one occasion. On 10 September 1984 the
Respondent failed to continue in full force and effect all
of the terms and provisions of the interim agreement (to
which it is became bound by the settlement agreement)
and made certain changes in the terms and conditions of
employment of bargaining unit employees.
The parties stipulated that the Respondent's 22 March
letter to the Union was an appropriate notice of its-desire
to terminate or modify the collective-bargaining agree-
ment within the meaning of Section 8(d)(1). The parties
further stipulated that the Respondent did not send any
notice to the Federal Mediation and Conciliation Service
or the Kansas Secretary of Human Resources , a state
agency within the meaning of Section 8(d)(3). Retail
Store Employees Local 322 (Town & Country Supermar-
kets), 240 NLRB 1109 (1979).
B. Analyis and Concluding Findings
Section 8(d) is unequivocal. It provides that the duty
to bargain includes serving written notice upon the other
party to a collective-bargaining agreement of one's desire
to terminate or modify-it, with notice also to the Federal -
Mediation and Conciliation Service and the appropriate
state agency.
Board authority is also unequivocal . Failure of a party
desiring to terminate or modify a collective-bargaining
agreement to give appropriate. notice under Section
8(d)(3) precludes it from altering terms or conditions of
the collective-bargaining agreement or engaging in a
strike or lockout to enforce its proposed changes. This
proscription exists notwithstanding that the expiration
date of the agreement has past. See Meatcutters Local 576
(Kansas City Chip Steak Co.), 140 NLRB 876 (1963);
United Marine Local 333 (General Marine Transportation'
Corp.), 228 NLRB 1107 (1977).
The collective-bargaining agreement to which the par-
ties were bound expired on 31 May 1984. Notwithstand-
ing this expiration date, pursuant to Section 8(d) both
parties were required to continue in full force and effect
its terms and conditions until compliance with the notice
and other provisions of Section 8(d).
The 1982-1983 contract which the interim agreement
'modified contains a provision that it will continue for
-successive yearly periods ending 31 May unless notice is
given of the desire to modify or terminate it. The Union
argues that this provision is incorporated by reference in
the interim- agreement which in turn is incorporated in
the settlement agreement. Thus, the Union argues that
when it failed to give notice of its desire to modify or
terminate the contract such renewed the agreement for a
1-year period beginning 1 June 1984. Though doubtful
under these facts whether the "evergreen clause" served
to extend for a year all the terms of the agreement be-
tween the Union and the Respondent, such is immaterial
if, as' I conclude, the Respondent failed to give the
8(d)(3) notice. Under the specific language of Section
8(d), even where a collective-bargaining agreement has a
specific expiration date, the appropriate notices must be
given and no term can be altered within the notice time
limits . Thus whether or not the agreement automatically
renewed, absent giving notice, the Respondent was not
privileged to modify its terms.
In United Artists Communications, 274 NLRB 75
(1985), the Board held that where one party initiates the
process of reopening an expiring collective-bargaining
agreement , the other party is not required to notify the
mediation services. Thus, the noninitiating party may
take whatever action to which it would be entitled (as if
it had given notice had it been required to do so).
The Respondent contends that the Union was the "ini-
tiating party," inasmuch as it sent a letter on 29 May
stating that its members were willing to work another
year under the agreement, without modification. By this
letter, it is argued, the Union sought to change the expi-
ration date from 31 May 1984 to 31 May 1985. Therefore
the Union was the "initiating party" to modify the agree-
ment.
In this the Respondent ignores the fact that it sent a
letter to the Union on 22 March which it acknowledges
as having been "an appropriate Section 8(d)(1) notice."
The Respondent admitted that more than 2 months prior
to the Union's 29 May letter it notified the Union of its
desire to renegotiate the collective-bargaining agreement.
There can be no doubt on the facts of this case that
the Respondent initiated the process of modifying the
terms of the agreement due to expire on 31 May 1984.
Even if the Union's 29 May letter could be construed as
proposing modification of the expiration date, more than
2 months prior to this the Respondent had served its
notice on the Union. And even prior to this, in the settle-
ment agreement, the Respondent reserved its right to ne-
gotiate separately with the Union upon the expiration of
the agreement on 31 May 1984.
All the relevant evidence points to the inescapable
conclusion that it was the Respondent who initiated the
process of modifying the terms of the collective-bargain-
ing agreement . It was therefore the Respondent 's respon-
sibility to notify the appropriate mediation services prior
to effecting any modification of the contract terms.
Accordingly, I conclude that by implementing the
changes set forth in the complaint on 10 September 1984
without giving the appropriate notices to the Federal
and state agencies, the Respondent violated its bargain-
ing obligation under Section 8(d) and therefore refused
to bargain within the meaning of Section 8 (a)(5) of the
454 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Act. I shall order in appropriate remedy including the
restoration of the terms of the interim agreement.
IV. THE EFFECT OF.THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The unfair labor practice found above, occurring in
connection with the Respondent's business, has a close,
intimate, and substantial relationship to trade, traffic, and
commerce along the several States and tends to lead to
to labor disputes burdening and obstructing commerce
and the free flow thereof within the meaning of Section
2(6) and (7) of the Act.
V. THE REMEDY
Having concluded that the Respondent - engaged in an
unfair -labor practice, I shall recommend it cease and
desist therefrom and take certain, affirmative action nec-
essary to effectuate the policies of the Act, including res-
toration of all terms and conditions of the collective-bar-
gaining agreement to -which the Respondent and the
Union were parties pursuant to the settlement agreement
executed by them-on 10 February 1984. The Respondent
shall make whole all employees for any loss of wages or
other, rights and benefits they may have suffered as a
result of its unilateral action with interest as provided for
in Florida Steel Corp., 231 NLRB 651 (1977).2
The Respondent will also be ordered to make whole
all fringe benefit funds under the collective-bargaining
agreement for any losses they may.. have suffered as a
result of the Respondent' s unilateral implementation of
changes in the collective-bargaining agreement but with
interest computed in accordance with Merryweather Opti-
cal Co., 240 NLRB 1213 (1979).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Weathercraft Company of Topeka,
Inc.,.Topeka, Kansas , it officers, agents , successors, and
assigns,' shall
1. Cease and desist from
(a) Terminating or modifying a collective-bargaining
agreement with the Union until 30 days after it. has
served written notice upon the Federal Mediation and
Conciliation Service and the. Kansas Department of
Human Resources of its desire to terminate or modify
said agreement.
(b) 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 designed to ef-
fectuate the policies of the Act.
(a) Reinstitute-and abide by all terms and conditions of.
the collective-bargaining agreement to which the Re-
spondent became a party with the Union pursuant to the
settlement agreement dated 10 February 1984 and main-
tain in full force and effect- all terms and conditions of
said agreement until the notice and time limitations of
Section 8(d) of the Act have been complied with.
(b) On request negotiate and bargain with the Union as
the duly designated collective-bargaining representative
of its employees in the following appropriate unit within
,the meaning' of Section 9(b) of the Act:
All journeymen, helpers and foreman engaged' in
roofing work employed by the Respondent in Jack-
son, Shawnee, Osage, Coffey, Lyon, Jefferson, Wa-_
bunsee, Pottawatomie, Riley, Geary and Morris
Counties, Kansas, but excluding office clerical em-
ployees, professional employees, guards, -and super-
visors as defined in the Act and all other employ-
ees.
(c) Make whole all employees for any loss of wages 'or
other rights and benefits they may have suffered as a
result of the Respondent's unilateral change-in the terms
and conditions of the collective-bargaining' agreement on
or about 10 September 1984, with interest as provided
for in the remedy section above.
(d) In accordance with the remedy section, make
whole all • fringe benefit funds for ' any losses they may.
have suffered as a result of the Respondent's unilateral
modification of terms and conditions -of the collective-
bargaining agreement on or about 10 September-1984.
(e) 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 amount of backpay due under the
terms of this Order. -
(f) Post at its- facility in Topeka, Kansas, copies of the
attached notice marked "Appendix."4 - Copies of the
notice, on forms provided by the Regional Director for
Region- 17, after being signed by the Respondent's au-
thorized representative, shallbe posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days- in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices` are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
2 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
3 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
4 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 Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation- •
al Labor Relations Board " .
WEATHERCRAFT CO OF TOPEKA 455
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 or
dered us to post and abide by this notice
WE WILL NOT modify the terms and conditions of any
collective bargaining agreement with United Union of
Roofers Waterproofers and Allied Workers Local 20(b)
without first giving appropriate notice to the Federal and
state mediation services and complying with the notice
and time limitations provisions set forth in Section (d) of
the National Labor Relations Act
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL on request bargain with United Union of
Roofers Waterproofers & Allied Workers Local 20(b) as
a duly designated representative of all our employees in
the appropriate collective bargaining unit
WE WILL make whole of our employees for any losses
they may have suffered as a result of our modification of
terms and conditions of the collective bargaining agree
ment to which we were bound with interest
WE WILL make whole all fringe benefit funds for any
losses they may have suffered as a result of our unilateral
modification of terms and conditions of said collective
bargaining agreement
WEATHERCRAFT COMPANY OF TOPEKA
INC