Dynatron/Bonds

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1170 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170
Dynatron/Bondo Corporation and Union of Nee-
dletrades, Industrial and Textile Employees,
AFL–CIO. Case 10–CA–29735
September 30, 1998
ORDER REMANDING PROCEEDING TO
ADMINISTRATIVE LAW JUDGE
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
On February 25, 1998, Administrative Law Judge
Keltner W. Locke delivered a bench decision and certifi-
cation in this proceeding. The General Counsel, the
Charging Party, and the Respondent each filed excep-
tions and a supporting brief, and the Respondent filed an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the bench decision and the
record in light of the exceptions and briefs and has de-
cided to remand this proceeding to the judge for further
consideration as set forth below.
The complaint alleges that the Respondent unilaterally
implemented the wage and group health insurance pro-
posals that had been contained in its final bargaining
proposal to the Union, at a time when prior unfair labor
practices committed by the Respondent remained unre-
medied.1 The judge, finding that the Respondent had not
yet complied with the Board's Orders in those cases, con-
cluded that there could be no lawful impasse in the pres-
ence of unremedied unfair labor practices, and therefore
that the Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally implementing its contract propos-
als without notice to or bargaining with the Union.
In its exceptions, the Respondent contends that it was
improper for the judge to issue a bench decision because
the issues involved herein require a thorough analysis
which the judge did not provide. The Respondent claims
that the judge failed to consider evidence of the parties'
bargaining history in finding that no impasse existed, and
failed to determine if there was a causal connection be-
tween the prior unfair labor practices and the deadlock in
negotiations. We find merit in the Respondent's argu-
ments, and we shall remand this proceeding to the judge
for a full analysis of the issues involved herein.
In Taft Broadcasting Co.,2 the Board set forth the fol-
lowing guidelines for determining the existence of an
impasse:

The bargaining history, the good faith of the parties in
negotiations, the length of the negotiations, the impor-
tance of the issue or issues as to which there is dis-
agreement, the contemporaneous understanding of the
parties as to the state of negotiations are all relevant
factors to be considered in deciding whether an im-
passe in bargaining existed.

1 See Dynatron/Bondo Corp., 323 NLRB 1263 (1997), and Dyna-
tron/Bondo Corp., 324 NLRB 593 (1997).
2 163 NLRB 475, 478 (1967), petition for review denied sub nom.
Television Artists AFTRA v. NLRB, 305 F.2d 622 (D.C. Cir. 1968).

It is well established, however, that an employer may
not declare impasse “if the impasse is reached in the con-
text of serious unremedied unfair labor practices that
affect the negotiations.”3 In other words, for the judge to
conclude that the unremedied unfair labor practices pre-
vented the parties from reaching lawful impasse, he must
first find that there was a causal connection between the
previous unfair labor practices and the failure to reach an
agreement.
The record contains evidence of the parties' extensive
bargaining, which the judge failed to discuss. Further,
the judge's brief discussion contains no explanation for
why he believed the bargaining was adversely affected
by the Respondent's prior unfair labor practices.
In sum, we find that the bench decision lacks sufficient
rationale. Therefore, we shall remand this proceeding to
the judge for a written analysis of the facts and legal
precedent relevant to all the issues presented in this case.
ORDER
IT IS ORDERED that this proceeding is remanded to
Administrative Law Judge Keltner W. Locke for the pur-
poses described above.4
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board's Rules and Regulations shall be
applicable.

Katherine Chahrouri, Esq., for the General Counsel.
Douglas Duerr, Esq., Walter O. Lambeth Jr., Esq. (Elarbee,
Thompson & Trapnell), of Atlanta, Georgia, for the Re-
spondent.
David M. Prouty, Esq., for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case in Atlanta, Georgia, on January 20, 1998.1 At the conclusion
of the hearing and after all parties had received the opportunity to
present oral argument,2 I issued a bench decision pursuant to Sec-
tion 102.35(a)(10) of the Board's Rules and Regulations, setting
forth findings of fact and conclusions of law. In accordance with
Section 102.45 of the Rules and Regulations, I certify the accu-
racy of, and attach hereto as “Appendix A,” the portion of the
3 Noel Corp., 315 NLRB 905, 911 (1994) (emphasis added), enf. de-
nied on other grounds 82 F.3d 1113 (D.C. Cir. 1996).
4 In remanding this case, we are not passing on any of the other is-
sues raised by the parties' exceptions at this time.
1 Certain errors in the transcript are noted and corrected.
2 The General Counsel and the Charging Party made oral arguments
at the hearing. The Respondent declined.
326 NLRB No. 107
DYNATRON/BONDO CORP. 1171
transcript containing this decision. The remedy, Order, and notice
to employees are set forth below3
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act, described below in the recommended Order,
including posting the notice to employees attached hereto as Ap-
pendix B.
I hereby issue the following recommended4
ORDER
The Respondent, Dynatron/Bondo Corporation, of Atlanta,
Georgia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Making unilateral changes in its employees' wages and
group health insurance without providing the Charging Party ade-
quate notice of the proposed changes and adequate opportunity to
bargain about them.
(b) In any like or related manner interfering with, restraining, 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) At the Charging Party's request, rescind the changes it made
on or about October 25, 1996, by implementing its wage and
group health insurance proposals unilaterally, and restore the
terms and conditions of employment pertaining to wages and
group health insurance which were in effect before it unlawfully
changed them.
(b) To the extent that any employee was affected adversely be-
cause of the changes in wages and group health insurance which
the Respondent made unilaterally on about October 25, 1996, the
Respondent shall make each such employee whole, with interest,
for all losses the employee suffered because of the unlawful
changes.
(c) Preserve and, upon request, make available to the Board or
its agents for examination a copy of all payroll records, social
security records, time cards, personnel records and reports, and all
other records necessary to analyze the amount of back pay which
may be due under this order.
(d) Within 14 days after service by the Region, post at its
facilities in Atlanta, Georgia, copies of the attached notice marked
“Appendix B.” Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by the Re-
spondent's authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own

3 For clarity, I have revised the wording of the Order, as read at the
hearing.
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.
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since October
25, 1996.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official on
a form provided by the Regional Director attesting to the steps that
the Respondent has taken to comply.
APPENDIX A
60
(Time Noted: 4:23 p.m.)
JUDGE LOCKE: On the record.
This is a bench decision in the case of Dynatron/Bondo Cor-
poration and Union of Needle Trades, Industrial and Textile
Workers, AFL–CIO. The case number is 10–CA–29735, a de-
cision, pursuant to Section 102.35, subparagraph 10, and Sec-
tion 8 102.45(a) of the Rules and Regulations of the National
Labor Relations Board.
The General Counsel, by the Regional Director of Region 10
of the Board, issued a complaint and notice of hearing in this
matter on May 30, l997. Respondent filed an answer dated June
13, 1997.
In its answer, the Respondent admitted the following com-
plaint allegations, which I find to be true. Respondent admitted
that the charge in this proceeding was filed by the union on
November 8, 1996 and a copy was served by first class mail on
Respondent on November 8, 1996.
Respondent admitted that at all times material, Respondent, a
Georgia corporation, with an office and place of business in
Atlanta, Georgia, herein called Respondent's facility, has been
engaged in manufacturing automobile filler and other automo-
tive parts.
Respondent admitted that during the 12–month period pre-
ceding issuance of the complaint, the Respondent, in
61
conducting its business operations, sold and shipped from its
Atlanta, Georgia facility goods valued in excess of $50,000
directly to points outside the State of Georgia.
I find that at all material times, Respondent has been an em-
ployer engaged in commerce within the meaning of Section 226
and 7 of the Act.
Respondent also admitted that at all material times, the union
has been a labor organization within the meaning of Section 2.5
of the Act. Respondent admitted that all production and main-
tenance employees employed by Respondent at its Atlanta,
Georgia facility, including all quality control technicians, but
excluding all-office clerical employees, technical employees,
laboratory and professional employees, guards and supervisors,
as defined in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of Section
9(b) of the Act. I so find.
Respondent also admitted that on September 8, 1989, in an
election by secret ballot, conducted under the supervision of,
the Regional Director of the 10th Region of the National Labor
Relations Board, a majority of employees in this unit desig-
nated the union as their representative for the purpose of collec-
tive bargaining with Respondent with respect to rates of pay,
wages, hours of employment and other terms and conditions of
employment. I so find.
Respondent further admitted that on June 5, l99l, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1172
62
Respondent certified the union—I'm sorry—that the Board
certified the union as the exclusive collective bargaining repre-
sentative of all the employees in the unit I have just described,
and, find that to be the case.
Respondent, as I mentioned, has admitted all of these allega-
tions and find them to be true.
Paragraph 10 of the complaint alleges that on or about Octo-
ber 25, 1996, Respondent implemented wage and group health
insurance proposals that had been contained in its final bargain-
ing proposal to the union regarding the terms and conditions of
employment of the employees in the unit.
Respondent's answer admits that it has implemented the
wage and group health insurance proposals contained in its
final bargaining proposal. I find that it has and that it did so on
or about October 25, 1996.
Respondent's answer does contend that this implementation
led to lawful impasse to the union regarding the terms and con-
ditions of employment of the employees in the unit.
In view of these admissions in Respondent's answer, I find
that the Respondent, on or about October 25, 1996, imple-
mented a wage and group health insurance proposals that have
been contained in its final bargaining proposal to the union, as
alleged in the complaint.
Paragraph 11 of the complaint, as amended at the hearing to
correct a typographical error in the case citation, alleges that
63
Respondent engaged in misconduct; that is, that it implemented
the wage and group health insurance proposals that had been
contained in its final bargaining proposal to the union unilater-
ally and without the consent of the union and at a time when its
unfair labor practices in Cases 10–CA–25736, et al, and 6
10-CA-29014 remained unremedied. Respondent denies these
allegations.
However, it is undisputed that the Board's July 16, 1997 de-
cision in Dynatron/Bondo Corporation, reported at 323 NLRB
No. 217, a copy of which is in evidence as General Counsel's
Exhibit 2, involves Case 10–CA–25736, referred to in the com-
plaint, as amended. It is also undisputed that the Board's Sep-
tember 30, 1997 decision in Dynatron/Bondo Corporation,
reported at 324 NLRB No. 98, a copy of which is in evidence
as General Counsel's Exhibit 3, involves Case 10–CA–29014,
referred to in the complaint.
Additionally, at the hearing today, Respondent stipulated that
it, quote, “has taken no affirmative steps to remedy the l9 unfair
labor practices as set forth in the Board's decision dated July
16, 1997 and September 30, 1997, except that with respect to
the orders, there has been no renewed request to bargain since
the date of the orders.”
Based upon the stipulation and the final representations of
Respondent's counsel during the hearing, I find that the Re-
spondent has not complied with the Board's orders in these two
64
published decisions and, therefore, I conclude that the unfair
labor practices found by the Board in those cases have not been
remedied.
Also, based upon the representations of Respondent's coun-
sel at the hearing today, I find that the Respondent has not ap-
pealed the Board's decisions and orders in the cases before me
at 323 NLRB 1263 and 324 NLRB 572, even though it has the
right to do so under Section 10 of the National Labor Relations
Act.
Therefore, I find that the Respondent has not remedied the
unfair labor practices found by the Board in those cases.
Additionally, I conclude that the Board's findings in those
cases are res judicata and binding in this proceeding.
In view of the admissions by Respondent and the stipulations
of Respondent and the representations of Respondent's counsel
on the record at this hearing and considering the findings of fact
made by the Board in the cases published at 323 NLRB No.
217 and 324 NLRB No. 98, I conclude that the only issue in
dispute in this proceeding is whether or not the Respondent
lawfully could implement wage and group health insurance
proposals described in the complaint, paragraph 10, at the time
it implemented those proposals on or about October 25, 1996.
Based upon the testimony of the General Counsel's only wit-
ness, Mr. Harris L. Raynor, the union's chief negotiator in
65
its bargaining with the Respondent, I find that the union did not
at any time agree or give permission for the Respondent to
implement these proposals.
Respondent called no witnesses to contradict Mr. Raynor and
credit his testimony.
Therefore, I conclude that if Respondent's implementation of
these proposals was lawful, it was on the basis of a legal princi-
ple such as waiver or based upon the existence of a bona fide
impasse and circumstances untainted by Respondent's unfair
labor practices.
These questions appear to be limited in scope and quite ap-
propriate for resolution by bench decision.
One week ago, during a telephone conference call with the
parties' attorneys, on January 13, 1998, I advised counsel that I
was considering issuing a bench decision in this case. I invited
counsel to submit pre-hearing memoranda by facsimile on or
before close of business Friday, January 16, 1998, with service
by facsimile on opposing counsel at the same time.
Neither the charging party nor the Respondent filed a memo-
randum. The General Counsel submitted a pre-hearing memo-
randum on January 16, 1998, with a certificate of service indi-
cating that a copy had been served by facsimile on counsel for
Respondent.
In oral argument today, counsel for the General Counsel
cited the same cases which she had cited in the pre-hearing
66
memorandum. In these circumstances, I do not find that issu-
ance of a bench decision denies the Respondent the right to
respond effectively.
Additionally, and as counsel for the Respondent pointed out
on the record, the Respondent did submit evidence in the form
of joint exhibits, which include the Respondents bargaining
notes during its negotiations with the union.
I will assume that Respondent is familiar with its own bar-
gaining notes and had the opportunity to make any arguments it
wished to make about that evidence.
In sum, the facts in this case are largely undisputed and have
been known for some time. The government has not advanced a
novel legal theory. Therefore, I conclude that it will not preju-
dice the Respondent for me to issue a bench decision.
It has long been settled that during the course of negotiations
for a new collective bargaining agreement, an employer ordi-
narily may not lawfully change terms and conditions of em-
DYNATRON/BONDO CORP. 1173
ployment unilaterally, although certain exceptions may apply.
The Respondent here does not claim any sort of business emer-
gency or exigent circumstances which might create an excep-
tion to the general rule.
However, the Respondent does claim, as stated in paragraphs
10 and 11 of its answer, that it had reached a lawful impasse in
bargaining and because of this impasse, could implement the
wage and group health insurance proposals unilaterally, without
67
violating the Act.
However, if the evidence shows the bargaining process is felt
to have been adversely affected by employer's unfair labor
practices, the parties cannot reach a valid bargaining impasse;
see Inter Mountain Rural Electric Association, 305 NLRB 783
at 789.
In the case of Columbian Chemicals Co., 307 NLRB 592, at
footnote one, the Board stated that an employer's application of
the unilaterally implemented policy to employees would pre-
clude a finding that the employer had bargained in good faith to
impasse after implementing that policy.
In Dynatron/Bondo Corporation, 323 NLRB 1263, issued
July 16, 1997, the Board found that the Respondent herein had
made unlawful unilateral changes, including discontinuing its
past practice of granting merit raises, increases its unit employ-
ees' contributions to their health insurance program, and impos-
ing a total smoking ban.
In Dynatron/Bondo Corporation, 324 NLRB 572, issued
September 30, 1997, the Board found, among other violations,
that the Respondent herein had unlawfully made a number of
unlawful changes in working conditions unilaterally, including
unilaterally instituting new disciplinary rules, changing its
parking policy and creating a new policy for employees' com-
pensation during power outages.
I find that because of these unilateral changes, there
68
could be no lawful impasse in this case.
Additionally, in view of all the unfair labor practices found
in these prior cases and in view of Respondent's action in this
case, the charging party did not waive any rights.
Respondent sent an October 23, 1996 letter to the union stat-
ing, in part, quote, “It is clear further meetings are futile and we
are at impasse,” Joint Exhibit 8. The union's reply included
both “I continue to await your availability for future meetings,”
Joint Exhibit 9.
Therefore, I note that in the Respondent's own words, further
meetings were futile. Considering all the circumstances, I con-
clude that the union waived no rights and to require the union
to make repeated demands upon the Respondent for further
bargaining would be to expect it to engage in a futility. The law
does not require that the union engage in a futility.
I find that the Respondent and employer engaged in com-
merce is within the meaning of Section 26 and 7 of the Act,
failed to bargain in good faith with the charging party, which
has been, at all material times, the certified representative of
Respondent's employees in the bargaining unit alleged in the
complaint.
I find that Respondent violated Section 8(a)(5) and (1) of the
Act in the manner alleged in the complaint.
I further find that the Respondent's unlawful—I'm sorry
69
—that the Respondent's unfair labor practices alleged in the-
complaint affect commerce within the meaning of Section 26
and 7 of the Act.
In the certification of this bench decision, I shall recommend
that the Respondent shall cease and desist from making unilat-
eral changes in employees wages and group health insurance
without providing the charging party adequate notice of the
proposed changes and adequate opportunity to bargain about
them.
The Respondent shall not, in like or related manner, interfere
with, restrain or coerce employees in the exercise of rights
guaranteed by Section 7 of the Act.
The Respondent shall also take the following affirmative ac-
tions; request to bargain collectively with the Union of Needle
Trades, Industrial and Textile Employees, AFL–CIO, as exclu-
sive collective bargaining representative of the employees in
the appropriate bargaining unit described in the complaint and
if an understanding is reached, embodying their understanding
in a signed contract.
It shall also, to the extent that employees were adversely af-
fected by the unlawful unilateral changes it made in the em-
ployees' wages and group health insurance, restore the previous
terms which were in effect and make employees whole for any
losses that they may have suffered because of the unlawful
unilateral changes.
70
I shall not recommend that the Board require Respondent to
rescind any unilateral change which is more favorable to the
employees, unless the union shall request it. However, should
the charging party request it, Respondent shall restore the wage
and group health insurance terms as they existed before the
unlawful unilateral changes took place.
The Respondent shall preserve and, upon request, make
available to the Board or its agents for examination a copy of
all payroll records, social security records, time cards, person-
nel records and reports, and all other records necessary to ana-
lyze the amount of back pay which may be due under this or-
der.
Respondent shall post at its Atlanta, Georgia facility a notice
which shall be specified in my certification of this bench deci-
sion to the Board. That certification shall contain the additional
provisions regarding notification to employees of this decision
and notification to the Regional Director of compliance with its
order.
The time period for appeal of my decision does not begin to
run until my notice of certification of the bench decision is
issued.
So I will try to get that certification just as quickly as I can
upon receipt of the written transcript.
The hearing is closed. Thank you very much.
(Whereupon, at 4:40 p.m., the hearing was concluded.)
APPENDIX B
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1174

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT make changes in the wages or group health in-
surance of our employees in the bargaining unit represented by
the Union of Needletrades, Industrial and Textile Employees,
AFL–CIO, without providing the Union adequate notice of the
proposed changes and adequate opportunity to bargain about
them.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, if requested by the Union, rescind the changes we
made by implementing our wage and group health insurance
proposals unilaterally, without the Union's agreement, and re-
store the terms and conditions of employment pertaining to
wages and group health insurance which were in effect before it
unlawfully changed them.
WE WILL, to the extent that any employee was affected ad-
versely because of the changes we made in wages and group
health insurance, make each such employee whole, with inter-
est, for all losses the employee suffered because of the unlawful
changes.
DYNATRON/BONDO CORPORATION