Wm. Kugler & Bro., Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1971

193 N.L.R.B. 427 (N.L.R.B. 1971)

WM. KUGLER & BRO., INC. 427
Wm. Kugler & Bro., Inc. and International Union of
Operating Engineers , Local Union No . 463 and
463-C , AFL-CIO. Case 3-CA-4343
September 29, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 16, 1971, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the
Union filed exceptions to the Trial Examiner's
Decision, the General Counsel filed a supporting
brief, and the Respondent filed an answering brief.
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, the briefs, and
the entire record i in the case, and, except as indicated
in the margin, hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be , and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On January 7, 1971,
International Union of Operating Engineers, Local 463 and
463-C, AFL-CIO, hereinafter called the Union, filed a
charge with the Regional Director for Region 3 of the
National Labor Relations Board, hereinafter called the
Board, alleging that Wm. Kugler & Bro., Inc., hereinafter
called Respondent, violated Section 8(a)(1) and (5) by
various acts and conduct. On March 19, 1971, the said
Regional Director issued a complaint alleging that
Respondent has failed and refused to bargain with the
Union by bypassing the Union and bargaining directly with
employees and by repudiating and rescinding contract
provisions previously agreed upon in the course of
negotiations on January 6 and again on February 11, 1971.
By an answer duly filed the Respondent admitted various
allegations of the complaint but denied the commission of
any unfair labor practices. The matter came on for hearing
before me on April 29, 1971, in Buffalo, New York. All
parties were present and represented by counsel, All parties
had an opportunity to call witnesses and examine and
cross-examine them, to adduce relevant and matenal
evidence, to argue on the record and to file briefs. Briefs
have been received from the Charging Party and the
Respondent.
Upon the entire record in this matter and in considera-
tion of the briefs I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
It is alleged and admitted that Respondent is a New York
corporation engaged in the salvaging, processing, sale and
distribution of scrap metal and paper at two plants located
near Lockport, New York. Respondent annually salvages,
processes, sells and distributes, at its two Lockport plants,
products valued at about $300,000 of which products
valued in excess of $100,000 are shipped from said plant
directly to States of the United States other than the State
of New York. Respondent is now and has been at all times
matenal herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. I so find.
II. THE LABOR ORGANIZATION INVOLVED
i As the record, exceptions, and briefs in our opinion adequately
present the issues and the positions of the parties, the General Counsel's
request for rehearing is hereby denied
2 We do not pass on the alleged illegality of the Union's proposed
checkoff clause, or on the Union's argument that this matter was not
properly before the Trial Examiner or fully litigated, since we find in any
event insufficient evidence that the parties had reached final understanding
on the terms of a contract It is clear the parties had not agreed on either
the general or particular language of a checkoff clause, and the Trial
Examiner seems not to have discredited testimony by Respondent that no
agreement at all was reached on checkoff The clause as presented by the
Union appears, on its fact, ambiguous In view of this, and the more
general confusion about the agreement that even the Union's steward
admitted to having (see In I of the Trial Examiner's Decision), we are
unable to find the General Counsel sustained his burden of proving that
final agreement had been reached. We rely only on the foregoing in
adopting the Trial Examiner's dismissal of this allegation of the complaint
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Union has, at least since 1967, represented a unit
consisting of all crane operators, burners, press operators,
shear operators, metal sorters, maintenance employees,
laborers and mechanics employed at the Respondent's
Lockport Junction and West Genesee plants, excluding all
office clerical employees, professional employees, guards
and supervisors as defined in the Act and all other
employees, which I find to constitute a unit appropriate for
the purpose of collective bargaining within the meaning of
193 NLRB No. 64
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 9(b) of the Act. The Union was certified by the
National Labor Relations Board October 9, 1967, as the
representative of the employees in this unit. Thereafter it
entered into a collective-bargaining agreement with the
Respondent which, by its terms, expired on November 30,
1970.
In mid-November 1970 the Union requested Respondent
to bargain for a new contract. At the same time it
demanded that Respondent discharge five employees who
had not complied with the union-security clause of the
expiring contract. The Employer, after giving each of the
five employees an opportunity tojoin the Union, which was
declined by the employees, discharged them and so
announced to the Union a week later. For personal reasons
a collective-bargaining session which was scheduled before
the expiration of the contract had to be put off until
December 12, 1970, at which time the parties met.
The spokesman for the Respondent was John F. Kugler,
the president of the Company. At the negotiating session,
according to the credible testimony of the Union's business
agent, Eugene McCarthy, Kugler informed the union
committee that he had to go into the hospital almost
immediately and had no idea how long he would be there
and that he wanted to conclude an agreement prior to his
entry into the hospital. The Union supplied a list of 19
subjects on which it desired to negotiate and the Employer
supplied a list of subjects on which it chose to negotiate.
Bargaining went on for about 4 hours, apparently in a very
confused state, with various provisions being taken up and
discussed, dropped in favor of other discussions and then
taken up again.
At the end of the negotiation on December 12 the
Employer offered a wage raise of 43 cents for the first year
and 42 cents for the second year of a 2-year contract with a
participating hospitalization insurance to remain as it then
existed. The parties agreed that almost all issues were
resolved between them. The Respondent contends that
another issue with regard to dues deductions was not
agreed upon. The Union contends that the Respondent
agreed that it would deduct dues from all employees and
turn them over to the Union monthly and that to meet the
Employer's complaint that dues deduction was expensive to
the Company, the Employer would be privileged to collect
a 1-percent surcharge for the money it collected, that is, it
would be entitled to tack on I-percent service fee for
collection of the dues.
The Union agreed to take the wage offer to the employees
and the parties agreed to meet again after Mr. Kugler was
released from the hospital. While Mr. Kugler testified that
he had no recollection of the matter being mentioned, I find
that his partner, Mr. Clark, agreed with the Union's
business agent that any wage raise would be retroactive to
December 14.
On December 14, according to the testimony of Kugler,
some employees came to him and asked him dust what his
wage raise offer was, stating that the shop steward had told
them about it and did not appear to understand it. Kugler
called the shop steward and one of the employees into his
office and explained to the shop steward precisely what his
I The shop steward on the witness stand admitted that he was confused
about the precise offer of Respondent
wage offer was and told him to go ahead and inform the
employees and poll them as to its acceptability.'
The parties met again on January 6. The Union's business
agent, McCarthy, brought with him a document that he
himself had prepared purporting to contain the full
agreement between the parties and asked Kugler to sign it.
McCarthy stated that the Union was prepared to accept the
Respondent's wage offer. Kugler declined to sign the
document and stated that he had not agreed to the dues-
deduction clause and was not satisfied with it. After
considerable discussion and further negotiation the parties
again reached agreement on all but the dues-deduction
clause and apparently, although it is not clear in the record,
the Union announced that it would strike. After the strike
commenced both parties shifted their positions in various
respects.
The General Counsel contends that the interview
between Kugler and the shop steward on December 14, as
recited above, constituted an attempt to circumvent the
Union and to bargain individually with the employees. I am
not convinced that the evidence reveals that such was the
case. As I see it Kugler did no more than straighten out the
confusion of the shop steward with regard to his offer and
send him on his way to poll the employees as the Union had
stated would be done. There was no attempt, revealed in
the evidence, on the part of Kugler to change any
agreement reached with the Union or to do anything other
than make clear what his offer had been. I shall recommend
that the complaint insofar as this is alleged to be a violation
be dismissed.
The General Counsel contends that by withdrawing from
the tentatively agreed-upon proposal regarding dues
deduction without good cause Respondent evidenced a
lack of good-faith bargaining in violation of Section 8(a)(5).
Generally speaking this legal principle is well established.2
However, in the instant circumstances other considerations
must prevail. The record contains the document which was
presented on January 6 by the Union to Respondent. The
document purports to be an agreement which provides for
amendments to the last prior contract. Paragraph 6 thereof
is the paragraph relating to the dues checkoff which Kugler
testified was the sole issue remaining and was the issue that
prevented agreement on January 6. That paragraph states
as follows:
Dues and Application check-off shall be the
responsibility of the Wm. Kugler & Bro., Inc. and shall
be paid monthly to Local 463 and the Company shall be
solely responsible in this matter. The Company is
granted the privilege of charging 1% per month for each
employee working under this contract.
As I read this article it appears to me to be ambiguous
and, resolving the ambiguity against the party who caused
the document to be drafted, that is to say the Union,
unlawful. The paragraph appears to require Respondent to
force its employees to sign checkoff authorizations or to
check the moneys off without authorizations, either of
which are actions by Respondent that would be unlawful,
and grants Respondent the "privilege" of assessing an
additional 1 percent against the employees for so doing.
2 American Seating Company of Mississippi v. N L.R B, 424 F.2d 106
(C.A 5), and cases there cited
WM. KUGLER & BRO., INC.
A further provision of the purported agreement reads as
follows:
13. The Company shall immediately reimburse Local
463 if any of the following men are hired in any capacity
other than clerical for the full initiation fee. One or
more days shall make the Company responsible for the
following: Jack Carew; Kenny Miller; Andy Clinch; Eli
Nelson; Leroy Buncy.
This paragraph too appears to be unlawful in its intent,
providing that full initiation fee shall be paid for any of the
five men3 even though they should work only a few days.
This would appear to be an exaction illegal under Section
302 of the Act.
I cannot find Respondent guilty of a refusal to bargain in
withdrawing from an illegal agreement, for no matter what
reason . It does not appear that Kugler viewed either of the
provisions recited above as unlawful nor was the matter
raised in the trial of this matter in any regard. Nevertheless
in my opinion Respondent was not only privileged to
withdraw from an agreement containing illegal language, as
set forth above, but was under a duty to do so.
Finally the General Counsel contends that at a negotiat-
ing meeting on February 11, 1971, Respondent again
violated the Act by repudiating and rescinding all contract
provisions which were previously agreed upon in the course
of negotiations. At this time the parties had changed their
position in various respects and the Union continued to
press for its agreement for dues deduction. The agreements
429
from which Respondent withdrew, according to the
testimony of the Union' s business agent , McCarthy, are the
same agreements which the Union contends Respondent
repudiated and rescinded on January 6 and include the two
set forth above. I am not convinced that the purposes of the
Act would be fulfilled by issuing a bargaining order under
the circumstances of this case. As far as the record reveals
the Union has at all times since December 12 insisted on
the inclusion in the contract of the illegal provisions I have
found. This in itself is warrant for Employer to decline to
bargain thereupon. Accordingly I shall recommend that the
complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
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. The General Counsel has not shown by a preponder-
ance of the evidence that any unfair labor practice was
committed by Respondent.
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its
entirety-
3 Presumably these are the five men discharged by the Employer in
November at the demand of the Union