Mar-Len Cabinets, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1982

262 N.L.R.B. 1398 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mar-Len Cabinets, Inc. and Orange County District
Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO.
Case 21-CA-16149
July 29, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On July 18, 1979, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding,' finding that Respondent had
violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, by its acts and
conduct with respect to two separate units of em-
ployees. The Board found that Respondent violated
Section 8(a)(5) and (1) by failing and refusing to
bargain in good faith and by unilaterally withdraw-
ing recognition from the Orange County District
Council of Carpenters, United Brotherhood of Car-
penters and Joiners of America (herein called the
Union), as the exclusive collective-bargaining rep-
resentative for a unit of all inside cabinet fabrica-
tors employed by Respondent at its Anaheim, Cali-
fornia, facility (herein called the inside employees).
The Board also found that Respondent violated
Section 8(a)(5) and (1) by unilaterally instituting
changes in wages and working conditions without
first complying with the notice requirements of
Section 8(d)(3) and (4) of the Act. The latter viola-
tion concerned only those employees of Respond-
ent represented by the Union in a unit of all outside
cabinet installers employed by Respondent at job-
sites in 11 California counties (herein called the
outside employees). The Board ordered Respond-
ent to cease and desist from its acts and conduct in
violation of the Act and to take certain affirmative
action. Thereafter the Board filed an application
for enforcement of its Decision and Order with the
United States Court of Appeals for the Ninth Cir-
cuit.
On October 19, 1981, the court of appeals issued
its decision. 2 The court affirmed the Board's find-
ings that Respondent violated Section 8(a)(5) and
(1) by its acts and conduct with respect to the unit
of inside employees. However, in its consideration
of Respondent's acts and conduct with respect to
the unit of outside employees, the court found that
the Board had not reached an issue which the
court deemed necessary to resolve whether a viola-
tion had occurred; that issue was whether a notice
given by the Union to the state and Federal media-
I 243 NLRB 523.
2 N.L.R.B. v. Mar-Len Cabinets, Inc., 659 F.2d 995.
262 NLRB No. 172
tion services was effective to notify the services as
to the existence of the dispute between Respondent
and the Union and thereby relieve Respondent of
its preexisting duty, as initiator of the dispute, to
notify the services. Accordingly, the court remand-
ed the case to the Board specifically to rule on the
issue.
The Board accepted the remand and advised the
parties that they could file statements of position.
Thereafter, both the General Counsel and Re-
spondent filed statements of position.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The relevant facts for an analysis of the remand-
ed issue are as follows. Respondent and the Union
were parties to a collective-bargaining agreement
covering Respondent's outside employees entitled:
"The Carpenters Eleven Southern Counties Memo-
randum Agreement" (herein called the memoran-
dum agreement or outside agreement). Pursuant to
the terms of the memorandum agreement, Re-
spondent agreed to comply with the terms of a
"Master Labor Agreement" negotiated by four em-
ployer associations and the United Brotherhood of
Carpenters and Joiners of America, except as cer-
tain terms of that agreement were excluded, and to
comply with the terms of a variety of benefit trust
fund agreements. The memorandum agreement
itself contained a paragraph relating to the term
and termination of the agreement, separate from
the term and termination provision in the Master
Labor Agreement, which read as follows:
This Memorandum Agreement shall remain
in full force and effect until June 15, 1977, and
shall continue from year to year thereafter,
unless either party shall give written notice to
the other of a desire to change or cancel it at
least sixty (60) days prior to June 15, 1977, or
June 15, of any succeeding year. All notices
given to the signatory parties to the Master
Labor Agreement by the Unions shall consti-
tute sufficient notice to the Contractor for the
purposes of this paragraph. The Contractor
and the Unions shall be bound by any renew-
als or extensions of the Master Labor Agree-
ment and the Trust Agreements, or any new
Agreements agreed to by the signatory parties
to the Master Labor Agreement unless an ap-
propriate written notice is given to the other
party at least sixty (60) days prior to June 15,
1977, or any subsequent year, of their intent
not to be bound by any new, renewed or ex-
tended Agreement.
1398
MAR-LEN CABINETS, INC.
The Board and the court found that, by letter
dated March 4, 1977, Respondent notified the
Union of its intention to terminate or substantially
modify the existing agreement between them, and
that it did not wish to continue to be bound by the
Master Labor Agreement but would bargain with
the Union on an individual basis. By letter dated
March 18, 1977, the Union notified Respondent
that it did not accept Respondent's "cancellation"
of their agreement. By letter dated March 22, 1977,
addressed to the four employer-association signa-
tories to the Master Labor Agreement, the South-
ern California Conference of Carpenters of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, notified the four associations
that it wished to reopen the Master Labor Agree-
ment. Copies of this March 22 letter were sent by
the Union to the state and Federal mediation serv-
ices. There was no reference to Respondent or to
Respondent's dispute with the Union in the March
22, 1977, letter. By letter dated March 23, 1977,
Respondent informed the Union that it was not
"cancelling" its agreement during its term but that
it intended not to renew its agreement with the
Union. By letter dated July 13, 1977, Respondent,
by its counsel, stated its willingness to negotiate a
successor agreement to the memorandum agree-
ment. At a negotiating meeting on August 4, 1977,
the Union took the position that Respondent did
not properly notify the Union of its intention to
terminate the memorandum agreement because it
had failed to notify the mediation services pursuant
to the requirements of Section 8(d)(3) of the Act.
The Union thereupon took the position that, be-
cause of the asserted 8(d) notification failure and in
accord with the renewal language in the memoran-
dum agreement, Respondent was bound by the
terms of a newly negotiated and ratified Master
Labor Agreement. By letter dated August 5, 1977,
Respondent replied that it did not consider itself
bound by the terms of the Master Labor Agree-
ment, that it remained willing to negotiate a new
agreement covering the unit of outside employees,
and that it intended to implement its negotiating
proposals for the outside employees as of August
15, 1977. On August 8, 1977, Respondent mailed
notices to the Federal Mediation and Conciliation
Service and the California State Conciliation Serv-
ice informing those agencies of the existence of a
labor dispute between Respondent and the Union
concerning the outside employees. Up until that
date, Respondent had not notified either the state
or the Federal mediation services of its dispute
with the Union concerning the outside agreement.
On August 19, 1977, Respondent unilaterally imple-
mented its proposed contract changes, thereby
changing the wages and benefits of the outside em-
ployees and eliminating the union-security require-
ment.
Based upon these facts, we affirmed the Admin-
istrative Law Judge's Decision finding that Re-
spondent changed terms and conditions of employ-
ment for its outside employees without providing
notice to the state and Federal mediation services
30 days prior to such changes.
Upon review, the court rejected three of Re-
spondent's contentions and found that the 8(dX4)
waiting period applies to changes in terms and con-
ditions of employment as well as the institution of a
strike or lockout, that the Union's "refusal to bar-
gain" on the outside agreement did not relieve Re-
spondent of its 8(d)(3) obligations, and that the
Union's rejection of Respondent's initial notice did
not shift the burden of the 8(d)(3) obligation which
Respondent had as the initiating party nor did it
place the Union in the position of the initiating
party in the dispute.
However, while accepting that the initiating
party bears the burden of sending 8(d)(3) notices,
the court allowed for the possibility that the non-
initiating party, by sending effective 8(d)(3) notice,
may fulfill the purpose of 8(d)(3) "to give the me-
diation services time to intervene in an effective
manner." 659 F.2d at 998. The court found that
prior cases "hold only that the initiating party must
bear the adverse consequences if no notice is given,
or the notice given is untimely" and that "[n]o
court has held that the initiating party must send a
second notice when the non-initiating party has al-
ready notified the mediation agencies." In remand-
ing the case to the Board to rule on "the effective-
ness of the notification given to the mediation serv-
ices by the union," the court particularly noted,
"The initiating party remains at risk, however, if
the notice sent by the other party was ineffective
to apprise the mediation services of the particular
dispute."
Having accepted the remand of this case, we
accept the court's findings and conclusions as the
law of the case.
In its statement of position, Respondent main-
tains that, pursuant to the term and termination
provision of the memorandum agreement, Re-
spondent appointed the signatory parties to the
Master Labor Agreement as its agent to receive all
notices from the Union, including 8(dX3) mediation
notices. Directly from that proposition, Respondent
argues that the Union's March 22, 1977, letter
which was copied to the mediation services "was
therefore effective notice to the mediation services
of contract termination or modification with regard
to the Respondent." The General Counsel asserts
1399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent was not at any material time a
member of the signatory employer associations ad-
dressed in the Union's March 22, 1977, notice, that
any negotiations between Respondent and the
Union were necessarily separate from those be-
tween the Union and the signatory employer asso-
ciations, and that the Union's March 22, 1977,
notice did not constitute notice to the mediation
services of the existence of a dispute with Re-
spondent.
On the basis of the entire record,3 we find that
the Union's March 22, 1977, letter was not effec-
tive notification to the mediation services of the
dispute between Respondent and the Union. It is
clear that effective notice, as the court contemplat-
ed it, was such as to specifically inform the media-
tion services of the dispute between Respondent
and the Union. The Union's March 22 notice in-
formed the mediation services only of the dispute
involving the parties to the Master Labor Agree-
ment. H vowever, as of the time that notice was sent,
Respondent had initiated bargaining with the
Union on an individual basis and thereby created a
separate dispute. Thus, Respondent, having ex-
pressed the intent not to be bound by any new, re-
newed, or extended Master Labor Agreement, pur-
suant to the provisions of its memorandum agree-
ment with the Union, insured that it would not
contractually be bound by negotiations for a new
Master Labor Agreement, and the Union's notices
to the mediation services pertaining to the Master
Labor Agreement were therefore inapplicable to it.
That the dispute between Respondent and the
Union was a separate dispute is manifest from its
continuance long after the parties to the Master
Labor Agreement had settled their dispute and
reached agreement on a new contract. Therefore, it
is apparent that the Union's March 22 notice,
which included no reference to Respondent or to
the dispute with Respondent, was not sufficient to
alert the mediation services of the separate ongoing
dispute between Respondent and the Union so as to
enable them to intervene.
3 Respondent submitted that the Board should not decide the issue
against it without first reopening the record and permitting Respondent
to call witnesses from the mediation services "to establish" the following:
"that it is general knowledge in the Southern California area that the
Union, in sending 8(dX3) notice to the mediation services of contract ter-
mination or modification with respect to the employer associations, also
intended to give notice to the mediation services with regard to all indi-
vidual memorandum agreement employers" Assuming, arguendo, that
witnesses employed by the Federal Mediation and Conciliation Service
were permitted to testify and assuming further that testimony of such
FMCS witnesses was received to establish knowledge of such intention
on the part of the Union. we do not believe that such evidence would in
any way alter our conclusions about the effectiveness of the notice Ac-
cordingly, and in view of our further conclusion that the existing record
provides a sufficient basis to resolve the issue raised by the court, we find
it unnecessary to reopen the record for a hearing before ail administrative
law judge.
Thus, we find that Respondent's obligations
under Section 8(d)(3) and 8(d)(4) remained unaf-
fected by the Union's March 22 notice. According-
ly, we hereby reaffirm our prior conclusion that
Respondent engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act by
unilaterally implementing its bargaining proposals
for employees in the outside unit without providing
to the mediation services timely notice of its dis-
pute with the Union. Accordingly, we hereby
affirm and reissue those portions of our prior Order
in this case at 243 NLRB 523, 539, which were not
heretofore enforced by the court and substitute the
attached notice to correspond with our reissued
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Mar-Len Cabinets, Inc., Anaheim, California, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the
Union by unilaterlly implementing and giving
effect to collective-bargaining proposals covering
wages, hours, and terms and conditions of employ-
ment of employees in the outside unit, without
fully complying with the requirements of Section
8(d)(3) and (4) of the Act, at a time when the
Union retained the right to be recognized as the ex-
clusive collective-bargaining representative of the
outside employees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed under Section 7 of the
Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the purposes of the
Act:
(a) Make whole all outside employees for any
loss of wages or benefits incurred by them as a
result of Respondent's unilateral implementation of
its bargaining proposals covering outside employ-
ees prior to September 8, 1977, with interest as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, 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.
1400
MAR-LEN CABINETS, INC.
(c) Post at its Anaheim, California, shop or facili-
ty copies of the attached notice marked "Appen-
dix." 4 Copies of said notice, on forms provided by
the Regional Director for Region 21, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
4 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
gaining proposals submitted to the Union as
bargaining representative for our outside em-
ployees, and by failing to continue to fully
comply with all the terms and conditions of an
existing collective-bargaining agreement with
the Union, or any other labor organization, for
the required period of time after giving notice
to the Federal Mediation and Conciliation
Service and the California State Conciliation
Service, as provided by Section 8(d) of the
National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL make whole all our outside em-
ployees for any loss of wages or benefits they
may have suffered as a result of our unilateral
implementation of our collective-bargaining
proposals covering outside employees prior to
September 8, 1977, on which date full compli-
ance with the notice requirements of Section
8(d) of the Act would have been achieved,
with interest.
MAR-LEN CABINETS, INC.
WE WILL NOT refuse to bargain collectively
with the Union, in violation of Section 8(aX5)
of the National Labor Relations Act, as
amended, by unilaterally implementing bar-
1401